USA v. Wells

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA
Plaintiff,
vs.
JAMES MICHAEL WELLS,
Defendants.
3:13-cr-00008-RRB-JDR
ORDER
REGARDING
MOTION TO EXCUSE SECOND
DEFENSE COUNSEL
(Docket 112)
The United States moves the court to vacate the order appointing a second
defense counsel in this prosecution. See Motion to Excuse Second Defense Counsel,
Docket 112. 	The motion is opposed by the defendant, Docket 115. 	Upon due
consideration the government’s motion is granted in part and denied in part.
Defendant James Michael Wells, was appointed two attorneys pursuant to
18 U.S.C. § 3005 after he was indicted for a capital crime. Rich Curtner, Federal Public
Defender for Alaska and subsequently Peter Offenbecher from Seattle, Washington were
Case 3:13-cr-00008-SLG Document 132 Filed 09/11/13 Page 1 of 4

appointed to represent Wells. The government has now formally chosen not to seek the
death penalty in this case. Docket 101. Elimination of the death penalty also eliminates
the defendant’s statutory right to a second attorney. United States v. Waggoner, 339 F.3d
915, 918-919 (9th Cir. 2003). This case is no longer a capital case and the penalty phase
is simplified.
In determining whether there are extenuating circumstances to continue the
appointment of the second counsel the court considers factors set forth in the Guide to
Judicial Policy, § § 630.30.10 and 630.30.20. 	The first section directs that the court
consider the questions of limited counsel and the rate of compensation needed for the
duration of the proceeding once it is determined that the death penalty will not be sought.
Section 630.30.20(b) provides:
b. In deciding whether there are extenuating circumstances,
the court should consider the following factors:
(1) a need to avoid disruption of the proceedings; (2)
whether 	the 	decision 	not 	to 	seek 	the 	death 	penalty
occurred late in the litigation; (3) whether the case is
unusually complex; and (4) any other factors that would
interfere with the need to ensure effective representation
of the defendant.
As a matter of economy the government argues that the court should
vacate the appointment of Mr. Offenbecher since he is out-of-state counsel. 	The
defense argues that the denial of Mr. Offenbecher’s continued representation of
2	13-cr-008-RRB-JDR WELLS @112 ORDER Re Motion to Excuse Second Defense Counsel_mtd.wpd
Case 3:13-cr-00008-SLG Document 132 Filed 09/11/13 Page 2 of 4

Wells at this stage of the proceedings would be contrary to the spirit of the
Guidelines and would severely impair Wells’ Sixth Amendment right to counsel.
Defendant’s opposition reads in part: “To remove Mr. Offenbecher from
the defense team would leave one attorney, Rich Curtner, to represent Mr. Wells at
a February 2014 trial date.” 	Docket 115, p.2. 1 The parties are adhering to the
pretrial motion schedule set by the court. 	Before the potential death penalty was
removed by the government, the case was declared “a complex case” by the District
Judge. 	Docket 34. 	However, the case is not necessarily an unusually complex
case. The decision by the government not to seek the death penalty did not occur late in
the litigation.
The court is mindful of the need to responsibly conserve the District’s Criminal
Justice Act budget as well as the seriousness of the charges from the point of view of the
defendant and the public. Rich Curtner was involved with defendant at the outset before
the complaint was filed. Mr. Offenbecher was appointed on March 8, 2013 at the hourly
rate of $178. Regular CJA appointed attorneys receive $125.00 per hour, however, with
the sequester in effect appointed attorney fees have been temporarily reduced to $110.00
per hour.
Upon due consideration IT IS HEREBY ORDERED:
The number of appointed counsel for the defendant James Wells in this case
shall be reduced from two counsel to one counsel. The retention of the Public Defender
1 Trial by jury is presently set for February 18, 2014,
3	13-cr-008-RRB-JDR WELLS @112 ORDER Re Motion to Excuse Second Defense Counsel_mtd.wpd
Case 3:13-cr-00008-SLG Document 132 Filed 09/11/13 Page 3 of 4

as the defendant’s sole appointed counsel will preserve any attorney-client relationship the
defendant has established with his counsel without impairing his Sixth Amendment right to
counsel. Mr. Offenbecher is excused from further appointment in this case with the thanks
of the court for his services.
DATED this 11th day of September, 2013, at Anchorage, Alaska.
/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge
4	13-cr-008-RRB-JDR WELLS @112 ORDER Re Motion to Excuse Second Defense Counsel_mtd.wpd
Case 3:13-cr-00008-SLG Document 132 Filed 09/11/13 Page 4 of 4