     10-521-cr
     United States v. Vilar



 1                            UNITED STATES COURT OF APPEALS
 2                                FOR THE SECOND CIRCUIT
 3
 4                                   August Term 2013

 5   Submitted: Sept. 12, 2013                  Decided: October 1, 2013
 6
 7                      Docket Nos. 10-521(L), 10-580(con) (only)
 8
 9   - - - - - - - - - - - - - - - - - - - - - - -
10   UNITED STATES OF AMERICA,
11            Appellee,
12
13                              v.
14
15   ALBERTO VILAR and GARY ALAN TANAKA,
16            Defendants-Appellants.
17   - - - - - - - - - - - - - - - - - - - - - - -
18
19   Before: NEWMAN, CABRANES, and STRAUB, Circuit Judges.

20            Motion by counsel for Defendant-Appellant Vilar seeking

21   to have counsel appointed for Defendant-Appellant Tanaka under

22   the Criminal Justice Act and permission for retained counsel

23   for Tanaka to withdraw.

24            Motion denied, without prejudice to renewal by retained

25   counsel for Tanaka.

26                                     Vivian Shevitz, South Salem, NY,
27                                       purporting to act for Defendant-
28                                       Appellant Tanaka.
29
30
31
32
33

                                            1
1   Per Curiam:

        Pending before us is a motion filed by Atty. Vivian

    Shevitz attempting to obtain relief on behalf of Appellant

    Gary Alan Tanaka.   The motion seeks appointment of counsel

    from this Court’s Criminal Justice Act (“CJA”) Panel for

    Tanaka, suggests the name of a particular lawyer who is a

    member of that Panel, and also requests that Tanaka’s retained

    counsel of record be permitted to withdraw.        Tanaka and

    Alberto Vilar are the Appellants in a criminal appeal, No. 10-

    521. We have affirmed their convictions, see United States v.

    Vilar, No. 10-521, 2013 WL 4608948 (2d Cir. Aug. 30, 2013),

    and on Sept. 11, 2013, we granted a motion to extend the time

    to file a petition for rehearing until Oct. 13, 2013.    Also

    before us is a letter from one of Tanaka’s retained counsel,

    seeking to “be relieved as counsel.”

        At the outset, we have a concern as to the authority of

    Atty. Shevitz to seek the requested relief on behalf of

    Tanaka.   Throughout the pending appeal, Shevitz has repre-

    sented Vilar, and Attys. Alan Dershowitz, Nathan Dershowitz,

    and Victoria Eiger have represented Tanaka.1

        1
           On May 10, 2010, a stipulation substituting Nathan
    Dershowitz, Esq. for Glenn Colton, Esq. (who represented
    Tanaka at trial) was “so ordered.” On May 11, 2010, Nathan
    Dershowitz filed a Notice of Appearance for Tanaka,

                                  2
    Shevitz’s participation on behalf of Tanaka began on

Sept. 17, 2012, when she attempted to file a Notice of

Appearance as additional counsel for Tanaka.        That Appearance

was rejected by the Clerk’s Office because the form was blank.

Also on Sept. 17, 2012, Atty. Shevitz filed a motion for bail

pending appeal for both Vilar and Tanaka.          In a declaration

supporting that motion, she stated that she is “CJA counsel to

Alberto Vilar and Gary Tanaka.”          Neither the docket of the

District Court nor this Court reflects any appointment of

Shevitz as CJA counsel for Tanaka.2       Later on Sept. 17, 2012,

Shevitz filed another Notice of Appearance as additional

counsel for Tanaka; this form was properly filled out.

    On   Sept.   25,   2012,   Shevitz   filed   another   Notice   of

Appearance as additional counsel for Tanaka.        That Appearance




identifying his firm as Dershowitz Eiger & Adelson, P.C. Also
on May 11, 2010, Atty. Victoria B. Eiger filed a Notice of
Appearance as additional counsel for Tanaka.

     On Sept. 28, 2011, a brief was filed for Tanaka, listing
Atty. Alan Dershowitz as “of counsel.” On July 10, 2012, Alan
Dershowitz filed a Notice of Appearance as additional counsel
for Tanaka and on August, 21, 2012, argued the appeal for
Tanaka.
    2
      In two other cases, Tanaka and Vilar were granted leave
to proceed in forma pauperis for purposes of filing mandamus
petitions. See Vilar v. United States, No. 13-2527, In re
Vilar and Tanaka, No. 13-2550 (2d Cir. Aug. 21, 2013).

                                  3
stated that she appeared as additional counsel for Tanaka “for

purposes of bail application only.”

    On Sept. 28, 2012, Shevitz wrote to this Court requesting

a prompt decision of her bail motion. That letter stated that

she represented “Alberto Vilar and (for bail) Gary Tanaka.”

This Court granted the motion for bail pending appeal on Oct.

2, 2012.

    On Oct. 5, 2012, Shevitz filed a motion to modify the

conditions of bail for Tanaka pending appeal, which had been

set by the District Court following our bail ruling.       She

stated that she is counsel to Vilar “and (for bail) Gary

Tanaka in this Court.”     On Oct. 11, 2012, this Court denied

the motion to modify, with certain qualifications not relevant

to the pending matter.

    On Sept. 5, 2013, Shevitz filed a motion on behalf of

Vilar and Tanaka to extend the time for filing a petition for

rehearing until October 13, 2013, and for a stay of mandate.

In her motion papers, she represented that she is counsel for

Vilar “on this appeal” and counsel for Tanaka “for some

matters on this appeal.”

    On Sept. 9, 2013, Shevitz filed the motion, now pending

before us, on behalf of Tanaka “for appointment of separate

CJA counsel for further proceedings on this appeal.”


                                4
    On this motion, she represented that she “served as

counsel to Gary Tanaka for purposes of a motion for an

extension of time to file a rehearing petition and for a Stay

of mandate.”   With respect to Tanaka’s retained appellate

counsel, she represented the following:

    Appellate counsel for Mr. TANAKA (Dershowitz Eiger
    & Adelson, retained) have told Mr. Tanaka that they
    are not continuing on the case without fees. They
    have told Mr. Tanaka they will share ideas but that
    he owes them for prior expenses as well. Mr. Tanaka
    consents to the withdrawal of Dershowitz and Eiger
    as he cannot pay them.

Motion, No. 10-521, Dkt. #539, ¶ 5.

    On Sept. 11, 2013, this Court granted the motion to

extend the time to file a petition for rehearing until Oct.

11, 2013, and to stay the mandate.

    Also on Sept. 11, 2013, the Court received a letter from

Atty. Eiger, apparently in response to a telephone call from

a case manager in the Clerk’s Office.     The letter stated:

    We consent to the application made by Vivian Shevitz
    for appointment of CJA counsel for Gary Tanaka, for
    whom we have served as counsel of record, and ask
    that, if the application is granted, we be relieved
    as counsel.

Letter from Victoria Eiger to Clerk of Court (Sept. 11, 2013).




                              5
                              Discussion

    We do not believe that Atty. Shevitz has authority to

seek any relief with respect to representation of Tanaka.

Although her Sept. 25, 2012, Notice of Appearance for Tanaka

stated no limitation, her motion for bail pending appeal,

filed the same day, limited that Appearance by stating that

she appeared for Tanaka “only for purposes of bail application

(bail pending appeal).”           Thereafter, on Oct. 5, 2012, she

again stated that she represented Tanaka for bail pending

appeal. On Sept. 5, 2013, she stated that she represents

Tanaka “for some matters on this appeal,” without clarifica-

tion. On Sept. 9, 2013, she stated that she represents Tanaka

for purposes of seeking an extension of time for a petition

for rehearing and a stay of the mandate.

    These variously limited formulations of Shevitz’s role on

behalf   of   Tanaka   do   not   include   any   authority   over   his

representation for whatever matters remain in connection with

this appeal.    Nor is Atty. Eiger’s letter of Sept. 11, 2013,

asking that “we” (not identified) be “relieved as counsel”

sufficient to permit the abandonment of their client by

Tanaka’s three retained counsel who have filed unrestricted

appearances to represent him.




                                     6
    In the first place, permission to withdraw as counsel

should be made by a motion, not by a letter. See Fed. R. App.

P. (“FRAP”) 27(a) (“An application for an order or other

relief is made by motion unless these rules prescribe another

form.”); see also 2d Cir. R. 4.1(d) (requiring motion to

withdraw), id. 27.1 (specifying form of motions).

    Second, counsel in a criminal case “is responsible for

representing the defendant unless relieved by this court.” 2d

Cir. R. 4.1(a). “Full availability of legal counsel requires

. . . that lawyers who undertake representation complete the

work involved.” Lawyer’s Code of Professional Responsibility,

adopted by New York State Bar Association (“NY Code”), EC 2-

31. Although the Code indicates that a lawyer may withdraw if

his client “[d]eliberately disregards an agreement or obliga-

tion to the lawyer as to expenses or fees,” id., DR 2-

110(c)(1)(f), we have stated that “[n]on-payment of legal

fees, without more, is not usually a sufficient basis to

permit an attorney to withdraw from representation,” United

States v. Parker, 439 F.3d 81, 104 (2d Cir. 2006). See Bennett

v. Mukasey, 525 F.3d 222, 224 (2d Cir. 2008) (Newman J.,

chambers opinion).

    Third, a request to withdraw as counsel after briefing

and oral argument have been completed and an opinion has been


                              7
issued is unusual.     Preparing a petition for rehearing is

usually not an extensive task and would often be within the

scope of retention for appellate representation.3

    Fourth, under the circumstances, a motion to withdraw at

this late stage of the appeal on the ground of nonpayment of

fees should set forth the terms of the retainer agreement, if

one was executed, or any other understanding with respect to

fees, as well as the amount of fees already paid and the

amount of fees sought for remaining work.

    Unless and until a proper motion by all counsel of record

to withdraw from further representation of Tanaka is filed and

adjudicated, any request to appoint CJA counsel for Tanaka is

premature.    We note, however, that, in the event a proper

request for CJA counsel is made, two considerations must be

observed.    First, an application to proceed in forma pauperis

on appeal must be accompanied by an affidavit of indigency.

See FRAP 24; 2d Cir. R. Appx. A, Part A, § IV(b).   Second, “no

CJA applicant or CJA client will be permitted to select his or

her own attorney from the Panel or otherwise . . . .”     Id.,

§ VII(A).




    3
      See also 2d Cir. R. 4.1(c) (motion to be relieved of
obligation to file a petition for a writ of certiorari with
the U.S. Supreme Court).

                               8
    Accordingly, the motion filed by Atty. Shevitz seeking to

have a particular lawyer from the CJA Panel appointed to

represent Tanaka and to permit Tanaka’s retained counsel to

withdraw is DENIED, without prejudice to renewal by any of

Tanaka’s retained counsel submitted by a proper motion in

light of this opinion.




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