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Circuit Remands Restitution Order for Further Consideration of Indigent Defendant’s Right to Counsel and Application for Expert Services

In United States v. Torriero, the Second Circuit (Chin, Droney, Restani by designation) vacated by summary order a $765,561 restitution order relating to costs incurred by the EPA in cleaning up a property that the defendant had used as an illegal landfill.  Although not the panel’s primary focus, the order also addresses a district court’s role in approving or denying an indigent defendant’s request for expert services—an issue currently being examined as part of a broader review of the defense funding under the Criminal Justice Act (“CJA”) by an ad hoc committee chaired by Judge Kathleen Cardone of the U.S. District Court for the Western District of Texas.[1] 


Donald Torriero previously pled guilty to conspiracy and wire fraud charges and, in 2013, he was sentenced to 36 months’ imprisonment and ordered to pay nearly $500,000 in restitution.  Torriero appealed his sentence and his attorney, Kenneth Moynihan, moved to be relieved as counsel, explaining that Torriero intended to pursue an ineffective assistance claim against him.  The Second Circuit granted Moynihan’s motion and appointed new appellate counsel before affirming Torriero’s sentence. 

Subsequently, the government filed a motion in the district court to increase the amount of restitution to account for environmental cleanup costs incurred after Torriero’s sentencing.  In April 2015, the district court held a telephonic conference, in which Moynihan was ordered to participate.  It is unclear whether Torriero, who was incarcerated at the time, was notified that the restitution conference had been scheduled or provided with copies of the relevant documents.  Following the conference, the district court reappointed Moynihan to represent Torriero in the restitution proceedings.  The record does not indicate that the potential conflict issue that led to Moynihan’s replacement by the Second Circuit was vetted by the district court.  Approximately one year after the conference, Torriero wrote to the district court and requested new counsel.  The district court denied Torriero’s request, concluded that Torriero had waived his right to be present during the restitution proceedings, and simultaneously ordered that Torriero pay an additional $765,561 in restitution.

The Current Appeal

On appeal, Torriero contended that his Sixth Amendment right to counsel had been violated by the reappointment of Moynihan to represent him in the restitution proceedings and the denial of Torriero’s subsequent request for new counsel.  On the existing record, the Second Circuit agreed that Torriero may have been denied the right to counsel.  A district court is obligated to “initiate an inquiry whenever it is sufficiently apprised of even the possibility of a conflict of interest, and . . . to disqualify counsel or seek a waiver from the defendant whenever the inquiry reveals that there is an actual or potential conflict.”  United States v. Cohan, 798 F.3d 84, 88 (2d Cir. 2015).  Here, there was at least a possible conflict of interest at play as Moynihan sought—and was permitted—to withdraw from Torriero’s 2013 appeal.  The district court therefore should have conducted a Curcio hearing to determine whether an actual or potential conflict existed and, if so, whether Torriero had knowingly and intentionally waived the conflict.  Because the April 2015 restitution conference was not transcribed and Torriero was not present, the panel was unable to conclude that the district court considered these important representation issues during the conference.

The panel also addressed Torriero’s application for expert services, which the district court had summarily denied.  Pursuant to 18 U.S.C. § 3006A(e)(1), a district court may appoint an expert when an indigent defendant makes a timely request for expert assistance that is “reasonably necessary” to an adequate defense.  United States v. Durant, 545 F.2d 823, 827 (2d Cir. 1976).  The panel concluded that the district court abused its discretion in denying Torriero’s application.  First, the district court viewed Torriero’s request as untimely but the panel observed that Torriero previously had made a timely ex parte application for expert services only a few days after Moynihan was reappointed to represent him.  Moreover, the district court conducted no analysis of whether expert services were reasonably necessary in this case.  The use of experts was clearly contemplated: the district court set a schedule for expert disclosures and the government, in support of its request for additional restitution, filed an expert affidavit and over 5,000 pages of documentation supporting its reported cleanup costs.  As a result, the panel remanded for the district court to formally assess whether expert services were reasonably necessary to Torriero’s defense.


This last aspect of the summary order may be the most interesting.  As part of its comprehensive review of the administration of the Criminal Justice Act, the Cardone Committee is exploring judicial involvement in the appointment, compensation, and management of expert service providers.[2]  District court judges have long been viewed as the logical arbiters to determine whether an indigent defendant’s request for expert services is appropriate.  Given the relative scarcity of resources available to indigent defendants, it makes sense to designate a gate-keeper and the district court’s familiarity with its docket allows it to assess the necessity of expert services in the context of each case. 

However, some have questioned whether there are problems with the current system.  One issue is whether the defense should be required to reveal what would otherwise be privileged information about its possible strategies at trial.  A defendant who has sufficient means to retain an expert does not have to vet defense strategy with the court.  A related issue is whether a district court’s involvement in this process gives it exposure to facts about which the court should not be advised.  For example, assume that a defendant wishes to retain a ballistics expert in order to test the government’s firearms evidence.  If ultimately the defense decides not to use the expert at trial, the district court, aware of the expert’s retention, may draw a negative inference from the ultimate decision not to present that expert testimony. 

Finally, although there is no question that district courts that handle expert requests seek to be fair and impartial, a district court may unintentionally bring its own perspective to the decision, perhaps declining to authorize expert services if it believes that the government is correct about a particular issue or that a particular defense strategy is not likely to prevail.  Is it fair to leave such important strategic litigation decisions by the defense to the district court when the court plays no role in the same decisions by the government?  After all, as one experienced defense attorney explained to the Cardone Committee, the judge who presides at trial “has no say in the expenditures by the prosecution to fuel multi-year investigations . . . [or] the government’s retention of experts[.]”  In order to avoid this asymmetry, should there be some independent entity—such as a nationwide “Center for Federal Defense” proposed by SDNY Federal Defender David Patton—to review defendants’ requests for expert assistance?

Fortunately for indigent defendants in need of expert services, the Second Circuit makes clear in Torriero that district courts must conduct more than a cursory review of a defendant’s application.  This is particularly crucial in cases, like this one, that appear ripe for expert testimony.

-By Jessica Rice and Harry Sandick

[1]  This Committee to Review the Criminal Justice Act Program has been “charged with conducting a comprehensive and impartial review of the CJA program.”  The Committee’s two-year study was authorized to begin in April 2015 and the last public hearings were held in May 2016, but no report has issued thus far.

[2]  In particular, one of the subjects within the scope of the Committee’s work is “[t]he adequacy and fairness of the billing, voucher review, and approval processes relating to compensation for legal and expert services provided under the CJA.”