United States v. Durham, No. 18-3283 (7th Cir. 2019)Annotate this Case
Durham faced revocation of his supervised release. A magistrate found that Durham was “financially unable to retain counsel,” under 18 U.S.C. 3006A(b). Initially, Durham was represented by a court-appointed lawyer. Before the revocation hearing, that lawyer withdrew with court permission. At the hearing, Durham was represented by retained counsel, who was then allowed to withdraw. Durham sought pro se to proceed in forma pauperis (IFP) on appeal. His IFP status lapsed when appointed counsel withdrew. The court denied Durham’s motion, citing his incomplete financial affidavit. The Seventh Circuit appointed the Federal Defender’s Office for the limited purpose of re-filing a proper motion. The district court again denied IFP status, citing 28 U.S.C. 1915(a)(1); because Durham had $750 in his prison account he could not show that he was “unable to pay the costs of commencing his appeal.” ($505 filing fee.), and ruling that Durham’s appeal was frivolous.
The Seventh Circuit reversed, granting leave to appeal IFP. Durham is not trying to bring a civil appeal, which would be governed by the general IFP statute, 28 U.S.C. 1915, but sought to proceed under the Criminal Justice Act, 18 U.S.C. 3006A, which asks only if the defendant is “financially unable” to obtain adequate representation. In determining the need for appointed counsel under the Act, the Seventh Circuit is not governed by a requirement of indigence but by financial inability to employ counsel. The Criminal Justice Act does not permit courts to appoint counsel only for defendants whose appeals the court deems not to be frivolous; Anders procedures are available, should counsel come to that conclusion.