UNITED STATES OF AMERICA v. JAMES LAFORTE (2025)

REPORT AND RECOMMENDATION

Defendant James LaForte, an alleged soldier of the Gambino organized crime family of La Cosa Nostra, is charged in this district with five counts of a sixteen-count indictment, to which he has pleaded not guilty. See Dkt. Nos. 1, 121. Current counsel for LaForte represents that his client is no longer able to afford retained counsel. See Dkt. No. 226. LaForte's counsel therefore moves for appointment under the Criminal Justice Act of 1964 (“CJA”), which provides that, “[i]f at any stage of the proceedings, including an appeal, the United States magistrate judge or the court finds that [a defendant] is financially unable to pay counsel whom he had retained, it may appoint counsel ․ and authorize payment ․ as the interests of justice may dictate.” 18 U.S.C. § 3006A(c); see also Dkt. No. 226.

Before making a mid-case appointment, the assigned United States District Judge or the United States Magistrate Judge must first “conduct an ‘appropriate inquiry’ into the defendant's financial eligibility.” United States v. Parker, 439 F.3d 81, 93 (2d Cir. 2006) (Sotomayor, J.). The “Revised Plan of the United States District Court, Eastern District of New York, pursuant to the Criminal Justice Act of 1964” (“CJA Plan”)¹ sets forth the factors to be considered in determining eligibility. See CJA Plan § IV.A; see also Parker, 439 F.3d at 93-96. If the judge finds that the defendant is eligible, the judge must then determine whether the appointment is in the interests of justice. See id.

The CJA Plan further provides that mid-case appointments are to be drawn from “the CJA Panel or the [Federal Defenders of New York (‘FDNY’)],” CJA Plan § IV.B; “[r]etained counsel will not be assigned by the presiding judicial officer except for extraordinary reasons and upon notice to the Chief Judge.” Id. § VIII.E (emphasis added).

The Honorable Frederic Block, United States District Judge, referred LaForte's motion to the undersigned for (1) an “appropriate inquiry” into LaForte's financial circumstances, (2) a determination whether he is eligible for appointed counsel and whether such appointment is in the interests of justice, and, if so, (3) whether there are extraordinary reasons why he cannot be effectively represented by a member of the Court's CJA panel or the FDNY. See Text Order dated April 24, 2025.

The undersigned has conducted an appropriate inquiry into LaForte's financial circumstances. The undersigned finds that LaForte is eligible for appointment counsel and that such appointment is in the interests of justice. The undersigned finds, however, that there are not extraordinary reasons that would require LaForte's current counsel to be appointed as CJA counsel in this matter. The undersigned therefore respectfully recommends that LaForte's motion be denied.²

Should Judge Block adopt this Report and Recommendation, the undersigned recommends that CJA counsel be appointed on the date of that decision or on a date determined by Judge Block. Further, should Judge Block adopt this Report and Recommendation, and should LaForte's current counsel still seek to withdraw from representing LaForte, current counsel shall then file a motion to withdraw within seven days of Judge Block's decision.

I. Background

A. Factual and Procedural Background

On November 2, 2023, a grand jury returned a sixteen-count indictment charging LaForte and his co-defendants with a host of violations of federal statutes. Dkt. No. 13 at 1. According to the Government, the indictment was “the result of a multi-year investigation” into “the ongoing criminal activities of the Gambino crime family of La Cosa Nostra.” Id. at 2. The Government contends that LaForte is a “soldier” in the crime family who owned or operated multiple companies involved in a criminal enterprise that sought to enrich members of the crime family through extortion, theft, embezzlement, and fraud. Id. at 3-4.

On December 8, 2023, LaForte was arraigned on five of the sixteen counts in the indictment, consisting of racketeering conspiracy in violation of 18 U.S.C. §§ 1962(d), 1963, and 3551 et seq; Hobbs Act extortion conspiracy in violation of 18 U.S.C. §§ 1951(a) and 3551 et seq; Hobbs Act extortion in violation of 18 U.S.C. §§ 1951(a), 2 and 3551 et seq; witness retaliation in violation of 18 U.S.C. §§ 1513(b)(1)-(2), 2 and 3551 et seq; and felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 3551 et seq. See Dkt. Nos. 1, 121. LaForte pleaded not guilty to all counts (Dkt. No. 121), and the parties are currently engaged in motion practice pursuant to the Court's pre-trial motion schedule. See Text Order dated Feb. 11, 2025.

B. The Pennsylvania Action

At the time of the indictment, LaForte was in pretrial detention at the Federal Detention Center in Philadelphia, Pennsylvania (“FDC Philadelphia”) in connection with federal criminal charges filed against him in an indictment in the Eastern District of Pennsylvania (the “Pennsylvania Action”). Dkt. No. 13 at 1 n.1. Those charges include “conspiracy to commit wire fraud and security fraud” in connection with funds raised by the companies he owned, as well as “obstruction of justice, witness tampering, and retaliation.” Id. at 11.

On September 11, 2024, LaForte pleaded guilty to five counts of the second superseding indictment in the Pennsylvania Action, and he was remanded into the custody of the U.S. Marshals until his date of sentencing. United States v. LaForte, No. 23-CR-198 (MAK) (E.D. Pa. 2023), Dkt. No. 243. On March 27, 2025, Defendant was sentenced to a lengthy imprisonment for his conviction in the Pennsylvania Action and ordered to pay approximately substantial amounts in restitution, assessments, and fines, and forfeiture. No. 23-CR-198, Dkt. No. 329 at 3, 7.³

C. Defendant's Motion

On March 15, 2025, LaForte made the instant request that his retained counsel be appointed as CJA counsel under 18 U.S.C. § 3006A. Dkt. No. 226 at 1. LaForte's current counsel entered an appearance in this action on November 29, 2023. Dkt. No. 107. Additionally, current counsel has been counsel of record for LaForte since June 6, 2023 in the Pennsylvania Action. No. 23-CR-198, Dkt. No. 41.

LaForte represents that his financial circumstances have substantially changed following his incarceration and imposition of the forfeiture and restitution obligations relating to the Pennsylvania action. Dkt. No. 226 at 1. As a result of these changed circumstances, LaForte claims that he has “limited assets” and has not made any payments to his counsel for legal expenses “in over a year.” Id. During the May 9, 2025 hearing, LaForte's counsel stated that LaForte's “income” has “collapsed” and that he has “limited” to “no assets.”

LaForte further asserts that appointment of his current retained counsel as CJA counsel “would promote efficiency and judicial economy.” Id. at 2. Specifically, LaForte states that because his counsel has represented LaForte since the inception of this case and throughout the Pennsylvania Action, LaForte's current counsel “has a deep understanding of this case's complexities,” the “the critical interplay between both matters,” and the best legal strategy for his defense. Id.

LaForte claims that significant delays and disruption would result from appointment of new counsel, requiring extensive preparation and familiarity with LaForte's criminal history and cases. Id. Similarly, LaForte—who is currently incarcerated at MDC Brooklyn—asserts that he may be designated to the Federal Medical Center in Devens, Massachusetts (“FMC Devens”), and, therefore, any newly appointed counsel “would face logistical challenges, including the difficulty of in-person meetings to prepare for trial” should LaForte be designated at that facility. Id.

Alternatively, LaForte requests that if the Court denies his motion, that his counsel be permitted to withdraw as counsel of record. Id. at 3.

On April 21, 2025, the Government informed the Court that it takes no position as to LaForte's motion. Dkt. No. 247. On April 24, 2025, LaForte's motion was referred to the undersigned by Judge Block to issue a report and recommendation. Referral Order dated April 24, 2025.

On May 9, 2025, a hearing concerning LaForte's motion was held before the undersigned. See Minute Entry dated May 9, 2025. LaForte was present at the hearing. The Court reserved ruling at the hearing.

II. Legal Standards

The Sixth Amendment to the United States Constitution mandates that “ ‘[i]n all criminal prosecutions, the accused shall enjoy the right ․ to have the Assistance of Counsel for his defence.’ ” U.S. Const. amend. VI. “The Supreme Court has interpreted this guarantee to require the appointment of counsel, at public expense, to represent indigent defendants in most criminal cases.” United States v. Avenatti, 550 F. Supp. 3d 36, 39 (S.D.N.Y. 2021) (citing Alabama v. Shelton, 535 U.S. 654 (2002) and Gideon v. Wainwright, 372 U.S. 335 (1963)).

Under the CJA, the Court is authorized to appoint publicly financed counsel “for any person financially unable to obtain adequate representation.” 18 U.S.C. § 3006A(a). Pursuant to 18 U.S.C. § 3006A(c), “if at any stage of the proceedings ․ the court finds that the person is financially unable to pay counsel whom he had retained, it may appoint counsel ․ as the interests of justice may dictate.” United States v. Parker, 439 F.3d 81, 91 (2d Cir. 2006). “The Court may appoint counsel in this manner, however, only ‘if [it is] satisfied after appropriate inquiry that the [defendant] is financially unable to obtain counsel.’ ” Avenatti, 550 F. Supp. 3d at 41 (quoting 18 U.S.C. § 3006A(b)); see also Parker, 439 F.3d at 93 (same); United States v. Barton, 712 F.3d 111, 116–17 (2d Cir. 2013) (same).

The CJA Plan, adopted by the judges of this district in 2020, provides that where “a judicial officer finds that a party who had retained his or her own attorney is financially unable to provide for continued representation, the judicial officer may assign counsel from the CJA Panel or FDNY for the party.” See CJA Plan § IV.B. The CJA Plan “provides for the furnishing of legal services by a Community Defender Organization as provided in 18 U.S.C. § 3006A(g)(2)(B) and for the continued assignment and compensation of private counsel from a list maintained by the Clerk of Court (the ‘CJA Panel List’) in cases in which there is a demonstrated need. The attorneys whose names appear on the list shall be selected by the Court in accordance with the procedures in this Plan.” Id. § II.B.

“Retained counsel will not be assigned by the presiding judicial officer except for extraordinary reasons and upon notice to the Chief Judge.” Id. § VIII.E. “If the judicial officer finds that, due to extraordinary circumstances, a defendant cannot be effectively represented by the FDNY or an attorney from the CJA Panel, the judicial officer may, upon a finding of financial need, assign counsel to represent the defendant for this particular case, stating briefly the reason therefor. An attorney so assigned may seek reimbursement from the CJA Fund pursuant to this Plan.” Id.

III. Discussion

A. LaForte's Financial Eligibility

A defendant requesting appointment of CJA counsel bears the burden of proving “by a preponderance of the evidence that he is financially unable to afford counsel.” United States v. Hilsen, No. 03-CR-919 (RWS), 2004 WL 2284388, at *3 (S.D.N.Y. Oct. 12, 2004) (citing United States v. Harris, 707 F.2d 653, 660 (2d Cir. 1983)); United States v. O'Neil, 118 F.3d 65, 74 (2d Cir. 1997) (explaining that, “[w]hen requesting the appointment of counsel, the burden is on the defendant to show that he is unable to afford representation, though he need not prove that he is indigent”). “Financial inability includes an inquiry into whether there is available to defendant funds for his defense from other sources such as family, friends, trusts, estates, or defense funds.” United States v. Hadden, No. 20-CR-468 (RMB), 2020 WL 7640672, at *4 (S.D.N.Y. Dec. 23, 2020). “The Court has considerable discretion in inquiring into the defendant's finances in determining eligibility for appointed counsel.” Id.

Section IV.A of the CJA Plan provides guidance as to the nature of the inquiry into a defendant's financial eligibility for CJA appointed counsel. See CJA Plan § IV.A. The CJA Plan recommends that the Court should evaluate “(1) the cost of providing the person and his or her dependents with the necessities of life; (2) the cost of defendant's bail bond, if required to secure his or her release on bond; and (3) the likely cost of retained counsel” when inquiring whether a defendant is financially unable to afford counsel. Id.

Here, the undersigned respectfully recommends that LaForte be found eligible for CJA-appointed counsel. LaForte has been incarcerated since 2023 and will be serving a lengthy term of imprisonment in connection with the Pennsylvania Action. See Dkt. No. 226; No. 23-CR-198, Dkt. No. 329 at 7. Pursuant to judgment and orders in that action, LaForte faces considerable monetary penalties and obligations that will subsume all future income. Id. at 7; No. 23-CR-198, Dkt. No. 330 at 2. Additionally, LaForte's counsel's assertions to the Court at the May 9, 2025 hearing, as well as his CJA Form 23 financial affidavit (Dkt. No. 226 at 4), suggest that he will be unable to satisfy the costs of retaining his current counsel. Specifically, LaForte's financial affidavit—which LaForte signed under penalty of perjury and which LaForte told the Court was true and correct at the May 9, 2025 hearing—indicates that he has over $2 million in debt due to restitution and forfeiture-related orders. And, during the May 9, 2025 hearing, LaForte's counsel stated that LaForte's “income” has “collapsed” and that he has “limited” to “no assets.”

Accordingly, LaForte should be found financially eligible for CJA appointed counsel in this action.

B. The Interests of Justice Require CJA Appointment

Once an individual's financial eligibility for CJA appointed counsel has been determined, the Court must consider whether “the interests of justice” dictate mid-case appointment. 18 U.S.C. § 3006A(c); Parker, 439 F.3d at 91, 93, 99. Here, given the circumstances described above, it is in the interests of justice to appoint counsel on LaForte's behalf. See CJA Plan § II.A (noting that the CJA Plan “shall be administered so that those accused of a crime, or who are otherwise eligible for representation under the [CJA], will not be deprived of representation necessary to an effective defense because they are financially unable to pay.”).

C. There Are No Extraordinary Circumstances Warranting a Grant of LaForte's Motion

Where “a judicial officer finds that a party who had retained his or her own attorney is financially unable to provide for continued representation, the judicial officer may assign counsel from the CJA Panel or the FDNY for the party.” See CJA Plan § IV.B. As noted above, the CJA Plan instructs that “[r]etained counsel will not be assigned by the presiding judicial officer except for extraordinary reason and upon notice to the Chief Judge.” CJA Plan § VIII.E. If such extraordinary circumstances exist, and provided that the defendant “cannot be effectively represented by the FDNY or an attorney from the CJA Panel, the judicial officer may, upon a finding of financial need, assign counsel to represent the defendant for this particular case, stating briefly the reason therefor.” Id. In such circumstances, the assigned attorney “may seek reimbursement from the CJA Fund pursuant to [the CJA Plan].” Id.

Here, the undersigned respectfully recommends against permitting the use of CJA funds to pay the legal fees of LaForte's presently-retained counsel. In short, permitting the use of CJA funds to pay LaForte's current counsel is contrary to the objective of the CJA, which was “enacted to help ensure that ‘financially eligible’ defendants are provided adequate legal representation throughout the course of criminal justice proceedings.” United States v. Little, No. 12-CR-00647 (ALC), 2014 WL 3604417, at *5 (S.D.N.Y. July 16, 2014) (citing 18 U.S.C. § 3006(a)(1)). Justice is not served if “needy defendants could sign an unrealistic retainer agreement with counsel of choice [and] then let the taxpayers foot the bill for chosen rather than appointed counsel.” Id. (citation omitted).

First, as noted at the May 9, 2025 hearing, LaForte's counsel is not a member of the district's CJA Panel. Counsel is therefore presumptively ineligible for CJA appointment on this matter unless LaForte demonstrates extraordinary circumstances that might warrant such an appointment. See CJA Plan § VIII.E; cf. Parker, 469 F.3d at 62 (finding that counsel, who was not a member of the Court of Appeals for the Second Circuit's CJA Panel, was “presumptively ineligible for CJA appointment on appeal”).

LaForte, however, has not demonstrated an extraordinary reason for granting his request to appoint his current counsel as CJA counsel, nor can the undersigned ascertain any extraordinary circumstances that might weigh in favor of allowing counsel to be compensated through the CJA Fund. Although the underlying charges may involve a complex criminal enterprise involving many different actors, nothing suggests that such claims would be outside the expertise of any member of the CJA Panel. Indeed, all members of the CJA Panel “must demonstrate a commitment to provide the highest quality representation consistent with the best practices of the legal profession to those individuals eligible for their services” and must “have substantial federal trial experience or the equivalent.” CJA Plan § IV.D. LaForte's counsel has not demonstrated that he possesses specific expertise that may render him particularly adept at litigating suits involving similar allegations or charges.

Moreover, that LaForte's current counsel was also LaForte's lead counsel in the Pennsylvania Action does not warrant special consideration. LaForte has already been sentenced in the Pennsylvania Action and counsel's involvement in the matter is effectively over. And, significantly, any newly appointed counsel will have sufficient time to become acquainted with the case and prepare for trial, which is presently scheduled to commence on November 3, 2025. Text Order dated Apr. 16, 2025; see also Little, 2014 WL 3604417, at *5 (rejecting a finding of exceptional circumstances to appoint privately-retained counsel as CJA counsel because newly appointed CJA counsel would have “ample time to become acclimated with the case before trial”). LaForte's current counsel even acknowledged at the May 9, 2025 hearing that he “can share work product as a courtesy” to any newly-appointed counsel.

Further, LaForte's claim that his potential designation to FMC Devens would cause “logistical challenges” is unpersuasive. Dkt. No. 226 at 2. Apart from being speculative—LaForte is currently incarcerated at MDC Brooklyn—LaForte fails to provide an articulable explanation for what those logistical challenges might entail, or why LaForte's current counsel is better suited to travel to FMC Devens instead of a CJA attorney. At the May 9, 2025 hearing, LaForte's counsel only intimated that, if LaForte is transferred to FMC Devens, current counsel may not need to travel to that facility to meet with LaForte in person, given his knowledge of the case. But such an assertion seems far-fetched, especially as LaForte's current counsel acknowledged at the May 9, 2025 hearing that defense lawyers traditionally meet in person with their clients when preparing for trial.

Finally, as cautioned by other courts in this circuit, “an attorney who fails to make adequate arrangements before accepting representation of a client cannot rely on the CJA to bail him out.” Little, 2014 WL 3604417, at *5 (quoting United States v. Zaccaria, No. 95-CR-97S-29, 1997 WL 642985, at *1 (W.D.N.Y. Apr. 11, 1997)). LaForte's counsel assumed representation “with open eyes,” knowing LaForte's charges, allegations, and circumstances, as well as the possibility that the case would go to trial. United States v. Calle, 178 F. Supp. 2d 309, 311 (E.D.N.Y. 2001) (Garaufis, J.). At the May 9, 2025 hearing, LaForte's current counsel stated that he was aware of LaForte's financial circumstances when he agreed to represent him. The use of CJA Funds for LaForte's current counsel to continue his representation of LaForte therefore does not fall within the ambit of the Act. See Zaccaria, 1997 WL 642985, at *4 (explaining that the “safety net of the Act is meant to protect defendants who lack the resources to defend against criminal charges” rather than “a safety valve” providing for shortfalls in retainer agreements) (citations omitted); accord United States v. Blevins, No. 08-CR-20339, 2009 WL 2008472, at *2 (E.D. Mich. July 10, 2009) (“If the CJA did take on the function of a federal fee insurance fund, needy defendants could sign an unrealistic retainer agreement with counsel of choice, then let the taxpayers foot the bill for chosen rather than appointed counsel. Instead of the courts choosing counsel from the CJA panel list, defendants could circumvent the District Plan and pick counsel of choice. Such a situation would turn the carefully crafted District Plan into little more than a default mechanism.”).

At bottom, the undersigned is not convinced that the instant circumstances warrant appointment of LaForte's retained counsel as CJA-appointed counsel. Accordingly, the undersigned respectfully recommends that LaForte's request to appoint his presently retained counsel as CJA counsel be denied.

D. LaForte is Entitled to CJA Counsel

Logistically, should Judge Block adopt this Report and Recommendation, the undersigned recommends that CJA counsel be appointed on the date of that decision or on a date determined by Judge Block. And should Judge Block adopt this Report and Recommendation, and should LaForte's current counsel still seek to withdraw from representing LaForte, current counsel shall then file a motion to withdraw within seven days of Judge Block's decision.

IV. Conclusion

In light of the foregoing, the undersigned respectfully recommends that the Court deny LaForte's motion to appoint his privately-retained counsel as appointed counsel pursuant to 18 U.S.C. § 3006A. Consistent with the CJA Plan, a copy of this order is also being delivered, out of an abundance of caution, to the Honorable Margo K. Brodie, Chief Judge of the United States District Court for the Eastern District of New York.

Any objections to this Report and Recommendation must be filed within 14 days after service of this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 45, 59(b).

SO ORDERED.

FOOTNOTES

1.   The CJA Plan is available at https://www.nyed.uscourts.gov/content/cja-plan (last visited May 9, 2025).

2.   Under 28 U.S.C. § 636, the determination of the instant motion would appear to be within the authority of a United States Magistrate Judge, as it is not a non-dispositive motion. But given the unique procedural posture of the instant case and the recommended denial of portions of LaForte's motion, the undersigned submits, out of an abundance of caution, a report and recommendation herein. Cf. Cortez v. Griffin, No. 18-CV-766 (PAE) (DF), 2018 WL 11600200, at *3 (S.D.N.Y. June 1, 2018) (“Given [ ] that the [Southern District of New York] CJA Plan contemplates review by the district judge of any non-CJA appointment made by a magistrate judge, [the assigned magistrate judge finds] it prudent to present this finding in a report and recommendation.”).

3.   At the May 9, 2025 hearing, LaForte's counsel stated that LaForte was sentenced to 137 months imprisonment in the Pennsylvania Action. Counsel further represented that LaForte was individually responsible for approximately $2,488,645.00 in obligations, expenses, and debts stemming from the Pennsylvania Action. See Dkt. No. 226 at 4.

JOSEPH A. MARUTOLLO United States Magistrate Judge