United States v. Sepulveda

502 F. Supp. 2d 1104, 2007 U.S. Dist. LEXIS 61328, 2007 WL 2275213
CourtDistrict Court, D. Montana
DecidedJuly 31, 2007
DocketCR 05-24-BU-DWM-04
StatusPublished
Cited by3 cases

This text of 502 F. Supp. 2d 1104 (United States v. Sepulveda) is published on Counsel Stack Legal Research, covering District Court, D. Montana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Sepulveda, 502 F. Supp. 2d 1104, 2007 U.S. Dist. LEXIS 61328, 2007 WL 2275213 (D. Mont. 2007).

Opinion

ORDER

MOLLOY, Chief Judge.

I. Introduction

Attorney John Hud was appointed in this case pursuant to the Criminal Justice *1106 Act (CJA), 18 U.S.C. § 3006A, to represent Defendant Sepulveda. Hud has submitted a CJA voucher and supporting documentation seeking total compensation of $12,628.66 (as adjusted by the Clerk of Court’s mathematical audit), including costs and travel expenses. The amount requested exceeds the statutory maximum payment by $4,067.60. 1 Hud filed a memorandum in support of his claim on June 20, 2007. I have reviewed the memorandum along with Hud’s voucher and supporting materials, and issued an Order dated July 13, 2007, advising Hud that his claim is excessive and stating the Court’s intention to reduce the claim to $10,374.66. Hud asked for a hearing on the matter, which was held on July 25, 2007. Having listened to Hud’s explanations and arguments, it is my view that the voucher is excessive and must be reduced. To prepare for the hearing, I reviewed Hud’s CJA billing history for the past three years and it, like Banquo’s ghost, reveals a troubling pattern of excess.

II. Analysis

A. The Sepulveda Voucher

A criminal defendant who is unable to pay an attorney is entitled to have counsel appointed and compensated through the Criminal Justice Act. 18 U.S.C § 3006A(b). That compensation is limited by Congress to $7,000.00 in cases involving felony charges. 18 U.S.C. § 3006A(d)(2). Excess payment above the limit set in § 3006A(d)(2) may not by law be made unless the presiding judge certifies to the chief judge of the circuit that the representation was extended or complex and that the amount of the excess payment is necessary to provide fair compensation. 18 U.S.C. § 3006A(d)(3). This process is not one involving a “rubber stamp.” It is a meaningful congressionally mandated step that requires detailed justification not only by the lawyer, but also by the approving judge. Section 2.22(C)(2) of the Guidelines for the Administration of the Criminal Justice Act requires CJA counsel seeking excess compensation to justify the request with a supporting memorandum.

In this case, Sepulveda was charged in two counts of a 102-count Indictment. One count charged conspiracy to distribute methamphetamine and one count charged distribution of methamphetamine. Hud argues in his memorandum that excess payment is necessary and justified because Sepulveda’s case is both extended and complex. In my judgment, he is wrong and off the mark on both notions, excepting some travel.

The case is extended, according to defense counsel, because he had to communicate with his client through an interpreter, and because he had to make several trips from Bozeman to Missoula and Butte for court hearings and client meetings. Hud says the case is complex, because 1) he had to do “extensive research” into whether his client’s prior conviction would count toward his criminal history category, and 2) the Government was slow in making a motion for downward departure under U.S.S.G § 5K1.1, which prompted Hud to file a motion for an evidentiary hearing that was denied. Because Hud has persisted in his argument, I examined his claim in detail and as discussed above, looked at the District of Montana history on CJA voucher payments for the past three years. Based on that analysis, it is my view that Hud’s request for excess pay is not warranted and it is, in fact, unjustified.

*1107 1. Interviews and Conferences

The record belies Hud’s claim that the case is extended because his client does not speak English. Hud states, “All of the Defendant’s interviews (about the facts of the ease, the Discovery, the plea agreement, the change of plea, etc.) and his three debriefings had to be conducted through a Spanish interpreter which therefore significantly increased the time that would be normally required for these functions.” Doc. No. 116 at 3. Hud had nine conferences with his client during the case, totaling 12.2 hours of conference time. This claim is a reasonable amount of attorney-client conference time in a drug conspiracy case such as this and it is not significantly over what would normally be required. Because Montana is not a bilingual state, very few CJA attorneys in Montana speak Spanish. The norm where the defendant speaks Spanish is for CJA counsel to obtain the services of an interpreter to communicate with clients. The reality of a non-English speaking defendant is not grounds for finding a case extended. An exception exists if translation problems result in more conference time than would be expected in the average case, but that is not so here.

The problem with Hud’s claim of conference hours is not the claimed need to engage in cumbersome dialog with his client, but rather is attributable to Hud’s excessive conferences with others. The hours billed for client conference time make up just 35 percent of his total conference time. On the other hand, Hud recorded 100 phone conversations and eleven in-person conferences in the case, including six phone conversations with the Federal Defenders (1.3 hours), eight calls with attorney Monte Jewell (1.8 hours), 14 calls with the prosecutor (3.4 hours), and 11 calls with state and federal law enforcement agents (1.8 hours). 2 Hud talked over the phone to Clerk of Court or chambers personnel 26 times for a total of 5.1 hours, had eight calls with the probation officer for 1.4 hours, and billed eleven calls with the Defendant’s sister-in-law for 2.3 hours. He billed 1.8 hours of phone conferences with interpreter Norma Fender in his client’s absence, where no translation services were needed.

For the most part, these conferences are not by themselves problematic, but become so when no justification is provided for so many hours logged against the statutory cap. It is troublesome that a lawyer of Hud’s experience needs five hours of advice from the Clerk of Court staff. Hud was given an opportunity to explain his claim for conference time at the hearing, and his explanation was unsatisfactory. He attributed his claim of 5.1 hours of conference with court personnel to his inability to obtain documents from the sealed case file. Difficulty in obtaining filings does not justify 26 phone conversations with court personnel, nor can the Court imagine any conversation relating to the filings issue would last 12 minutes or more, as Hud billed several times. Moreover, where filings by other parties are concerned, Hud’s proper recourse is to contact counsel for the co-defendants, who are under an obligation to serve him with all filings. With the advent of CM/ECF, electronic filings are automatically sent to registered users and as a consequence, less, *1108 as opposed to more, time should be involved.

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Cite This Page — Counsel Stack

Bluebook (online)
502 F. Supp. 2d 1104, 2007 U.S. Dist. LEXIS 61328, 2007 WL 2275213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sepulveda-mtd-2007.