Free Response in Opposition - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB-MEH

Document 1009

Filed 02/20/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case No. 04-cr-00103-REB-06 UNITED STATES OF AMERICA Plaintiff, v. 6. MICHAEL SMITH, Defendant. _____________________________________________________________________ GOVERNMENT'S RESPONSE TO MOTION FOR INDIGENT DEFENDANT TRAVEL AND LODGING _____________________________________________________________________ The Government, by Wyatt Angelo and Matthew T. Kirsch, the undersigned Assistant United States Attorneys, hereby responds to Defendant Smith's Motion for Indigent Defendant Travel and Lodging [Doc. # 995] and requests that the motion be denied for the reasons that follow: 1. Defendant Smith's motion is based on Title 18, United States Code, Section 4285. This statute provides, in relevant part, that a court: may, when the interests of justice would be served thereby and the United States judge or magistrate judge is satisfied, after appropriate inquiry, that the defendant is financially unable to provide the necessary transportation to appear before the required court on his own, direct the United States marshal to arrange for that person's means of noncustodial transportation or furnish the fare for such transportation to the place where his appearance is required, and in addition may direct the United States marshal to furnish that person with an amount of money for subsistence expenses to his destination, not to exceed the amount authorized as a per diem allowance for travel . . . . The defendant's motion requests that the United States marshal pay both for his

Case 1:04-cr-00103-REB-MEH

Document 1009

Filed 02/20/2007

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travel to Denver for his upcoming second pretrial scheduling conference and trial and for his lodging at the Marriott Residence Inn in downtown Denver during those proceedings. The defendant's trial is currently scheduled to last approximately ten weeks. 2. There are at least two problems with the defendant's motion. The first is that the statute does not authorize the payments for lodging which the defendant requests. The Tenth Circuit has ruled that Section 4285 does not authorize payment of subsistence or lodging expenses during trial. United States v. Gunderson, 978 F.2d 580, 584 (10th Cir. 1992); see also United States v. Sandoval, 812 F. Supp. 1156, 1157 (D. Kan. 1993) (same holding); United States v. Nave, 733 F. Supp. 1002, 1002-03 (D. Md. 1990) (same holding). The Tenth Circuit further ruled that a defendant who was truly without means to pay for meals and lodging during trial would be entitled, pursuant to the Pretrial Services Act, 18 U.S.C. §§ 3152-56, to reside at a halfway house or similar institution, at the government's expense, during trial. Gunderson, 978 F.2d at 585-85. The defendant's motion, however, does not request this type of accommodation. 3. The second problem with the defendant's motion is that he provides the Court with no facts from which it can conduct the "appropriate inquiry" contemplated by the statute. Although the government has little knowledge concerning the defendant's current financial situation, those facts of which the government is aware suggest that he has some means to pay his travel and his lodging

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Case 1:04-cr-00103-REB-MEH

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expenses during trial. For example, on November 29, 2006, the defendant attended a hearing before Magistrate Judge Shaffer in a civil forfeiture case related to the instant criminal case, United States v. Certain Bank Accounts, 03cv-00403-REB. Because the defendant's presence was not required at this hearing, the government presumes that he attended at his own expense. Also, in connection with his various requests for bond modification, the defendant has represented that he is a valued employee of a mortgage company and travels to various states to conduct training for that company. Even if the statute in question allowed the payments the defendant requests, he has not demonstrated that the interests of justice require them. CONCLUSION 4. If the defendant is later able to make an adequate showing that the ends of justice require the United States marshal to pay for his travel to Denver for trial, the government will not oppose such a request. At present, the defendant has not made such a showing, and the government objects to that portion of his request on that basis. The government objects to any order requiring the United States marshal to pay for defendant's subsistence or lodging once he has reached Denver and his trial has begun because such an order is not within the purview of Section 4285.

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Case 1:04-cr-00103-REB-MEH

Document 1009

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Respectfully submitted this 20th day of February, 2007. TROY A. EID United States Attorney

s/Matthew T. Kirsch Matthew T. Kirsch Wyatt B. Angelo Assistant United States Attorneys 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0100 Fax: (303) 454-0402 email: [email protected] [email protected]

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Case 1:04-cr-00103-REB-MEH

Document 1009

Filed 02/20/2007

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify on this 20th day of February, 2007, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO MOTION FOR INDIGENT DEFENDANT TRAVEL AND LODGING with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Peter Bornstein, Esq. [email protected] Thomas Hammond, Esq. [email protected] Declan J. O'Donnell, Esq. [email protected] Ronald Gainor, Esq. [email protected]

Richard N. Stuckey, Esq. [email protected] Thomas Goodreid, Esq. [email protected] Mitchell Baker, Esq. [email protected] Richard K. Kornfeld, Esq. [email protected]

s/Matthew T. Kirsch Matthew T. Kirsch Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0100 Fax: (303) 454-0402 email: [email protected]

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