Free Order on Motion for Order - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 1027

Filed 02/28/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Criminal Case No. 04-cr-00103-REB-02 UNITED STATES OF AMERICA, Plaintiff, v. 2. GEORGE ALAN WEED, Defendant.

ORDER RE: MOTION FOR ORDER DIRECTING UNITED STATES MARSHAL TO ARRANGE NON-CUSTODIAL TRANSPORTATION Blackburn, J. The matter before me is defendant' Motion for Order Directing United States s Marshal To Arrange Non-Custodial Transportation [#1012], filed February 21, 2007. Defendant seeks an order directing the United States Marshal to arrange for his noncustodial transportation from Illinois to Denver for three proceedings: (1) the first trial preparation conference on March 2, 2007; (2) the second trial preparation conference on March 30, 2007; and (3) the trial commencing April 2, 2007. I deny the motion in part and deny it without prejudice in part. Defendant' request invokes 18 U.S.C. § 4285, which provides: s Any judge or magistrate judge of the United States, when ordering a person released under chapter 207 on a condition of his subsequent appearance before that court, any division of that court, or any court of the United States in another judicial district in which criminal proceedings are pending, may, when the interests of justice would be served thereby and the United States judge or magistrate judge is

Case 1:04-cr-00103-REB

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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 under section 5702(a) of title 5, United States Code. When so ordered, such expenses shall be paid by the marshal out of funds authorized by the Attorney General for such expenses. By its terms, the statute requires that I find both that defendant is financially unable to provide the necessary transportation to appear before the court on his own and that is in the interest of justice to require the Marshal to arrange and pay for such transportation. I find that defendant has failed to meet that burden. With respect to defendant' request to personally attend the first trial preparation s conference on March 2, 2007, I find that the interests of justice do not require defendant to be present at that proceeding in person. That trial preparation conference will deal principally with administrative and procedural matters, and is not otherwise a critical stage in the proceedings as to which defendant' presence is required under s Fed.R.Cr.P. 43(a). I will permit defendant to appear telephonically if he so desires, although he and his counsel will be responsible for coordinating, initiating, and financing any such telephonic appearance. Although the interests of justice would be served by having defendant attend the more substantive March 30, 2007, trial preparation conference, and Rule 43(a)(2)

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requires his presence at the trial, defendant has not shown that he is not financially able to provide transportation to this district. The fact that defendant qualifies for the appointment of a CJA attorney adds little to the required analysis. Moreover, his bare bones financial affidavit demonstrates that he has monthly resources of $1,791 and monthly expenses of $1,120, leaving a difference of $671 per month.1 He has made no showing that this amount is insufficient to cover the cost of transportation to Denver and subsistence en route. Nor is this a matter as to which I will accept defendant' ipse dixit as to inability s to finance his own transportation. The monetary allowance contemplated by 18 U.S.C. § 4285 is minimal. A defendant who otherwise qualifies under the statute is entitled only to the cost of transportation to the district in which the proceeding is held, but not to the cost of transportation back to his place of residence. United States v. James, 762 F.Supp. 1, 2 (D.D.C. 1991); United States v. Gonzales, 684 F.Supp. 838, 841-42 (D. Vt. 1988). Similarly, the statute provides only for such subsistence expenses as are incurred en route to the district. It does not cover the costs of lodging, meals, or similar expenses incurred during the course of the proceeding. United States v. Sandoval, 812 F.Supp. 1156, 1157 (D. Kan. 1993); United States v. Nave, 733 F.Supp. 1002, 1002-03 (D. Md. 1990). Defendant has offered no evidence to substantiate the likely cost of a one-way ticket airline or bus ticket from Illinois to Denver or any attendant subsistence expenses he might incur en route, let alone shown that his income is

I acknowledge that defendant likely has other living expenses, such as food, utilities, and the like, but these items are not addressed by his affidavit.

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insufficient to cover such expenses. For these reasons, his request to have the Marshal arrange and pay for his transportation for the March 30, 2007, trial preparation conference and the trial is denied without prejudice. THEREFORE, IT IS ORDERED as follows: 1. That defendant' Motion for Order Directing United States Marshal To s Arrange Non-Custodial Transportation [#1012], filed February 21, 2007, is DENIED IN PART and DENIED WITHOUT PREJUDICE IN PART: a. That the motion is DENIED with respect to defendant' request for the s United States Marshal to arrange and pay for his subsistence and transportation to this district for purposes of the first trial preparation conference on March 2, 2007; and b. That the motion is DENIED WITHOUT PREJUDICE with respect to defendant' request for the United States Marshal to arrange and pay for his s subsistence and transportation to this district for purposes of the second trial preparation conference on March 30, 2007, and/or the trial commencing April 2, 2007; and 2. That defendant may appear at the first trial preparation conference telephonically provided that he assume responsibility for arranging, initiating, and financing the telephone call necessary to facilitate his appearance and participation. Dated February 28, 2007, at Denver, Colorado. BY THE COURT: s/ Robert E. Blackburn Robert E. Blackburn United States District Court 4