Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 Marvin Jermain Errol Burnet, 14 Defendant. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:03-cr-00470-SRB Document 191 Filed 12/11/2007 Page 1 of 4

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs.

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CR 03-0470-005-PHX-SRB ORDER

Counsel for the Defendant has filed a motion seeking payment for David Asser, a Dutch speaking attorney, who provided interpretation services for the Defendant during the pendency of this case. The motion asks that the Court approve $1,472.00 for payment of Mr. Asser's time, travel and interpretation services. The CJA 20 - Voucher Summary attached to the October 16, 2007 CJA 21 for Mr. Asser requested four hours paid at $94.00 per hour covering two hours for arraignment/plea and two hours for sentencing and four hours at $92.00 per hour identified as hours spent on arraignment/plea and motions for a total of eight hours in-court time. Mr. Asser also claims two hours at $94.00 per hour for travel time and 10 hours at $92.00 per hour, which includes two hours for interviews, seven hours for travel time and one hour identified as

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investigative/other for a total of 12 hours out-of-court time. This CJA 20 also claimed 308 travel miles. The total of the voucher was $2,001.38. On October 30, 2007, another request and authorization for payment for expert services was submitted for Mr. Asser claiming a total of $1,472.00 (16 hours at $92.00 per hour) described as translating services for Marvin Burnet. In order to obtain payment for expert services prior authorization is required unless the cost does not exceed $500.00. The Court may also authorize payment in the interest of justice, even though prior authorization was not obtained, if the timely procurement of the necessary services could not await prior authorization. This exception is not applicable here. The only prior authorization sought for Mr. Asser was sought on April 8, 2007, when counsel filed a Motion for Payment of Dutch Speaking Attorney to Assist with Interpretation. At that time counsel asked that Mr. Asser be appointed at CJA counsel rates rather than interpreter rates so that he could be available to interpret from Dutch to English and from English to Dutch. Dutch is Mr. Burnet's native language. Counsel required his assistance "in interpreting the plea agreement in this case." The Court approved the payment as requested by counsel of $92.00 per hour for Mr. Asser for payment for interpreter services and $92.00 per hour for travel time to and from Florence and to and from the U.S. District Courthouse. The final sentence of the order, which was drafted by counsel, provides that "IT IS FURTHER ORDERED approving funds for costs incurred by Mr. Asser in the actual amount incurred not to exceed $150.00." The Court assumes this was a typographical error and counsel intended that this amount be $1,500.00 since that is the maximum amount this Court can approve for interpreter services or other expert services without approval by the Circuit Court of Appeals. The Court also assumes that the second voucher dated October 30, 2007 requesting $92.00 per hour rather than $94.00 per hour for some of the billed hours and deleting the charge for milage was done based on the prior Court order. The Court also assumes that the number of hours was reduced from 20 to 16 so that the total claimed would be less than $1,500.00 -2Case 2:03-cr-00470-SRB Document 191 Filed 12/11/2007 Page 2 of 4

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When counsel for Defendant obtained authority for the appointment of Mr. Asser as an interpreter and payment for Mr. Asser at $92.00 per hour, it was for the purpose of assisting in interpreting the plea agreement in this case. While CJA counsel must retain interpreters to assist them in going over plea agreements and other documents with their nonEnglish speaking clients, interpretation in-court is not arranged through CJA counsel but instead is arranged through the Court Interpreters' Office. Apparently counsel for the Defendant bypassed the Court Interpreters' Office without this Court's knowledge and directly arrange for Mr. Asser's presence at both the change of plea and sentencing. This Court's prior authorization for Mr. Asser's payment did not contemplate that he would be retained by CJA counsel for the change of plea and for sentencing. The Administrative Office of the United States Courts has only authorized the payment for noncertified interpreters at $175.00 for a full day and $94.00 for a half day. Therefore, this Court cannot compensate Mr. Asser for his in-court time beyond this rate. Moreover, this Court, even if compensating hourly, could not compensate Mr. Asser for four hours of incourt time when the Court's minutes for the change of plea hearing and the sentencing hearing reflect that each hearing lasted less than 40 minutes. Moreover, no itemization has been submitted that would indicate what portion of out-of-court time is covered by the Court's order with respect to assistance in interpreting at CCA or at the courthouse with counsel or for travel time to and from CCA for those purposes. While the Court will honor its order for the payment of Mr. Asser when assisting defense counsel out-of-court that agreement does not cover in-court time and payment pursuant to that agreement can only be made with an itemized statement that includes the dates and times of the various items that were incurred. With respect to Mr. Asser's two court appearances, he will only compensated at the half day rate for non-certified interpreters of $94.00 per half-day.

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IT IS ORDERED granting in part and denying in part Defendant's Motion for Payment of Dutch Speaking Attorney to Assist with Interpretation. (Doc. 190)

DATED this 11th day of December, 2007.

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