Opinion
No. 01-20077-01-KHV.
May 16, 2002
MEMORANDUM AND ORDER
The Court has scheduled an evidentiary hearing on Monday, May 20, 2002 at 9:30 a.m. on the Motion To Withdraw As Counsel For Dennis W. Vaughan, III (Doc. #36) and defendant's Motion For Appointment Of Counsel (Doc. #39), both filed April 26, 2001. This matter comes before the Court on defendant's Motion For Transportation Funds For Dennis W. Vaughn, III (Doc. #44) filed May 10, 2002. Defendant seeks transportation funds under 18 U.S.C. § 4285 to attend the May 20 hearing. Defendant claims that he "does not have the money to pay for transportation from his home to Kansas City, and return, or for lodging or transportation while he is in Kansas City." Id. at 1.
Defendant asks the Court to appoint counsel because he cannot afford to pay current counsel. See Motion For Appointment Of Counsel at 1. Defendant's local counsel Glen W. Froelich seeks to withdraw because (1) defendant has not paid for his services; (2) defendant cannot pay for legal services; (3) Froelich has not communicated with lead counsel Walter W. Cohen since January 2002; and (4) Froelich lacks sufficient experience to serve as lead counsel. See Motion To Withdraw As Counsel For Dennis W. Vaughan, III at 1.
Defendant does not state from where he needs transportation. According to probation records, he resides in Blue Bell, Pennsylvania, a suburb of Philadelphia.
The Court exercises discretion in deciding whether to pay for transportation under Section 4285. See United States v. Sheehan, No. 95-5985, 1997 WL 189598, at *1 (4th Cir. April 27, 1997); United States v. Schooff, No. 89-30370, 1990 WL 118912, at *1 (9th Cir. Aug. 16, 1990). The statute provides:
Any judge or magistrate of the United States . . . may, when the interests of justice would be served thereby and the United State judge or magistrate 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 under section 5702(a) of title 5, United States Code.18 U.S.C. § 4285. The statute authorizes payment for travel to the Court and subsistence during the period of travel. See United States v. Gundersen, 978 F.2d 580, 584 (10th Cir. 1992). It does not authorize payment for subsistence during the period of the hearing, see id., United States v. Sandoval, 812 F. Supp. 1156, 1157 (D.Kan. 1993), or for defendant's return home after the proceeding, see 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).
The Pretrial Services Act, 18 U.S.C. § 3152-3156, requires the Pretrial Services Agency to provide food and shelter to indigent defendants during trial. See Gunderson, 978 F.2d at 584-85.
Defendant provides no evidence of his financial condition. The financial affidavit which defendant filed in support of his motion to appoint counsel states that he is not currently employed, but that he earned $62,000.00 in the past 12 months and that his wife currently earns $4,000.00 per month. See Financial Affidavit (Doc. #37) filed April 26, 2002. The affidavit also states that they have two dependent children and make monthly payments of $3,200.00 on a first mortgage on their home, $1,100.00 on a second mortgage on their home, $603.00 for their car (a BMW), and over $3,000.00 on 13 credit card accounts. Defendant has not shown that he is unable to pay for transportation to attend the hearing. Therefore, the Court will not fund his transportation under 18 U.S.C. § 4285.
The affidavit states that defendant owes at total of $666,000.00 on his home, $36,642.00 on his car and $31,022.00 on his credit card accounts.
Probation records indicate that in November 2001 defendant purchased a home for approximately $700,000.00, which he transferred to his wife six days later. Probation records also show that his credit card accounts remain current. Defendant apparently lives an extravagant life style, and with 13 active credit accounts, he can undoubtedly charge a bus ticket to attend the hearing.
IT IS THEREFORE ORDERED that defendant's Motion For Transportation Funds For Dennis W. Vaughn, III (Doc. #44) filed May 10, 2002 be and hereby is OVERRULED.