Opinion
2:08-cr-00122-GEB2:07-cr-00S71-GEB
08-04-2011
UNITED STATES OF AMERICA, Plaintiff, v. ERIC BROOKS; et al., Defendants. UNITED STATES OF AMERICA, Plaintiff, v. CESAR QUINTERO-FELIX; et al. , Defendants.
ORDER REDUCING REQUEST FOR
ATTORNEY'S FEES UNDER THE
CRIMINAL JUSTICE ACT
On May, 24, 2011, I stayed an order filed May 24, 2011 ("May 24, 2011 Order") in which I proposed a fifty percent reduction of attorney Dwight M. Samuel's request for attorney's fees sought under the Criminal Justice Act ("CJA"). The stay was imposed since the May 24, 2011 Order incorrectly stated the total amount of attorney's fees Mr. Samuel requested for work in both of the above captioned cases and to allow time for further analysis of Mr. Samuel's vouchers. After the stay was imposed, Mr. Samuel sent an email to my courtroom deputy on May 31, 2011 ("May 31 email"), to which he attached his written response to the May 24, 2011 Order, and in which he requested an opportunity to discuss his vouchers with me. I held an in chambers hearing with Mr. Samuel on June 10, 2011 ("hearing"), which has been transcribed by a court reporter. The hearing commenced at approximately 11:00 a.m. An hour lunch break was taken at approximately 12:00 p.m., and the hearing concluded at approximately 3:15 p.m.
The May 31 email and attached written response are attached to this order under the cover sheet marked "Samuel's May 31, 2011 Email." Two portions of Mr. Samuel's written response have been redacted. An unredacted copy of the written response has been forwarded to Kurt Heiser, the Federal Defender's CJA Panel Administrator, for transmission to the Ninth Circuit with Mr. Samuel's vouchers.
A copy of the Reporter's Transcript of the June 10, 2011 in-chambers hearing has been forwarded to Kurt Heiser for transmission to the Ninth Circuit with Mr. Samuel's vouchers.
For the reasons stated below, the May 24, 2011 stay is lifted, and the May 24, 2011 Order is supplemented and amended as follows.
A. The First Hour of the Hearing
Fifty-one (51) billing entries were discussed during the hearing; however, I was astonished that less than three billing entries were addressed during the first hour, due to the manner in which Mr. Samuel responded to my questions. For example, it took time for Mr. Samuel to explain why he included matters in his May 31 email which appeared irrelevant to his explanation of billing entries in his vouchers; Mr. Samuel's stated reason for including the referenced matters was to show that his client had to be convinced of things Mr Samuel told him. (Hr'g Tr. 2:18-7:16.)
Further, Mr. Samuel explained his practice of viewing multiple court filings as discrete tasks even though his vouchers contain block billing, indicating that he viewed more than one filing during the same period. "Block billing is a practice where the amount of time spent by an attorney on each discrete task is not identified, but instead all hours spent during [some part] of a day on multiple tasks are billed together." Yeager v. Bowlin. No. CIV. 2:08-102 WBS JFM, 2010 WL 1689225, at *1 (E.D. Cal. Apr. 26, 2010) . The use of block billing "makes it [difficult] for the Court to determine how much time was spent on each discrete task" and to assess the reasonableness of time spent on specific tasks. L.A. Printex Indus., Inc. v. William Carter Co., No. CV 09-2449-JFW (FMOx), 2010 WL 4916634, at *11 (CD. Cal. Dec. 1, 2010); see also Yeager, 2010 WL 1689225, at *1 (stating that "[t]he California State Bar's Committee on Mandatory Fee Arbitration has concluded that block billing hides accountability and may increase time by 10% to 30% by lumping together tasks" (internal quotation marks and citation omitted)).
Specifically, in the referenced block billing entries, Mr, Samuel recorded his time in a manner which indicates that he viewed each of the documents in the entries in tandem. Mr. Samuel stated at the hearing that contrary to how he elected to block bill his time in these voucher entries, he "believes" he read many of the court filings separately, meaning he did not view the filings in tandem and saw each filing at a different time during the day. Therefore, Mr. Samuel testified that he "believes" that what he recorded as block billing in his vouchers may not actually have been block billing. However, Mr. Samuel stated later in the hearing that he also reviews multiple filings in one sitting (meaning in tandem) , and that he has no present recollection of what . he actually did when he block billed in his vouchers for viewing filings.
The following portions of the hearing transcript illuminate what was discussed during the referenced portion of the hearing:
THE COURT: Let the record reflect I'm meeting with Mr. Samuel in my chambers library. One of my lawyers is present.(Hr'g Tr. 2:4-21, 7:17-23:2.)
You sent an e-mail, Mr. Samuel. This meeting is pursuant to your request for a meeting for filings that I have made concerning two vouchers you submitted under the Criminal Justice Act. And you requested an opportunity to meet with me concerning your, bills, and I'm giving you the opportunity.
In the e-mail document you sent to me dated May 31st, 2011, you stated a couple of things that have nothing to do with your vouchers and should be redacted.
MR. SAMUEL: Okay.
THE COURT: Because this may be made public later.
MR. SAMUEL: Okay.
THE COURT: And so I'm going to begin the proceeding.
The portion of the proceeding that I'm going to cover right now is probably not going to be made public because you may have something to say about what I'm redacting.
. . . .
THE COURT: This portion of the proceedings could be made public ... I could attach the transcript to the public filing.
As you understand, everything that's covered will be sent to the Ninth Circuit, the reviewing court, of anything that I do under the Criminal Justice Act.
How long have you been a criminal defense lawyer, Mr. Samuel?
MR. SAMUEL: I've been -- well, I started out --
THE COURT: Sorry about that. Did I have you to administer the oath to him?
(Mr. Dwight Samuel was sworn by Diane J. Shepard, CSR #6331.)
MR. SAMUEL: I been in the practice of criminal work -- I started out as a district attorney in Yolo County in 1973.1 believe. And I've been in continued criminal prosecution and defense work since that time and date.
THE COURT: How long have you been a criminal defense lawyer?
MR. SAMUEL: All but five years of that. I think -- well, all but four years of that. So from about '76 forward. 1976.
THE COURT: How many years is that?
MR. SAMUEL: A long time, Your Honor. I was sworn in in 1972. That was at the age of 26. I'm 66.
THE COURT: You've been a criminal defense lawyer for about 35 years?
MR. SAMUEL: Yes.
THE COURT: How long have you been on the Criminal Justice Act Panel?
MR. SAMUEL: I think at least 20 years. Could be more. I've been through quite a few various bosses.
THE COURT: What does that mean?
MR. SAMUEL: Like Dan Broderick. I call him a boss.
THE COURT: When you say bosses, you mean appointed federal defenders?
MR. SAMUEL: Yes. Going back to Mr. Walker at least.
THE COURT: So you're one of the individuals that would be considered an experienced seasoned, experienced criminal defense lawyer on our panel?
MR. SAMUEL: I believe so, Your Honor. I actually have been assigned to do death penalty cases in federal court.
THE COURT: Okay. I've numbered the matters that you identified in your e-mail. And your e-mail is dated -- e-mail to me is dated May 31, 2011.
And the first matter numbered concerns your billing entry on December 17, 2007. You billed for the task involved in that entry. It's block billing.
You are telling me in your billing that it took you anywhere from 43 to 48 minutes. You billed a .8. A .8 means 48 minutes. I think what you have explained, which is true, that that means that it could have taken you anywhere from 43 to 48 minutes to read all this, right?
MR. SAMUEL: Well, can I just explain that for a second, Your Honor?
THE COURT: Sure.
MR. SAMUEL: These publications as they come through the e-mail --
THE COURT: What publications?
MR. SAMUEL: I mean ECF filings 29, 27, 20, 30, the ones I've enumerated --
THE COURT: The record doesn't reflect what you're talking about. You billed as block billings?
MR. SAMUEL: Correct.
THE COURT: Let's see what you say here. This is your e-mail: ["] 12-17-07 billing of .8. The notation is a block filing referring to the review of eight ECF filings - 29, 27, 20, 30, 22, 24, 32, and 31. ["]
And those are docket entry numbers, right?
MR. SAMUEL: Yes.
THE COURT: [I] understand that.
MR. SAMUEL: Okay.
THE COURT: And so what you are conveying by this billing is that it took you 43 to 48 minutes -- I'm not sure whether it's 43 or the upper of 48 -- to read all this. I should let you know -
MR. SAMUEL: Uh-huh.
THE COURT: -- that I read it before coming in here.
MR. SAMUEL: Sure.
THE COURT: I read it in three minutes.
MR. SAMUEL: Can I respond?
THE COURT: I read all of these, all of these documents in three minutes.
MR. SAMUEL: I understand that, Your Honor. And if you were to individually line them all up and read them all at the same time, then I suspect that that would be true.
But these e-mails don't come to me all in a line, all at one time, or I don't read them all in a line or all at one time. So that's why each one of these is reflective of an individual looking at it. And as we know, the minimum billing is .1.
So that's how that gets to .8 because it's an individual task, a discreet task, which is done. And what we're instructed to do -- based upon what we are instructed to do is as to the discreet task if, you know, I mean --
THE COURT: Just a minute, sir. You didn't bill it as a discreet task.
MR. SAMUEL: You're right. I didn't.
THE COURT: You blocked billed it to convey that you read it all at the same time. That's how you've billed it.
Just a moment. I want to look at your e-mail explanation.
MR. SAMUEL: Sure.
THE COURT: In your e-mail explanation you say, in part: Finally, not all e-mails received on a specific date are viewed all at one time. This entry of .8 is for simply opening eight documents, reviewing each one, and I believe this time is reasonable.
Sir?
MR. SAMUEL: Yes.
THE COURT: Are you telling me that you reviewed each document separately, and then there was some space, you did other things, and then you went and reviewed another document, is that what you're saying?
MR. SAMUEL: Yeah.
THE COURT: How do you know that? How do you know you did that?
MR. SAMUEL: I don't, Your Honor. I can tell you this --
THE COURT: If you don't know you did it, then why did you say yes?
MR. SAMUEL: Because I believe that's what I did, Your Honor. That's my best recollection. I don't have the file any longer, and I believe that's what I did.
THE COURT: Sir, if that's what you did, then why didn't you bill for discreet tasks at the time you did it, if that's what you did?
MR. SAMUEL: My explanation for the block billing was presented in the second paragraph, which I indicated that I was -- when we had been involved --
THE COURT: Second paragraph of what?
MR. SAMUEL: My letter of May 31st.
THE COURT: On the first page?
MR. SAMUEL: Yes. And it indicated that we had received instructions from the Ninth Circuit --
THE COURT: Sir, I'm not criticizing you for block billing.
MR. SAMUEL: Okay.
THE COURT: I question it. I'm asking you why you billed what you billed? Because you indicate in your billing that you read all these documents --
MR. SAMUEL: Right.
THE COURT: --at the same time.
MR. SAMUEL: No, I didn't. Maybe that's unclear to you, Your Honor. Because I don't want to argue. I'm not saying to this Court at least I didn't think I said to this Court -- that I read them all at the same time.
THE COURT: Well, when you give me a voucher that sets forth billing tasks, and you say under date -- which is what we're talking about, and I'm
going to read it -- ["] 12-17-2007.[" ] And then in description: ["]Review three co-defendants' detention order and arrest warrants and minutes for detention hearing.["] And then you put .8.
MR. SAMUEL: That's on 12-17?
THE COURT: Look at your billing voucher. It's right there. That's what you say.
MR. SAMUEL: Well, I see what I said there. That is a combination of the work because we thought we -- we could combine it together. Obviously I was wrong. And obviously it stated that I'm wrong.
THE COURT: I don't know what you're saying you're wrong about when you say that was a combination of the work.
MR. SAMUEL: The block billing.
THE COURT: All right. Maybe we need to move on.
MR. SAMUEL: Okay.
THE COURT: Because I'm going to tell you what I hear you telling me.
MR. SAMUEL: Uh-huh.
THE COURT: What I hear you telling me is that your billing entry here is inaccurate, and that you actually did sit down, and you considered each of these documents -- I think it's eight documents referenced in this block billing -- separately, and that you could have billed for them separately?
MR. SAMUEL: Yeah.
THE COURT: But for some reason you elected not to. And then apparently later in the day then you decided to bill for them all at once.
MR. SAMUEL: I think the Court assumes that I do my billing -- I do much of my billing contemporaneous with the acts. I don't do all these billings contemporaneous with the acts.
THE COURT: We're not talking about all bills. You can be specific. You can be here for a long time talking about 12-17-2007, that precise billing that I just showed you, which I just read into the record.
MR. SAMUEL: Right.
THE COURT: Which you state -- and I believe you affirmed this when you signed this voucher --["]review three co-defendants' detention order and arrest warrants and minutes for detention hearing. . 8["] . Shall we go on?
MR. SAMUEL: I heard what the Court said, yes. I understand the comparison.
THE COURT: And I'll be frank. I don't understand what you're saying.
You're indicating to me that you do not bill contemporaneously. You're indicating to me that although you told me and by submitting the bill this way that you read everything at the same time, that that's not what you meant to tell me.
MR. SAMUEL: Correct.
THE COURT: What you meant to say was that you read the documents separately in separate settings, but, yet, for some reason you didn't bill for them separately. I guess you categorize that in your mind. And then you decided to bill later on in the day. That's the message you're giving me.
. . . Tell me again what you did on December 17th, 2007 concerning this billing.
MR. SAMUEL: Well, I've tried to recreate that based upon my review of the materials to try to explain to the Court why I did a billing --
THE COURT: All right. Then let's go on.
MR. SAMUEL: All right. Sorry.
THE COURT: What I have as number two next to your e-mail concerns your billing entry on December 18th, 2007. It's at the top of the page. Do you see that?
MR. SAMUEL: Yes.
THE COURT: It says: Billing of .4 is to review three ECF documents - 23, 26 and 25. The detention conditions of other defendants was important to the defendant. I noted this for later discussions with the defendant.
Your voucher concerning this billing entry has under the date of 12-18-07 in the descriptions:
["] Review detention hearing minutes, arrest warrant for co-defendant and designation of counsel.["]
Your voucher indicates that you reviewed all of those matters in one sitting, correct?
MR. SAMUEL: Well, my explanation is still the same as the last time in that you're assuming --
THE COURT: Well, just tell me what you did.
Sir, look, if you give me something -- you do have discreet billings in your voucher. This is not a discreet billing. And so just tell me what you did.
MR. SAMUEL: Well, I can only tell you what I normally do, Your Honor. Because this is a long time ago. What I normally do is I will get an e-mail --
THE COURT: Before you do that, when you say this is a long time ago, you can only tell me what you normally did, that conveys that you don't know what you did on this date with this billing entry.
MR. SAMUEL: No, I don't. I mean, you know, honestly --
THE COURT: All right.
MR. SAMUEL: -- I don't.
THE COURT: All right.
MR. SAMUEL: I promised myself I would try to answer the Court's question. But if it's a very specific question like that, I know what I normally do. I know what I normally do. And specifically that time and that date right now I don't have an independent recollection, and I apologize to the Court for that.
THE COURT: I'm not asking you to apologize. I'm trying to ascertain whether your voucher is accurate.
I will tell you this. You're the second lawyer I've had in my chambers library concerning a voucher, and the first lawyer I did not make any changes. I approved the voucher.
I'm having serious concerns about your voucher and about your responses to me. You billed -- in this billing entry you're telling me that it took
you 19 to 24 minutes to look at this minute text. It's right here.
MR. SAMUEL: Okay.
THE COURT: [L]ook at this minute text. That minute text is -- what's the docket number on top of that, sir?
MR. SAMUEL: Appears to be 26..
THE COURT: Okay. It's 26. And to look at 25, which is two sentences, and to look at a form warrant for arrest, which you don't have to read the whole thing. You know that.
MR. SAMUEL: Right.
THE COURT: You only look for certain information. So it took you 19 to 24 minutes to look at -- I want those documents back, by the way.
MR. SAMUEL: Yeah. I'm just moving mine over there.
THE COURT: I understand. I'm just telling you that I want them back because I' m going to place them back in the notebook that I got them out of.
MR. SAMUEL: Right. Well --
THE COURT: You said that you billed -- I mean, you billed -- am I making it -- no, you billed .4. .4 is 24 minutes. And you've explained to me that that doesn't necessarily mean you billed 24 minutes. That means you could have billed anywhere from 19 to 24 minutes. Even if it you took you 19 minutes, these are three documents. Hardly any text. It would not take 19 minutes to read these documents. I read them in about a minute.
MR. SAMUEL: I understand that, Your Honor. And the only thing I can relate to the Court is that each one of these items were viewed -- this is the way it looks to me, anyway -- each one of them were viewed separately. They weren't viewed at the same time.
And each one of them, if you open that, according to what I understand, that is .1 billing. So there's ,3 billings just looking at three of these things. That's my understanding. If it's a mistake, then I will certainly stand corrected on that. But if I were to --
THE COURT: Just a moment. I need you to explain that again.
Are you telling me that if you sit at the computer, and you're on the court's docket system for this case, each time you open a document you bill at a minimum six minutes, no matter how long you were in front of the computer?
MR. SAMUEL: Can I clarify? First of all, I'm not in the court's docket. I'm in my own computer docket, which I get an e-mail directed to me as well. All right?
THE COURT: Okay.
MR. SAMUEL: So what I'm indicating to you is that if these -- if I read them separately, three discreet events.
THE COURT: If you read them together. Just start with together. Because that's how you billed it . . .
MR. SAMUEL: Well, I don't necessarily agree with the Court's characterization.
THE COURT: So you're telling me you absolutely did not read them together?
MR. SAMUEL: Once again, I cannot specifically sit here and recall on 12-18 whether I -- I can only tell you what I normally do, if the Court would allow me.
THE COURT: If you sometimes read them together
MR. SAMUEL: Uh-huh.
THE COURT: -- tell me how you bill.
MR. SAMUEL: If I sometimes read them together, I would probably bill them -- well, I would bill them as reading ECF 23 and 26. Let's say those were the two together. It may very well be .1. I don't commonly --
THE COURT: You have three documents.
MR. SAMUEL: I --
THE COURT: Sir, just a moment. You have got three documents, and if you read all three of them at the same time, one after another in one sitting, how would you bill that?
MR. SAMUEL: I would bill that as a . 1 if I read them all at one sitting, Your Honor. That's what it would be.
THE COURT: And as you sit here now, you don't know if it was one sitting, do you?
MR. SAMUEL: No, I don't.
THE COURT: But are you --
MR. SAMUEL: I think --
THE COURT: Just a moment. Are you telling me that it was more than one sitting?
MR. SAMUEL: I think it was, yes.
THE COURT: How do you know?
MR. SAMUEL: By my common practice. And my common practice is I'll come into the office, I'll open up my e-mail in the morning, I'll look at my e-mail in the morning.
I may not look at everything that's still there in the morning because I have other things to do. I'll go back to my e-mail at least before noon, look at the material again, try to get through that material again.
And then if I can't get through that material again, I usually open it once again before 1:30, and I usually open it again before 5:00.
So there's at least four to five times that I'm touching my e-mail a day. And so that's why I cannot tell you whether -- and there's intervening things that occur. That's why I can't tell you whether I read it at one sitting or read it at four sittings. I should be much more discreet about that. I recognize that. But I can't tell you.
THE COURT: But you didn't bill for .1 for reading all three documents, you billed .4.
MR. SAMUEL: Right.
THE COURT: Which is meant that it took you up to 24 minutes, 19 to 24 minutes.
MR. SAMUEL: It could have.
THE COURT: It could have.
MR. SAMUEL: Well, no. No, Your Honor. Look, if I open this e-mail, and I see this e-mail, and it's the only e-mail I see, it's a discreet billing, theoretically. I should have done that. It would have been at the minimum .1, whether it was one-minute or six minutes or five minutes, whatever it is.
So if I go to my e-mail, and I discreetly open each one at a different setting, then theoretically, under the auspices of what we're supposed to be doing, that would be six separate contacts, six discreet things.
I admit that I did block billing, but I didn't infer, I believe -- I don't think I'm inferring --that while I was doing that that I was saying that I did this all together, and that's what I want --
THE COURT: Sir, that's how you billed.
MR. SAMUEL: Right.
THE COURT: That's how you billed. And it would seem to me that if you handled each task separately, you should have billed separately.
MR. SAMUEL: I agree with you completely now, Your Honor. And seeing what I'm having to do --
THE COURT: Let's go on. This seems to be wasting time.
MR. SAMUEL: All right.
B. Mr. Samuel's Responses to the Questioned Billing Entries
Mr. Samuel responded in his May 31 email to each of the CJA billing issues I raised in my May 24, 2011 Order and in my earlier "Proposed CJA Attorney Fee Reduction" judicial communication, dated April 1, 2011 ("April Communication") . For ease of review, each of the questioned billing entries, and Mr. Samuel's written responses thereto, were assigned a number (1-33). The numbers are handwritten on the copy of Mr. Samuel's May 31 email, which is attached to this order. These billing entries were discussed in numerical order with Mr. Samuel at the hearing, and are discussed in the same order herein.
The April Communication was incorporated by reference and attached to my May 24, 2011 Order.
1) 12-17-07 (Action No. 2:07-cr-00571)
Mr. Samuel block-billed 0.8 of an hour (43-48 minutes) on December 17, 2007 in Action No. 2:07-cr-00571 for "Review 3 co-defendant's detention order and arrest warrants, and minutes for detention hearing." I requested clarification of this block billing entry in my April Communication. (April Comm. 2:7-10.) Mr. Samuel responded in his May 31 email as follows:
The electronic case filings Mr. Samuel reviewed in this billing entry are attached to this order under the cover sheet marked "Filings for No. 1." For ease of reference, all electronic case filings and/or electronic docket entries referenced in a billing entry are attached to this order under a cover sheet marked "Filings for No. ___" for the corresponding number.
[T] he notation is a block filing referring to the review of eight ECF filings: 29, 27, 20, 30, 22, 24, 32, 31. The process in my office entails, opening my email, and viewing each document and filing them in one of two places if no further action is needed. I personally file each in an efile containing all emails from any source for that case. If the documents are meaningful in some way then they may be saved to my [computer's] hard drive in a file created for that document for recall later. If the document is important to the defendant as conditions of release for the other defendants, or sentences or plea agreements, then I might print out that document for my client. Finally, not all emails received on a specific date are viewed all at one time. This entry of .8 is for simply opening eight documents reviewing each one and I believe this time is reasonable.(May 31 email 2-3.)
It took me only three minutes to read the eight filings referenced in this billing entry. When I told Mr. Samuel at the hearing that I read all eight documents in three minutes, he admitted that if the filings were read in tandem as I read them, it would likely take only three minutes to read them. (Hr'g Tr. 10:23-11:2.) However, Mr. Samuel also stated at the hearing that it is his practice to read multiple electronic filings in separate sittings. Id. at 11:3-12:6. The entire portion of the hearing transcript regarding this billing entry is provided supra.
Mr. Samuel's testimony at the hearing reveals that he really does not know whether he read the eight filings "at the same time" or not. Although he testified that he reviewed "each document separately . . . and . . . did other things" between his review of each document, when I asked how he knows he did that, he responded: "I don't [.]" Id. at 12:2-9. I then asked Mr. Samuel, "If you don't know you did it, then why did you say yes?" Id. at 12:11-12. He responded, "Because I believe that's what I did, . . . [t] hat's my best recollection. I don't have the file any longer, and I believe that's what I did." Id. at 12:11-15. Nor can Mr. Samuel provide contemporaneous billing records to support his present reconstructed "belief" of what he thinks he did when he aggregated the eight tasks in this block billing entry, since he testified at the hearing that he does not "do all [of his CJA] billings contemporaneous with the acts." Id. at 14:19-22. The CJA Guidelines prescribe that "appointed counsel must maintain contemporaneous time . . . records for all work performed[,]" and retain such records "for three years after approval of the final voucher [.]" Guidelines for Administering the CJA and Related Statutes, Vol. 7A, Guide to the Judiciary Policy ("CJA Guidelines"), §230.76; see also Instructions for CJA Form 20 (stating "[a]11 payments made pursuant to this [voucher] are subject to post-audit; contemporaneous time and attendance records as well as expense records must be maintained for three years after approval of the final .voucher") .
Also troubling was Mr. Samuel's revelation, later in the hearing, that when he bills for the review of documents, he does not keep track of his time. (Hr'g Tr. 59:15-61:18.) Mr. Samuel described it, instead, as a "gut thing" where "everything starts with a .It,] and [he] estimate [s] whether or not it took over six minutes." Id. at 60:16-61:18. It is unclear when Mr. Samuel makes the referenced estimation, i.e. if it is made contemporaneously when he reviews the document (s) , or at a later time.
Pages 60-61 of the hearing transcript are quoted in full infra.
Mr. Samuel's conclusory, unsupported testimony about what he now "believes" he did several months ago is insufficient to contradict the block billing in his voucher, in which his averment conveys that he reviewed the eight filings in tandem and during the same period; specifically, Mr. Samuel aggregated the eight tasks in his voucher and did not allocate what amount of time was spent on each task.
Further, Mr. Samuel's stated "belief" has not shown to be "equivalent to knowledge." Jameson v. Jameson, 176 F.2d 58, 60 (D.C. Cir. 1949). When evaluating what weight, if any, to give to a person's "belief," the context in which the person states what he believes is considered. "Belief" statements are "entitled to no weight" when the declarant fails to show he has "personal knowledge" of the matters on which he has given opinions prefaced with the word "believe." Bank Melli Iran v. Pahlavi. 58 F.3d 1406, 1412 (9th Cir. 1995)(citations omitted); Pace v. Capobianco. 283 F.3d 1275, 1279 (11th Cir. 2002) (stating " [t]he district court's treatment of the 'believe' portion of [an affiant's] statement in his affidavit ... as sufficient to create a fact issue . . . was error[,]" since the affiant did not have a sufficient factual basis to believe what he averred he believed).
In light of the context in which Mr Samuel uses the words "I believe," including Mr. Samuel's demeanor at the hearing, his usage of those words appears spawned from his post hoc effort to reconstruct block billing averments in his voucher into separate billing entries for the purpose of justifying the amount of time billed. If Mr. Samuel reviewed the eight documents separately, it is manifestly clear that he should have listed and billed each task separately.
If [a CJA] attorney . . . spends all of his or her time on one task, that is the only task that should be recited in the billing entry. If work is performed on more than one task, all tasks should be recited and the amount of time for each task should be designated in the billing entry with, perhaps, the total amount for the [time period involved] listed separately. Because attorneys should be accurately recording their time, the requirement that the time spent on each task be recorded will not be a disincentive to continued accurate time recording.Frevach Land Co. v. Multnomah Cnty., Dept. of Envtl. Servs., Land Use Planning Div., No. CV-99-1295-HU, 2001 WL 34039133, at *11 (D. Or. Dec. 18, 2001). Mr. Samuel's silence as to why he did not divide the eight tasks into separate time entries supports drawing the reasonable inference that he performed these tasks during the same time period in tandem, meaning he reviewed the eight filings in three minutes as I did; and, therefore, he considered them to comprise one billing entry. Since Mr. Samuel's testimony at the hearing evinces that he does not know what he did, I am relying upon his averments in his voucher.
In fact, in [the above captioned] case[s], there are [several billing] time entries by [Mr. Samuel] in which he did exactly what is required.
Further, Mr. Samuel's written response concerning this billing entry described time he expended performing secretarial tasks, which are not reimbursable under the CJA. CJA Guidelines § 230.66.10; see also U.S. v. Seaurola. No. 09-20628-CR-GRAHAM, 2010 WL 4387751, at *4 (S.D. Fla. Oct. 26, 2010) (deducting time CJA counsel billed to "open client & co-def files, organize file & info," "review & calendar events re: scheduling order," "organize materials re: defense experts," and "file & organize info & docs" as "clerical duties"); U.S. v. Rodriguez, No. 08-14 060-CR-MARTINEZ, 2010 WL 2710576, at *4 (S.D. Fla. June 23, 2010) (deducting time billed to "print case docket report," and "subpoena faxed" as "clerical work . . . not compensable under the CJA").
Mr. Samuel stated in his written response and in his sworn statements at the hearing that he did not know secretarial tasks cannot be billed under the CJA as counsel time spent representing his client until he received my April Communication. (May 31 email 3; Hr'g Tr. 5:2-9, 52:4-55:11.) Mr. Samuel has been a CJA panel attorney for approximately twenty years; therefore, it is startling that he did not know he could not seek reimbursement under the CJA for secretarial tasks until I informed him. (Hr'g Tr. 8:20-23.)
For the stated reasons, this billing entry is excessive by at least 0.6, or 75%.
2) 12-18-07 (Action No. 2:07-cr-00571)
Mr. Samuel billed 0.4 (19-24 minutes) for "Review detention hearing minutes, arrest warrant for co-defendant, and designation of counsel." I requested clarification of this block billing entry in my April Communication. (April Comm. 2:7-10.) Mr. Samuel responded in his May 31 email as follows: "[This billing] is to review three ECF documents: 23, 26 and 25. The detention conditions of other defendants was important to the defendant. I noted this for later discussions with the defendant." (May 31 email 3.)
Mr. Samuel admitted at the hearing that if the referenced documents were read in tandem, the time for their review should be billed at a 0.1, or just over zero to six minutes. (Hr'g Tr. 20:17-21.) He further stated that he does not recall if he read the documents in tandem or as three discrete tasks performed at separate times during the day. Id. at 20:22-24. The hearing record concerning this issue is as follows:
THE COURT: Sir, just a moment. You have got three documents, and if you read all three of them at the same time, one after another in one sitting, how would you bill that?Id. at 20:17-24.
MR. SAMUEL: I would bill that as a . 1 if I read them all at one sitting, Your Honor. That's what it would be.
THE COURT: And as you sit here now, you don't know if it was one sitting, do you?
MR. SAMUEL: No, I don't.
This billing entry is excessive by 0.3 or 75%.
3) 12-27-07 (Action No. 2:07-cr-00571)
Mr. Samuel billed 0.4 for "Review minutes for initial [appearance] and arraignment, and docket RE: shackling code as to Aid Luangrath." I requested clarification of this block billing entry in my April Communication. (April Comm. 2:7-10.) Mr. Samuel responded:
[T]his block billing was for reviewing ECF 38 and also a second note but not enumerated by number was an entry regarding shackling code F. I believe at this time there was some contention about shackling so I noted that policy for later discussion and action if necessary with my client.(May 31 email 3.)
Mr. Samuel further explained at the hearing that he believes this billing entry also included time to review other materials concerning changes to the court's shackling policy, which were being circulated among CJA panel attorneys at the time. (Hr'g Tr. 23:21-27:15,35:3-38:24.) Mr. Samuel described this additional work during the hearing as follows:
THE COURT: I'm not sure what you are telling me about Shackling Code F. You're indicating that you spent time concerning Shackling Code F.(Hr'g Tr. 23:21-27:15.)
MR. SAMUEL: Right. My recollection is that during this period of time, they were having new policy as it relates to shackling. That all counsel throughout the panel were concerned about shackling.
THE COURT: Sir, let me interrupt you. I have something about shackling, and I got this from a magistrate judge. And it's it says "full, legs only, none." And I think full means F, right? Is this the shackling code that you're talking about?
MR. SAMUEL: Yeah. Well, let me look at it for a second.
THE COURT: It's a one-page document.
MR. SAMUEL: And it's prisoner's threat level, right, and I've seen these before. And, yes, that, I'm pretty sure, was what it was that I was looking at.
THE COURT: Well, this is pretty simple. What was it that consumed your time with this document?
All it says is, judicial ruling, colon, when alone, colon, and then they have three boxes for the judge to check. And there's the word "full," then there's a box next to it, the words "legs only," then a box next to it, the word "none," then a box next to it. Then the next line says multiple defendants and has the same three boxes.
What is it that consumed your time looking at this?
MR. SAMUEL: Well, I think there was more than just looking at that that I was referencing when I referenced this notation. Because I said noted the
policy for later discussion. I had -- there was a large conversation going on --
THE COURT: Just a moment. You prefaced what you just -- what you're now saying, and I interrupted you with the words "I think."
MR. SAMUEL: Right.
THE COURT: Does that mean that you don't know, that you're guessing?
MR. SAMUEL: Once again, I guess the answer would have to be I don't know specifically, and this is my best recollection. My best recollection, Your Honor. I'm sorry.
THE COURT: I don't know what your best recollection is.
MR. SAMUEL: I know. You know, I mean --
THE COURT: Are you going to tell me -- have you told me your best recollection, or did I interrupt you?
MR. SAMUEL: I started to tell you my best recollection.
THE COURT: Go ahead.
MR. SAMUEL: Which was that this was a whole big thing that was going on. That that was an issue that people were appealing these particular motions.
THE COURT: What did you do, sir? I don't --
MR. SAMUEL: I went back -- and I'm sure that my recollection serves me correctly. I'm sure that I went back, and I looked at other people's indicators about the detention or the shackling issue, and I looked at other material.
Now I didn't discretely indicate that to you, and I guess I should have been extremely detailed about that. But that's my recollection that I went further. I mean, we're only talking about six minutes or so to take a look at something else.
THE COURT: Where did you look at it? What did you do?
MR. SAMUEL: Well, there are other e-mails --actually, what the panel does --
THE COURT: Well, I'm trying to figure out --MR. SAMUEL: I'm trying to --
THE COURT: I have an emergency. I'm sorry. I have to take this call.
(Pause in proceedings.)
THE COURT: Do you know where we were?
MR. SAMUEL: We were at the 12-27-07 shackling.
THE COURT: Did I interrupt you to take the emergency call?
MR. SAMUEL: I think I had finished my answer. I thought I had. Because -- oh, you know what, I hadn't.
What I was saying was -- you were asking -- I was saying that this -- there was a big conversation about shackling. So it was not just simply looking at the document that I was referring to when I said this .3. That I also -- oh, and what I was describing to the Court is that the panel puts out a lot of information.
And so there had been - - that's how I was aware that there was a large discussion about shackling. And they also put out materials and discovery and suggested approaches to that. This was probably one of the first times I had been involved with the shackling. I wanted to make myself conversant with that.
THE COURT: But you weren't involved at this point, and your client was not involved, right?
MR. SAMUEL: No. But the case was.
THE COURT: What do you mean the case was? You mean a defendant in the case?
MR. SAMUEL: Correct.
However, neither Mr. Samuel's vouchers, nor Mr. Samuel's written response regarding this billing entry, indicated that it encompassed such additional work. The discrepancy between Mr. Samuel's explanation for this time entry given during the hearing versus the billing entry and Mr. Samuel's written response was discussed at the hearing as follows:
Had Mr. Samuel kept contemporaneous time records, as required under the CJA, they would have been available to Mr. Samuel and the Court to determine what exact tasks this billing entry encompassed.
THE COURT: . . .
. . . .Id. at 36:5-39:6. The above exchange indicates Mr. Samuel does not know what he meant in his voucher where he wrote "docket RE: shackling code as to Aid Luangrath."
[N]ow what you are indicating to me, I think, is that you have something to say other than in your e-mail response and what's in your voucher?
MR. SAMUEL: I don't think I have anything further to say. I thought that I - - maybe I' m unclear.
I guess, yeah, because it's a further explanation as to what I did as it relates to the shackling code and it's a fleshing out, you know, and would take several further definition -- you know, further writing of what else I did to be a full and complete and concise statement of everything.
I mean it would -- I'm sorry. You know, all I can tell you is that I thought this was a full and complete determination. The best as I could determine based upon my recollection. This one, which is 12-27-07, is a specific recollection. And the only reason I put "believe" on there is because it was so long ago, and I don't have my file.
THE COURT: But that doesn't add anything. That's what I'm telling you. I'm telling you that the first sentence says the same thing as what's in your voucher description.
It says you looked at two things. You looked at 38, and you looked at what's unnumbered, which is on the docket sheet below 38, and that's a separate date entry of 12-27-07.
MR. SAMUEL: They, to me, were two discreet actions.
THE COURT: Sir, I'm not saying they're not two discreet actions. I'm saying this is all you told me you did.
MR. SAMUEL: Okay.
THE COURT: Are you telling me now that you did something other than just looking at these two docket entries?
MR. SAMUEL: As I said before lunch, I also --when I say noted it, that means I looked at some additional material relative to' the shackling and what was going on in our legal community as it relates to shackling. So I had -- and that's not in
THE COURT: This doesn't say "noted it." Unless I'm misreading this.
MR. SAMUEL: It says "noted it."
THE COURT: Read what you're talking about.
MR. SAMUEL: Says: I believe that at this time there was some contention about shackling, so I noted that policy for later discussion and action, if necessary, with my client.
THE COURT: What policy did you note?
MR. SAMUEL: The shackling policy.
THE COURT: How did you note it?
MR. SAMUEL: First of all, I became aware of it. I was aware of it because of what was going on in the legal community. And I referenced some of the material -
THE COURT: Sir, you say "noted." What do you mean by "noted" right here?
MR. SAMUEL: Took notice of it and took further action on it.
THE COURT: So then you mean two things then? The word "noted" means that you took notice of the shackling policy?
MR. SAMUEL: Right.
THE COURT: And that you took further action concerning the policy on December 27, 2007.
MR. SAMUEL: I refer -- when I say further ' action, I reviewed that policy and the materials that was noted to us by the CJA panel. And so, yeah, I'm saying that.
THE COURT: Why didn't -
MR. SAMUEL: I mean that's -
THE COURT: Why didn't you put that in your voucher?
MR. SAMUEL: I don't know.
THE COURT: Why didn't you put that in your e-mail response?
MR. SAMUEL: I don't know, Your Honor. I mean --
Further, even if Mr. Samuel's explanation during the hearing had to be credited, he has not shown that the time he spent educating himself on the shackling issue is recoverable under the CJA. Mr. Samuel conceded that his client was not involved in any shackling dispute, but stated he "wanted to make [him]self conversant with that" issue. Id. at 27:7-15. Attorneys are paid under the CJA both for hours spent before the court and those "reasonably expended out of court." 18 U.S.C. § 3006A(d)(1). Counsel seeking "payment of attorney fees . . . [under the CJA has] the duty ... to provide the court with satisfactory evidence the expenditure of time meets the standard of reasonability." U.S. v. Cook, 628 F. Supp. 38, 42 (D. Colo. 1985) . "The question [is] what hours were reasonably expended completing work necessary for adequate representation." In re Smith, 586 F.3d 1169, 1175 (9th Cir. 2009)(internal quotation marks and citations omitted). "An appointment under the CJA assumes familiarity with the basic rules governing criminal [matters] , . . . and counsel should not be compensated under the Act for reviewing those rules." US v. Hamilton, No. 96-10018-02, 1996 WL 633619, at *2 (D. Kan. Oct. 8, 1996); see also Cook, 628 F. Supp. at 42 (stating, "the fundamental purposes of the [CJA prevent] payment of attorney fees for the furtherance of counsel's education").
Mr. Samuel has not shown that whatever he did and "noted . . . [about the shackling] policy for later discussion and action, if necessary, with [his] client" involved time "reasonably expended completing work necessary for adequate representation" of his client. For the stated reasons, this billing entry is excessive by 0.3, or 75%.
6) 11-24-09 (Action No. 2:07-cr-00571)
Billing entry numbers 4 and 5 are not discussed in this order since they are not a basis for the reduction.
Mr. Samuel billed 0.4 for "Review 2 notices of appeal RE: Jauregui, judgement and [commitment], stipulation and order for sentencing, clerk's notice." I requested clarification of this block billing time entry in my April Communication. (April Comm. 2:7-10.) Mr. Samuel responded: "[T]his block billing entails the review of ECF 196, 197, 198 and 199. Four documents .4 total is consistent with the instructed billing practices that I am aware of at this time." (May 31 email 3.)
Mr. Samuel testified as follows at the hearing that he does not recall if he read the filings referenced in this billing in tandem or as three discrete tasks performed at different times during the day:
THE COURT: Those were block billing. Did you do the task all at once?(Hr'g Tr. at 41:12-15.)
MR. SAMUEL: I can't say that I did. I can't say that I didn't. But I suspect that I didn't.
This billing entry is excessive by at least 0.2 or 50%.
7) 12-1-09 (Action No. 2:07-cr-00571)
Mr. Samuel billed 0.4 for "Review judgment and commitment RE: Honeycutt, Stipulation, USCA case number for appeal." I requested clarification of this block billing time entry in my April Communication. (April Comm. 2:7-10.) Mr. Samuel responded in his email as follows:
[This] is a block billing entailing review of ECF 201, 202, 203.(May 31 email 3.)
Your honor expressed concern that my calendaring was a clerical duty and non-reimbursable. I was working under the assumption that because I attended court when future dates were set, and the one who read e-mails or stipulations setting or changing dates, calendaring was something I should do. Since this court's initial memo, I have read the applicable rule about reimbursement (§ 230.66.10(b)) and I agree that the court is correct; such calendaring is not reimbursable.
Mr. Samuel testified about this block billing at the hearing as follows:
THE COURT: Your e-mail response states: ["]12-1-09, billing of .4 is a block billing in telling review of ECF 201, 202, and 203.["](Hr'g Tr. 42:11-17.) This testimony conveys that Mr. Samuel does not know whether he read these filings in tandem or as separate tasks performed at different times during the day.
Do you know now whether those are discreet acts, or did you sit in one sitting and review those entries?
MR. SAMUEL: As I sit here, I don't know if those are discreet acts....
This billing entry is excessive by at least 0.2 or 50%.
Numbers 8-12, 14-15 (Action No. 2:07-cr-00571)
I also asked Mr. Samuel for clarification in my April Communication of the following billing entries in Action No. 2:07-cr-00571 (See April Comm. 2:11-19):
At this point in the hearing, I began discussing multiple billing entries together in an effort to expedite the proceeding. Billing entry number 13 is not discussed in this order since it is not a basis for the reduction.
+----------------------------------------------------------+ ¦No. ¦Date ¦Time ¦Billinq Descr ¦ +-----+--------+------+------------------------------------¦ ¦ ¦ ¦ ¦"Review sentencing minutes for ¦ ¦8 ¦8-14-09 ¦0.4 ¦ ¦ ¦ ¦ ¦ ¦Quintero-Felix and Sanchez" ¦ +-----+--------+------+------------------------------------¦ ¦ ¦ ¦ ¦"Review judgement and commitment RE:¦ ¦9 ¦8-25-09 ¦0.2 ¦ ¦ ¦ ¦ ¦ ¦Sanchez" ¦ +-----+--------+------+------------------------------------¦ ¦ ¦ ¦ ¦"Review sentencing minutes for ¦ ¦10 ¦11-13-09¦0.2 ¦ ¦ ¦ ¦ ¦ ¦Jauregui" ¦ +-----+--------+------+------------------------------------¦ ¦ ¦ ¦ ¦"Review sentencing minutes RE: ¦ ¦11 ¦11-20-09¦0.2 ¦ ¦ ¦ ¦ ¦ ¦Honeycutt" ¦ +-----+--------+------+------------------------------------¦ ¦ ¦ ¦ ¦"Review notice of appeal, receipt ¦ ¦12 ¦11-23-09¦0.2 ¦ ¦ ¦ ¦ ¦ ¦for $455" ¦ +-----+--------+------+------------------------------------¦ ¦ ¦ ¦ ¦"Review order and notice of service ¦ ¦14 ¦5-27-10 ¦0.2 ¦ ¦ ¦ ¦ ¦ ¦by mail" ¦ +-----+--------+------+------------------------------------¦ ¦15 ¦7-27-10 ¦0.2 ¦"Review docket and app to seal" ¦ +----------------------------------------------------------+
Mr. Samuel's written response to my inquiries regarding each above stated billing entry was unpersuasive. See May 31 email 3-4. These billings were discussed as a group at the hearing as follows:
THE COURT: Well, I can tell you that I don't -- I don't find persuasive what you tell me in your e-mail. I'll just tell you all the items to see if we can expedite this hearing.(Hr'g Tr. 50:21-52:3.)
I don't find your response concerning your billing entries for 8-14-09, 8-25-09, 11-13-09, 11-20-09, 11-23-09, 5-25-10 -- well, I'll stop at 5-25-10 -- I don't find your responses persuasive. I think all of those billings are excessive. And if you want me to give further explanation, I will.
MR. SAMUEL: No. Your Honor. You have absolute authority over this.
THE COURT: And you also have a right to a hearing.
MR. SAMUEL: All right. I'm sorry. You stopped at 5-25-10?
THE COURT: I did. The reason why I stopped there is because I've got a note, and I'm not sure what my note is. But maybe I shouldn't stop. Let me see. I can continue.
MR. SAMUEL: Your Honor, I don' t need you to continue unless you wish to.
THE COURT: I will continue.
MR. SAMUEL: Fine.
THE COURT: 5-27-10, 7-27-10 . . .
. . . .
And you could respond to those other matters if you want to, but I find -- at this juncture I find your responses unpersuasive and each of those billing entries are excessive. At least by 50 percent.
Each of these entries is excessive by at least 50%.
Numbers 16-20 (Action No. 2:08-cr-00122)
In reviewing Mr. Samuel's billing entries, I noted that the time he billed for reviewing the following docket entries in Action No. 2:08-cr-00122 was patently excessive:
See April Communication 2:20-3:13; May 24, 2011 Order 2:11-3:2.
+-------------------------------------------------------+ ¦No. ¦Date ¦Time ¦Billincr Descr ¦ +-----+--------+------+---------------------------------¦ ¦16 ¦11-5-09 ¦0.2 ¦"Review Minute Order" ¦ +-----+--------+------+---------------------------------¦ ¦ ¦ ¦ ¦"Review minutes RE: co-defendant/¦ ¦17 ¦11-13-09¦0.3 ¦ ¦ ¦ ¦ ¦ ¦wife and detention order" ¦ +-------------------------------------------------------+
+--------------------------------------------------+ ¦ ¦ ¦ ¦"Review request for permission to¦ ¦ ¦ ¦ ¦ ¦ ¦18¦1-22-10 ¦0.2¦appear at Co-defendant/wife's ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦sentencing" ¦ +--+---------+---+---------------------------------¦ ¦19¦7-20-10 ,¦0.2¦"Review stipulation by AUSA" ¦ +--+---------+---+---------------------------------¦ ¦ ¦ ¦ ¦"Review application and order to ¦ ¦20¦7-27-10 ¦0.2¦ ¦ ¦ ¦ ¦ ¦seal exhibits" ¦ +--------------------------------------------------+
Mr. Samuel's written response regarding these billings indicated that he improperly billed for secretarial tasks he performed, such as printing out a document and electronically filing a document on his computer. (May 31 email 4-5; see also Hr'g Tr. 51:16-52:3.)
These billing entries are excessive by at least 50%.
Numbers 21-33 (Action No. 2:07-cr-00571)
I also noted that the time Mr. Samuel billed for reviewing the following docket entries in Action No. 2:07-cr-00571 was clearly excessive:
See May 24, 2011 Order 3:3-6:14.
+--------------------------------------------------------------------------+ ¦NO. ¦Date ¦Time ¦Billing Descr ¦ +-----+--------+------+----------------------------------------------------¦ ¦21 ¦12-20-07¦0.2 ¦"Review detention order for co-defendant" ¦ +-----+--------+------+----------------------------------------------------¦ ¦22 ¦12-26-07¦0.2 ¦"Review notice of related cases" ¦ +-----+--------+------+----------------------------------------------------¦ ¦23 ¦1-2-08 ¦0.3 ¦"Review minutes, arraignment" ¦ +-----+--------+------+----------------------------------------------------¦ ¦24 ¦3-28-08 ¦0.2 ¦"Review substitution of attorney and update records"¦ +-----+--------+------+----------------------------------------------------¦ ¦25 ¦8-29-08 ¦0.2 ¦"Review minutes from motion hearing" ¦ +-----+--------+------+----------------------------------------------------¦ ¦26 ¦10-10-08¦0.2 ¦"Review minutes from change of plea" ¦ +-----+--------+------+----------------------------------------------------¦ ¦27 ¦11-3-08 ¦0.2 ¦"Review request for cancellation of motions hearing"¦ +-----+--------+------+----------------------------------------------------¦ ¦28 ¦11-28-08¦0.2 ¦"Review request for change of calendaring" ¦ +-----+--------+------+----------------------------------------------------¦ ¦29 ¦1-9-09 ¦0.2 ¦"Review minutes" ¦ +--------------------------------------------------------------------------+
+---------------------------------------------------+ ¦30¦1-15-09 ¦0.2¦"Review stipulation" ¦ +--+--------+---+-----------------------------------¦ ¦ ¦ ¦ ¦"Review judgement and commitment as¦ ¦31¦1-26-09 ¦0.4¦ ¦ ¦ ¦ ¦ ¦to co-defendant and order" ¦ +--+--------+---+-----------------------------------¦ ¦ ¦ ¦ ¦"Review sentencing minutes for ¦ ¦32¦11-13-09¦0.2¦ ¦ ¦ ¦ ¦ ¦Jauregui" ¦ +--+--------+---+-----------------------------------¦ ¦ ¦ ¦ ¦"Review sentencing minutes RE: ¦ ¦33¦11-20-09¦0.2¦ ¦ ¦ ¦ ¦ ¦Honeycutt" ¦ +---------------------------------------------------+
Mr. Samuel admitted in his written response that a number of these billing entries improperly included time during which he preformed secretarial tasks. (May 31 email 6-8.) These entries were discussed during the hearing as follows:
THE COURT: And then looking at . . . 12-20-07 in the 07-case. 12-26-07 in the 07 case. 1-2-08 in the 07 case. And I'm going to ask you about 3-28-08 .(Hr'g Tr. 51:22-70:16.)
And you could respond to those other matters if you want to, but I find -- at this juncture I find your responses unpersuasive and each of those billing entries are excessive. At least by 50 percent.
In 07-571, 3-28-08. You state in the description: ["]Review substitution of attorney and update records.["]
In your e-mail response you state: ["]Simple substitution of counsel. However, the process requires a change of counsel to be noted for the file and my records updated. This notation appears to be block billing as noted and should have been independently cited but was not. It may also constitute secretarial. With that assumption, then this billing should be .1 for noting the change. ["]
MR. SAMUEL: Right.
THE COURT: When you say it may also constitute secretarial, do you not know whether it constitutes secretarial or not?
MR. SAMUEL: I think that's just my way of saying that it was.
THE COURT: That it does in fact constitute secretarial?
MR. SAMUEL: Based upon what I understand the definition is now.
THE COURT: Is your understanding based upon something you're questioning?
MR. SAMUEL: I think until I got the Court's notation -- I guess if I'm questioning anything, I'm questioning myself. Until I got the Court's notation, I was unaware that if I did my secretarial work -- because I don't have a full-time secretary -- if I did my secretarial work, which was calendaring and other duties --
THE COURT: How about Xeroxing?
MR. SAMUEL: I guess that would be.
THE COURT: "I guess it would be"? Did you not know even after I've explained it to you?
MR. SAMUEL: I think it would be, yes. Copying. I think I even stated that later on.
THE COURT: You have it in your billing where you are seeking attorney's fees for copying.
MR. SAMUEL: Well, and that obviously was a mistake. And I did not and I was not aware of that code section until the Court advised me of that, and I accept that. And certainly I won't do anything other than that.
THE COURT: Well, I was curious as to your language is not unequivocal. Your language indicates that you're not sure whether or not this task, which to me is a secretarial task, is in fact secretarial.
But when I asked you the question just now, you provided clarity, and you said that it's secretarial. But that isn't what you said. And so I was struck by the fact that I could give you the applicable CJA guideline section and authority, and that you still would indicate that you don't understand.
MR. SAMUEL: No. I read the CJA guideline after the Court referenced it, and I've noted it in my computation.
And certainly that would be -- but it started me, after I wrote this, wondering, well, what is the scope of secretarial and what is not. I mean, if I'm a sole practitioner, and I'm writing a brief, and I'm writing it on my computer, where is
the secretarial end and where does it begin. Now I understand copying is secretary.
THE COURT: Now that may not be ripe for decision at. this juncture because I don't think that's involved.
MR. SAMUEL: That was just a thought off the top of my head.
THE COURT: What's involved are discreet acts that are, I think, clearly secretarial.
MR. SAMUEL: Okay. And I agree with you, Your Honor. I think I have. And I've so stated, I think, in most of my stuff.
THE COURT: You make the same type of comment about secretarial work in the next billing entry that I'm concerned about. It's August 29, 2008.
MR. SAMUEL: True.
THE COURT: And your comment is that [fl] if the Court considers some of it secretarial, then this billing should be .1.["]
MR. SAMUEL: Uh-huh.
THE COURT: So you're indicating that you don't know. It's only if I consider it.
MR. SAMUEL: The phraseology that I used there is out of deference to the Court. It did not reference my understanding. That's how I look at that comment.
I know it is. You have the absolute ability and right to determine my bill. And that is out of deference to the Court. I did not think that that meant I didn't know it. But maybe --
THE COURT: Your billing entry concerning this date doesn't say anything about secretarial functions. It was in your e-mail response where you brought up secretarial functions.
MR. SAMUEL: Right. Uh-huh.
THE COURT: I'm going to continue. I think the following are also excessive, about 50 percent at least.
In 07-cr-571, billing entry 10-10-08, 11-3-08, 11-28-08. But you agree with that one in your e-mail response?
MR. SAMUEL: Yes, I do.
THE COURT: 1-9-09. I'm going to go back to 1-9-09.
The description is: ["] Review minutes.["]
And it appears that -- I figured out that what you're actually talking about is particular minutes, and I will find them in this notebook. Looks like just a few lines.
MR. SAMUEL: Sentencing of a co-defendant.
THE COURT: Right. You billed .2, but you explain to me concerning that.
This is in your e-mail response: [w]This is the minutes of sentencing of a co-defendant. As stated previously, Mr. Brooks was insistent in knowing exactly the disposition of each of his co-defendants. I seem to recall keeping a summary of all sentences involved in this case, and I may have added that to the summary for later discussion with Mr. Brooks. But I have no independent recollection as I sit here now as to why this took seven minutes.["]
You billed 12 minutes. I think 12 minutes could mean from 7 minutes to 12 minutes.
How do you know right now, when you submitted this e-mail to me, that it took seven minutes as opposed to eight minutes, as opposed to nine minutes, as opposed to ten minutes? How do you know it took seven minutes?
MR. SAMUEL: Well, I don't keep a stopwatch on it, so I don't know, Your Honor. I can indicate that it would be the review of the minutes --
THE COURT: Sir, if you don't know, why did you tell me in your response that "I have no independent recollection as I sit here now as to why this took seven minutes." That is an affirmative statement.
MR. SAMUEL: I guess what I'm referring to, Your Honor, is that I didn't have a document to support the fact that I had -- and I do have an independent recollection of the summary that I had created for him. But I don't have the file. So rather than just say absolutely certain, I indicated it in that fashion. That there was -- I have an independent recollection that I had to put together a document which enumerated these various
issues. So when I got this thing, I looked at this thing. When you look at this right here, you get the e-mail --
THE COURT: Let the record reflect what you're looking at.
MR. SAMUEL: I'm looking at minutes which is number 99.
THE COURT: Court docket?
MR. SAMUEL: ECF.
THE COURT: Court docket number 99.
MR. SAMUEL: Right. So at this point, what I do -- because it's more than just this. Because if you open up the docket, you see the total -- you see the total transaction not just the docket.
If you open that up, and that's my recollection, it comes up with another docket which shows the sentencing documents. So we have the sentencing documents, which I opened up. I also printed that out. That also, as I understand now, is secretarial work. And also then --
I know that I was creating a list for Mr. Brooks so he could see where everybody was sentenced. I'm sure that I noted that in that list. And, thereafter, I would have discussed that with Mr. Brooks because we were still attempting to get him to resolve this case.
And I think that that seven minutes is fair. But I cannot say, as you know, right now that that is something that I have an independent recollection. It's only based upon what I know I probably did in this case, but I don't have the file.
THE COURT: So if you don't have an independent recollection, I don't know why you're telling me it. And it's not what I asked you. I don't think.
MR. SAMUEL: Okay.
THE COURT: This is in your e-mail: [W]I have no independent recollection as I sit -- you say [']her['] but you mean here -- now as to why this took seven minutes.["]
So you're telling me that whatever you did took seven minutes. How do you know it took seven minutes?
MR. SAMUEL: That's my best estimate, Your Honor. It would have been based upon the history and what I've just explained to you, what I would have opened up and done.
THE COURT: Sir, why isn't your best estimate eight minutes?
MR. SAMUEL: I think what I did is put seven minutes down because it reflects a .2 billing instead of .1 billing.
THE COURT: Why isn't your best estimate eight minutes instead of seven minutes?
MR. SAMUEL: I don't know.
THE COURT: Could eight minutes be your best estimate?
MR. SAMUEL: It could.
THE COURT: Could nine minutes?
MR. SAMUEL: Yeah.
THE COURT: How about ten?
MR. SAMUEL: I don't know. I know --
THE COURT: How do you know it's more than six?
MR. SAMUEL: All I know is what I normally --
THE COURT: How do you know it's more than six?
MR. SAMUEL: I didn't put a stopwatch on it, so I don't know. That's by best estimate, Your Honor. That's my best estimate.
THE COURT: So when you say you didn't put a stopwatch on it, what do you mean by that statement?
MR. SAMUEL: Well, it means that for certain discreet items like going to the jail to see someone --
THE COURT: You know we' re not talking about going to the jail. That's not at issue. Please focus on the review that's at issue, the kind of things I'm asking you about.
I'm not asking you anything about going to the jail. You didn't respond. Well, you may have included that in an e-mail response to me, but if
you did, it was nonresponsive to the orders -- to my communications to you, and you know that.
MR. SAMUEL: So what I mean by saying I didn't put a stopwatch on it, means simply that I didn't look at any timepiece and say, okay, I started here, and I finished my work, and I stopped, and that's how much time it took me. I believe I reflected throughout this these are the best estimates of the time.
THE COURT: When you say throughout this --
MR. SAMUEL: The --
THE COURT: -- what are you referencing?
MR. SAMUEL: The memo that I drafted.
THE COURT: The e-mail you sent me.
MR. SAMUEL: Yes. And I think I've related that.
THE COURT: However, what's in your voucher, is that an estimate?
MR. SAMUEL: Well, I think it has to be, yes. Because I didn't put a clock on it, so, yes, it is an estimate. It's my best estimate.
THE COURT: So when you set forth .2 in your voucher, it may not really be .2. It could be .1. You just make an estimate that it's .2?
MR. SAMUEL: No. I don't. Everything starts with a .1. I estimate whether or not it took over six minutes. I don't estimate whether it took over 12 minutes or 15 minutes. So I estimate if it in fact is over six minutes in my best opinion.
THE COURT: How do you estimate whether it took over six minutes? I don't understand what process is involved in that estimation?
There is a long pause, so you're thinking. I would like to know.
MR. SAMUEL: I'm thinking. Because I think it's just kind of a gut thing. I don't think I go through a process other than my knowledge of what normally things take.
So if there's a process other than putting it on the stopwatch, it would be a process of, well, what's going on, and my sensibilities while I'm
working and what time I'm working, and where I am, and all of that must come into play.
I can't, I think, specifically define anything further for you than that. It's my best estimate. My honest opinion of what it took.
THE COURT: 07-cr-571, I find 1-15-09 to be excessive . . . You agree.
MR. SAMUEL: I did. Yes, Your Honor, I did.
THE COURT: 07-cr -- I'm sorry.
MR. SAMUEL: I'm sorry. I agreed, realizing that it was calendaring, that is was not appropriate to bill. That's what I agreed upon.
THE COURT: Okay. 07-cr-571, entry 1-26-09. You billed .4 for this.
MR. SAMUEL: But then I suggested a correction.
THE COURT: You did?
MR. SAMUEL: Yes, I did.
THE COURT: I'm sorry. Let me look to see which corrections.
MR. SAMUEL: This is 1-26-09?
THE COURT: Yes. I see you said should be corrected to .3. Taking out the clerical?
MR. SAMUEL: Yes. I believe. Let me look.
THE COURT: You did.
However, I have a note that it should be even less, and I'm going to look at that material. I'm questioning in my note why it took you over 12 minutes, so I have that in the margin.
MR. SAMUEL: Well, I think we still have the issue of 12 minutes versus 7, and I think --
THE COURT: Sir, you may have that issue if you're doing discreet tasks, but I'm not sure if you know right now whether when you submitted this as a block billing -- and in fact I think you told me you don't know whether you did the tasks at the same time, one after another, or whether you did it later during the day in discreet tasks, right? You don't know right now, do you?
MR. SAMUEL: No, Your Honor.
THE COURT: And when I looked at them as tasks that are done at the same time, I can't imagine why it would take anyone longer than 12 minutes to do the task. These are simple documents. These are form documents.
Well, I said these are form documents. Let me scan it to make sure. Document number 113 is a form document. Document number 118 is an order, two-line order I issued.
MR. SAMUEL: True. And that I have a specific recollection about, Your Honor.
THE COURT: Of what? What's that?
MR. SAMUEL: Can I give a little history first, so it puts it in context? If I can make it quick?
THE COURT: Well, sir, it would be nice if you told me what "that" means. What is "that"? You said you have a specific recollection of "that."
MR. SAMUEL: Of what occurred on this particular event.
And the reason why I say this is I had drafted a memo to the Court on the case status. And my recollection is that all but the defendant had pled guilty. I had indicated to the Court that I was engaged in a death penalty case, which had, for reasons not within my control, had impeded with the Court's calendar and the trial which was set for this.
THE COURT: Frankly, you may want to take up time covering this issue, but I'm not sure it's pertinent to this billing.
You have to show its pertinency. The description in your billing, it's 1-26-09: ["]Review judgment and commitment as to co-defendant and order. ["] That's all you have billed for. And then your e-mail explanation --
MR. SAMUEL: Right.
THE COURT: -- it should be noted this billing encompasses both ECF 113 -- and that's this form document?
MR. SAMUEL: Right.
THE COURT: It's judgment in a criminal case. It doesn't take long to read a form document like this, especially when you've been doing it for decades.
And then my two-sentence order. And there's nothing complex in my two-sentence order. "The trial in the above-referenced matter currently set for February 10, 2009, is vacated. The matter is set for a status conference on February 6, 2009. It is so ordered."
Very simple order. Doesn't involve any thought to me. All you have to do is note that the trial is vacated and when I set a status conference for. And you say that's all you reviewed in this block billing.
MR. SAMUEL: I say that's what I reviewed. I say in my memo that there was more to it than that.
THE COURT: Well, if it's more to it than that, why didn't you put it in your voucher?
MR. SAMUEL: I don't know, Your Honor. I was trying to --
THE COURT: Sir, listen to me. Don't you have an obligation to put in your voucher, which is under oath, what you are claiming?
MR. SAMUEL: Yeah. But I don't know if it's the detail that the Court requests. I mean, if my voucher is going to -- I don't know, Your Honor. I understand what the Court desires. I obviously --
THE COURT: Do you think I desire something that other judges on this bench do not desire? Do you think that the judges in the federal judiciary do not expect you to accurately fill out a voucher?
MR. SAMUEL: That's my best -- I mean, how detailed do we get? That's the question. And I thought that this -- that it was in sufficient detail. But obviously not for the Court. I apologize for that.
THE COURT: Where are your notes that support your statement that you did more than what you billed for?
MR. SAMUEL: Well, they're not on my billing. And they're in my memo to the Court. And I indicated that --
THE COURT: Where did you get them from?
MR. SAMUEL: Well, this one I have a specific recollection of, Your Honor, because of -
THE COURT: Just a moment, sir. Your e-mail says: [w]It should be noted this billing encompasses both 113 and 118, admittedly a block billing, but still it in fact covers both. 118 is an order of .the Court. ["]
And then you explain what my order did. It concerns your client. "This order, signed on 1-23-09, after an in-court hearing in which I provided the Court with a memo as to why I was unavailable for trial."
What does that have to do with your block billing, the two discreet things you billed for, that you provided me with a memo in court?
MR. SAMUEL: It's an explanation as to why it took more than just review two discreet items.
THE COURT: Are you billing for the preparation of the memo?
MR. SAMUEL: No. No. Because I didn't do that. The Government did that. What I'm billing --
THE COURT: Just a moment. Are you billing for the hearing?
MR. SAMUEL: No. That's independently billed somewhere else. I didn't bill for the hearing.
THE COURT: Okay. If you were going to amend your block billing here, what are the words for the amendment ?
It's a long pause.
MR. SAMUEL: I know. I'm reading my memo, Your Honor. I haven't - - the amendment would be: I confirmed the Court would sign the order and then calendared this matter.
THE COURT: The amount would be?
MR. SAMUEL: I confirmed the Court had signed the order and then calendared this matter. As to 113, the Court's memo states that 113 should have been billed at .2. That's not the amendment. I'm sorry.
THE COURT: Just start again and tell me what else is included in -- well, I guess it's not included -- what else you are now telling me should.
be included in your billing description that justifies this .4 billing.
MR. SAMUEL: Well, two discreet views 113 and 118 .
THE COURT: That's already there.
MR. SAMUEL: Right. So that's -
THE COURT: I'm asking you what else you're going to include? Why would you tell me what's there?
MR. SAMUEL: I'm reading it. Confirm the Court would sign the order --
THE COURT: We're taking the break.
MR. SAMUEL: -- calendar the matter.
THE COURT: Think about it.
(Break taken.)
MR. SAMUEL: That's it.
THE COURT: What do you mean "that's it"?
MR. SAMUEL: You said to think about it, and that's what I would amend it to, to add that additional stuff which is right there. And I confirmed the Court had signed the order and then calendared this matter.
THE COURT: How did you confirm that?
MR. SAMUEL: I reviewed it and saw that you in fact had done it.
THE COURT: What did you review?
MR. SAMUEL: The order.
THE COURT: What order?
MR. SAMUEL: That would be 118.
THE COURT: You billed for that. You already billed for that. How is that an amendment?
MR. SAMUEL: Well, the amendment is I calendared the matter.
THE COURT: You would add calendaring? Is that your amendment?
MR. SAMUEL: And that's why I said later on that should be subtracted.
THE COURT: Well, why would you amend it by adding a clerical task that you know you can't add?
MR. SAMUEL: Because at the time that I billed it, I was unaware of that.
THE COURT: It's not included in there. The clerical task is not included in there. I didn't ask you about a clerical task. I asked you -- you were indicating to me that you did more than what is stated in your voucher, and I asked you what else did . . .
MR. SAMUEL: And I'm saying calendaring, which was not stated, which is not permissible, but I was unaware of that until after I reviewed it. And I've already said that several times.
THE COURT: It appears that we are right back where we started. That is that you block billed for looking at Document 113 and Document 118, and there is nothing else.
MR. SAMUEL: And calendaring.
THE COURT: But you know you can't bill for calendaring, don't you?
MR. SAMUEL: At this moment, I did.
THE COURT: All right. I'm taking a recess. That is a statement that I have real problems with. That you would talk about calendaring, and you know you can't bill for calendaring, and you would indicate you would amend something by including calendaring.
MR. SAMUEL: I understand what the Court is saying now, and so I wouldn't amend it. I understand what you're saying. I thought the Court wanted to have me define what I would add to that if I were --
THE COURT: Sir, I'm not asking you to do anything other than state clearly the justification for what you are seeking in attorney fees as far as this billing entry is concerned. That's all I've asked you, and you know that Mr. Samuel. You must know that.
You must know that's all I've asked you. And you must also know that you are the person who said
something about adding something else, not me. You. I wanted to know what you were going to add.
MR. SAMUEL: Right. And --
THE COURT: I think we're done. We're done with that entry.
MR. SAMUEL: All right.
THE COURT: Your response to that is incredible. Your billing of 07-cr-571 entry 11-13-09 is excessive by at least 50 percent. By 50 percent. You say something about clerical tasks again, and that one I won't say anything else about that.
MR. SAMUEL: All right.
Mr. Samuel's attempt to defend certain of these billing entries during the hearing is unpersuasive, particularly his attempt to justify his billing on January 26, 2009. When I gave him the opportunity to amend his voucher for that billing entry, he took a long time to identify what he would add to the entry and ultimately wanted to add calendaring - a secretarial task that Mr. Samuel should have known at this stage of the proceeding is not reimbursable. Further, there is no indication in the voucher that a secretarial task was involved with the billing entry.
Each of the these billing entries is excessive by at least 50%.
C. Additional Examples of Excessive Billing
In preparing to meet with Mr. Samuel, I reexamined his vouchers in both actions and noted seventeen (17) additional examples of over-billing. I raised these additional billing entries for the first time during the hearing, and provided Mr. Samuel an opportunity to respond to my comments. See Hr'g Tr. 70:20-72:12.
For ease of review, each of these additional billing entries were assigned a number (34-50).
34) 3-21-08 (Action No. 2:07-cr-00571)
Mr. Samuel billed 0.2 on March 21, 2008 in Action No. 2:07-cr-00571 for "Review related case order." This filing (ECF No. 7) is a two-page, boilerplate order, which should not take over six minutes to review. Mr. Samuel agreed at the hearing that it would not take over six minutes "simply to read the document." Id. at 73:16-22. And although Mr. Samuel stated at the hearing that this billing entry may have included time for other work, no additional work was described in the voucher. Id. at 73:23-74:5. Further, the following portion of the transcript reveals Mr. Samuel ultimately conceded that he "guess[ed] [he] must be" speculating when he said at the hearing that his billing entry encompassed more than what is described in his voucher:
THE COURT: So how do you know that it would have included anything else if it's not included?Id. at 74:6-75:7.
MR. SAMUEL: Only by what I normally know that I do. I cannot specifically sit here and say I absolutely am certain that I did the following A, B and C. I know what I normally would do on something like that. That's different than what I can specifically say.
THE COURT: Then I should credit what you said in your block billing that this is all you did, shouldn't I?
MR. SAMUEL: You have the absolute right to do that.
THE COURT: I'm sorry. This isn't block billing. This is discreet billing.
MR. SAMUEL: Well, it is.
THE COURT: What do you mean I have the absolute -- sir, you said -- this is all you say. You say, "review related case order."
MR. SAMUEL: Right.
THE COURT: Why shouldn't I believe this is all you did? This is all you said.
MR. SAMUEL: Well, it actually potentially could be a block billing because when I review these items -
THE COURT: Sir, just a moment. Potentially could be a block billing?
MR. SAMUEL: Yeah.
THE COURT: Are you speculating?
MR. SAMUEL: I guess I must be, Your Honor. I'm sorry.
This billing is excessive by 0.1, or 50%.
35) 3-21-08 (Action No. 2:08-cr-00122)
Mr. Samuel billed 0.2 on March 21, 2008 in Action No. 2:08-cr-00122 for "Review related case order." This filing (ECF No. 7) is also a two-page, boilerplate order, which should not take over six minutes to review. The following portion of the transcript shows that Mr. Samuel could not explain at the hearing why he billed more than 0.1 for this task:
THE COURT: On billing entry dated March 21, '08, the billing entry reads: ["]Review related case order.["] It's a different related case order.Id. at 75:15-76:4.
MR. SAMUEL: Okay.
THE COURT: I'm sorry. It's [in] . . . 08-122. I don't know if I said that. And you billed .2, for review of the related case order. Pretty similar to the other one.
MR. SAMUEL: Right.
THE COURT: In the same case on March 14, 2008, you reviewed notice of related case order. You only billed .1. The orders are similar.
MR. SAMUEL: Uh-huh.
THE COURT: Why would you bill a .1 on one and a .2 on the other?
MR. SAMUEL: As I sit here, I don't know, Your Honor.
This billing entry is excessive by 0.1, or 50%.
36) 3-26-08 (Action No. 2:08-cr-00122)
Mr. Samuel billed 0.3 on March 26, 2008 for "Review app for writ of habeas corpus, order, ans wervice [sic] certificate." What is referenced in this billing is a one-page form Application for Writ of Habeas Corpus, a signed version of that same document, and the following docket entry: "SERVICE BY MAIL: 10 Order - CR, served on Olivia Wimmer at 999 West Mathews Road, French Camp, Ca 95231. (Matson, R) (Entered: 03/26/2008) ." (ECF Nos. 8, 10.) The "10" in this docket entry refers to the referenced, signed version of the one-page form Application for Writ of Habeas Corpus. Mr. Samuel stated at the hearing, that this billing was an "error." (Hr'g Tr. 76:24-77:6.)
This billing entry is excessive by 0.2, or 67%.
37) 5-28-08 (Action No. 2:08-cr-00122)
Mr. Samuel billed 1.0 on May 28, 2008 to "Redact and copy 300 pages (Split between two cases)." Mr. Samuel estimated at the hearing that this billing entry included approximately 0.2 for copying, which is a secretarial task. Therefore, he agreed that reducing this billing entry by 20% to 0.8 is appropriate. Id. at 77:7-23.
38) 8-27-08 (Action No. 2:08-cr-00122)
Mr. Samuel billed 0.2 on August 27, 2008 to "Review stipulation and proposed order, and order and calendar." Mr. Samuel agreed at the hearing that this time entry included time for a secretarial task and should be reduced by 50% to a 0.1. Id. at 77:24-78:8.
Numbers 39-50 (Action No. 2:08-cr-00122)
Mr. Samuel also billed 0.2 in Action No. 2:08-cr-00122 for his review of each of the following electronic filings:
+------------------------------------------------------+ ¦No. ¦Date ¦Time ¦Billina Descr ¦ +-----+--------+------+--------------------------------¦ ¦ ¦ ¦ ¦"Review stipulation and proposed¦ ¦39 ¦11-14-08¦0.2 ¦ ¦ ¦ ¦ ¦ ¦order, and order and calendar" ¦ +-----+--------+------+--------------------------------¦ ¦ ¦ ¦ ¦"Review stipulation and proposed¦ ¦40 ¦12-19-08¦0.2 ¦ ¦ ¦ ¦ ¦ ¦order, and order and calendar" ¦ +-----+--------+------+--------------------------------¦ ¦ ¦ ¦ ¦"Review stipulation and proposed¦ ¦41 ¦2-11-09 ¦0.2 ¦ ¦ ¦ ¦ ¦ ¦order, and order and calendar" ¦ +-----+--------+------+--------------------------------¦ ¦ ¦ ¦ ¦"Review stipulation and proposed¦ ¦42 ¦3-20-09 ¦0.2 ¦ ¦ ¦ ¦ ¦ ¦order, order and calendar" ¦ +-----+--------+------+--------------------------------¦ ¦ ¦ ¦ ¦"Review stipulation and proposed¦ ¦43 ¦5-14-09 ¦0.2 ¦ ¦ ¦ ¦ ¦ ¦order, and order and calendar" ¦ +-----+--------+------+--------------------------------¦ ¦ ¦ ¦ ¦"Review stipulation and proposed¦ ¦44 ¦6-09-09 ¦0.2 ¦ ¦ ¦ ¦ ¦ ¦order, and order and calendar" ¦ +-----+--------+------+--------------------------------¦ ¦ ¦ ¦ ¦"Review stipulation and proposed¦ ¦45 ¦6-26-09 ¦0.2 ¦ ¦ ¦ ¦ ¦ ¦order, and order and calendar" ¦ +-----+--------+------+--------------------------------¦ ¦ ¦ ¦ ¦"Review stipulation and proposed¦ ¦46 ¦8-5-09 ¦0.2 ¦ ¦ ¦ ¦ ¦ ¦order, and order and calendar" ¦ +-----+--------+------+--------------------------------¦ ¦ ¦ ¦ ¦"Review stipulation and proposed¦ ¦47 ¦9-4-09 ¦0.2 ¦ ¦ ¦ ¦ ¦ ¦order, and order and calendar" ¦ +-----+--------+------+--------------------------------¦ ¦48 ¦1-08-10 ¦0.2 ¦"Review minutes" ¦ +-----+--------+------+--------------------------------¦ ¦49 ¦3-9-10 ¦0.2 ¦"Review memo of hearing" ¦ +-----+--------+------+--------------------------------¦ ¦50 ¦7-20-10 ¦0.2 ¦"Review stipulation by AUSA" ¦ +------------------------------------------------------+
The following portion of the hearing transcript reveals that Mr. Samuel eventually agreed that each of the above billing entries was excessive by 50%, or 0.1, and should be reduced accordingly:
THE COURT: The next entry is November 14, 2008. Description: Review stipulation and proposed order and order and calendar .2.Id. at 78:9-85:6.
MR. SAMUEL: Right.
THE COURT: [E]verything seems excessive by at least 50 percent. Do you have any reason to dispute that? .
MR. SAMUEL: No, I don't, Your Honor. I mean, it's calendaring. I admit that.
THE COURT: There may be more than just calendaring here that exceeds 50 percent.
MR. SAMUEL: I'm not saying that.
THE COURT: Looking at the document itself it doesn't take that long to read it. And so since you're saying just calendaring, I didn't pay attention when you said that before. These documents don't have a lot of substance.
MR. SAMUEL: That is true. They are -- but they are discreet acts that would bear the minimal billing of .1, right? That's the way I understood it.
THE COURT: Well, that depends on whether or not you looked at the filings at the same time, the same sitting, doesn't it?
MR. SAMUEL: Absolutely. You're right.
THE COURT: And you don't know one way or the other, do you?
MR. SAMUEL: No.
THE COURT: The next number is billing entry 12-19-08. It's the same as the previous one. Almost verbatim. This is what you say in your description: ["]Review stipulation and proposed order and order and calendar.["]
Any reason why I shouldn't handle this matter the same way as I just handled the other one?
MR. SAMUEL: No, Your Honor.
THE COURT: The next entry is 2-11-09. It's identical. Should I handle it the same way? Review stipulation --
MR. SAMUEL: Yeah.
THE COURT: Okay.
MR. SAMUEL: Yeah.
THE COURT: The next entry is the same, 3-20-09. The following entry is the same, 5-14-09. Any reason these shouldn't be handled the same way?
MR. SAMUEL: No reason, Your Honor.
THE COURT: Okay. The following entries are the same wording - 6-9-09, 6-26-09, 8-5-09, 9-4-09. Any reason why they shouldn't be handled the same way?
MR. SAMUEL: The same wording. There is no reason, Your Honor.
THE COURT: Billing entry 1-8-10. The description is, review minutes. You billed .2. And I have the minutes. It's for ECF numbers 54, 55. Attached to 55 are minutes concerning withdrawal of a not guilty plea for your client.
I don't understand why you say it took you 7 to 12 minutes to review these minutes. Here they are.
MR. SAMUEL: The one on top here?
THE COURT: No. That one is not involved.
MR. SAMUEL: The only thing I can think of is this is an error, a typo or something. I don't know why it should have taken so long.
THE COURT: Okay.
MR. SAMUEL: I apologize to the Court for that.
THE COURT: Your docket entry on page 22 of 29. The date is 3-9-10. Description: ["]Review memo of hearing.["] You billed .2.
I have the documents. I don't understand why it took you 7 to 12 minutes to review. What you billed for is actually the second document. I gave you the applicable portion of the docket sheet. And it's docket number 62. And I believe if you click on that, you get what's attached to that.
MR. SAMUEL: Right.
THE COURT: And I don't understand why it took you 7 to 12 minutes to read what's there.
MR. SAMUEL: Well, it doesn't take seven minutes just to read this particular memo.
THE COURT: You're looking at --
MR. SAMUEL: 62.
THE COURT: You' re not looking at a memo, are you?
MR. SAMUEL: No, Your Honor. I'm just looking at the docket entry.
THE COURT: Isn't it called minutes?
MR. SAMUEL: Memorandum of hearing.
MR. SAMUEL: Here. Okay. These two entries.
THE COURT: 54, 55. And if you click on 55, there's a document that is another minute entry, so you've got -- I just gave you a copy of the relevant portion of the docket sheet, and I've also given you a copy of what you see if you click on 55.
Pending question --
MR. SAMUEL: Yeah.
THE COURT: -- [W]hy do you say it took you 7 to 12 minutes to review what I just gave you? Because that seems clearly excessive.
THE COURT: Is that what that's called? Is that how it's entered? You're right. That is how it's entered. There's an attachment to it, sir.
MR. SAMUEL: Right.
THE COURT: Did you look at the attachment?
MR. SAMUEL: Absolutely.
THE COURT: Have you looked at it? You're not looking at it. You haven't looked it.
MR. SAMUEL: Okay. I'm looking at that. And in this particular case and I suspect I didn't note it -- it would have been to make sure that I had the correct dates down on my calendar to make sure
I didn't miss the PSR. The dates for which I was to, first of all, make an appointment to go see the probation officer.
THE COURT: You understand what I asked you? You can do all of that. Assuming arguendo you can do all of that, why did it take you 7 to 12 minutes to do it?
MR. SAMUEL: Well, the second part, which is the item which has all the dates on it, is the date -- is the thing that would take the longest period of time.
THE COURT: And what would take time with the second part?
MR. SAMUEL: I would have to pull out a calendar. I have two calendars, and electric calendar, and I also have a paper calendar. I would have to note the deadlines that are here.
THE COURT: You would have to write it down, the calendar dates.
MR. SAMUEL: I would normally write things down in my electric calendar.
THE COURT: Just a moment.
MR. SAMUEL: Okay.
(Discussion between Court and law clerk.)
THE COURT: Go ahead, sir.
MR. SAMUEL: I would obviously print this out because I put it in the file. That's my policy. I obviously would look at each one of these dates and note them in some form.
THE COURT: "Note them" means what?
MR. SAMUEL: Put them either in a paper, or give it to my secretary, or put it in electronic. I can't tell you which one of those things I did at this moment.
THE COURT: I thought you said you didn't have a secretary at that time?
MR. SAMUEL: I'm sorry. I have a part-time secretary. That part-time secretary doesn't do this service. What she does for me is -- she's a student, okay, but she does answer phones, and that's what she does.
THE COURT: Why are you mentioning a secretary if a secretary is not involved in what you were doing?
MR. SAMUEL: Well, I'm just saying that I would have created this for her information as well, to print out this document for her information as well.
What I'm sure -- you know, so I'm just saying that it could have taken seven minutes to go through the process of reviewing it and calendaring it. Calendaring obviously is not acceptable. I was unaware of it at that time. So for just the review of these two items I think that certainly . 1 is appropriate.
THE COURT: Okay. But you billed more than that?
MR. SAMUEL: I billed .2.
THE COURT: Right.
MR. SAMUEL: And that's the same issue that we had.
THE COURT: 7-20-2010. It's on page 27 to 29 of your voucher. Description: ["]Review stipulation by AUSA[,"] .2. That's the stipulation. I've got it. I'm going to give to you. I want it back.
MR. SAMUEL: Of course.
THE COURT: It appears to be a one-sentence stipulation. So why did it take you 7 to 12 minutes to read one sentence?
MR. SAMUEL: Well, once again, this probably should have reflected calendaring to begin with, but that probably still wouldn't have -- I mean, if I hadn't done it immediately --
THE COURT: Excuse me. Let me interrupt you. While you're thinking about what that should have reflected, here's the identical sentence practically. You only billed .1. Docket number 67. So why would you bill .2 for one-of them and .1 for the other? It's hard to distinguish between those two.
MR. SAMUEL: Absolutely right, Your Honor. And the only other explanation I could say was the .2 is an error.
D. Comparison of Other CJA Vouchers in Action No. 2s07-cr-00571
In further preparation to meet with Mr. Samuel concerning his vouchers, I compared his vouchers to the vouchers of all CJA counsel in Action No. 2:07-cr-00571. Mr. Samuel's request for reimbursement totaling $30,981.10 is the highest request for reimbursement of all eight CJA counsel. Counsel for co-defendant Jesus Avila submitted the second-highest request for reimbursement, which totaled $14,975.80 and is approximately 50% of Mr. Samuel's request. However, Mr. Samuel also had the longest period of representation, and his client entered a plea agreement after all other defendants. Therefore, I compared Mr. Samuel's hours, minus travel time, to the hours, minus travel time, that each other CJA counsel billed for the same period of time that they represented their clients. For example, Mr. Samuel represented his client through September 3, 2010, when he was replaced by another attorney; whereas, CJA counsel for a co-defendant represented her client through sentencing on January 25, 2008. Accordingly, I compared Mr. Samuel's hours to this CJA counsel's hours for work completed through January 25, 2008. The same review was conducted for all CJA counsel. Mr. Samuel billed more than twice as much as two other CJA counsel, and almost three times as much as another CJA attorney, for an identical period of representation. The following table details the comparison of Mr. Samuel's hours billed to these three CJA counsel:
Copies of the paid vouchers for all CJA attorneys in Action No. 2:07-cr-00571 have been returned to Kurt Heiser for transmission to the Ninth Circuit with Mr. Samuel's vouchers.
+--------------------------------------------------------------+ ¦ ¦Length of ¦Hrs ¦Hrs Billed by Samuel for ¦ ¦Counsel ¦ ¦ ¦ ¦ ¦ ¦Representation ¦Billed ¦Same Period of Time ¦ +---------+----------------+--------+--------------------------¦ ¦CJA ¦ ¦ ¦205.3 (2.3 times what CJA ¦ ¦ ¦ ¦ ¦ ¦ ¦Atty ¦792 days ¦88 .8 ¦Counsel No. 1 billed for ¦ ¦ ¦ ¦ ¦ ¦ ¦No. 1 ¦ ¦ ¦same period of time) ¦ +---------+----------------+--------+--------------------------¦ ¦CJA ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦Atty ¦708 days ¦79.1 ¦179.5 (2.3 times more) ¦ ¦ ¦ ¦ ¦ ¦ ¦No. 2 ¦ ¦ ¦ ¦ +---------+----------------+--------+--------------------------¦ ¦CJA ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦Atty ¦107 days ¦25.3 ¦7 5 (approx. 3 times more)¦ ¦ ¦ ¦ ¦ ¦ ¦No. 3 ¦ ¦ ¦ ¦ +--------------------------------------------------------------+
I discussed this discrepancy with Mr. Samuel at the hearing. Id. at 89:9-90:11. Mr. Samuel responded: •
I mean, the only thing I can think of is that everybody works at a different rate, at a different period of time. Everybody concentrates on different issues as they arise as either dictated by their client or by their own work product.Id. at 90:15-91:14. Mr. Samuel's response does not explain the two to three times difference in amount of time he billed compared to the time billed by the other CJA counsel referenced above.
So I may have worked very hard during a certain period of time and not hard at all during another period of time because of my trial calendar and what was going on.
I usually try to block out times that I need to get things done because I need to get them done in order to go on to other things. So the only other thing I could think of is that my client was demanding -- very much demanding a hearing of all these tapes, and there's a ton of tapes there.
I convinced him not to hear all of these tapes because a lot of them were in Spanish. But he was demanding on hearing those tapes that were not only him in the recordings but also those that surrounded it.
So, I don'1 know - - I can'1 - - I don' t know what you're referring to in terms of whether that was a part of my billing or not. All I know is that we all work at different rates. We don't work at the same rate. We all have different calendars.
I won't repeat myself. That essentially would be -- without any further information, that's what my comment would normally be.
E. 50% Reduction of Mr. Samuel's Total
Mr. Samuel has billed at least twice the amount of time that could arguably be considered reasonable in the forty-five (45) time entries detailed above. These examples of patent over-billing indicate other billings that cannot easily be evaluated for reasonableness are also tainted by the same measure of inflation. See In re Smith, 586 F.3d at 1174 (indicating a presiding judge has authority to make percentage reductions to CJA fee awards when supported by articulated reasoning); Peguero-Moronta v. Gabriel-Santiago, No. 01-1390 (JAF), 2010 WL 1444863, at *2 (D.P.R. Apr. 8, 2010) (reducing attorney fee request by "across the board [percentage], instead of by individual time entry" when the court observed "an evident practice of over-billing") .
Since an exorbitant amount of time was spent deciding the issues reached in this opinion, I do not reach the issue regarding whether certain matters should have been billed at all in the exercise of reasonable billing judgment. As stated in U.S. v. Hagan, No. 07-10180-01 WB, 2010 WL 1816338, at *6 (D. Kan. May 3, 2010), Mr. Samuel is "encouraged to use billing discretion and an editing eye with regard to what charges end up on the submitted vouchers." See also Saizan v. Delta Conrete Products Co., Inc., 448 F.3d 795, 799 (5th Cir. 2006)("Billing judgment requires documentation of the hours charged and of the hours written off as unproductive, excessive or redundant.")
"The [forty-five] items [I] deemed . . . dramatically over-billed [are] simply examples of the way in which [Mr. Samuel's] . . . billing tend[s] to inflate each entry. Because the fee application[s] are lengthy, [it is reasonable] . . . [to] impose [] an across-the board reduction rather than engaging in an hour-by-hour review to determine which items other than the [forty-five] cited [are] likely inflated[.]" Diffenderfer v. Gomez-Colon, 606 F. Supp. 2d 222, 231 (D.P.R. 2009), aff'd, 587 F.3d 445 (1st Cir. 2009); see also Welch v. Metro. Life Ins. Co. , 480 F.3d 942, 949 (9th Cir. 2007) (affirming district court's across-the-board reduction since in reviewing "the firm's summary time sheet, the [district] court found the hours were inflated because counsel billed a minimum of 15 minutes for numerous phone calls and e-mails that likely took a fraction of the time . . . [and the Ninth Circuit's] own review of the time sheet confirm[ed] that it [was] replete with [fifteen minute] or [thirty minute] charges for the drafting of letters, telephone calls and intra-office conferences").
The comparison of Mr. Samuel's vouchers to other CJA counsel in Action No. 2:07-cr-00571-GEB further evinces that Mr. Samuel's total request for compensation in that action is excessive by fifty percent. U.S. v. Mosley. --- F. Supp. 2d ----, 2011 WL 1591491, at *4, 7 (D.N.J. 2011)(comparing attorney's request for reimbursement under the CJA to other CJA requests in similar criminal cases to reduce fee request).
"No judge wants to question bills for CJA services . . . ." U.S. v. Sepulveda, 502 F. Supp. 2d 1104, 1110 (D. Mont. 2007) . However,
Courts cannot simply rubber-stamp every CJA voucher that crosses their paths. Every time an attorney submits such a voucher, that attorney is asking the U.S. Treasury to dole out a portion of its limited resources. It is the role of the Court to scrutinize these requests to properly safeguard precious taxpayer funds, or else there is little to prevent taxpayer money from being wasted on unreasonable' or unnecessary activities by court appointed defense counsel.Mosley, 2011 WL 1591491, at *1 (citations omitted). "[T]he purpose of the [CJA] is not to compensate counsel with fees rivaling those available to attorneys representing nonindigent clients." In re Smith, 586 F.3d at 1175 (citation omitted). "Instead, Congress enacted the CJA to . . . assure adequate representation in the Federal courts of accused persons with insufficient means, and afford reasonable compensation to counsel who are assigned." Id. (internal quotation marks and citation omitted) . It is clear from review of Mr. Samuel's fee vouchers, that he has disregarded "the spirit of public service involved in [a CJA] appointment ... by increasing the expenditure of hours simply to" increase the fee he receives. Cook, 628 F. Supp. at 41.
It became clear during the hearing that Mr. Samuel has no justification for billing what he did other than his "gut;" as he explained, he does not track the time he spends reviewing electronic docket entries. In one instance, when asked about why the review of a document took more than six minutes, Mr. Samuel had no excuse and said it must have been a mistake; on another occasion, Mr. Samuel defended his time entry of .2, until I showed him an almost identical time entry for which he billed a .1. This theme permeates all of his billing. Mr. Samuel's defensive responses to my questioning during the hearing are replete with speculation, which most likely taints all of his billings and unfortunately indicates that he needs to make a firmer commitment to the billing principles governing vouchers submitted under the CJA.
For the stated reasons, I approve only fifty percent (50%) of Mr. Samuel's request for attorney's fees under the Criminal Justice Act in the above captioned cases, $24,810.53, ($15,490.55 in Action No. 2:07-cr-00571-GEB and $9,319.98 in Action No. 2:08-cr-00122-GEB) . Although I am approving the payment of fifty percent (50%) of Mr. Samuel's request, certain of Mr. Samuel's responses to my inquiries are so incredible that his billing may rise to the level of "bad faith," which could permit the complete denial of fees. See generally Mendez v. Cnty. of San Bernardino. 540 F.3d 1109, 1127 (9th Cir. 2008). However, in light of the numerous other matters I am handling, I have not taken the time required to decide the "bad faith" issue.
GARLAND E. BURRELL, JR.
United States District Judge
U.S. v Brooks
Dwight Samuel
to:
shani furstenau
05/31/2011 03:45 PM
Please respond to Dwight Samuel
Show Details
I Attachment Letter to The Honorable Judge Garland Burrell.wpd Dear Shani,
I called twice on Friday and indicated I would like to meet with Judge Burrell and discuss this billing. In addition, I have prepared a written response to the courts' two memos addressing all of the comments and am submitting it in advance of the meeting. Presently, this document is in the form of a letter, t have attached to this email for the courts consideration. I am aware that the local rule does permit this if the court so desires. (See § 230.36 (c))
The court should be aware that I do not have either of the paper files of Mr. Brooks because both files were provided to new counsel upon substitution. This fact to some extent limits the responses 1 will provide in this document. Because the substitution of attorneys was due to a conflict between two of my clients, I don't believe it is possible to obtain the files. It appears Mr. Brook's two cases are still ongoing as are the cases in which my other client was involved, although that client has plead.
As to scheduling, I don't know how much time this meeting will take, with that in mind the afternoons of the week of June 6 with the exception of the 9th are all available for this meeting. If the court so desires I could reschedule Friday the 3rd and meet with the Judge in the afternoon. If that is not convenient then possibly the court could make suggestions. I will do what is most convenient for the court.
Yours truly,
Dwight M. Samuel Dwight M. Samuel
Attorney at Law #054486
117 J Street, Suite 202
Sacramento, CA 95814
(916) 447-1193 Phone
(916) 447-0129 Fax
CONFIDENTIALITY NOTICE: This communication may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Beware that Federal Law, including but not limited to the Electronic Communications Privacy Act, 18 U.S.C. ss 2510-2521, prohibits any disclosure, copying, distribution, or use of the contents of this communication. If you are not the intended recipient, please contact the sender and destroy all copies of the communication.
Law Offices of
DWIGHT M. SAMUEL
A Professional Corporation
117 J Street, Suite 202
Sacramento, California 95814-2282
(916) 447-1193, DwightSamuelattvffivahoo.com
Re: U.S. v Brooks, 07-571 and 08-122GEB The Honorable Judge Garland Burrell, Jr.:
I appreciate you giving me the opportunity to meet with you about my bills. In anticipation of that meeting, I've reviewed your two memos and my initial bills. I have not reviewed the paper files in Mr. Brooks' case, as I no longer have those files. They were provided to new counsel after I was substituted out of the case. Because the reason for that substitution was a conflict with another case, I dont believe it would be appropriate for me to obtain and review that file. Fortunately, a good deal of the Brook's file is saved electronically, so to the extent I needed something to jog my memory, this has been sufficient. Hopefully, this response will be helpful when me meet.
I understand the court's concern about "block billing." I should indicate, however, that my office was instructed to submit block billing on quarterly bills in the Ocampo case. We received this instruction when we inquired of the Ninth Circuit's budgeting office why the cells in the billing spreadsheet would not allow Excel to expand the cells for additional information. As a result of the authority we received to submit block billing in Ocampo, I believed that doing so in other cases was also permissible. I have looked at the block bills submitted to your Honor and can assure the court that the total hours are an accurate reflection of work done. To the extent this court expressed concern about some of the block billing included secretarial tasks, I've addressed that issue below. Regardless of the reasons why I submitted block bills to this court, I agree that it would be more informative to break down each task. I apologize to the court for explaining work in an abbreviated form. I will do that with all future bills. I have also tried to clarify below the block bills already submitted.
The following are responses to the court memos: The Court's Memo of 4-1-11 CASE 07-571:
12-17-07 billing of .8, the notation is a block filing referring to the review of eight ECF filings: 29, 27,20,30, 22, 24,32,31. The process in my office entails, opening my email, and viewing each document and filing them in one of two places if no further action is needed. I personally file each in an efile containing all emails from any source for that case. If the documents are meaningful in some way then they may be saved to my computers hard drive in a file created for that document for recall later. If the document is important to the defendant as conditions of release for the other defendants, or sentences or plea agreements, then I might print out that document for my client. Finally, not all emails received on a specific date are viewed all at one time. This entry of .8 is for simply opening eight documents reviewing each one and I believe this time is reasonable.
12-18-07 billing of .4, is to review three ECF documents: 23,26 and 25. The detention conditions of other defendants was important to the defendant. I noted this for later discussions with the defendant.
12-27-07 billing of .3, this block billing was for reviewing ECF 38 and also a second note but not enumerated by number was an entry regarding shackling code F. I believe at this time there was some contention about shackling so I noted that policy for later discussion and action if necessary with my client
12-27-07 billing of ,3 js thjs a repeat? I only see one entry for this date on the 571 billing. The 122 case had yet to be filed therefore there is no entry for this date.
11-24-08 billing of .5, the notation for this entry is, "Meeting with Ken Addison (split between two cases) .5 hours." I think that I could only add the subject matter that was discussed but did not think that was truly necessary, if it is, then I will certainly modify my description to include the subject matter of the meeting.
11-24-09 billing of .4, this block billing entails the review of ECF 196,197,198 and 199. Four documents .4 total is consistent with the instructed billing practices that I am aware of at this time.
12- 1-09 billing of .4, is a block billing entailing review of ECF 201,202, 203.
Your honor expressed concern that my calendaring was a clerical duty and non-reimbursable. I was working under the assumption that because I attended court when future dates were set, and the one who read e-mails or stipulations setting or changing dates, calendaring was something I should do. Since this court's initial memo, I have read the applicable rule about reimbursement (§230.66.10(b)) and I agree that the court is correct; such calendaring is not reimbursable.
Your honor also concluded that if I billed .2 hours for a specific task, that meant I had spent 12 minutes on that task. This is incorrect. We are required under CJA rules to bill in tenths of an hour. So if I spent 7 minutes on a task, we have been informed that we should round upwards, which translates as .2 hours. Please see the attached chart entitled, Calculating Compensation for Time Worked, for details.
In addition the court requests explanations per this proposed order specifically from 571:
8-14-09 .3 this billing entails the review of ECF 174 and 175, these documents reflect the sentencing of two defendants in the case, these sentencings were significant to defendant and the direction of the case I wanted to go, i.e. enter into a plea agreement. At this time defendant had not made up his mind about what he wanted to do. I reviewed these two documents and made note of them for later discussion with the defendant believing these pleas would give him incentive. I note that I did write a letter on the 20th to defendant indicating that I had planned to see him but that appointment had to be changed. I would have talked to him about these documents at that time and more than likely shown him or supplied him with the sentencing.
8-25-09.2 this bill entails my review of the judgment and commitment of Armondo Sanchez, another co-defendant in this case, again this sentencing was very significant to the defendant and was used as an aid to push defendant towards the realization mat he needed to make a deal. Because the defendant was paranoid many documents like this were printed out to support my statements. I estimated the time to do both activities since they were intertwined.
11-13-09 .2 this entry relates to ECF 191, this document was important to my client and aided in the presentation of discussions of settlement. I note the entry on the same date reflects that I traveled to Butte County and met with my client. Without my file notes I can not be certain that I printed this document but my normal course of conduct in this case was to support what I told the defendant with documentation.
11-20-09.2 this relates to ECF 195, yet another sentencing document. I note that I did travel to Butte County Jail on 11-24-09 and believe this plea was also discussed. Once again due to the defendants paranoia and incessant demand to have documentation I assume I produced a document to support this meeting.
11-23-09 .2 this entry relates to review of two events, ECF documents 193 and an unnamed entry which refers back to ECF 198 and advise the reader to disregard ECF 198. The reference to disregard was confusing since at the time there was no 198 and it was only the next day that ECF 198 appeared.
5-25-10 .2 hours, the court correctly notes this document was never filed but the government's memo was filed on mat date in case 07-571. Because my draft was never filed does not mean I did not do the work and it appears at least in part the court incorrectly stated that no stipulation was filed. My recollection of this miscue was that each side had a different date in mind and I eventually was not able to complete the filing so the AUSA did.
5-27-10 .2, the court notes this entry is unclear in the billing, the entry relates to ECF 225, this is the signed stipulation. Besides reviewing stipulation to see that it is signed (some judges don't sign them automatically) I then calendared this new date in two calendars, my electronic calendar and manually in my paper calendar that sits on my desk. At that time I was unaware until I receive the courts' first memo that this function is considered secretarial services which is not reimbursable. If my actions calendaring my two calendars is considered secretarial then the billing should be .1 the minium billing.
7-27-10 as to billing for this date in case 571 there is no entry in this bill consistent with the quoted explanation, I did review my billing in 122 and did however note a billing consistent with this explanation and will address it in chronological order noting it with an *.
Explanations in 122:
11-5-09 ECF 48 .2 this is a minute order relating to the defendant's wife and her attorney, as is reflected by the defendant's letter and my own personal knowledge of the defendant's desires to be a part of or present at his wife's sentencing. This information was very important and though the memo is short, it was filed electronically in the email file and reproduced it so that I could address the letter with the defendant. As stated the defendant was extremely difficult and would challenge any information I raised therefor it was necessary to at least print out the documment. Once again this was an estimate of all the work, review, file in the e-file and then print, and not just the review of the entry. I did not consider this secretarial work at the time because I performed the work.
11-13-09 ECF 49 .3, this is more than just a review of this document. The ECF filing relates to defendant's wife and co-defendant, Ms. Wimmer's case and the substitution of attorneys. As noted the following day I traveled to Butte County to visit my client. Previously defendant had expressed his dissatisfaction with the representation of his wife and how important it was to get a new attorney for his wife. This document was reproduced to maintain some client control which aided me in my attempts to resolve this case. As noted in my 10-30-09 entry I was already engaged in negotiations. Once again this was an estimate of the time it took to perform this service.
1-22-10 ECF 58 .2, this is a letter from my client to the court requesting to be present at the time of his wife's sentencing. The court is correct this letter is short, but besides reading the letter, it was efiled in the appropriate file and printed out for later discussion. At this moment in time Mr. Brooks was already having second thoughts about his plea and as such his presence was an important issue to him. This is an issue of control. I am sure I confronted Mr. Brooks with a copy of this request because we had already discussed his request If was important to have this document because without it he would have challenged my accuracy in stating its contents. I, in fact traveled to Butte County five days after this letter was lodged, just two days before the court appearance of Ms. Wimmer, in which she entered a plea agreement.
7-20-10 ECF 69 .2 , this is possibly an error. It could be a clerical error but I am uncertain how this entry occurred. I would have received this email, filed it in the appropriate efile and then possibly calendared it due to it's importance to the defendant Without the file and an independent recollection it is hard to tell what occurred on this billing. This was not done with any intent to inflate this bill.
7-27-10* ECF 70 .2, in the first memo of the court regarding 571 the court cites "review order and notice of service by mail" as stated there does not appear to be a corresponding notation in 571. On the other hand there is an entry related to ECF 70 in 122 which the court also references in it's second memo of 5-24-11. (I hope I am responding to the correct comment of the court.) In the courts' comment it states that it could not have taken twelve minutes to do this task. Before I comment on this however I would like to state my understanding of the billing practices in this district. One to six minutes is .1, anything over 6 minutes is .2, please see attachment entitled, Calculating Compensation for Time Worked. To clarify I am not saying that this particular filing took twelve minutes to complete its review but what was done in this case was that the email advising me of the transaction was viewed, in addition to insure that this was properly filed I then had to open the document itself, skim it to insure the court had granted the request without modification and then efile it. Even though I had drafted this document the order to seal was important in this case because of the confidentiality and critical information it contained. If this court had modified this order, information released even, though redacted, quite possibly could endanger my client's life. It would not take long for those who the conflict existed with to determine Mr. Brooks was a potential witness. Comments on Memo of the Court Dated 5-24-11:
I believe I have addressed those comments in the Memo of 5-24-11 as it relates to the first Memo of April 1,2011.1 will proceed to address those court comments found in the grid presentation. These references all relate to 571.
12-20-07 regarding ECF 33, .2, review detention order, once again this is not a billing of 12 minutes but over six minutes, please see attachment entitled Calculating Compensation for Time Worked. The process includes opening the email, reviewing the email communication then opening the actual document and reviewing it. Since I am not privy to the pretrial material, even if present, this document can aid in understanding the nature of co-defendants. In this case the information obtained is particularly relevant in that it was noted this defendant had a history of drug abuse. If in the future this defendant should cooperate, this information is relevant Although this is a boiler plate ruling it provides counsel with information otherwise not readily obtainable. I believe this billing is correct.
12-26-07 review ECF 37.3. This is a notice of related case, and notes case 07-251 as related. The reason stated for the relation is all parties are the same. The question raised in my mind, what is sw07-251? So I tried to find this case, I really could not find this case then realized it probably related to a search warrant or warrants obtained for wire tape. I failed to put this discrete task down when doing billing, that is my fault and is in fact block billing. Please see my comments about block billing.
1-2-08 review minutes .3, this is a review of the minutes of the arraignment of my defendant. I was not present at that date and was aided by other counsel. At that hearing a status conference date was scheduled. As a result of the new date I calendared this date in my paper calendar as well as in my electronic calendar. As stated previously .3 can be as little as 12+. I realize now, based upon the courts' comments about calendaring that this time is not allowable. Based upon that observation the time should be reduced to . 1. This billing was an estimate and was not done to inflate the billing.
3-28-08 ECF 66 .2, this is a simple substitution of counsel, however the process requires a change of counsel to be noted for the file and my records updated. This notation appears to be block billing as noted and should have been independently cited but was not. It may also constitute secretarial. With that assumption then this billing should be .1 for noting the change.
8-29-08 review of minutes ECF 210.2. Although this is simply the order denying the suppression motion of another defendant every ruling was significant to this client. This order was a critical start to moving the defendant to a point of realizing his precarious position in this case. Once again 7+ minutes is a .2 billing. Without my file it is difficult to more precisely recall what I did. It was my habit to communicate to the defendant these rulings and probably via a printed document but I can not say that for a fact. This would be a block billing but as stated I did the work, and this is an estimate of time. If the court considers some of it secretarial then this billing should be .1.
10-10-08 review of minutes regarding change of plea .2. This is not only the review of a plea of a co-defendant but also the subsequent tracking by calendaring. Mr. Brooks expected a full update of the status of the case each time we met or he called. If I was not present to accept his collect call I provided others in the office with at least this information to relate to the defendant. This was necessary to maintain any client control. As documented there were substantial number of collect calls.
11-3-08 ECF 80.2, review request for cancellation of motion calendaring by AUS A and terminated the hearing date of November 7,2008. This date was not noted in the court entry and required opening of ECF 80 and thereafter taking off calendar this date from at least two calendars. Now I am aware that calendaring is secretarial and as such this second function should not have been block billed nor billed at all because it is secretarial. This billing should be .1.
11-28-08 ECF 99, .2 is a three line request to change calendaring for a co-defendant. As stated, the defendant was extremely controlling and wanted to know everything. This change of plea that would be forthcoming would be something he would expect me to be aware of and advise him both in advance but after the event As such I reviewed the document and calendared it as well. Without my file it is difficult to ascertain what further action I undertook. Admittedly, this does reflect calendaring and as such now that I know, should not have been a part of this billing. Therefore considering the calendaring this should be .1 billing for these two separate functions.
1-9-09 review of minutes ECF 99 .2 minutes. This is the minutes of sentencing of a co-defendant. As stated previously, Mr. Brooks was insistent in knowing exactly the disposition of each of his co-defendant's. I seem to recall keeping a summary of all sentences involved in this case and I may have added that to the summary for later discussion with Mr. Brooks. But I have no independent recollection as I sit her now as to why this took 7 minutes.
1-15-09 ECF 101 .2 review of stipulation and proposed order. Although this is the normal stipulation and order, there was information of interest to the defendant. Specifically, at that moment this defendant was going to hire his own counsel. Once again not realizing calendaring is not billable this billing time should be .1.
1-26-09 ECF 113 .4, review of judgment and commitment of co-defendant it should be noted this billing encompasses both ECF113 and 118, admittedly a block billing but still it in fact covers both. ECF 118 is an order by the court vacating the trial date of Eric Brooks and rescheduling a new status conference. This order signed on 1-23-09 after an in court hearing in which I provided the court with a memo as to why I was unavailable for trial due to a death penalty case. During that proceeding the court made it clear to me that it was not happy with me or my schedule. At the conclusion of this hearing the government was to submit an order, that would be ECF 118.1 confirmed the court had signed the order and then calendared this matter. As to 113, the court's memo states that 113 should have been billed at .2. As a result of this block billing, and the fact that I calendared the ECF 118 matter, this billing should be corrected to .3.
11-13-09 ECF 191 .2, sentencing minutes for co-defendant Felix Jauregui All the sentencing minutes were important to the defendant. He insisted on having the sentencing materials of each defendant. In addition, I created a handwritten document outlining all such sentences in order to get my client to commit to following through on his plea. I am sure that I in fact not only reviewed this document but also printed it out per my client's request. Once again, admittedly this appears to be a block billing and this is an estimate of time. If some of this time is considered by the court to secretarial then this billing should be . 1.
11-20-09 ECF 195 .2, sentencing minutes for co-defendant. Please see the explanation immediately above.
I've checked the remaining billings and they appear to be accurate. Travel time and visits to Butte and Nevada County jails can be verified, as each jail requires counsel to sign in before a visit. The collect calls were all documented, as were court proceedings. Other work specified on the bills was verified by notes on my paper calendar or contained with in the discrete files. I reviewed these notes before releasing the files.
I would like to reiterate how difficult this client was, his need for control, paranoia, refusal to accept me at my word, his argumentative attitude all made this case more time consuming in so many small ways. The mere fact of 50-60 collect calls speaks volumes about these traints.
By sending this letter and meeting with the court, I do not want to suggest that I question in any way this court's authority to review my CJA bills. I simply believe many of the court's concerns needed further explanation from me and I apologize to the court for not have provided this explanation earlier. I look forward to meeting with your honor to address any further issues you may have. Yours truly, Dwight M. Samuel