Opinion
1:21-CR-00023-JLT-SKO
10-24-2023
THE UNITED STATES OF AMERICA, Plaintiff, v. ROY DREES et al., Defendant.
Serita Rios, SBN# 246568 Law Office of Serita Rios Attorney for Defendant ROY DREES
Serita Rios, SBN# 246568
Law Office of Serita Rios
Attorney for Defendant ROY DREES
DEFENDANT ROY DREES' RENEWED REQUEST AND ORDER FOR TRAVEL AND SUBSISTENCE
Defendant, ROY DREES, is scheduled for a change of plea hearing on November 6, 2023. Mr. Drees is indigent and requests funds to allow him to travel to and from his change of plea hearing. Mr. Drees' Third-Party Custodian has agreed to transport him to and from his Court hearing on November 6, 2023, in a personal vehicle.
On January 25, 2021, the Court appointed the Federal Defender's Office to represent Mr. Drees. Current counsel, Serita Rios, was re-assigned as appointed counsel on December 27, 2021. Counsel has reached out to the Federal Defender's Office to obtain a copy of the financial affidavit submitted to the Court on January 25, 2021, (See Dkt. #6) however, they have been unable to provide a copy. DEFENDANT ROY DREES' REQUEST AND [PROPOSED] ORDER FOR TRAVEL AND SUBSISTENCE
Mr. Drees lives with his brother and sister-in-law (Third-Party Custodian) at their home in Lancaster, California. Mr. Drees is intellectually disabled and unemployed. His only source of income is from General Relief Assistance and CalFresh (food stamps). His government benefits go to his Third-Party Custodian to compensate for his cost of living and food expenses. His Third-Party custodian is disabled and has limited income, she is seeking assistance for travel expenses. (See attached Declarations from Roy Drees, and Elizabeth Irizarry.)
There is unambiguous statutory authority for this Court direct the United States Marshal to furnish Mr. Drees with the cost of travel to Fresno, California, so that he can attend his Court hearing. See, 18 U.S.C. §4285. Accordingly, Mr. Drees requests the United States Marshal provide him with subsistence expenses during his travel period not to exceed the amount authorized as per diem allowance for travel under 5 U.S.C. §5702(a).
Several cases have held that §4285 does not obligate the Marshalls Service to pay an indigent defendant's subsistence expenses - food and lodging - once the defendant arrives and can attend Court. Of course, the defendant has a due process right to attend his court proceedings and cannot be forced to choose between surrendering himself into custody or to go without food and lodging while attending court. See, United States v. Badalamenti, 1986 WL 8309 (S.D.N.Y. Jul. 22, 1986). In United States v. Mendoza, 734 F.Supp.2d 281, 286-87, (E.D.N.Y. 2010), the Court found that the Criminal Justice Act, 18 U.S.C. §3006A, provided the appropriate funding mechanism for a defendant's lodging and subsistence expenses while he is away from home for court proceedings and for the cost of return travel and subsistence.
Based on those precedents, Mr. Drees requests funding for his travel and subsistence as follows:
(1) From the United States Marshall for the cost of travel to Fresno, California, so that he can attend court in Fresno on November 6, 2023, and subsistence during that travel, pursuant to 18 U.S.C. §4285.
(2) From funds authorized under the Criminal Justice Act, 18 U.S.C. §3006A, for the defendant's subsistence expenses while he is in Fresno on November 6, 2023, for his change of plea, and for the cost of his return travel home and subsistence during that travel.
(3) From any other source the Court finds appropriate for the travel and subsistence expenses noted above.
Undersigned counsel is informed and believes this Court is inclined to order travel and subsistence funding as referenced in (1) and (2) above and to further authorize undersigned counsel to advance the subsistence expenses specified in (2) above with reimbursement to counsel from Criminal Justice Act (CJA) funds ordered by the Court.
Counsel will provide Defendant Drees and his Third-Party Custodian with a copy of the travel funds document which is attached to the proposed order and advise Mr. Drees and his Third-Party Custodian of their potential liability for excess expenses. Counsel will seek reimbursement from CJA funds promptly once the authorized travel is completed.
[PROPOSED] ORDER
Pursuant to 18 U.S.C. §4285, the Court orders the United States Marshal to furnish Roy Drees with the cost of travel from Lancaster, California to Fresno, California, so that he may attend court in Fresno on November 6, at 11:30 a.m. Additionally, the United States Marshal shall provide Mr. Drees with subsistence expenses for this travel period not to exceed the amount authorized as per diem allowance for travel under 5 U.S.C. §5702(a).
Pursuant to 18 U.S.C. §3006A, the Court orders the Federal Defender's Office to disburse Criminal Justice Act (CJA) funds to furnish Mr. Drees with the cost of food expenses while he is in Fresno on November 6, 2023, for his court appearance. It is further ordered that CJA funds be disbursed by the Federal Defender's office for travel and subsistence to enable Mr. Drees to return to his home in Lancaster, California when that court proceeding is completed. It is further ordered that to the extent practicable, the travel and subsistence expenses shall not exceed the parameters set out in the attached Travel Funding Memorandum and the per diem allowance for travel under 5 U.S.C. §5702(a).
It is further ordered that undersigned counsel may advance the travel and subsistence funds to be disbursed from CJA funds and that the Federal Defender is ordered to reimburse counsel. Counsel shall seek any reimbursement from CJA funds promptly once the authorized travel is completed. Counsel shall endeavor to limit the expenses to the parameters set out in the attached Travel Funding Memorandum, however counsel is not personally liable for excess expenses and shall be reimbursed from CJA funds for all expenses reasonably authorized.
IT IS SO ORDERED.