Opinion
2:06-cr-00403-GEB.
April 26, 2011
ORDER
This decision explains why attorney C. Emmett Mahle's request for $52,743.79 compensation under the Criminal Justice Act ("CJA") is only partially approved. In the prior attached communication to Mr. Mahle about his request, I proposed a fifty percent reduction of the fee he requested and provided Mr. Mahle the opportunity to address the proposed reduction on-the-record, orally and/or in writing, no later than April 15, 2011.
As explained in the prior communication, Mr. Mahle represented he completed numerous tasks in an amount of time that is at least twice as long as could arguably be considered reasonable for performing those tasks. Therefore, it can be reasonably inferred that Mr. Mahle has inflated all of his billings. See In re Smith, 586 F.3d 1169, 1174 (9th Cir. 2009) (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. Puerto Rico April 8, 2010) (stating percentage reduction of fee instead of individual time entry reductions is appropriate in cases with "an evident practice of over-billing across the board").
Mr. Mahle did not respond to the prior communication; nevertheless, after further reflection on Mr. Mahle's representation about the amount of discovery he reviewed, including billing entries for trial preparation, the proposed percentage of reduction has been reconsidered. In light of what Mr. Mahle represents about the volume of discovery he reviewed, Mr. Mahle's total compensation requested is reduced by twenty percent, or $10,548.76.
PROPOSED CJA ATTORNEY FEE REDUCTION
Attorney C. Emmett Mahle's request for $52,743.79 compensation, based on vouchers submitted under the Criminal Justice Act ("CJA"), has been reviewed and numerous excessive billings have been found, which results in this communication with Mr. Mahle. For the purpose of allowing the reader to readily verify examples of excessive billings, appended to this order are pages from the Docket Text for this criminal action and some of the filings considered excessive."The [CJA] guidelines . . . establish . . . [i]f the presiding judge concludes that a reduction in claimed compensation is necessary, that judge should provide appointed counsel with (1) prior notice of the proposed reduction with a brief statement of the reasons for it, and (2) an opportunity to address the matter." In re Smith, 586 F.3d 1169, 1173-74 (9th Cir. 2009) (citation and internal quotation marks omitted). This communciation provides Mr. Mahle with notice that the Court proposes a 50 percent reduction of the total compensation he seeks since most of the referenced billings for tasks listed below are billed at least twice the amount of time that could arguably be considered reasonable for performing the tasks (some of the tasks arguably should not have been included in the fee request but for this review it is assumed that inclusion is appropriate). The degree of reduction is proposed, even though it is unclear whether other billings are also tainted by the same measure of referenced inflation, because it can be reasonably inferred that the same measure of inflation must permeate practically all of Mr. Mahle's billings since he has demonstrated he lacks a reasonable billing judgment and has purposefully inflated certain billings. 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. Puerto Rico April 8, 2010) (stating percentage reduction of fee instead of individual time entry reductions is appropriate in cases with "an evident practice of over-billing across the board").
Mr. Mahle requested reimbursement on multiple occasions for viewing the electronic docketed version of documents after they were filed when he had personally prepared those documents. This is an example of inflated billings; Mr. Mahle typically billed twelve minutes for viewing the same document he prepared after it appeared on the electronic docket and he had no legitimate purpose for this excessive billing. By inflating his billing, Mr. Mahle exaggerated any arguably permitted billing by at least 50 percent.
One of the referenced documents is the thirteen line "Stipulation and (Proposed) Order" filed June 6, 2007. (ECF No. 49.) Mr. Mahle states it took him twelve minutes to review this document once it appeared on the electronic docket, even though he previously prepared and filed it on the same day. Further, Mr. Mahle billed an additional twelve minutes for his review of the same document after it was signed on June 6, 2007. (ECF No. 50.) Similarly, Mr. Mahle states it took him eighteen minutes to prepare a "Stipulation and (Proposed) Order" on August 7, 2007; twelve minutes to review the electronic docketed version of this document after he filed and docketed it as ECF No. 53 on August 7, 2007; and he spent an additional six minutes reviewing this same document after it was signed and docketed as ECF No. 54 the next day on August 8, 2007. Additional stipulations and proposed orders reflecting the same type of excessive billing are listed in the chart below.
The Court also questions the time Mr. Mahle states it took to prepare all but the first of the above-referenced stipulations and proposed orders since they appear nearly identical to what he first prepared and required little new work product. These documents appear cut and pasted from the first stipulation, requiring only the substitution of dates of names of counsel. There was also the addition or deletion of a new substantive sentence in a few of the stipulations. Mr. Mahle billed for other stipulations and proposed orders in the same manner: eighteen minutes to prepare a "Stipulation and (Proposed) Order" on October 1, 2007; twelve minutes to review ECF No. 59, the electronic docketed version of this document after he filed it and caused it to appear on the docket on October 1, 2007; and he spent an additional six minutes reviewing this same document after it was signed and docketed as ECF No. 61. Mr. Mahle also states it took him eighteen minutes to prepare a "Stipulation and (Proposed) Order" on December 13, 2007; twelve minutes to review ECF No. 64, the electronic docketed version of this document after he filed it and caused it to appear on the docket on December 13, 2007; and for some inexplicable reason he spent an additional twelve minutes reviewing this same document after it was signed and docketed as ECF No. 65 on December 14, 2007. ECF No. 64 appears to reflect what has been copied from ECF No. 59, since it is identical except for the deletion of a sentence in the first paragraph, and different dates in the second paragraph. ECF No. 65 is identical to ECF No. 67 except for the different dates in the second paragraph; it should not have taken eighteen minutes to copy and paste the referenced text. It is clear the referenced billings are inflated over 50 percent of what could be considered reasonable billings.
It was also unreasonable to bill twenty-four minutes for preparation of the one sentence joinder of a co-defendant's motions in limine (ECF No. 111), especially since Mr. Mahle billed twelve minutes for his review of ECF No. 110, which is a co-defendant's one sentence joinder to others' motions in limine and is similiar to the one sentence joinder he filed the day before. Further, Mr. Mahle billed an additional twelve minutes for his review of the one sentence joinder he prepared after he filed and docketed it as ECF No. 111. on the same day he prepared it. The total time involved with billing for the referenced two one-sentence joinders is forty-eight minutes.
Additionally, the reimbursement Mr. Mahle requests for review of numerous form/boilerplate criminal documents is excessive. Mr. Mahle billed twelve minutes for reviewing his CJA form appointment document (ECF No. 35) and twelve minutes each time he reviewed the form CJA appointment documents for other attorneys (ECF Nos. 44, 75), yet for reviewing certain CJA attorneys' form appointment documents he billed only six minutes (ECF Nos. 31, 33, 37). Mr. Mahle has the same type of billings for arrest warrants (ECF Nos. 12, 13, 26), waivers of indictments (ECF Nos. 89, 130, 132), waivers of appearances (ECF Nos. 46, 47), schedules for disclosure of pre-sentence reports (ECF Nos. 83, 84), and detention orders (ECF Nos. 16, 19). These billing are inflated over 50 percent of what could be considered reasonable billings.
Mr. Mahle also states it took him twenty-four minutes to review ECF No. 124, a four line minutes and one-half page form change of plea for a co-defendant on March 11, 2010, and he states it took him twelves minutes to read ECF No. 124 again one day later on March 12, 2010. (ECF No. 124) This billing is clearly excessive.
Mr. Mahle also billed six minutes each for looking at ECF Nos. 55 and 57, in which the Clerk states "DISREGARD — INCOMPLETE FILING" and "DISREGARD-DUPLICATIVE"; and, an additional six minutes for looking at the Clerk's one sentence correction of those entries in ECF No. 58. Mr. Mahle also billed for the review of three sealed documents, for a total time entry of twenty-four minutes. (ECF Nos. 23, 85, 167.) Since it is the Court's understanding that these sealed documents are not available for viewing, it is unclear why any time was billed.
Mr. Mahle also billed twenty-four minutes for drafting an eight sentence "Memorandum" on February 23, 2010, concerning his planned vacation and the availability of another attorney to respond to any jury question during his absence. Mr. Mahle billed an additional twelve minutes for his review the electronic docketed version of the Memorandum in ECF No. 98, which he saw on the same day he drafted and filed it. Most, if not all, of the twelve minutes Mr. Mahle states it took him to review this Memorandum is patently excessive.
Further, the time claimed in performing the following tasks also appears excessive and does not reflect time "reasonably expended and in the exercise of reasonable professional judgment":
In re Smith, 586 F.3d at 1171.
Date Entry Time Comments Billed
11/1/0 Receipt and .4 There are two ECF No. 9s: 6 review 1) One page form CJA financial ("Rec/Rev") affidavit for co-defendant, and ECF No. 9 2) 9 lines Minutes — re: proceedings before Judge Drozd (initial appearance for his client and multiple other defendants); attorney present at hearing It should not have taken 24 minutes to read these docket entries, even if review of both No. 9 entries are referenced by the fee charge. This billing is excessive by at least .3, meaning that eighteen minutes of the billing is excessive or that the billing is excessive by 75%. 11/1/0 Rec/Rev ECF No. .2 Form detention order re client. 6 10 This billing is excessive by at least .1, meaning that six minutes of the billing is excessive or that the billing is excessive by 50%. 11/2/0 Rec/Rev ECF No. .2 Minutes — 4 lines re: detention 6 11 hearing for co-defendant. This billing is excessive by at least .1, meaning that six minutes of the billing is excessive or that the billing is excessive by 50%. 11/7/0 Rec/Rev ECF No. .2 Minutes — 9 lines re detention 6 14 hearing for co-defendant. This billing is excessive by at least .1, meaning that six minutes of the billing is excessive or that the billing is excessive by 50%. 11/9/0 Rec/Rev ECF No. .2 Minutes — 5 lines re initial 6 18 appearance of co-defendant. This billing is excessive by at least .1, meaning that six minutes of the billing is excessive or that the billing is excessive by 50%. 11/16/ Rec/Rev ECF No. .2 Minutes — 6 lines re arraignment 06 24 for client and two co-defendants; counsel present at hearing. This billing is excessive by at least .1, meaning that six minutes of the billing is excessive or that the billing is excessive by 50%. 11/21/ Rec/Rev ECF No. .2 Memorandum re request for co- 06 27 defendant to be added to calendar for arraignment (3 sentences). This one page document is attached. This billing is excessive by at least .1, meaning that six minutes of the billing is excessive or that the billing is excessive by 50%. 11/27/ Rec/Rev ECF No. .2 Minutes — 5 lines re arraignment 06 28 of co-defendant. This billing is excessive by at least .1, meaning that six minutes of the billing is excessive or that the billing is excessive by 50%. 11/29/ Rec/Rev ECF No. .2 Minutes — 4 lines re arraignment 06 29 of co-defendant. This billing is excessive by at least .1, meaning that six minutes of the billing is excessive or that the billing is excessive by 50%. 11/30/ Rec/Rev ECF No. .2 Application for writ of habeas 06 30 corpus for co-defendant (1 page form document). This billing is excessive by at least .1, meaning that six minutes of the billing is excessive or that the billing is excessive by 50% 12/29/ Rec/Rev ECF No. .2 Minutes — 6 lines re initial 06 39 appearance and arraignment of co- defendant. This billing is excessive by at least .1, meaning that six minutes of the billing is excessive or that the billing is excessive by 50% 1/14/0 Rec/Rev ECF No. .2 Minutes — 5 lines re status 7 42 conference; Mr. Mahle was present at hearing. This billing is excessive by at least .1, meaning that six minutes of the billing is excessive or that the billing is excessive by 50% 2/23/0 Rec/Rev ECF No. .2 Minutes — 6 lines re status 7 45 conference; Mr. Mahle was present. This billing is excessive by at least .1, meaning that six minutes of the billing is excessive or that the billing is excessive by 50%. 4/20/0 Rec/Rev ECF No. .2 Minutes — 5 lines re status 7 48 conference; Mr. Mahle counsel was present at hearing. This billing is excessive by 50%. 7/24/0 Rec/Rev ECF No. .2 Substitution of attorney re co- 7 51 defendant (8 lines). This billing is excessive by 50%. 7/25/0 Rec/Rev ECF No. .1 Order substituting attorneys 7 52 (signed version of ECF No. 51). 9/13/0 Rec/Rev ECF No. .2 Substitution of counsel for co- 7 56 defendant (3 lines of text). This billing is excessive by 50% 10/1/0 Rec/Rev ECF No. .2 Substitution of attorney re co- 7 60 defendant (3 lines). This billing is excessive by 50%. 10/2/0 Rec/Rev ECF No. .1 Signed version of ECF No. 59 7 61 10/30/ Rec/Rev ECF No. .2 Stipulation and proposed order to 07 62 continue status conference (17 lines) prepared by counsel for co- defendant. This billing is excessive by 50%. 11/1/0 Rec/Rev ECF No. .2 Signed version of ECF No. 62. This 7 63 billing is excessive by 50%. 12/13- Drafted/filed/s Mr. Mahle states it took him 14-07 tip and order .3 eighteen minutes to draft this Rec/Rev ECF No. .2 nine line document on 12/13/07, 64 .1 and twelves minutes to receive and Rec/Rev ECF No. review the same document after it 65 appeared on the docket on 12/13/07 (after he filed it), and six minutes to review and receive the document on 12/14/07, after the judge signed it. This billing is excessive by 50% or more. 1/25/0 Rec/Rev ECF No. .2 Minutes — 5 lines re status 8 66 conference; Mr. Mahle was present at hearing. This billing is excessive by 50%. 3/21/0 Drafted/filed/s It is assumed that this drafted 8 tip and order .4 and filed document is what Mr. Rec/Rev ECF No. .2 Mahle states it took him twelves 67 .2 minutes to receive and review on Rec/Rev ECF No. 3/21/08 (ECF No. 67), and billed 68 twelves minutes when he saw my signature reflected on the document on 3/21/08 (ECF No. 68). It should not have taken Mr. Mahle twenty-four minutes to prepare ECF No. 67, since this document is substantially similiar to ECF No. 64, which it only took Mr. Mahle eighteen minutes to draft. This billing is excessive by more than 50%. 4/25/0 Rec/Rev ECF No. .2 Minutes (6 lines) re status 8 70 conference; Mr. Mahle was present at hearing. This billing is excessive by 50%. 5/15/0 Rec/Rev ECF No. .2 Handwritten letter from co- 8 71 defendant requesting appointment of another counsel. This billing is excessive by 50%. 5/19/0 Rec/Rev ECF No. .2 Two sentence Minute Order 8 72 scheduling status conference for matter involving representation of co-defendant. This billing is excessive by 50%. 5/30/0 Rec/Rev ECF No. .2 Minutes (3 lines) re status 8 73 conference concerning co- defendant's representation referenced in ECF No. 72. This billing is excessive by 50%. 6/6/08 Rec/Rev ECF No. .2 Minutes (3 lines) re status 74 conference as to appointment of new counsel for co-defendant. This billing is excessive by 50%. 10/17/ Rec/Rev ECF No. .2 Minutes (6 lines) re status 08 76 conference; Mr. Mahle was present at hearing. This billing is excessive by 50%. 11/5/0 Rec/Rev ECF No. .2 Stipulation and proposed order to 8 77 continue status conference prepared by counsel for co- defendant. This billing is excessive by 50%. 11/5/0 Rec/Rev ECF No. .2 Signed version of ECF No. 77. This 8 78 billing is excessive by 50%. 3/19/0 Rec/Rev ECF No. .2 Mr. Mahle states it took him 9 79 Rec/Rev ECF .1 thirty minutes to draft this No. 80 stipulation and order on 3/16/09. It is similiar to the stipulation and order he drafted in eighteen minutes on 12/13/07. He billed an additional twelves minutes to receive and review the same document after it appeared on the docket on 3/16/09, and six minutes to review and receive the document on 3/19/09, after the judge signed it. This billing is excessive by over 50%. 4/1/09 Rec/Rev ECF No. .2 Mr. Mahle states it took him 81 .2 twenty-four minutes to draft this Rec/Rev ECF No. stipulation and order on 4/1/09, 82 twelves minutes to receive and review the same document after it appeared on the docket on 4/1/09 (after he filed it), and twelves minutes to review and receive the same document on 4/1/09, after the judge signed it. This billing is excessive by 50% or more. 12/18/ Rec/Rev ECF No. .2 Schedule for disclosure of pre- 09 83 sentence report for co-defendant. This billing is excessive by 50%. 12/18/ Rec/Rev ECF No. .2 Waiver of indictment for co- 09 89 defendant. This billing is excessive by 50%. 12/18/ Rec/Rev ECF No. .3 Superseding information for co- 09 90 defendant. This billing is excessive by 66%. 12/18/ Rec/Rev ECF No. .3 Superseding information for co- 09 92 defendant. This billing is excessive by 66%. 12/21/ Rec/Rev ECF No. .2 Minutes (4 lines) re change of 09 86 plea hearing for co-defendant. This billing is excessive by 50%. 12/21/ Rec/Rev ECF No. .2 Criminal minutes (1 page form 09 87 document) re co-defendant. This billing is excessive by 50%. 1/8/10 Rec/Rev ECF No. .2 Minutes (5 lines) re status 95 conference; Mr. Mahle was present at hearing. This billing is excessive by 50%. 2/19/1 Rec/Rev ECF No. .2 1-page handwritten request for new 0 97 appointed counsel by co-defendant. This billing is excessive by 50%. 2/23/1 Rec/Rev ECF No. .2 Minute Order (3 lines) re 0 99 continuance of trial confirmation hearing. This billing is excessive by 50%. 3/3/10 Rec/Rev ECF No. .2 Minutes (7 lines) re status 100 conference; Mr. Mahle was present at hearing. This billing is excessive by 50% 3/8/10 Rec/Rev ECF No. .2 US's notice of intent to present 103 evidence of client's other acts — vehicle stop. This billing is excessive by 50% 3/8/10 Rec/Rev ECF No. .3 US's notice of intent to present 104 evidence of client's prior convictions. This billing is excessive by 66%. 3/8/10 Rec/Rev ECF No. .3 US's notice of intent to introduce 105 evidence of co-defendant's other acts. This billing is excessive by 66%. 3/8/10 Rec/Rev ECF No. .3 US's notice of intent to present 106 evidence of co-defendant's prior convictions. This billing is excessive by 66%. 3/11/1 Rec/Rev ECF No. .2 Memorandum by US re continuing 0 113 sentencing date for co-defendant (2 sentences). This billing is excessive by 50%. 3/11/1 Rec/Rev ECF No. .2 Memorandum by US re continuing 0 114 sentencing date for co-defendant (2 sentences). This billing is excessive by 50%. 3/11/1 Rec/Rev ECF No. .3 Information (2 pages) for client. 0 115 This billing is excessive by 50%. 3/11/1 Rec/Rev ECF No. .3 Superseding information for client 0 116 (2 pages). This billing is excessive by 50%. 3/11/1 Rec/Rev ECF No. .2 Information for co-defendant (2 0 117 pages). This billing is excessive by 50%. 3/11/1 Rec/Rev ECF No. .2 Superseding information for co- 0 118 defendant (2 pages). This billing is excessive by 50%. 3/11/1 Rec/Rev ECF No. .2 Charged twelve minutes for reading 0 119 the following on the docket: "Notice of Hearing for [co- defendant] pursuant to 113 Memorandum, Judgment and Sentencing is CONTINUED to 4/16/2010 at 9:00 a.m. in Courtroom 10. . . ." (almost 3 lines). This billing is excessive by 50%. 3/11/1 Rec/Rev ECF No. .2 Notice of continuance of 0 120 sentencing hearing for co- defendant (3 lines-same type of billing as made concerning ECF No. 119). This billing is excessive by 50%. 3/11/1 Rec/Rev ECF No. .2 Superseding information for co- 0 122 defendant (2 pages). This billing is excessive by 50%. 3/16/1 Rec/Rev ECF No. .2 Superseding information for co- 0 127 defendant (2 pages). This billing is excessive by 50%. 3/19/1 Rec/Rev ECF No. .2 Criminal minutes (1 page form 0 134 document) re co-defendant's judgment and sentencing. This billing is excessive by 50%. 3/31/1 Rec/Rev ECF No. .2 Judgment for co-defendant. This 0 137 billing is excessive by 50%. 4/5/10 Rec/Rev ECF No. .2 Memorandum from probation office 141 re continuance of sentencing/judgment of co- defendant (1 page). This billing is excessive by 50%. 4/5/10 Rec/Rev ECF No. .2 Order for release of person in 142 custody re co-defendant (1 page). This billing is excessive by 50%. 4/5/10 Rec/Rev ECF No. .2 Release conditions for co- 143 defendant (2 pages). This billing is excessive by 50%. 4/6/10 Rec/Rev ECF No. .2 Memorandum from US re rescheduling 144 sentencing and judgment (3 sentences). This billing is excessive by 50%. 4/6/10 Rec/Rev ECF No. .2 Unsecured appearance bond for co- 145 defendant. This billing is excessive by 50%. 5/24/1 Rec/Rev ECF No. .2 Memorandum from probation office 0 147 re continuance of sentencing/judgment of co- defendant (1 page). This billing is excessive by 50%. 5/28/1 Rec/Rev ECF No. .2 Criminal minutes (1 page form 0 148 document) re co-defendant's judgment and sentencing. This billing is excessive by 50%. 6/3/10 Rec/Rev ECF No. .2 Memorandum from probation office 150 re continuance of sentencing/judgment of co- defendant (1 page). This billing is excessive by 50%. 6/4/10 Rec/Rev ECF No. .2 Criminal minutes (1 page form 151 document) re co-defendant's judgment and sentencing. This billing is excessive by 50%. 6/9/10 Rec/Rev ECF No. .2 Judgment for co-defendant. This 152 billing is excessive by 50%. 8/5/10 Rec/Rev ECF No. .2 Joint sentencing memorandum re co- 157 defendant (18 lines). This billing is excessive by 50% 8/11/1 Rec/Rev ECF No. .2 Defendant's Sentencing Memorandum 0 158 (3 pages) that Mr. Mahle drafted on 8/11/10, and billed forty-eight minutes for drafting it, and be billed an additional twelves minutes after he caused it to be filed and received and reviewed ECF No. 158 on 8/11/10. It is questionable whether any portion of the additional twelves minutes could be justified, but it is clearly excessive by at least 50%. 8/11/1 Rec/Rev ECF No. .3 Government's response to counsel's 0 160 sentencing memorandum (3 pages) in which they agree w/ counsel's proposed sentence of 120 months. 8/13/1 Rec/Rev ECF No. .2 Form Criminal minutes (1 page form 0 161 document) re client's judgment and sentencing; Mr. Mahle was present at hearing. 8/13/1 Rec/Rev ECF No. .2 Form Criminal minutes (1 page form 0 162 document) re co-defendant's judgment and sentencing. This billing is excessive by 50%. 8/26/1 Rec/Rev ECF No. .2 Judgment for co-defendant. This 0 165 billing is excessive by 50%.Finally, after reviewing numerous documents and creating the chart above, the Court also reviewed the Clerk's minutes on the docket for the purpose of further evaluating the billing requests. Attached is an annotated copy of the docket entries; Mr. Mahle's billings for reading the Clerk's minutes are noted in the left column of the relevant portions of the attached sheets. The excessive billings are evident.
Mr. Mahle is provided the opportunity to address the proposed 50 percent fee reduction on-the-record, orally and/or in writing, no later than April 15, 2011. If Mr. Mahle desires to address the proposed reduction orally, contact the courtroom deputy, Shani Furstenau, so that she can schedule the in chambers hearing.
Dated: March 29, 2011
ATTATCHMENT
ATTATCHMENT