July 8, 2010
UNITED STATES OF AMERICA, PLAINTIFF,
BROCK PURVIANCE, DEFENDANT.
The opinion of the court was delivered by: John W. Sedwick United States District Judge
ORDER FROM CHAMBERS
[Re: CJA Vouchers at docs. 222 and 240]
I. MATTER PRESENTED
This order addresses the CJA 20 vouchers submitted by CJA counsel for defendant Brock Purviance. The vouchers are at dockets 222 and 240. The vouchers were referred by this court to Magistrate Judge Roberts for review and appropriate recommendations. Judge Roberts provided Mr. Brainin with the most complete and thorough review of any CJA 20 voucher this court has ever seen. First, he issued a lengthy 47-page preliminary report, which was filed at docket 245. Mr. Brainin was granted leave to file over-length objections. Mr. Brainin's 33 pages of objections, plus supporting exhibits, were filed at docket 249. Mr. Brainin also filed an affidavit at docket 248. After the objections had been reviewed, the magistrate judge held a brief hearing at which Mr. Brainin participated by telephone. Next, the magistrate judge issued the most detailed report this court has ever seen respecting a CJA 20 voucher. The 66-page revised report at docket 254 addresses Mr. Brainin's objections in exceptional detail. Mr. Brainin was then afforded an opportunity to file additional over-length objections, which he filed at docket 261. Finally, the magistrate judge issued a final report at docket 263 making alternative recommendations as to how much compensation should be paid. The first alternative assumed that this court would enforce the $14,500 budget originally set. The second alternative recommendation assumed this court would remove the $14,500 ceiling and made a "not to exceed" recommendation for each voucher.
II. STANDARD OF REVIEW
The district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate."*fn1 When reviewing a magistrate judge's report and recommendation in a case such as this one, the district court conducts de novo review of all conclusions of law,*fn2 and any findings of fact to which objections have been made.*fn3 Uncontested findings of fact are reviewed for clear error.*fn4
The first issue to address is whether the court will increase the original budget cap of $14,500. As a review of Mr. Brainin's supporting papers shows, he performed an extraordinary amount of work for Purviance. This is in part attributable to the remarkably demanding nature of his client. Purviance's counsel in the underlying criminal case, Sue Ellen Tatter, is a very experienced and very talented public defender. In a hearing on the merits of Purviance's § 2255 motion, Ms. Tatter characterized Purviance as "one of the most demanding clients she has ever represented.*fn5 She agreed that he wanted to collaborate and contribute on every facet of his defense.*fn6 This court's own experience of Purviance is entirely consistent with Ms. Tatter's description. The bottom line is that Purviance is one of those very rare criminal defendants who is very bright and actually capable of discussing and second-guessing everything his lawyer might consider doing. Moreover, he was highly motivated to do so by the severe sentence he faced. Under these circumstances, the court will remove the $14,500 ceiling. However, the court cannot afford Mr. Brainin carte blanche. He was warned that his client did not have leave to demand the expenditure of unlimited amounts of his time. Moreover, counsel is rightly expected to exercise some control over the demands of his clients, even difficult clients like Purviance.
In sum, Mr. Brainin's compensation must be confined to take into account the fact that no defendant, not even Purviance, has an unlimited draw on the federal fisc. This court explicitly noted this fact in an earlier order when it set the $14,500 cap.
Mr. Brainin exceeded that cap without any formal prior approval by the court. Under all of the circumstances, the court will increase the budget cap to $20,000. This is a remarkably generous budget for a § 2255 motion, but Purviance was an extraordinary client.
Having reviewed the voluminous record and applied the standard of review articulated above, this court concludes that the magistrate judge has correctly found the facts and applied the law. There is nothing in Brainin's objections which is not thoroughly addressed to the satisfaction of this court in reports from the magistrate judge. Having decided to grant Brainin relief from the original budget ceiling, this court therefore adopts the alternative recommendation by the magistrate judge, but subject to the $20,000 budget ceiling. Brainin has already been paid $11,763.13, so there remains $8,236.87 ($20,000 minus $11,763.13) to be allocated between the vouchers at dockets 222 and 240. This court will approve payment of an additional $5,236.87 on the voucher at docket 222 and an additional $3,000 on the voucher at docket 240.
For the reasons above, this court adopts Magistrate Judge Roberts' recommended findings and conclusions. Subject to this court's newly established budget ceiling, this court will approve the payments set out in the previous section. A final decision on how much will be paid to Mr. Brainin will be made by the Chief Judge of the Court of Appeals or his designee.