The opinion of the court was delivered by: John Gleeson, District Judge
This case illustrates the need for legislation that clearly authorizes payment for housing and subsistence for indigent out-of-town defendants during federal criminal trials.
Dayana Mendoza and Jinnate Jones live in California, and they were charged with a federal crime in an indictment filed here in Brooklyn. Neither was a danger to the community or a flight risk, so they were released on bail. They had insufficient means to afford legal representation, so each was provided with a court-appointed lawyer. As their trial neared, they sought funds so that they could stay somewhere in the New York area for the two weeks that the prosecutors estimated the trial was going to last. As far as I was concerned, the only question was who should pay for their lodging. After considering various options and submissions from interested parties, I concluded that the only real option I had was to authorize payment from Criminal Justice Act ("CJA") funds, whose purpose is to provide legal representation for indigent defendants. I chose this source of funds reluctantly. I write to explain my reasons for the decision and for my reluctance.
Mendoza is a single mother who lives in the Bay Area with her infant daughter. Jones also lives near San Francisco, and has a young son. They came to the attention of the United States Attorney in the district because of their involvement with a fraudulent enterprise named Apogee Financial. Apogee purported to sell to its clients "Proof of Funds" letters indicating that the clients held money in accounts with well-known banks. In fact, the letters were fakes and the accounts did not exist. Apogee's headquarters were in an office building in Detroit. To bolster the fraud, Apogee employed "gatekeepers" to recruit people who worked in banks in New York and California. The role of the bank employees -- of whom Mendoza and Jones were two -- was to accept phone calls and say that the fake letters on their employers' letterheads were real. Mendoza worked at a Wells Fargo branch in Emeryville, California and received $23,000 for her role in the fraud. Jones, who got $6,000, worked at a Wells Fargo branch in Pittsburg, California.
Mendoza and Jones were charged with conspiracy to commit wire fraud in a nine-defendant superseding indictment.*fn1 Their co-defendants were Aisha Hall (from Detroit), the CEO of Apogee; Yolande Reeves (Detroit), Hall's assistant; Jerjuan Gardner (Detroit) and Marcel Asbell (Detroit), members of the sales force; Jack Horbulewicz (Chicago), Apogee's in-house forger; and two "gatekeepers," Walter Brown (California) and Quiana Ganter (California). None of the nine defendants was from the Eastern District of New York, but the indictment alleged that acts in furtherance of the conspiracy took place in this district, thereby providing a sufficient basis for venue here.*fn2
By the time they were indicted, Mendoza and Jones had lost their jobs at Wells Fargo. Given their financial situations, they were appointed counsel under the CJA. They were released on unsecured bonds and for the most part stayed in California during the pre-trial phase of the case. Mendoza, who received no child support from her child's father, was in particularly difficult financial straits. She appeared by telephone to be arraigned on the superseding indictment, but I required her presence at a status conference on September 8, 2009. Because Mendoza could not afford a cross-country plane ticket, I ordered the United States Marshals Service to arrange for her to travel to Brooklyn pursuant to 18 U.S.C. § 4285. I did the same to enable her presence at oral argument on her pre-trial motions on January 29, 2010.
Before the trial, Mendoza requested a change of venue to the Eastern District of California, where all the acts she was accused of took place. I denied the motion. The conspiracy with which Mendoza was charged included activities in various parts of the country, including the Eastern District of New York, and the government was entitled to bring the case against Mendoza and her co-defendants here. All the same, the roster of defendants to be tried experienced the usual attrition, and by the time of trial, what was left to be tried had only a tenuous connection to New York. Specifically, of the nine defendants who were initially indicted, seven pled guilty; only Mendoza and Jones exercised their right to a trial.
Two weeks prior to the trial, Mendoza's counsel sought an order requiring the United States Marshals Service to arrange lodging and subsistence for Mendoza during the trial. At the time, this seemed like an obviously meritorious request. Mendoza is required by Federal Rule of Criminal Procedure 43(a) to be present "at every trial stage." It would be unseemly for our criminal justice system to haul a defendant across the country and require her to live on the street during her criminal trial. But finding an acceptable way to provide a roof over Mendoza's head proved surprisingly difficult.
The United States Marshals Service is the most logical arm of the government to bear the responsibility. The Marshal transports indigent out-of-town defendants to court, and is already obligated to pay for lodging and subsistence for out-of-town witnesses. See 28 U.S.C. § 1821.The Marshals Service, however, denied any legal responsibility to provide Mendoza lodging and subsistence during the trial. When pressed, the Marshal made the only offer he could: a bed in the Metropolitan Detention Center, a suggestion that was unacceptable on its face. I would not remand an indigent defendant who is compliant with her bail conditions simply because of her inability to pay for her own lodging.
As a matter of statutory interpretation, the Marshal's view of his responsibilities is unfortunately the only reasonable one. 18 U.S.C. § 4285 provides that when an indigent defendant is released pending a court appearance, a judge "may, when the interests of justice would be served thereby" direct the Marshal to arrange for or pay for transportation "to the place where his appearance is required" and "furnish [defendant] with an amount of money for subsistence expenses to [her] destination, not to exceed the amount authorized as a per diem allowance for travel under section 5702(a) of title 5, United States Code." One defect in the statutory language is that it authorizes only an order directing the Marshal to transport defendants to court. To its credit, the Marshals Service often requests (and complies with) court orders requiring it to arrange to send defendants back to their homes after a court appearance, even though the language of § 4285 does not require it to do so. Another statutory defect is the absence of judicial authority to require payment for lodging or food during a trial. Though the phrase "subsistence expenses to [her] destination" is somewhat opaque, the legislative history of § 4285 makes clear that it only authorizes the payment of subsistence expenses "for the time during which the defendant is actually travelling." See H.R.Rep. No. 95-1653, 95th Cong., 2d Sess. at 3 (1978) ("Subsistence shall terminate upon arrival at the defendant's destination and shall not continue throughout the defendant's stay at that destination."). The courts that have considered this question have agreed with the Marshals Service's interpretation of the statute.*fn3
But if the Marshals Service does not have to provide Mendoza with lodging, who does? Pretrial Services, under whose supervision Mendoza was placed when she was released on bail, is another contender. The Pretrial Services Act defines "[p]retrial services functions" to include:
Operate or contract for the operation of appropriate facilities for the custody or care of persons released under this chapter including residential halfway houses . . . and contract with any appropriate public or private agency or person, or expend funds, to monitor and provide treatment as well as nontreatment services to any such persons released in the community, including equipment and emergency housing . . . and other services reasonably deemed necessary to protect the public and ensure that such persons appear in court as required.
18 U.S.C. § 3154(4) (emphasis added).
The government contended that this language requires Pretrial Services to provide Mendoza with food and shelter. Some courts have accepted this argument. Candidly straining the language of the statute to avoid what it considered a serious constitutional difficulty, the Tenth Circuit held that ...