United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE
before the Court is Paul Jeffrey Voll's
("Defendant") Sealed Objection, (ECF No. 1517), to
the Honorable Magistrate Judge Carl W. Hoffman's
("Judge Hoffman") Order, (ECF No. 1478). For the
reasons discussed below, Defendant's Objection is
SUSTAINED in part and OVERRULED in
January 15, 2019, the Court held a hearing on Defendant's
Motion to Modify Conditions of Release, (ECF No. 1414).
(Mins. of Proceedings, ECF No. 1443). During the hearing, the
Court denied the motion and ordered Defendant to file an
updated financial affidavit. (Id.). On January 22,
2019, Defendant filed an updated Financial Affidavit, (ECF
No. 1455), in adherence with the Court's order. Judge
Hoffman set a date for a canvassing hearing. (Min. Order, ECF
No. 1460). Subsequently, the Government filed a Notice of
Property Records, (ECF Nos. 1468, 1469), relating to
February 7, 2019, Judge Hoffman held a canvassing hearing,
and determined that Defendant is not eligible for CJA
appointed counsel. (See Mms. of Proceedings, ECF No.
1478). More specifically, Judge Hoffman found that Defendant
"now possesses financial resources sufficient to retain
counsel and to bear the costs of that representation,
accordingly, it is ordered that Mr. Voll shall assume and pay
the costs of all future representation." (Id.).
Judge Hoffman advised Defendant that if he wished to continue
to have Joshua Tomsheck, Esq. as his counsel, Defendant would
have to reimburse the United States Treasury for the cost of
that representation at the Criminal Justice Panel rate, and
upon a payment schedule to be determined by the Court.
(Id.). Subsequently, Defendant filed the instant
reviewing the order of a magistrate judge, the order should
only be set aside if the order is clearly erroneous or
contrary to law. Fed.R.Civ.P. 72(a); LR IB 3-l(a); 28 U.S.C.
§ 636(b)(1)(A); Laxalt v. McClatchy, 602
F.Supp. 214, 216 (D. Nev. 1985). A magistrate judge's
order is "clearly erroneous" if the court has
"a definite and firm conviction that a mistake has been
committed." See United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948); Burdick v. Comm'r
IRS, 979 F.2d 1369, 1370 (9th Cir. 1992). "An order
is contrary to law when it fails to apply or misapplies
relevant statutes, case law or rules of procedure."
United Health Grp., Inc. v. United Healthcare, Inc.,
No. 2:14-cv-00224-RCJ, 2014 WL 4635882, at *1 (D. Nev. Sept.
16, 2014). A district judge may affirm, reverse, or modify,
in whole or in part, a magistrate judge's order, as well
as remand with instructions. LR IB 3-l(b).
objects to Judge Hoffman's Order arguing that he "is
unable to retain counsel for this matter and should be
entitled to the appointment of CJA counsel." (Obj.
2:26-28, ECF No. 1517). Defendant submits that in addition to
paying the expenses of his family, he has numerous costly
expenses related to the operation and maintenance of his solo
legal practice. (Id. 4:11-13). Further, Defendant
indicates that he "has a negative net worth and barely
makes a positive net income at the conclusion of each
month." (Id. 4:14-17).
Criminal Justice Act (CJA) provides that courts many
"furnish [ ] representation for any person financially
unable to obtain adequate representation." 18 U.S.C.
§ 3006A(a); In re Smith, 586 F.3d 1169, 1171-72
(9th Cir. 2009). Representation includes "counsel and
investigative, expert, and other services necessary for
adequate representation." 18 U.S.C. § 3006A(a).
Pursuant to the CJA guidelines,  "[a] person is
financially unable to obtain counsel within the meaning of 18
U.S.C. § 3006A(b) if the person's net financial
resources and income are insufficient to obtain qualified
counsel." § 210.40.30(a) (Standards of Eligibility)
(internal quotation marks omitted). "In determining
whether such insufficiency exists, consideration should be
given to[ ] the cost of providing the person and his
dependents with the necessities of life." §
210.40.30(a)(1). "Any doubts as to a person's
eligibility should be resolved in the person's
favor." § 210.40.30(b). A defendant may be found
partially eligible "[i]f a person's net financial
resources and income anticipated prior to trial are in excess
of the amount needed to provide the person and that
person's dependents with the necessities of life and to
provide the defendant's release on bond, but are
insufficient to pay fully for retained counsel." §
210.40.40 (Partial Eligibility). In such a situation,
"the judicial officer should find the person eligible
for the appointment of counsel under the CJA and should
direct the person to pay the available excess funds to the
clerk of the court at the time of such appointment or from
time to time thereafter." Id.
Defendant has considerable income and assets. On average,
Defendant's gross earnings are about $15, 820.00 per
month. (Financial Aff, ECF No. 1455). Further, Defendant
recently earned a large referral fee, and has an interest in
real property. (Id.). On the other hand, Defendant
has incurred substantial debt, which he makes payments toward
on a monthly basis. (Id.). Moreover, as a sole
practitioner, he alone is responsible for the costs
associated with operating his law firm (e.g., rent,
parking, filing fees, postage). Thus, although
Defendant's monthly average earnings are in excess of
$15, 000.00, Defendant explains that he is only "left
with approximately $1, 318.97 to $1, 718.97, depending on the
fluctuation of filing fees associated with his firm's
revolving case load." (Obj. 5:47).
review of Defendant's Objection, and updated Financial
Affidavit, the Court finds that Defendant is partially
eligible for CJA appointed counsel. When Defendant's
self-reported monthly payments and total debt are compared to
his approximate monthly income and assets, Defendant's
financial resources and income are certainly in excess of
what is needed to provide for Defendant and his family.
However, Defendant's financial resources and income are
insufficient to pay fully for retained counsel and support
services. As indicated in Defendant's Objection, this is
a RICO case that spans several years. Indeed, the case has
been designated as complex, and discovery is voluminous. With
this in mind, the full defense cost of this case will likely
exceed Defendant's current financial resources.
SeeCJA Guidelines § 210.40.30(b) ("Any
doubts as to a person's eligibility should be resolved in
the person's favor; erroneous determinations of
eligibility may be corrected at a later time.").
accordance with the Court's finding of partial
eligibility, Defendant shall pay the sum of four hundred
dollars ($400.00) per month for defense costs in this matter.
The payment shall be made by check or money order to the
Clerk of Court nuns pro tune, effective February 7,
2019. If, during the pendency of this case,
Defendant's financial condition changes, he may petition
the Court to adjust his monthly payment. A spreadsheet of the
payments made shall be kept by the Clerk of
Court so a final assessment can be made at the
conclusion of the casepursuant to CJA Guideline § 210.40.30.