home on the obvious the mortgage was reported and that perhaps was an oversight or for whatever reason the home itself wasn't listed but in any event just bill since analysis at the end of the day that didn't really play into into what  one eleven and then the affidavit the judge deals an order if you look at the amounts in aggregate there it's actually his his his income and assets together or stated the highest at the c j twenty three that's ninety seven thousand dollars that included five hundred dollars a month in income forty thousand dollars in cash in bank accounts and so forth he say it was twenty five hundred dollars a month on the national excuse me i thought he listed twenty five hundred twenty five hundred dollars so that's what mr conrad made in the past what did the p s r say the p s r said seven hundred fifty a month for income but when we i think what we need to do is look at this sort of big picture because these forms are not exactly precisely detail that is just bills and recognize and when you look at the pic the big picture we have ninety seven thousand dollars and on the c j twenty three we have two thousand dollars in the p s r and we have seventy six thousand dollars in absolutely are but it needs to be what the court i think needs to look at or is it was there any material misrepresentation details and certainly didn't find any when when you look at i mean in fact in c j eighth the c j twenty three d example in this case if mr conrad controlled at least his portion of that account you can't take them into well that the the joint accounts are  again i think what we have here is full disclosure and when we take a step back the statutory requirement is in the interest of justice in appropriate sources and i would suggest to your honor's the here what happened is precisely unjust and in factor for whether funds are available for repayment here we've got in the total picture of things we have a retirement account that is relatively modest that is net of seventy thousand dollars i should honor we that section of the judicial guide which is essentially the regulations under the the piaffe it would be sort of a c f r regulation but for the fact that it's in the judicial branch and but these guidelines are promulgated by the judicial conference and it's as recognized evans have have the force of authority but i would i would suggest to your honor steve what the the fundamental unfairness here is that nothing changed when you look at the picture of  what was disclosed not in change so mr conrad was the magistrate looked at this looked at all the assets perhaps needy that the bank account was a little too high and the house was a little too low but when you look at the the  the the the the bottom line for all of these disclosures the judge nelson found there's no there's no change certain see it's what judge bill's and did find was that if he had all the accurate information in two thousand and ten c counsel would not have been appointed he was not eligible so regardless of how much he went over what he wasn't eligible at that time so in that context then the question becomes what can be done  seems if you follow the judge friendly's opinion and burrell from what he said we do there's this continuing obligation to go back and look and see if somebody really go by it looks like he did not there he did look at the p s r as he's supposed to and when you look at these cases there are many and when you look at the cases this statute is designs to with trast the very the the scenario where what we'd expect  what i'm not going to accuse anybody of anything it was a mistake he was not eligible therefore what do we do yes and this there does need to be an avenue to address that and here it is that just the district judge should win the case comes to him take a look if there's any concern or if there's anything question in his mind or just wants to double check the magistrate's determination however the problem with doing it this way putting it to the end of the case is mr conrad may have decided to go if he knew he was going to get stuck with the bill at the end of this representation and her being appointed a lawyer he may have gone and gotten a private lawyer i'll argue to the rest the afternoon that we provide better or  this i'm sorry i don't think he's trying to have it both ways or on if there's a what what he's what i think he's entitled to is when there is disclosure he's entitled to rely on and if there is a simple mistake then the appropriate time to take care of that is at the beginning of the case where the after the magistrate makes a decision should be also you can make a decision and the regulations including the joint bank accounts that he would not have qualified for the federal public defender i do not agree with at all your honor i mean this is a this is a defendant who has a modest retirement nest egg a literate and professional future has only been able to find employment at the age of fifty five years old is and the constructor not a cannibal long term employment for a gentleman his age and you have this is not just seventy thousand dollars this is the only the only cases that i have seen that have addressed this issue whether it is visual return in a can can be considered patel in pa both cut against you yet you have any any support for the idea that we should not consider the individual retirement account absolutely your honor i don't think the case turns on that but it is the support for that the lexan case is on the reachable unless the stuff i mean this is what the regulations say the regulation the sale ations there are guidelines guidelines say that they speak about family but if we if we think family means something different naturally includes wife i think that the guidelines provide for voluntary looking at those assets but not otherwise however again i don't does he have the right to go to the bank and just write a check for most of this  require his reimbursement from monies that's a substantial money that he then he comes in to subsequent to his not doing not at all your honor that's precisely when it's supposed to happen change circumstance no he pays that your honor it is when there are changed circumstances such as winning the lottery then it's appropriate to take reimbursement so that's absolutely true our argument here is ok so so we don't have to look know something about the supposing that we do require reimbursement or pay back the method that the district court is i was interested in that because i i understand you take issue with the six thousand dollars vs actual reimbursement supposing we were to order some form of pay back which is the appropriate method you took the words right out of my mouth your honor i was going to ask for humans to address that yes methodology here jurisdiction i think you do your honor you know this is unlike a in a as decision about appointment in the first instance which can arguably be taken up later and that's certainly not a final order here there's nothing left to be done it's the end of the case and i'm looking at all the other circuits the second circuit and bloomberg one fifty fifth third one forty six the sixth circuit is still fifty three the third one forty one the be some general guidance given to the district courts to promote some uniformity in this area especially in these times i mean we can expect i think district judges to be you know looking at these issues estimates given by the master right when he didn't have any cost estimates and front of them what he had was what private lawyers would have said they would have voted on this gentleman beginning of the case it is hard it is hard for me to think that it would have been anything less than six thousand dollars it probably would have been significantly more i'm not sure i don't have that but i do think that there are three principles that it should be a cost and in order to promote fairness and uniformity between the situations where you have c j appointed counsel private counsel and defender counsel the c g a captured apply as well so there should be some cost analysis up to the c j cap because that's all that the court is ever going to pay and it shouldn't it doesn't have any necessary or direct relation to what the government is paid or what the government pays for the provision of a defender earth c j counsel now i need to point out of the work the courts very focused the six thousand dollars it could be you could be a little bit more sort of you know there's not much of play here another reason one part of a general rules is this is his are always going to be about six thousand dollars there could be you know hundreds of thousands of dollars stake in the next case and so what is relevant is the cost of provision of counsel not necessarily what a big firm warrior would have chosen under a profit driven method for  on but essentially this is a case by case determination this is a factual issue that the district were asked to figure out and all of the assets of the defendant should be taken into account and the district court here did initially consider the joint accounts  saying that they certainly can be reached i think that accounts should be taken into consideration because we're trying to get a big picture i think of the district court did here was correct he took what is the entire pot what are the universe of funds available to the defendant and then liquidate it he could have borrowed money from his family but the fact that the ira is not as liquid as say a savings account doesn't mean it should be ignored because we also have the similar counts what about stocks what if he had held some x on stock in the course of those funds just because they're not completely i mean they should be taken into consideration otherwise the more financially sophisticated the defendant more likely he or she is the qualifying for counsel and that doesn't seem what about what about the amount that has to be repaid the six thousand dollars that the judge the s and determine and the statute that i'm looking at that's three thousand six s talks about reimbursement and i think that's m point is that reimbursement means paying back what you god and in this case that would not be six thousand dollars could you could just speak to that it's around and certainly i think the issue here is we don't know what the actual cost was that's something well i would take issue with the two thousand dollars your honor but going back to you know should we just apply the c j a rate here the answer to that is no why why the c j range is no more accurate and a market value approach either one is but if this if the statute talks about reimbursement then which is to pay back why the six thousand because it represents what the defendant risk the value of what the defendant receives but that with doesn't that isn't it a windfall for the government in as much as the services were not sick that i leave at six thousand dollars i actually can't answer that question i don't know i honestly don't know what the cost was that offenders which is closer approximation the c j rate the market value approach we can't say it rate and apply it here that would have been a reasonable and it's a reasonable approach but just because he picked a market value approach doesn't make his decision on reason it's not arbitrary it's not unreasonable it's not overly burdensome to the defendant appeals that sells what the reimbursement rate should be that is the private the private market rate or are you looking for a standard that says  ca rate is one hundred twenty five dollars an hour but i don't believe that that is the rate that is paid to the federal defender but i honestly don't know that i mean it's an excellent question what why don't we have a figure why don't we know what it cost well they yeah you're right you're  time that's why i'm not sure what the government's position as i understand her and i think that if we had some actual figures here for what it cost the federal government to represent mr conrad it would be purpose reasonable for the courts have awarded that amount and that would at the very least submitted an accurate figures and got the benefit of very good representation from the public funders office either right and that's se special with let's go back before we get there to question them because if the person who is not eligible is deemed by a magistrate incorrectly to be eligible for c appointment and he did the one wait is one hundred twenty five dollars an hour and it's later discovered that in fact this person was not eligible if you want to make the government whole it would seem that it's about one hundred  twenty five dollars per hour to be paid back if however you say this person would have had to go out on his own and get private counsel well that's what he would have had to pay in this case m but is the question here the harm to the government or is the question here that there should in effect be a punitive price paid for not putting in the correct was a case it was a plea to an information it was a single count only limited discovery was struck rward sentencing the magistrate judge had no idea of any of that and that was part of what was taken into consideration so you're correct i mean this is a case where a district court just had more information to put into the equation and the magistrate judge did not mr conrad hall but if we're talking about setting a precedent that's going to apply not just to this case but other cases as well then taking the market value approach makes sense because it does and it's not just getting the cost back necessarily it's getting a value back of what the defend it does seem it does seem to me though that you're writing the word reimbursement right out of the hours but it took about it was about ten hours work or something like that it depends on the ask the minute looking at some of the there and there were three different private attorney estimates and looking at those some said fifteen hours some said thirty hours but certainly we're not talking an enormous amount of difference in the what is what is it what is different i haven't done the math on that your honor but he says in his affidavit we're talking about his five hundred dollars on per month from unemployment four thousand dollar difference for a month and you know we're here only talking i mean this isn't so much the amount you know we're talking about which is only six thousand dollars and say only i mean it's still it's still something that could be significant for a family but nonetheless do think there needs to be some recognition of a change circumstance requirement that flows right from the interests of justice right from the reliance interests of the defendant blowing the whistle at the end of the game and saying oh now pay the bill then you you would agree with us that he was not qualified for federal defender service the right it would be your honor i think it i think it's a closer call we at that point were under an abuse of discretion standard i  appreciate that that's a high standard and a judge maybe could go two ways on that but you have to look at this this is out of the regulation of the guide under the statute you have to look at not just the just the number you have to look at what is that money be needed for the defendants livelihood that's was only money after having been stripped of a professional license for you know he said five years or so in one case maybe that's right seventy thousand dollars retirement maybe an appointment is resources minus the need the need in support of defendant so what i'm suggesting to the work is all you're looking at right now is the resources seventy thousand dollars doesn't that mean he doesn't isn't eligible and i am trying to urge the court that you need to look at the second half of that equation which is the need to the resources of the needs and the support obligations and ended and that's where it gets into more of a license who as you know has better other support or whatever perhaps he's ineligible but i would say that that's not the case there are two other things just to rick in terms of future cases i do think there needs to be some sort of change circumstances that was your first one rule in place that's number one number two is it absolutely has to have be a cost basis and i'm not encouraging the court to get into the weeds of that i don't think the court needs to i think there are various you know it depends how you define u that's just not the cost of the government and the government think of it this way if the government sort of the wal mart of consumer of the of the world in this area right i mean how many cases you know or the defenders involved in the there's there's there is there's plenty of there's plenty of efficiencies and so forth that are going to drive those costs down as opposed to a for profit motivated private lawyer really is apples and oranges and at about ten or fifteen hours whatever it is for what was the night's case i think that is the appropriate most efficient disposition in this particular case absolutely that's why because well that's that's what  have those numbers now that's what the district court found in terms of a reasonable amount of time and effort spent on this we have not my friend across the podium sort of suggested that somehow we were  not we didn't come for defenders meaning didn't come forward and somehow didn't produce information that we were we were obliged to or should have that's not accurate at all what happened here in the district court was the district court so to have th is you know i'm going to water reimbursement what are your costs or anything like that we went right from is is this persons eligible or not to i'm going to apply this value based approach which no one has ever applied as far as i can tell from the case so you know there's no you know who the court is welcome to really help to come figure out the weeds of the situation but that third point you know it's it's a cost base approach and half a cap is necessary because otherwise you're going to have wildly