obtained. In this case, the trial date was set approximately two
and one-half months before the trial began. Through July 15,
2002, Ostrov had already incurred $4,196.25 in billable time. It
was clear by then, if not much earlier, that the report writing
and testimonial time remaining to be incurred would bring the
charges well above the $5,000.00 limit that had been approved.
Nevertheless, neither counsel nor Ostrov put forth any effort to
obtain advance approval for further funds, even at the July 22
hearing, by which time the $5,000.00 limit had already been
exceeded.

Defendant contends exceeding the limit could not have
been anticipated because counsel did not anticipate that, in
addition to the issue of mental condition at the time the offense
was committed, there would be an issue of competency to stand
trial. Even accepting as true that counsel's own interaction
with defendant was not enough to alert counsel, Ostrov's time
records show that he interviewed defendant on June 26 and spoke
to counsel on June 27. Moreover, on July 12, counsel filed a
motion for a competency hearing. At the same time, approval for
additional expenditures could have been requested. No
unanticipated issues prevented defendant (through counsel) from
timely requesting advance approval for additional expenditures.

Defendant also contends that the $5,000.00 should not be
considered a binding figure because the form refers to it as an

"estimate." It is indeed an estimate when placed on the form by


been shown that Ostrov made a reasonable effort to avoid a
conflict. Defendant also argues that the travel conflict could
have been avoided if the government had not objected to
permitting Ostrov to testify at the beginning of the trial, that
is, out of order in the midst of the government's presentation of
its case. The government was not unreasonable in declining to
agree to that procedure, which was, in any event, the result of
Ostrov having failed to arrange to be in Chicago during the dates
for which the trial had been scheduled. The expenses of
traveling to and from Mexico are not found to have been
reasonably incurred and therefore will not be compensated.

Also requested is $454.00 as "expenses" of witness J.
Jerry Rodos, D.O., D.Sc. Since no advance approval was obtained,
compensation for Rodos's services are limited to $300.00 plus
reasonable expenses. It is represented that Rodos is not
requesting any fee for the testimony itself, only reimbursement
for the expense of having to hire others to perform the
assignments he had to miss because of his being in court. The
requested amounts are $190.00 paid to someone to present a course
lecture that Rodos was to have presented and $250.00 for someone
to provide clinic coverage that Rodos was supposed to perform
that day. Also requested is $14.00 for parking.

The government contends that Rodos was not an expert
witness and therefore follow the procedure applicable to an

ordinary fact witness. The government contends Rodos could seek


found defendant to be competent and the trial commenced the
following day.
CJA rules regarding the compensation of experts provide:

A. With Prior Authorization. With prior
authorization, compensation for investigative,
expert and other services is limited to $1,000
per organization or individual, exclusive of
reimbursement for expenses reasonably incurred,
per individual authorization to perform said
service, .. . . Payment in excess of the $1,000
limit for services authorized prior to the
performance thereof may be made when certified
by the United States judge . . . and approved by
the chief judge of the circuit . . . as being
necessary to provide fair compensation for
services of an unusual character or duration.

If it can be anticipated that the compensation
will exceed the statutory maximum, advance
approval should be obtained from the court and
the chief judge of the circuit

B. Without Prior Authorization. Subsection

(e) (2) (A) of the Act authorizes the obtaining of
investigative, expert and other services, without
prior authorization but subject to subsequent
review, providing the cost of the services
obtained does not exceed $300 plus expenses

reasonably incurred... . This $300 limit
may be waived however (see subsection (e) (2) (B)
of the Act), if the presiding judge . .. in

the interest of justice, finds that timely
procurement of necessary services could not
await final authorization.

VII Guide to Judiciary Policies & Procedures § 3.02. The

corresponding statutory provisions are found at 18 U.S.C.
§ 3006A(e).

This provision does not mandate that advance approval be
obtained for the amount in excess of $1,000.00, but it does

provide that such advance approval "should" ordinarily be


defendant. Upon approval by the court, though, the figure on the
form becomes the actual amount that the court has approved in
advance. The amount approved in advance was $5,000.00 and,
despite the opportunity to do so, no attempt was made to
thereafter seek approval for additional amounts.

Defendant implies that Ostrov should not be deprived of
payment due to any failures on defense counsel's part to seek the
appropriate approval. Reaching such a conclusion in the present
case, though, would essentially obliterate the advanced approval
rule. Failure to follow the applicable rules in submitting a
reimbursement request will almost always be the fault of the
defendant's attorney who was responsible for submitting the
request. Defendant points to no special circumstance in this
case that distinguishes it from the usual case. Moreover, Ostrov
is an experienced psychologist who testified that he has much
experience providing services related to criminal cases. See
July 22, 2002 Tr. at 3, 5. It is likely that he has more than
passing familiarity with the need to submit reimbursement forms
for compensation related to federal criminal cases. But even if
Ostrov had no knowledge of the reimbursement rules, no sufficient
basis has been presented for treating this case as an exceptional

case in which the advanced approval rule may be ignored.


compensation for the parking by filing the appropriate form with
the Clerk of the Court.

Contrary to the government's contention, Rodos testified
as an expert. However, payments to others to perform work
obligations is not a compensable expense. Rodos, however, will
be awarded the $300.00 maximum that is available as compensation
for time spent coming to and from and testifying in court. He
will also be awarded the $14.00 parking expense.

IT IS THEREFORE ORDERED that defendant Magana-Bonner's
motion for payment of expert witness fees {117] is granted in
part and denied in part. It is found that witness Eric Ostrov is
entitled to $5,000.00 compensation and that witness J. Jerry
Rodos is entitled to $300.00 compensation plus $14.00 in
expenses. Counsel for Magana-Bonner shall promptly submit the

appropriate voucher forms so that the payments can be processed.

ENTER:
UNITED’ STATES DISTRICT JUDGE
DATED: DECEMBER a , 2002


‘

Minute Order Form (06/97)

United States District Court, Northern District of Dlinois

Name ot sssaned dae ) WILLIAM. HART | Siting Suge ftir

CASE NUMBER 01 CR 670 -1 DATE DECEMBER ¢ > 2002

CASE UNITED STATES OF AMERICA v.

TITLE MARIA E. MAGANA-BONNER and VERNON R. BONNER

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) oOo Filed motion of [ use listing in “Motion” box above.]
Q) o Brief in support ofmotiondue
(3) a Answer briefto motion due___. Reply to answer briefdue_
(4) oO Ruling/Hearingon___—ssetfor_—_att
(5) im Status hearing[held/continued to] [set for/re-set for]on___—ssetfor__— at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on setfor at.
(7) im Trial{set for/re-set for]on__—sat__— i.
(8) im [Bench/Jury trial] [Hearing] held/continuedto_ ss at__—
(9) imi This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) COLocal Rule 41.1 CFRCP41(a)(1) OO FRCP41(a)(2).

go) «=x [Other docket entry] | Defendant Magana-Bonner's motion for payment of expert witness

fees [117] is granted in part and denied in part. It is found that witness Eric Ostrov is entitled to

$5,000.00 compensation and that witness J. Jerry Rodos is entitled to $300.00 compensation plus

$14.00 in expenses. Counsel for Magana-Bonner shall promptly submit the appropriate vouc)
forms so that the payments can be processed.

No notices required, advised in open court.

No notices required. number of notices

Notices mailed by judge’s staff,

DEC -5 2002

date docketed

IS

docketing depuly initials

2/4/2002

Notified counsel by telephone.
Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

Bath Rd 8 IE 0

date mated notice
courtroom waa
ew deputy's oT d3-d3i4d _
initials Date/time received in sailing initints
central Clerk's Office -



Ostrov's compensation will be limited to the $5,000.00 limit that
was approved in advance.”

Also requested for Ostrov is travel time and travel
expenses for coming from and returning to a Mexican vacation so
that he could be available to testify during the trial. Since
the limit for compensation has already been exceeded, Ostrov
would not be entitled to any additional compensation for the time
spent traveling.* Expenses, including travel expenses, are not
included in the limit.

By accepting the assignment to examine defendant and
testify, if necessary, Ostrov committed himself to being
reasonably available. The trial date for this case was set
approximately two and one-half months before the trial began.
That was sufficient time for Ostrov to schedule his vacation
around the trial date or inform defendant of his unavailability.
In defendant's reply, it is stated that "{i]t is true that the
undersigned could have kept Dr. Ostrov better informed about the
trial schedule in this case." No details or supporting affidavit
are provided as to what information Ostrov was provided about the
trial date, when he planned and reserved his vacation, nor the

costs of modifying or canceling his vacation plans. It has not

785,000.00 for 29.25 hours represents approximately
$171.00 per hour, which is still a reasonable fee.

*Even if the cap were to be ignored, this compensation
would be denied for the same reason that the travel expenses are
being denied.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION Sie

UNITED STATES OF AMERICA,

Plaintiff,

v. No. 01 CR

MARIA E. MAGANA-BONNER and
VERNON R. BONNER,

Defendants.

MEMORANDUM OPINION AND ORDER

Defendant Maria Magana~Bonner's trial was held from
July 23, 2002 through August 1, 2002, when verdicts of guilty
were returned. The sentencing of Magana-Bonner is presently set
for December 4, 2002. Presently pending is defendant's motion
for payment of expert witness fees. Defendant, who had appointed
counsel under the Criminal Justice Act ("CJA"), requests payment,
through the CJA, for two expert witnesses who testified at trial.

Eric Ostrov has a J.D. and a Ph.D in psychology. On
March 20, 2002, defendant's motion to appoint expert witness was
granted to the extent stated in court and subject to submission
of the appropriate CJA form. At the time of this ruling, the

court stated that the amount of this expense that could be

lo


incurred would be subject to a limit. On March 27, 2002, the
court signed an authorization form permitting the expenditure of
up to $5,000.00 for "psychological evaluation to determine
whether Def. could possess intent to commit charged offenses."

On Ostrov's behalf, defendant now seeks approval of
reimbursement for $6,581.25 in fees based on 29.25 regular hours
of work at $225.00 per hour.+ Also requested is $1,462.50
representing 13.00 hours at $112.50 per hour for time spent
traveling from a vacation in Mexico to the courthouse and back to
Mexico. Also requested is transportation expenses of $704.64 for
the roundtrip airfare from Mexico and $50.00 for roundtrip
cabfare between the airport and courthouse. Additionally, $84.75
(representing .75 hours at $112.50 per hour) is requested for
travel time to and from the courtroom for the July 22, 2002
competency hearing. The government opposes reimbursement other
than the $5,000.00 limit approved in advance.

On May 8, 2002, the trial in this case was set for
July 22, 2002. On July 12, 2002, defendant moved for a
determination of mental competency. On July 17, 2002, that
motion was granted and the hearing was set for July 22, 2002, the
date that had been set for the beginning of the trial. Ostrov

testified at that hearing. Following the hearing, the court

‘The government raises no objection to the $225.00 per
hour rate.