United States District Court, D. New Mexico
C. Anderson United States Attorney Reeve L. Swainston Holland
S. Kastrin Margaret M. Vierbuchen Assistant United States
Attorneys United States Attorney's Office Albuquerque,
New Mexico Attorneys for the Plaintiff.
Bowles Bowles Law Firm Albuquerque, New Mexico Attorney for
AMENDED  MEMORANDUM OPINION AND
MATTER comes before the Court on the United
States' Motion to Show Cause, filed August 8, 2016 (Doc.
29)(“Motion”). The Court held hearings on August
19, 2016; September 6, 2016; and September 28, 2016. The
primary issues are: (i) whether Defendant Darryl J. Gutierrez
is financially qualified under the Criminal Justice Act of
1964, 18 U.S.C. § 3006A (“CJA”), to continue
to receive the unpaid assistance of a Federal Public
Defender; and (ii) whether, if Gutierrez is not financially
qualified, he should be compelled to make partial payment for
the Federal Public Defender's representation. The Court
concludes that Gutierrez is not qualified under the CJA,
largely because he has an $800, 000.00 annuity to draw upon
to pay an attorney. Accordingly, the Court determines that he
should make a payment to the United States Department of the
Treasury for his representation by the Federal Public
Defender's Office. The Court grants the Motion.
12(d) of the Federal Rules of Criminal Procedure states:
“When factual issues are involved in deciding a motion,
the court must state its essential findings on the
record.” Fed. R. Crim. P. 12(d). The Court makes the
following findings of fact in accordance with rule 12(d) of
the Federal Rules of Criminal Procedure:
Gutierrez worked as an engineer at Los Alamos National
Laboratories from June, 1981, to April, 2009.
See Transcript of Motion Proceedings at 16:22-17:10
(taken September 28, 2016)(Gutierrez, Vierbuchen)(Doc.
55)(“Third Tr.”); Letter from Los Alamos
Scientific Laboratory to Darryl Gutierrez at 1-2 (dated June
16, 1981), filed August 19, 2016 (Doc. 32)(Bates No.
3239-40); HR Termination Report of Darryl Gutierrez at 1,
(dated April 2, 2009)(Doc. 32)(Bates No. 3377).
2000, Gutierrez' annual salary was approximately $80,
000.00; in 2008, it had increased to $104, 000.00.
See Darryl Gutierrez 2000 W2 at 1, filed August 19,
2016 (Doc. 32)(Bates No. 2955); Darryl Gutierrez 2008 W2 at
1, filed August 18, 2016 (Doc. 32)(Bates No. 2964).
July, 2009, to September, 2012, Gutierrez worked at TechUSA,
and he had an annual salary of $133, 000.00 in 2010.
See Letter from Bonnie L. Bryant to Sharon M. Parker
at 1 (dated June 18, 2013), filed August 18, 2016 (Doc.
32)(Bates No. 3476); Darryl Gutierrez 2010 W2 at 1, filed
August 19, 2016 (Doc. 32)(Bates No. 3484).
Gutierrez then worked for a brief stint at Hilton Santa Fe
Buffalo Thunder Casino. See Letter from Tina Cheung
to Sharon Parker at 1 (dated May 10, 2013), filed August 19,
2016 (Doc. 32)(Bates No. 1602).
the casino, Gutierrez' pay started at $14.42 per hour,
and, in April, 2013, he was promoted to night manager, which
had an annual salary of $37, 000.00. See Letter from
Susan Rivenbark to Darry Gutierrez at 1 (dated April 19,
2013), filed August 19, 2016 (Doc. 32)(Bastes No. 1668);
Personnel Authorization Form at 1 (dated January 22, 2013),
filed August 19, 2016 (Doc. 32)(Bates No. 1610).
Gutierrez was unemployed from August 2013 to the present.
See Draft Transcript of Motion Proceedings at
31:18-20 (taken September 28, 2016)(Gutierrez)(“In
November 5, 2015, a Grand Jury returned an eleven-count
indictment against Gutierrez. See Indictment at 1-9,
filed November 5, 2015 (Doc. 1)(“Indictment”).
Count I charges Gutierrez with corruptly endeavoring to
obstruct and impede the due administration of Internal
Revenue laws from 1997 to 2013, in violation of 26 U.S.C.
§ 7212(a), by: (i) filing false and fraudulent tax
returns with the Internal Revenue Service; (ii) sending
frivolous correspondence to the IRS; (iii) filing false W-4
forms with his employers; and (iv) sending correspondence to
business and banking institutions to interfere with legal
process by the IRS. See Indictment at 1-5.
Counts II through XI charge Gutierrez with making and
subscribing false income tax returns for tax years 2000
through 2009, in violation of 26 U.S.C. § 7206(1).
See Indictment at 5-9.
Indictment alleges that, from 2000 to 2009, Gutierrez claimed
tax refunds totaling $173, 526.00, whereas, in fact, he owed
$125, 624.00 in unpaid income taxes, “such that his
false claims totaled approximately $299, 150, not including
interest and penalties.” Indictment at 1.
2015, Gutierrez withdrew $128, 800.00, after taxes, from two
Individual Retirement Accounts (“IRAs”).
See In Camera Tr. at 36:12-14 (Court, Gutierrez);
See Online Account Information (dated July 22,
2016), filed August 19, 2016 (Doc. 32)(Bates No. 4509).
Gutierrez withdrew $84, 000.00 from one IRA with no taxes
withheld. See Online Account Information (dated July
22, 2016), filed August 19, 2016 (Doc. 32)(Bates No. 4508)
withdrew $56, 000.00 from the other IRA, $11, 200.00 of which
was withheld in taxes. See Online Account
Information (dated July 22, 2016), filed August 19, 2016
(Doc. 32)(Bates No. 4509).
Gutierrez was arrested on December 2, 2015. See
Arrest of Darryl J. Gutierrez (entered December 2,
When he was arrested, Gutierrez' income was a $7, 000.00
per month distribution from an IRA. See In Camera
Tr. at 30:16-19 (Gutierrez).
of September 28, 2016, however, that IRA was depleted and
Gutierrez began withdrawing $6, 400.00 per month, after
taxes, from a variable annuity. See In Camera Tr. at
30:21-31:12 (Court, Gutierrez); Third Tr. at 22:10-11
annuity's total value “was a little over [$]800,
000.” In Camera Tr. at 31:16-17 (Gutierrez).
Gutierrez believed that he would be able to withdraw a lump
sum amount from the annuity to pay for an attorney.
See In Camera Tr. at 41:17-19 (Gutierrez).
also has a credit line from which he thought he would be able
to borrow funds to pay for an attorney. See In
Camera Tr. at 41:19-20.
Apart from the annuity, Gutierrez owns no other stocks or
bonds. See In Camera Tr. at 32:25-33:4 (Court,
Gutierrez does not own the home in which he resides; the
Housing Authority for the Pojoaque Pueblo owns the home.
See In Camera Tr. at 32:5-8 (Gutierrez).
Gutierrez receives, however, a $600.00 per month stipend from
the Pojoaque Pueblo to maintain that house and property.
See In Camera Tr. at 33:24-34:2 (Court, Gutierrez).
Gutierrez owns a time share in Pagosa Springs, Colorado,
valued at around $15, 000.00. See In Camera Tr. at
32:18-22 (Court, Gutierrez); id. at 35:8-9
also owns a 2007 Toyota 4Runner valued at about $8, 000.00.
See In Camera Tr. at 33:10-12 (Court, Gutierrez).
Gutierrez values his personal property, e.g.,
furniture, paintings, at $15, 000.00. See In Camera
Tr. at 35:9-10 (Gutierrez).
Gutierrez' monthly expenses include “[m]onthly
utilities, gas, electric, cellphone, cable, and the
maintenance fees from the time share.” In Camera Tr. at
has no large monthly debts, however, and he pays the balance
of his credit card every month. See In Camera Tr. at
35:18-36:4 (Court, Gutierrez).
Gutierrez has no dependents. See In Camera Tr. at
Gutierrez has not arranged for someone else to hold onto his
money in that person's name and to return that money to
Gutierrez at a later date. See In Camera Tr. at
33:16-21 (Court, Gutierrez).
Gutierrez gambled away the majority of his 2015 $128, 800.00
IRA withdrawal. See In Camera Tr. at 36:12-14
(Court, Gutierrez); id. at 37:4-8 (Court,
$7, 000.00 per month IRA withdrawal also went into gambling.
See In Camera Tr. at 37:18-23 (Court, Gutierrez).
United States estimated that, without interest and penalties,
it would seek in restitution about $126, 000.00 in back
taxes. See Third Tr. at 35:9-11
Amber Fayerberg, a New Mexico defense attorney with Freedman
Boyd Hollander Goldberg Urias & Ward P.A., represented to
Gutierrez that she would take his case for $100, 000.00.
See In Camera Tr. at 42:8-10 (Gutierrez); Third Tr.
at 21:2-3 (Gutierrez, Vierbuchen).
Since Gutierrez was arrested, he has had the resources to
hire a private attorney. See In Camera Tr. at
39:7-11 (Court, Gutierrez). See id. at 30:16-19
(Gutierrez)(stating that, at the time of his arrest,
Gutierrez received a $7, 000.00 per month distribution);
id. at 30:21-31:12 (Court, Gutierrez)(stating that,
after that IRA was depleted, Gutierrez received a $6, 400.00
per month annuity payment); Id. at 31:16-17
(Gutierrez)(stating that Gutierrez had $800, 000.00 in an
annuity); Third Tr. at 17:17-19 (Gutierrez,
Vierbuchen)(Gutierrez' admission that he has had the
financial resources to hire an attorney).
probation officer filled out a Financial Affidavit for
Gutierrez based on information Gutierrez relayed.
See Third Tr. at 18:20-19:2 (Court, Gutierrez,
Vierbuchen). See also Financial Affidavit at 1
(unsigned and undated)(Doc. 7)(“Financial
Financial Affidavit lists that Gutierrez' monthly income
is $7, 000 from an IRA. See Financial Affidavit at
Gutierrez did not ask for an Assistant Federal Public
Defender to represent him. See Third Tr. at 17:20-24
Honorable Steven C. Yarborough, United States Magistrate
Judge for the District of New Mexico, however, appointed an
Assistant Federal Public Defender -- John V. Butcher -- to
represent Gutierrez. See Order Appointing Federal
Public Defender (text-only order), entered December 2, 2015
(Doc. 8); Third Tr. at 19:3-6 (Gutierrez, Vierbuchen).
2015, Mr. Butcher worked on Gutierrez' case for 26.85
hours. See Case History Report at 1-3 (dated October
19, 2016), filed October 23, 2017 (Doc. 44)(“Case
2016, Mr. Butcher worked on Gutierrez' case for 87.41
hours. See Case History Report at
total, Mr. Butcher worked 114.26 hours on Gutierrez'
case. See Case History Report at 1-22.
2015, the CJA billing rate was $127.00 per hour. See
Email from Christopher J. Gooch, Financial Services
Supervisor, to K'Aun Wild at 1 (dated December 5,
2016)(on file with the Court)(“Billing Email”).
2016, the CJA billing rate was $129.00 per hour. See
Billing Email at 1.
Based on the CJA rates and hours that Mr. Butcher worked, his
services to Gutierrez' case is valued at $14, 685.84.
See Case History Report at 1-22; Billing Email at 1.
addition to Mr. Butcher, another Assistant Federal Public
Defender, Dick Winterbottom, worked on Gutierrez' case