Opinion
03 Cr. 919 (RWS).
October 12, 2004
HONORABLE DAVID N. KELLEY, United States Attorney for the Southern District of Mew York Attorneys for United States of America New York, NY, By: MARCUS A. ASNER, Assistant US Attorney, Of Counsel.
FRIED, FRANK, HARRIS, SHRIVER JACOBSON, Attorneys for Defendant, New York, NY, By: MARK J. STEIN, ESQ., Of Counsel.
OPINION
Defendant Jesse M. Hilsen ("Hilsen") seeks leave to submit a financial affidavit ex parte and under seal in support of a request for appointed counsel in this matter pursuant to the Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A. Submission of the affidavit under these conditions is necessary, according to Hilsen, to preserve his Fifth Amendment privilege against self-incrimination. The government has opposed this request, which is denied for the reasons set forth below.
Prior Proceedings
In an indictment filed on July 29, 2003, Hilsen has been charged with one count of unlawful failure to pay a court-ordered child-support obligation, in violation of the Child Support Recovery Act of 1992, as amended by the Deadbeat Parents Punishment Act of 1998 (collectively, the "CSRA"), 18 U.S.C. § 228(a)(3). Specifically, the indictment in this action charges Hilsen with failing to pay past-due support payments for his son and daughter, as required by orders of the Family Court of the State of New York, dated August 3, 1988, July 6, 1992, and June 16, 1994.
The CSRA "makes it a federal crime to willfully fail to pay a child support obligation imposed by a court order or order of an administrative process, but only when the defendant and the child reside in different states." United States v. King, 276 F.3d 109, 111 (2d Cir. 2002).
Hilsen was arrested on June 21, 2004. At the time of his arrest, Hilsen declined to complete a form CJA 23 financial affidavit ("CJA 23"), the form affidavit typically employed to set forth the basis for a defendant's claimed eligibility for appointment of counsel pursuant to the CJA. Hilsen nonetheless sought representation from the Legal Aid Society, Federal Defender Division, and Roland Thau, Esq. ("Thau") was appointed to represent him. Thereafter, Hilsen applied to the Court for a change of counsel, and on August 6, 2004 at a hearing before the Honorable Lewis A. Kaplan, sitting in Part I, Hilsen's request was granted, Thau was relieved as counsel and Mark J. Stein, Esq. ("Stein") was appointed as Hilsen's counsel pursuant to the CJA. Judge Kaplan ruled that Stein's appointment was contingent on Hilsen submitting to the Court an appropriate CJA 23 demonstrating his eligibility for appointment of counsel under the CJA.
A CJA 23 is a form affidavit employed when a party seeks an attorney, expert or other court services without the payment of a fee. The form calls for comprehensive financial data including information concerning employment income, assets and obligations.
Under the Revised Plan for Furnishing Representation Pursuant to the Criminal Justice Act, Southern District of New York, adopted by the Board of Judges of the Southern District of New York on April 24, 2002, and approved by the Judicial Council of the Second Circuit on May 1, 2002 (the "CJA Plan"), the determination of whether a person is financially eligible for the appointment of counsel "shall be made by a judicial officer as soon as feasible after the necessity for counsel arises." CJA Plan, § VI(C) at 5. The information upon which the determination shall be made is to be provided by the person seeking the appointment of counsel "either 1) by affidavit sworn to before a district judge, magistrate judge, court clerk, deputy clerk, or notary public; or 2) under oath in open court before a district judge or magistrate judge." Id.
Stein thereafter submitted the letter application at issue here, dated September 10, 2004. In a conference on September 13, 2004, the matter was discussed and further briefing was ordered, although approval was given to Stein's proposal to invite Hilsen to provisionally file an affidavit under seal, pending a ruling on his request. No such affidavit has been filed to date. The government submitted opposition to Hilsen's letter application on September 20, 2004. Following oral arguments on September 22, 2004, the matter was deemed fully submitted.
During the conference, it was determined that Stein would be relieved as counsel for Hilsen in light of a conflict, but Stein was directed to remain as counsel for a limited period and for the sole purpose of resolving the issue pertaining to the application at issue here.
Discussion
Hilsen argues that, absent the Court's intervention as to the conditions under which a CJA 23 is submitted here, he will be placed in the "constitutionally untenable position of having to choose between his Sixth Amendment right to counsel and his Fifth Amendment privilege against self-incrimination." United States v. Gravatt, 868 F.2d 585, 589 (3d Cir. 1989). In order to avail himself of his right to counsel under the Sixth Amendment, Hilsen contends, he must present the Court with sworn information as to his income, assets and debts. Such disclosure, however, would present a substantial hazard of self-incrimination in violation of the Fifth Amendment, according to Hilsen, because the facts to be set forth in the CJA 23 are directly related, if not identical, to the facts the government must establish at trial concerning the sole count of the indictment against Hilsen.
In opposition to Hilsen's motion, the government argues that Hilsen should not be permitted to submit a CJA 23 ex parte or under seal, as the government needs access to any such financial affidavit both to better assist the Court in ascertaining Hilsen's eligibility for appointed counsel under the CJA and, if necessary, to investigate the statements made in the CJA 23 for possible perjury. In particular, the government contends that evidence gathered during the course of its investigation and presented, at least in part, in its opposition papers, suggests that Hilsen has significant assets and is likely ineligible for appointment of counsel under the CJA. The government further argues that submission of the CJA 23 under the conditions proposed by Hilsen runs contrary to the presumption of openness in criminal proceedings and contrary to the law of this circuit concerning the resolution of potential conflicts between a defendant's Fifth Amendment privilege and his or her Sixth Amendment right to counsel. Finally, the government contends that the facts before the Court at present do not establish that Hilsen's Fifth Amendment privilege against self-incrimination is implicated here.
The Constitutional Provisions and the CJA Plan
The Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself. . . ." U.S. Const. amend V. This privilege against self-incrimination protects an accused from being incriminated by his or her own compelled testimony. See, e.g., Fisher v. United States, 425 U.S. 391, 409 (1976). Although the language of the Fifth Amendment refers to criminal proceedings, the privilege set forth therein may be asserted in any proceeding, whether civil or criminal, judicial or administrative, adjudicatory or investigatory. See Kastigar v. United States, 406 U.S. 441, 445 (1972).
To qualify for the Fifth Amendment privilege, a communication must be testimonial, incriminating, and compelled. See United States v. Hubbell, 530 U.S. 27, 34-38 (2000). "The privilege afforded not only extends to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant." Hoffman v. United States, 341 U.S. 479, 486 (1951); see also Hubbell, 530 U.S. at 37 (stating that it has "long been settled that [the Fifth Amendment's] protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence"). Although the Fifth Amendment may be invoked during pretrial proceedings, "a constitutional violation occurs only at trial," as the privilege against self-incrimination is fundamentally a trial right.United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990).
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This right to counsel "is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty." Johnson v. Zerbst, 304 U.S. 458, 462 (1938). Thus, "in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived." Gideon v. Wainwright, 372 U.S. 335, 340 (1963); see also Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) ("[A]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial."); Johnson, 304 U.S. at 463 ("The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.") (internal footnote omitted).
The CJA directs that each United States District Court shall set in place a plan for furnishing representation for any person financially unable to obtain adequate representation. See 18 U.S.C. § 3006A(a). Such a plan has been adopted in this district on April 24, 2002, and approved by the Judicial Council of the Second Circuit on May 1, 2002. See generally Revised Plan for Furnishing Representation Pursuant to the Criminal Justice Act, Southern District of New York (2002) (the "CJA Plan"). The CJA further provides, in relevant part, that in each case in which a person entitled to counsel appears without counsel,
[T]he United States magistrate judge or the court shall advise the person that he has the right to be represented by counsel and that counsel will be appointed to represent him if he is financially unable to obtain counsel. Unless the person waives representation by counsel, the United States magistrate judge or the court, if satisfied after appropriate inquiry that the person is financially unable to obtain counsel, shall appoint counsel to represent him.18 U.S.C. § 3006A(b).
It is the defendant's burden to establish financial eligibility for appointed counsel. See United States v. O'Neil, 118 F.3d 65, 74 (2d Cir. 1997) (explaining that, "[w]hen requesting the appointment of counsel, the burden is on the defendant to show that he is unable to afford representation, though he need not prove that he is indigent") (citing United States v. Harris, 707 F.2d 653, 660 (2d Cir. 1983) (noting that the defendant seeking appointment of counsel must "prove by a preponderance of the evidence that he is financially unable to afford counsel"),abrogation on other grounds suggested by United States v. Kane, 955 F.2d 110, 111 (1st Cir. 1992)); see also 7 Administrative Office of the United States Court, Guide to Judiciary Policies and Procedures § 2.03(C) ("The person seeking appointment of counsel has the responsibility of providing the court with sufficient and accurate information upon which the court can make an eligibility determination.").
According to the CJA Plan of this district, a defendant need not rely solely on a CJA 23 in asserting his or her eligibility for the appointment of counsel. Rather, the defendant may seek to make the necessary showing "either 1) by affidavit sworn to before a district judge, magistrate judge, court clerk, deputy clerk, or notary public; or 2) under oath in open court before a district judge or magistrate judge." CJA Plan, § VI(C) at 5 (noting that, "[w]henever possible, the standard forms provided by the Administrative Office of the United States Courts shall be utilized in such inquiry"). "Any doubts as to a person's eligibility should be resolved in his favor; erroneous determinations of eligibility may be corrected at a later time." 7 Administrative Office of the United States Court, Guide to Judiciary Policies and Procedures § 2.04; accord Harris, 707 F.2d at 663.
The CJA Plan of this district anticipates certain of the tensions of constitutional dimension identified by Hilsen in the instant motion. Thus, the CJA Plan makes clear that "[t]he Government may not use as part of its direct case, other than a prosecution for perjury or false statements, any information provided by a defendant in connection with his or her request for the appointment of counsel pursuant to this Plan." CJA Plan, § VI(E) at 6. The CJA Plan further provides that "[a]t the time of determining financial eligibility, the judicial officer shall inform the person seeking appointment of counsel of the penalties for making a false statement, and of the obligation to inform the Court of any changes in his or her financial status." CJA Plan, § VI(C) at 5.
Hilsen's Motion for Leave to Submit a CJA 23 Ex Parte and Under Seal Is Denied
Hilsen is not the first defendant to pose the difficult question of how best to balance a defendant's Fifth Amendment and Sixth Amendment rights where a defendant seeks appointment of counsel under the CJA in a case implicating the defendant's finances. Confronted with circumstances somewhat akin to those presented here, courts have generally elected one of two approaches: either permitting the defendant to present financial information through ex parte, in camera proceedings with the information subsequently placed under seal, or conducting an adversarial proceeding but setting specific limits on the subsequent use of any information presented by the defendant during the inquiry. These decisions frequently turn on whether the Fifth Amendment conflict is deemed actual and real and the need for protection accordingly immediate, or instead, the asserted conflict is determined to be merely prospective unless and until the government seeks to make use of the testimony presented in the CJA appointment proceeding.
A judicial proceeding or order is ex parte when it is "[d]one or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested." Black's Legal Dictionary 597 (7th ed. 1999). Anin camera proceeding is one held in a judge's chambers or other private place. See id. at 1221. Although in camera proceedings are typically conducted ex parte and the two terms are often employed interchangeably (as is the case in certain of the decisions discussed here), in camera proceedings are not necessarily held ex parte.
This dichotomy, recognized in United States v. Gravatt, 868 F.2d 585, 590 (3d Cir. 1989), and its progeny, may not fully capture the extent of the current split among the circuits. See infra note 7.
In support of his motion, Hilsen has relied on decisions from sister circuits adopting or approving the first of these two approaches. The Court of Appeals for the Second Circuit, however, has expressly endorsed the latter option, articulating the importance of adversarial proceedings and emphasizing the view that constraints on the subsequent use of a defendant's testimony submitted in support of an application for appointed counsel will strike an appropriate balance between a defendant's Fifth and Sixth Amendment rights where those rights are arguably in conflict. As set forth below, the resolution of Hilsen's motion is governed by the jurisprudence of this circuit.
In United States v. Branker, 418 F.2d 378 (2d Cir. 1969), the Court of Appeals for the Second Circuit considered an appeal from a defendant against whom the government had introduced at trial testimony the defendant gave at a pretrial hearing regarding appointment of counsel. Although the Branker court held that the admission of the testimony was not error as the defendant had failed to object to it and the government had proceeded in good faith, the Court of Appeals also explained that:
We are of the view that the government should not be permitted to use as part of its direct case any testimony given by a defendant at a hearing where he is seeking forma pauperis relief or the assignment of counsel on the ground of his financial inability to pay court costs, to procure the minutes, or to secure counsel. The defendant should enjoy his constitutional rights to counsel and to appeal and the means of supporting his assertion of these rights by his own testimony without running the risk that thereby he may be incriminating himself with respect to the charges pending against him.Branker, 418 F.2d at 380 (footnote omitted).
Nearly fifteen years later, the Court of Appeals drew onBranker when it rejected the notion that an application for a CJA appointment should have been handled in camera and without the government's involvement in United States v. Harris, 707 F.2d 653 (1983). In Harris, a defendant charged with commodities fraud, mail fraud, and wire fraud, inter alia, appealed from a district court's order terminating the appointment of a CJA counsel and argued that the lower court's refusal to permit him to submit evidence of inability to afford counsel in an ex parte, in camera proceeding unconstitutionally jeopardized his privilege against self-incrimination. See Harris, 707 F.2d at 654, 659. The appointment of the defendant's counsel pursuant to the CJA had been terminated after the government had submitted information allegedly showing the defendant's ability to afford counsel and casting doubt on the accuracy of the defendant's CJA 23 filed several months earlier, at which point the defendant had declined to provide further evidence apart from an attorney's affidavit unless he were allowed to do so at a proceeding conducted in camera and ex parte. See id. at 655. The magistrate presiding over the dispute then denied the defendant's request and the district court affirmed that ruling; when the defendant still declined to provide further evidence of his inability to afford counsel an order issued terminating the appointment of the defendant's counsel. See id.
After resolving questions concerning the permissibility of the appeal itself, the Court of Appeals acknowledged that where a criminal defendant is forced to go to trial without the benefit of counsel his Sixth Amendment right to counsel will have been violated if the trial court fails to conduct an appropriate inquiry into the defendant's financial ability to afford counsel.See id. at 662. "In this case, however," the Court of Appeals explained,
[T]he court in fact attempted to conduct further inquiry into Harris's financial situation, but was unable to do so because of Harris's refusal to proceed further unless the proceeding was conducted in camera and without the government's participation.Id. The Court of Appeals concluded that the district court was not clearly erroneous in finding that Harris had failed to sustain his burden to establish inability to afford counsel.See id.
The Harris court next turned to the Fifth Amendment concerns raised by the defendant and to his argument that an "appropriate inquiry" under the CJA would have involved conducting an ex parte, in camera hearing and sealing all records thereafter. As a threshold matter, the Court of Appeals observed:
It is true that there is some support for the notion that proceedings regarding eligibility under the Criminal Justice Act should be conducted in camera and without government participation. However, it is worth noting that the Act specifically provides for ex parte applications for services other than counsel, while there is no such requirement for proceedings involving the appointment or termination of counsel. . . . [S]ince Congress obviously knew how to provide for an ex parte proceeding when it seemed appropriate, the failure to do so in the context of appointment of counsel seems significant.Id. (internal citations omitted). Moreover, the Court of Appeals emphasized, "our legal system is rooted in the idea that facts are best determined in adversary proceedings; secret, ex parte hearings `are manifestly conceptually incompatible with our system of criminal jurisprudence.'" Id. (quoting United States v. Arroyo-Angulo, 580 F.2d 1137, 1141 (2d Cir. 1978)).
That the use of an adversarial proceeding might force the defendant to make an "unappealing choice" was not, in and of itself, an adequate reason to bar such a proceeding, the Harris court reasoned. Id. (internal quotation marks omitted). Indeed, "`intolerable tension[s]' between constitutional rights have been alleviated by applying the rule that a defendant's testimony at a pretrial hearing will not be admissible at trial on the issue of guilt unless he fails to object." Id. (quotingSimmons v. United States, 390 U.S. 377, 394 (1968)) (alternation in original). As the Court of Appeals proceeded to explain,
We have held that "the government should not be permitted to use as part of its direct case any testimony given by a defendant at a hearing where he is seeking forma pauperis relief or the assignment of counsel on the ground of his financial inability to . . . afford counsel," United States v. Branker, 418 F.2d 378, 380 (2d Cir. 1969), and that holding is directly applicable to the case before us.Id. at 662-63 (alteration in original). In any event, the Court of Appeals concluded, the defendant's claim of a violation of his Fifth Amendment privilege by virtue of the possible use of his testimony at a later date was speculative, and "the speculative possibility of inadequate protection of defendant's fifth amendment rights is outweighed by the need to determine facts through adversarial proceedings." Id.
The Court of Appeals has reaffirmed the stance adopted inBranker and Harris in United States v. Bryser, 95 F.3d 182 (2d Cir. 1996), in which the Court rejected a defendant's argument, based principally on Simmons v. United States, 390 U.S. 377 (1968), that he faced an intolerable tension when he was forced to choose between his due process right to present evidence at a resentencing hearing and his Fifth Amendment privilege against self-incrimination. See Bryser, 95 F.3d at 187. Citing to both Branker and Harris, the Bryser court stated,
We have ordered use immunity under Simmons upon a showing of substantial tension between a defendant's desire to testify in a hearing that adjudicates a claim of constitutional right in a criminal case and the right of that defendant not to give testimony that is incriminating as to the charge in question.Id. at 186. Noting that the defendant's potentially incriminating testimony related to crimes other than those charged in the proceeding at issue, the Bryser court termed the distinction "crucial" and held,
We decline to extend Simmons to afford use immunity for testimony concerning crimes other than those charged in the underlying criminal proceeding. Simmons in no way leads to the absurd result that incriminating statements may not be used as evidence because they were made otherwise in aid, or under the umbrella, of a constitutional right.Id. at 186-87.
The district courts of this circuit have repeatedly invoked the principles set forth in Branker and Harris in adjudicating claims of tension between a defendant's Fifth and Sixth Amendment rights with regard to applications for appointed counsel. See, e.g., United States v. Herbawi, 913 F. Supp. 170, 173 (W.D.N.Y. 1996) (concluding that "the government is entitled to be heard" on the issue of a defendant's eligibility for assigned counsel); United States v. Hennessey, 575 F. Supp. 119, 120 (N.D.N.Y. 1983) (describing proceedings in which the defendant submitted a CJA 23 after the court deemed the defendant's asserted Fifth Amendment privilege premature and speculative and indicated that the government would be prohibited from using as part of its direct case any information supplied by the defendant in aid of his application for appointed counsel),aff'd, 751 F.2d 372 (2d Cir. 1984); cf. United States v. Venator, 568 F. Supp. 832, 836-37 (N.D.N.Y. 1983) (declining to reconsider the defendant's eligibility for appointed counsel in light of the newly issued opinion in Harris two days before trial was scheduled to commence, but directing that previously sealed financial information be unsealed at the close of trial to allow the government to evaluate whether to pursue a recoupment proceeding or a perjury prosecution).
In United States v. Coniam, 574 F. Supp. 615 (D. Conn. 1983), for instance, the court reversed a magistrate judge's order sealing a defendant's financial affidavit where the court's review of the affidavit revealed that it contained nothing likely to constitute a disclosure protected by the Fifth Amendment and the defendant had "merely suggested" that unsealing the affidavit might provide the government with access to information that might be developed into inculpatory evidence without supplying any specific details in support of the speculation. Coniam, 574 F. Supp. at 617. Observing that "the defendant has the protection of the exclusion rule of Simmons," id. (citing Harris, 707 F.2d at 662; Branker, 418 F.2d at 380), the district court explained that,
While it is not necessarily fully protective of defendant's right against self-incrimination to view him as not subject to risk until self-incrimination becomes sufficiently real as not to be considered speculative, the record in this case and the holding of Harris, supra, does not warrant a Fifth Amendment cloak here. In this respect the government should be cautious of a potential obligation to prove a curtain between the information thus available and its proof at trial.Id. (internal footnote omitted). Rejecting the notion of ex parte proceedings as inconsistent with traditional adversarial proceedings and noting that the CJA "does not mandate nor seemingly contemplate a closed presentation of financial information," the court concluded that the role of the government was "appropriately invited by the approval of an adversarial process by which to insure the propriety of defendant's receipt of services of counsel under the CJA." Id. at 617 n. 2.
In sum, Harris and its progeny stand for the proposition that "facts are best determined in adversary proceedings," the importance of which process outweighs any "speculative possibility of inadequate protection of defendant's fifth amendment rights," particularly where those rights are otherwise protected by limitations imposed on the government's use of information supplied by a defendant in aid of his or her application for appointed counsel. Harris, 707 F.2d at 662-63. Although neitherBraker nor Harris precludes the courts of this circuit from adopting, at their discretion, any of a variety of protections for defendants seeking to establish their eligibility for appointed counsel under the CJA, the balance struck by the Court of Appeals in Harris in addressing potential tensions between the Fifth and Sixth Amendments defines the guiding principles for the implementation of any such discretionary protections, as the decisions in Bryser, Coniam, Hennessey and Herbawi demonstrate and as the recently adopted CJA Plan of our district reaffirms. Hilsen has not established any basis for this Court to deviate from the adversarial, open approach explicitly endorsed in Harris or to conclude that the protections spelled out inBranker, Harris, and Bryser are inadequate here.
Hilsen's primary argument in support of the ex parte approach he advocates is that a number of courts from our sister circuits have endorsed such a method where, as here, a defendant has been charged with offenses implicating the defendant's finances. Although the ex parte approach adopted elsewhere is incompatible with the emphasis on adversarial proceedings articulated by the Court of Appeals for our circuit and the protection offered by ex parte proceedings obviated by the protections set forth in Branker, Harris, and Bryser, and Hilsen's argument accordingly fails for these reasons, a brief review of the decisions of our sister circuits underscores the divisions among the circuits and their respective responses to the questions raised here.
While the Courts of Appeals for the Sixth, Seventh and Tenth Circuits have favored the approach outlined in Harris or variations on that approach, the Courts of Appeals for the Third, Fourth, Eighth and Ninth Circuits have expressed at least implicit acceptance for ex parte procedures, although these courts generally have refrained from indicating that ex parte proceedings are the most appropriate or exclusive method for addressing arguable conflicts between the Fifth and Sixth Amendments. Thus, in United States v. Anderson, 567 F.2d 839 (8th Cir. 1977), the Court of Appeals for the Eighth Circuit held that a defendant who refused to fill out a CJA 23 on Fifth Amendment grounds should be permitted to disclose the requisite financial information for review in camera, after which review "the financial data should be sealed and not made available for the purpose of tax prosecution," since "[t]o hold otherwise would force [the defendant] to choose between his Sixth Amendment right to counsel and his Fifth Amendment right against self-incrimination." Anderson, 567 F.2d at 840-41 (internal citation omitted). In United States v. Davis, 958 F.2d 47 (4th Cir. 1992), the Court of Appeals for the Fourth Circuit reached a similar result, ruling that a defendant had impliedly waived his right to counsel when he refused to provide financial information despite the trial court's assurances that the information would be taken in camera and placed under seal, and explaining that,
The Courts of Appeals for the Sixth, Seventh and Tenth Circuits, often citing Harris with approval, have concluded that limitations on the government's use of information obtained from a defendant during proceedings to obtain appointed counsel offer the appropriate protection for a defendant asserting a conflict between his or her Fifth and Sixth Amendment rights and that protection is not warranted where the asserted encroachment on a defendant's Fifth Amendment privilege against self-incrimination is speculative and prospective. See United States v. Hardwell, 80 F.3d 1471, 1484 (10th Cir. 1996); United States v. Krzyske, 836 F.2d 1013, 1018-19 (6th Cir. 1988);United States v. Sarsoun, 834 F.2d 1358, 1363-64 (7th Cir. 1987); United States v. Peister, 631 F.2d 658, 662 (10th Cir. 1980); see also United States v. Madrzyk, 990 F. Supp. 1004, 1007 (N.D. Ill. 1998). The Court of Appeals for the Tenth Circuit has gone further, explicitly rejecting the notion of applying protections such as grants of use immunity in pretrial proceedings and explaining that "[t]he time for protection will come when, if ever, the government attempts to use the information against the defendant at trial." Peister, 631 F.2d at 662. The view expressed in Peister, which has been reaffirmed in Hardwell and cited with approval in other circuits,see, e.g., Krzyske, 836 F.2d at 1019, suggests that any protection provided prior to the actual use of a defendant's financial information against him or her by the government will be necessarily premature.
The Courts of Appeals of the First, Fifth and Eleventh Circuits have not directly addressed the propriety of ex parte proceedings or sealing procedures in the context of purported Fifth and Sixth Amendment conflicts, although case law from all three circuits has touched on issues related to those at stake here and at least one district court in the First Circuit has employed ex parte proceedings in addressing applications for appointed counsel. See In re Boston Herald, Inc., 321 F.3d 174, 181 (1st Cir. 2003) (rejecting a newspaper's attempt to unseal financial materials submitted in support of a CJA application in light of the defendant's privacy interests and explaining that the "process for handling CJA eligibility documents . . . is not a blanket rule denying access . . . [but] strikes a balance under which disclosure is the presumed or default rule, but one which a court may displace by making a case-specific determination"); United States v. Moore, 671 F.2d 139, 140 (5th Cir. 1982) (recognizing the potential for conflict where defendants charged with income tax violations are required to provide financial data and noting the pretrial approaches adopted by other circuits, but declining to endorse a particular approach because the case "falls short of requiring us to reach the basic constitutional issue"); United States v. Ellis, 154 F.R.D. 697, 699-701 (M.D. Fla. 1993) (expressing approval for theex parte approach in a case turning on specific requirements of the Eleventh Circuit's CJA plan that call for in camera review of financial data submitted in support of an application for appellate counsel); compare United States v. Salemme, 985 F. Supp. 197, 202-03 (D. Mass. 1997) (concluding, in light of the age of the case and the prolonged detention of the defendants, that "it is most fair and efficient that in the first instance [the district court] receive ex parte both defendants' CJA 23 affidavits and the government's submission" but reserving the right to order that the ex parte submissions be exchanged and that an adversary hearing be held as necessary).
Because Fifth and Sixth Amendment concerns are intertwined when court appointed counsel is sought by a defendant charged with income tax violation . . . we feel compelled to note that the district court avoided any serious Fifth Amendment challenge by conducting an ex parte examination of [the defendant] and informing him that the stenographic copy of his answers would be sealed.Davis, 958 F.2d at 49 n. 4; see also United States v. Ellsworth, 547 F.2d 1096, 1097-98 (9th Cir. 1977) (concluding that a defendant charged with tax violations had not been impermissibly denied counsel when he declined to file a complete CJA 23 despite the district court's written assurance that the CJA 23 would be reviewed in camera, sealed, and could not be used for further tax prosecution). In United States v. Gravatt, 868 F.2d 585 (3d Cir. 1989), the Court of Appeals for the Third Circuit explicitly recognized the different pretrial approaches available but refrained from endorsing one method exclusively, instead deeming the choice between ex parte proceedings and grants of use immunity a discretionary matter for the district court and noting that, "[w]hichever method is chosen, the defendant may be required to provide the necessary financial information under penalty of perjury." Gravatt, 868 F.2d at 589-91.
Recent opinions from the Court of Appeals for the Ninth Circuit, while not rejecting the propriety of ex parte proceedings, have emphasized the unsettled nature of the law both within the Ninth Circuit and among the circuits with respect to the scope, timing and type of protections to be furnished to a defendant claiming a conflict between his or her Fifth and Sixth Amendment rights. See United States v. Hickey, 185 F.3d 1064, 1068 (9th Cir. 1999); United States v. Hitchcock, 992 F.2d 236, 239 (9th Cir. 1993).
Even in those jurisdictions where ex parte proceedings have been accepted, however, the propriety of such proceedings depends on whether the conflict between a defendant's Fifth and Sixth Amendment rights is deemed to be immediate and real. Compare, e.g., United States v. Hyde, 208 F. Supp. 2d 1052, 1057 (N.D. Cal. 2002) (concluding that a financial affidavit submitted to establish eligibility for appointed counsel was compelled testimony and granting a defendant's motion to keep the affidavit under seal in light of the fundamental nature of the defendant's right to counsel and the "grave consequence" were the defendant to withhold the affidavit), and United States v. Hickey, 997 F. Supp. 1206, 1208-09 (N.D. Cal. 1998) (denying the government's motion to unseal financial affidavits submitted in support of a request for appointed counsel because the defendants faced substantial hazards of self-incrimination), appeal dismissed, 185 F.3d 1064 (9th Cir. 1999), with United States v. Kodzis, 255 F. Supp. 2d 1140, 1145 (S.D. Cal. 2003) (declining to permit a defendant to file a financial affidavit ex parte and under seal absent a demonstration that he faced a real and appreciable hazard of self-incrimination in light of the presumption of openness of criminal proceedings, but indicating the possibility that the defendant could file an affidavit under seal if he were to assert that the revelation of his assets could be incriminating), and United States v. Carmona-Arroyave, No. 92 Cr. 75 (FR), 1992 WL 310313, at *1-2 (D. Or. Oct. 16, 1992) (concluding that the defendant had failed to establish that the disclosure of her financial affidavit would likely implicate the Fifth Amendment and declining to maintain the submitted CJA 23 under seal).
Although Hilsen's assets, income and debts may be relevant to the charge now pending against him, the bare assertion that disclosure of this information would present a substantial hazard of self-incrimination is insufficient to show how the information he seeks to submit ex parte and under seal in order to establish his financial inability to obtain counsel would present a substantial hazard of self-incrimination as to hisability to make support payments under the CSRA. Moreover, Hilsen has not suggested why the exclusionary rule set forth in the CJA Plan of this district and elaborated in Branker, Harris, and Bryser would offer inadequate protection here. Thus, even if the principles set forth in Harris favoring adversarial proceedings did not weigh heavily against adopting anex parte approach such as that accepted in other circuits, Hilsen has not made a sufficient showing as to why such an approach would be appropriate here given the speculative nature of his claim and the presumption of openness in criminal proceedings. See, e.g., Kodzis, 255 F. Supp. 2d at 1145 (citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9-10 (1986); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509 (1984)).
Hilsen notes, correctly, that Harris makes no mention of what connection, if any, may have existed between the indictment in that case and the content of Harris's CJA 23 or how the financial information furnished in Harris's CJA 23 would have been implicated at trial. Hilsen argues that Harris is therefore distinguishable from the situation here, where the government's case, according to Hilsen, turns on what the government can prove about his assets. The Harris court did not limit its discussion of the proper balance to strike between assertions of Fifth Amendment privilege made in conjunction with applications for appointed counsel pursuant to the Sixth Amendment to the particular facts before it, and no such limitation will be inferred here. Furthermore, even if the financial information that Hilsen seeks to submit here were more directly implicated by the indictment filed against him than was the financial affidavit at stake in Harris, it does not follow that the possibility of Fifth Amendment implications arising from Hilsen's CJA 23 is any less prospective than the Fifth Amendment implications at issue in Harris, that the request for protection is accordingly any less premature, or that the safeguards spelled out in Branker, Harris, Bryser and the CJA Plan of this district are any less apt here than they were in Harris. Nor does Hilsen's mere speculation that the government may be able to develop leads from information contained in his CJA 23 justify the invocation of an ex parte approach. See, e.g., Coniam, 574 F. Supp. at 617.
Hilsen has also proposed that he be permitted to submit his CJA 23 ex parte and the government permitted to submit opposition based on the presumed contents of Hilsen's CJA 23, thus allowing the government to be heard while still affording Hilsen protection. Acceptance of Hilsen's proposal would lead to a proceeding that is neither truly adversarial in the manner intended by the Harris court nor likely to lead to a reliably fulsome factual picture, as the government, opposing Hilsen's application without any knowledge of the assets or income set forth in Hilsen's CJA 23, would perforce need to weigh the risk of providing Hilsen with an advance viewing of all of its evidence concerning his assets and income against the risk of providing select, and thus possibly inadequate, information. A bifurcated approach whereby each party submits materials ex parte might resolve some of the concerns just identified but would still run contrary to Harris to the degree that true adversarial confrontation and the attendant benefits would be lacking.
Based on the foregoing, Hilsen's motion for leave to submit a CJA 23 ex parte and under seal is denied. In light of this conclusion, should Hilsen decide to submit a CJA 23 or otherwise provide information concerning his financial status in support of an application for appointed counsel, the government will have the opportunity to respond to Hilsen's application, at which time the Court will consider what further proceedings, if any, will be necessary to ensure that Hilsen's application has been the object of an "appropriate inquiry" as required by the CJA. 18 U.S.C. § 3006A(b).
"The prosecution and other interested entities may present to the court information concerning the person's eligibility, but the judicial inquiry into financial eligibility shall not be utilized as a forum to discover whether the person has assets subject to forfeiture, or the ability to pay a fine, make restitution, or compensate another person pursuant to the Victim/Witness Protection Act or other purposes not related to the appointment of counsel." 7 Administrative Office of the United States Court, Guide to Judiciary Policies and Procedures § 2.03(C).
Where, as here, a defendant has sought to file a CJA 23 ex parte and under seal, and that application has been denied because the assertion of a Fifth Amendment privilege is both premature and speculative, it is appropriate to reiterate the protection afforded the defendant in this circuit, namely, that should the defendant choose to submit a CJA 23 or otherwise place before the court financial information setting forth his or her eligibility the government shall not be permitted to use as part of its direct case any testimony given by the defendant in support of his or her application for assignment of counsel.See, e.g., Hennessey, 575 F. Supp. at 120. In accordance with the protection so articulated, the government "should be cautious of a potential obligation to prove a curtain between the information thus available and its proof at trial." Coniam, 574 F. Supp. at 617. As set forth above, however, use immunity does not extend to crimes other than those charged in the underlying criminal proceeding, see Bryser, 95 F.3d at 186-87, and, as reiterated on the standard form CJA 23 itself, "false statements in an application for counsel under the [CJA] are subject to the penalties of perjury." Harris, 707 F.2d at 658 (citation omitted); see also CJA Plan, § VI(E) at 6.
As Hilsen bears the burden of establishing his eligibility for appointed counsel, should he decline to submit a CJA 23 or otherwise to furnish sworn financial information as provided by the CJA and by the CJA Plan of this district, no counsel may be appointed under the CJA. See Harris, 707 F.2d at 662 (concluding, where the trial court attempted to inquire into the defendant's financial status, "but was unable to do so because of Harris's refusal to proceed further unless the proceeding was conducted in camera and without the government's participation. . . . [that] we do not believe the court was clearly erroneous in finding that [the defendant] failed to prove financial inability to afford counsel"). In that situation, the voluntary and intelligent nature of Hilsen's waiver of his Sixth Amendment right to counsel would need to be assessed on the record. See generally Faretta v. California, 422 U.S. 806, 834-36 (1975) (holding that a defendant choosing self-representation must do so "competently and intelligently"); see also Torres v. United States, 140 F.3d 392, 401 (2d Cir. 1998) ("Although there is no talismanic procedure to determine a valid waiver, the district court should engage the defendant in an on-the-record discussion to ensure that she fully understands the ramifications of her decision. . . . In other words, the district court must be satisfied that the defendant was aware of the risks associated with self-representation and that her choice was made `with eyes open.'") (internal citation omitted) (quoting Faretta, 422 U.S. at 835).
Conclusion
For the reasons set forth above, Hilsen's motion for leave to submit a CJA 23 to this Court ex parte and under seal is denied. The parties are directed to arrange for a pretrial conference at their earliest convenience in light of the conclusion reached here. Upon the representation that he has conveyed the contents of this opinion and order to Hilsen, Stein will be relieved as counsel for Hilsen for the reasons set forth on the record on September 13, 2004.
It is so ordered.