Opinion
Case No. 2:99-CV-383K
September 15, 2000
ORDER
This matter is before the court on defendant Glen Miller's Motion for Release of Funds for Defendant's Criminal Defense. The matter came on for hearing on Wednesday September 12, 2000. The defendant was represented by David W. Brown and the Securities and Exchange Commission was represented by Thomas M. Melton. Oral argument was heard and the matter was taken under advisement. The court has considered all pleadings, memoranda, and other materials submitted by the parties. The court has further considered the law and facts relevant to the defendant's motion. Now being fully advised, the court enters the following order.
Defendant is requesting that this court release funds from his seized personal and business accounts for the payment of his attorney fees in the criminal matter pending against him in state court. Defendant requests the release of $42,000 for attorney fees and $10,000 for an investigator. The SEC argues that the funds in these accounts include funds that were obtained through the defendant's alleged illegal scheme and that money obtained illegally cannot be used to pay for defendant's criminal attorney. Further, even though defendant is entitled to counsel in the criminal matter, he is only entitled to competent counsel and not necessarily his counsel of choice. The SEC argues that defendant may be eligible for appointed counsel, or he may be able to afford to pay hired counsel who bills at a lower rate than Mr. Brown.
This court believes that the SEC has sufficiently shown a link between the alleged illegal scheme and the money in the Financial Service account and that this money may not be used to pay for defendant's counsel in the criminal matter. The court finds that as to Miller's personal account it is not clear at this time whether or not the account includes monies obtained from the illegal scheme. For that reason, the court would, at a future date, be willing to consider further evidence regarding the origin of the money in Miller's personal account. Further, if Miller were to provide an adequate and complete accounting it may be helpful in determining whether or not the personal account includes monies from the alleged illegal scheme. However, based upon the evidence as it has been presented up to this point, it is reasonably clear that the funds from the Financial Services account may not be used to pay defendant's criminal attorney. Further, it is possible that Miller may be able to either obtain appointed counsel or hire different counsel at a lower rate than Mr. Brown. For these reasons it is hereby
ORDERED that defendant's Motion for Release of Funds is DENIED without prejudice. The defendant may be given leave to renew this motion as the facts further develop.