In so doing, a court has considerable latitude in inquiring into the defendant's financial status and determining eligibility for court-appointed counsel. See United States v. Hyde, 208 F.Supp.2d 1052, 1054 n.1 (N.D. Cal. 2002). This inquiry may extend to ex parte proceedings with the defendant's financial affidavit.
In short, Avenatti argues that, unlike the defendants in Harris and its progeny, he faces a " ‘real and appreciable’ hazard of self-incrimination" that justifies sealing the Financial Affidavits altogether. Id. at 6 (quoting United States v. Hyde , 208 F. Supp. 2d 1052, 1056 (N.D. Cal. 2002) ). Admittedly, Avenatti's argument does find some support in a handful of decisions by district courts in other circuits.
SeeUnited States v. Salemme , 985 F.Supp. 197, 201–203 (D.Mass.1997) (where government sought access to defendants' CJA information, the parties before the court "disagree[d], however, about how the tension between defendants' Fifth and Sixth Amendment rights should be resolved"); see also, e.g.,United States v. Hyde , 208 F.Supp.2d 1052, 1057 (N.D.Cal.2002) (where defendant was charged with mail fraud, health care fraud, and money laundering, the court concluded that his financial affidavit to obtain appointed counsel was compelled testimony that was protected by the Fifth Amendment); United States v. Hickey , 997 F.Supp. 1206, 1208–09 (N.D.Cal.1998) (where defendant was charged with mail fraud, wire fraud, and securities fraud, the court denied the government's motion to unseal financial affidavits submitted in support of a request for appointed counsel because defendants faced a substantial risk of self-incrimination). ContrastHilsen , 2004 WL 2284388 at *9–10 (where defendant was charged with unlawful failure to pay a court-ordered child-support obligation, the court denied defendant's request to file a financial affidavit ex parte and under seal because defendant failed to demonstrate that the conflict between his Fifth and Sixth Amendment rights was "immediate and real").
If, on the other hand, the information remains sealed until after conclusion of the trial on the pending charges, Ponzo's Fifth Amendment interest will diminish vis a vis the Government's interest in disclosure of the information for purposes of pursing a perjury charge: "[t]he Government . . . maintains the right to investigate possible perjury in [the CJA 23 and/or supplemental form] after trial and ultimately the truth seeking function will not be compromised." United States v. Hyde, 208 F.Supp.2d 1052, 1054 (N.D.Cal. 2002)(internal citation omitted). The Branker rubric makes eminent sense.
The Fifth Circuit in Moore noted that the CJA 23 form "is not a required statutory form," but is simply an administrative tool to assist the trial court in determining eligibility for appointed counsel." 671 F.2d at 140; United States v. Hickey, 997 F. Supp. 1206 (N.D. Cal. 1998); United States v. Hyde, 208 F.Supp. 2d 1052 (N.D. Cal. 1998).
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
As such, this Court may not order Kodzis' financial information filed under seal unless it makes a specific determination that Kodzis' financial disclosure would present a "substantial hazard of self-incrimination that [is] "real and appreciable' and not merely `imaginary and unsubstantial.'" Seattle Times v. United States District Court, 845 F.2d 1513, 1518 (9th Cir. 1988) (quoting United States v. Neff, 615 F.2d 1235, 1239 (9th Cir. 1980)); see also United States v. Hyde, 208 F. Supp.2d 1052, 1054 (N.D. Cal. 2002). Kodzis argues he is entitled to have his financial affidavit filed ex parte and under seal because it is unclear the extent to which any statements contained in that affidavit could be used against him in subsequent proceedings.