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.
United States v. Hickey, 997 F. Supp. 1206, 1210 (N.D. Cal. 1998). See e.g., Ellsworth, 547 F.2d at 1098 (the Ninth Circuit approved of a district court's offer of an in camera review of defendant's financial statement, to be sealed after review); see also United States v. Hyde, 208 F. Supp. 2d 1052, 1058 (N.D. Cal. 2002) (district court granted defendant's Motion to Keep Financial Affidavit Under Seal when the information contained in the affidavit may have been incriminating). No such requests have been proffered to the Court by the defense.
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").
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.