U.S. v. Zelenka

• Decision Date: 24 November 1999
• Docket Number: No. 3:97-00158.,3:97-00158.
• Citation: 112 F.Supp.2d 708
• Parties: UNITED STATES of America v. Bernard ZELENKA
• Court: U.S. District Court — Middle District of Tennessee

112 F.Supp.2d 708

UNITED STATES of America v. Bernard ZELENKA

No. 3:97-00158.

United States District Court, M.D. Tennessee, Nashville Division.

November 24, 1999.

COPYRIGHT MATERIAL OMITTED

Thomas Wayne Watson, Federal Public Defender's Office Nashville, TN, Ernest Wilson Williams, Franklin, TN, William C. Roberts, Nashville, TN, John G. Oliva, Antioch, TN, for Bernard Zelenka.

William Mark Cohen, Office of the United States Attorney, Nashville, TN, for United States.

MEMORANDUM

JOHN T. NIXON, District Judge.

Pending before the Court is the Government's Motion to Determine Defendant's Representation. (Doc. No. 31.) Defendant has responded to the government's Motion, (Doc. No. 36), and in turn, the government has filed a Reply, (Doc. No. 40). A hearing was held on this matter on August 4, 1999.¹ For the reasons stated below, the Motion is denied.

I. BACKGROUND

Defendant Bernard Zelenka is charged in a twenty-two (22) count indictment with money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A), engaging in monetary transactions in property derived from specified unlawful activity, in violation of 18 U.S.C. § 1957, and numerous violations of the wire fraud statute, 18 U.S.C. § 1343. In addition, pursuant to 18 U.S.C. § 982(b)(1), the government seeks forfeiture of Defendant's property allegedly involved in the aforesaid offenses. (see Doc. No. 1.)

The Indictment against Defendant was filed on December 18, 1997. (Doc. No. 1.) On December 15, 1998, Defendant was arrested and arraigned. (Doc. No. 5.) At the arraignment hearing, the magistrate found, based upon Defendant's financial affidavit, (Doc. No. 7), that Defendant was financially unable to employ counsel. Accordingly, counsel was appointed to represent Defendant. (Doc. No. 8.) Since his arraignment on December 15, 1998, Defendant has been represented in this matter by court-appointed counsel from the Office of the Federal Public Defender. Defendant's appointed counsel is Assistant Federal Defender Thomas Watson.

On May 21, 1999, Nashville attorney John G. Oliva filed a Notice of Appearance (the "Notice") on behalf of Defendant. (Doc. No. 25.) The Notice indicated that "friends of Mr. Zelenka" had retained the services of Mr. Oliva "to act as co-counsel with Assistant Federal Defender Tom Watson."² (Id.) In addition, the Notice stated that Mr. Oliva "has information, knowledge and belief that Mr. Zelenka has no control over, claim to or access to the funds used to retain undersigned counsel." (Id.)

On June 22, 1999, the government filed a Motion for Status Hearing to Determine Defendant's Representation. (Doc. No. 31.) According to the government, because a third party hired Mr. Oliva on Defendant's behalf, Defendant is no longer "financially unable to obtain counsel" within the meaning of 18 U.S.C. § 3006A(b) and thus no longer qualifies for court-appointed counsel. (Id. at 2.) As such, the government argues that permitting Mr. Watson to continue as Defendant's counsel constitutes a misuse of public funds. (Doc. No. 40 at 1.) Therefore, the government submits that Mr. Watson should be relieved as Defendant's counsel. (Doc. No. 31 at 3.)

In response to the government's Motion, Defendant contends that he remains eligible for court-appointed counsel despite the retainment of Mr. Oliva by a third party on his behalf. (Doc. No. 36. at 2.) Accordingly, Defendant asserts that Mr. Watson and Mr. Oliva should be permitted to proceed as co-counsel. (Id.) In support of this argument, Defendant maintains that the funds of a third party to which he does not have access, claim, or control, should not be considered when determining whether he remains financially unable to retain counsel under 18 U.S.C. § 3006A(b). (Id. at 5-6.) Defendant argues that instead, the inquiry should focus on those funds which Defendant is able to control and to which he possesses a claim of ownership or right. (Id.) Additionally, Defendant argues that the government has no standing to bring this Motion because Section 2.03(B) and (C) of the Guidelines prohibits the government from participating in the judicial inquiry into financial eligibility.³ (Id. at 2-3.)

A hearing was held on this matter on August 4, 1999. At the conclusion of the hearing, the Court conducted an ex parte in camera meeting with Mr. Oliva, Mr. Watson, and Defendant to discuss the nature of the financial arrangement between Mr. Oliva and the third party who retained him, as well as to inquire into any possible conflicts of interest between Defendant and the third party.⁴ In addition, the Court has reviewed in camera an affidavit filed by the third party payers, (Doc. No. 37), and an affidavit filed by Mr. Oliva detailing the work he has performed on Defendant's case, (Doc. No. 38).

II. LEGAL STANDARD

The Sixth Amendment to the United States Constitution provides that "(i)n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense." U.S. Const. amend. VI, cl. 6. This language encompasses a guarantee of the right of indigents to appointed counsel in felony prosecutions. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); see also Birt v. Montgomery, 725 F.2d 587, 592 (11th Cir.1984) (en banc) (stating that Sixth Amendment right to counsel has four components: right to have counsel, minimum quality of counsel, a reasonable opportunity to select and be represented by chosen counsel, and right to preparation period sufficient to assure minimum quality counsel). In 1964, Congress passed the Criminal Justice Act (the "CJA"), 18 U.S.C. § 3006A et seq. (West 1999), to insure that defendants who are financially unable to obtain the assistance necessary for an adequate defense are provided counsel in accordance with the Sixth Amendment. See generally United States v. Santiago-Fraticelli, 818 F.Supp. 27, 29 (D.Puerto Rico 1993) (stating that the CJA was passed to help facilitate the constitutional guarantee set forth in the Sixth Amendment); United States v. Martin-Trigona, 684 F.2d 485, 490 (7th Cir.1982) (holding that district court's failure to conduct an inquiry into defendant's financial inability to obtain counsel in accordance with the CJA constituted reversible error); United States v. Harris, 707 F.2d 653, 662 (2nd Cir.1983) (stating that "forcing a criminal defendant to go to trial pro se" without conducting an appropriate inquiry into his financial ability to afford counsel under the CJA "constitutes a denial of that defendant's [S]ixth [A]mendment right to counsel"). Thus, application of the CJA is governed by the mandates of the Sixth Amendment. Anaya v. Baker, 427 F.2d 73, 75 (10th Cir.1970); see also Fed. R.Crim.P. 44(a).

Under the CJA, counsel must be appointed if the court is satisfied "after appropriate inquiry" that the defendant is "financially unable to obtain counsel." 18 U.S.C. § 3006A(b). The test for determining whether a defendant is eligible for counsel under the CJA is not whether the defendant is indigent, but rather is whether he is "financially unable" to obtain counsel. Kelly, 467 F.2d at 266; see also United States v. Moore, 671 F.2d 139, 141 (5th Cir.1982) (noting that Congress was careful in the Criminal Justice Act to avoid the use of the term "indigent"); Harris, 707 F.2d at 660 (stating that the term "financially unable to obtain counsel" as used in 18 U.S.C. § 3002A(b) "means something less than indigency or destitution"); United States v. Coniam, 574 F.Supp. 615, 617 (D.Conn.1983) (noting that "the CJA couches an applicant's eligibility in terms of inability `to obtain counsel,'" which is "broader language than the inability to pay for representation as is consistent with a more flexible right to counsel"); see also VII Administrative Office of the United States Courts, Guide to Judiciary Policies and Procedures, Appointment of Counsel in Criminal Cases § 2.04 (1993) (stating that a person is financially eligible for court-appointed counsel "if his net financial resources and income are insufficient to enable him to obtain qualified counsel").

In determining financial inability, courts generally consider a defendant's income, assets, liabilities and other obligations. See, e.g., United States v. Kelly, 467 F.2d 262, 265-66 (7th Cir.1972); Ybarra v. Wolff, 571 F.Supp. 209, 211-12 (D.Nev. 1983). In addition, courts have considered a broad range of additional factors, including: (1) the needs and basic living expenses of the defendant and his family, Souder v. McGuire, 516 F.2d 820, 823-24 (3rd Cir.1975); Harris, 707 F.2d at 661; (2) the expenses and extent of legal services required by the defendant, Coniam, 574 F.Supp. at 618; Harris, 707 F.2d at 661; (3) whether the defendant has secreted assets, United States v. Rubinson, 543 F.2d 951, 964 (2nd Cir.1976); United States v. Schmitz, 525 F.2d 793, 794-95 (9th Cir.1975); United States v. Martinez-Torres, 556 F.Supp. 1275, 1279 (S.D.N.Y. 1983); and (4) the availability of income available from the defendant's spouse, United States v. Salemme, 985 F.Supp. 197, 201 (D.Mass.1997); United States v. Caudle, 758 F.2d 994, 996 (4th Cir.1985); or (5) from trusts and estates, United States v. Kahan, 415 U.S. 239, 243, 94 S.Ct. 1179, 1181, 39 L.Ed.2d 297 (1974); Schmitz, 525 F.2d at 794-95. Furthermore, courts have refused to appoint counsel where a defendant fails to provide sufficient information regarding his finances, Harris, 707 F.2d at 661-62, or where a defendant's claim of financial inability lacks credibility, Kelly, 467 F.2d at 266; Martinez-Torres, 556 F.Supp. at 1280; United States v. Binder, 794 F.2d 1195, 1202 (7th Cir.1986).

Although any doubts as to a defendant's eligibility should be resolved in the defendant's favor when initially considering the defendant's application for counsel, see VII Guide to Judiciary Policies and Procedures: Appointment of Counsel in Criminal Cases § 2.04, the CJA also provides for the removal of counsel at the court...