United States v. Hadden

• Decision Date: 23 December 2020
• Docket Number: 20 Cr. 468 (RMB)
• Parties: UNITED STATES OF AMERICA, v. ROBERT HADDEN, Defendant.
• Court: U.S. District Court — Southern District of New York

UNITED STATES OF AMERICA, v. ROBERT HADDEN, Defendant.

20 Cr. 468 (RMB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

December 23, 2020

DECISION & ORDER

Attorneys Isabelle Kirshner and Wayne Gosnell, who are defense counsel of record for Defendant Robert Hadden ("Hadden"), have requested the Court to relieve them as Hadden's counsel.¹ Defense counsel also ask the Court to appoint CJA counsel or Federal Defenders in their stead. For the reasons that follow, the applications are respectfully denied. Hadden has not shown that he is financially unable to retain counsel within the meaning of 18 U.S.C. § 3006A(b)-(c). Hadden's financial resources and income are not insufficient for him to obtain qualified counsel. See United States v. Parker, 439 F.3d 81, 98 (2d Cir. 2006).

I. Background

To date, Hadden, who is 63 years of age, has made several attempts to support his request for appointed counsel. The first effort was a handwritten affidavit, dated October 15, 2020 and attached hereto as Exhibit A. Hadden listed the following assets in the affidavit: "cash on hand or money in savings or checking accounts" in the amount of $145,000; monthly income of $6,640 from privatedisability insurance; house with a value of $500,000. Hadden also listed monthly expenses of $10,427.50.

The affidavit was rejected at a conference with the Court on October 21, 2020. Court: "[Hadden has] submitted a financial affidavit in support, which I think is the form that's often used or normally used. But that form is not adequate for [these] purposes, which is to accurately reflect all income, assets and expenses in a clear and verified format. . . . particularly when we're talking about someone who has had or has, you know, significant resources . . . [H]aving been a medical doctor [Columbia University Medical Center - gynecologist], having owned a home [in New Jersey] that is valued at somewhere around a half a million dollars, and also is someone who, as has been indicated in prior conferences, had made [] transfer[s] of . . . several hundred thousand dollars or some amount to one of his children to buy a house. I think we need a more professional and up to date financial affidavit . . . What I really want[] is a detailed picture of his assets and liabilities and income and expenses, certified, over the last three years . . . and that, of course, would all be sworn to and under oath." See Oct. 21, 2020 Tr. at 3:14-4:6, 5:13-17.

By letter dated November 11, 2020, defense counsel advised the Court as follows: "[W]e write to update the court regarding the financial statement this Court has ordered Mr. Hadden to submit in advance of deciding whether to appoint CJA counsel on his behalf. Following our last conference on October 21, 2020, Mr. Hadden sought to engage Peter B. Reynolds, a New Jersey-based CPA, for the purpose of preparing a financial statement for submission to this Court. . . . On November 4, 2020, Mr. Hadden was informed that Mr. Reynolds would not be able to provide the requested financial statement based on his unavailability and because, in his view, the applicable . . . guidelines for providing a financial report was beyond his capability. Mr. Hadden then sought to engage Kevin J. Collins, another New Jersey-based CPA. This too resulted in Mr. Collins eventually declining the engagement." See Nov. 11, 2020 Def's Letter at 1. "Finally, on November 10, 2020, Mr. Hadden has engaged Mark Koenig, a third New Jersey-based accountant. Mr. Koenig has accepted the engagement and expects to have it completed within two weeks. He has requested that we provide additionalspecifics as to the nature of the report this Court wants to receive so that he can provide the most pertinent information for this Court's review." Id. At a November 12, 2020 conference with the Court, Ms. Kirshner stated: "[S]ince the information that the court is seeking is much broader than the information that's being sought by the standard CJA form, that's going to take a little more time." See Nov. 12, 2020 Tr. at 7:20-25, 8:1-17.

By email dated December 4, 2020, Mr. Gosnell provided the Court with "Robert Hadden's financial statement[s] in support of his application to have CJA counsel or Federal Defenders appointed to represent him in these matters" ("Financial Statements"). The Financial Statements were prepared by Mark Koenig, CPA/ABV, CVA and include, among other things, a Net Worth Statement, dated December 3, 2020 ("Net Worth Statement"); a Monthly Cash Flow Statement, dated December 3, 2020 ("Monthly Cash Flow Statement"); and supporting exhibits. The Financial Statements include this qualification by CPA Koenig: "We have not verified the accuracy or completeness of the information provided nor can we express an opinion, or conclusion nor provide any assurance on the [Financial Statements]." See Dec. 3, 2020 Ltr. from Mark Koenig.

In his December 4, 2020 email, Mr. Gosnell also asked that the Financial Statements be sealed: "As all of these documents include Mr. Hadden's private financial information, none of which has been redacted, we respectfully request that these documents be filed under seal, if they are filed at all." The Court is not in favor of this sealing application because the documents are both useful and relevant to the judicial process and the application for appointed counsel as well as the related financial issues have been openly aired and discussed in court on several occasions. "In this Circuit, a document filed with the court is a judicial document subject to the presumptive right of access if it is 'relevant to the performance of the judicial function and useful in the judicial process.'" United States v. HSBC Bank USA, N.A., 863 F.3d 125, 133 (2d Cir. 2017). "The common-law right of access to judicial proceedingsand documents creates a presumption in favor of public access to, and against sealing of, judicial documents." United States v. Sattar, 471 F.Supp.2d 380, 384 (S.D.N.Y. 2006).²

Bail Hearing: Million Dollar Bond

Hadden was, as noted, represented by attorneys Kirshner and Gosnell at the bail hearing on September 9, 2020 before Magistrate Judge Robert W. Lehrburger. At that hearing, the following exchange took place: AUSA Comey: "[Hadden] has the means to flee. He recently received several hundred thousand dollars from life insurance policies over the last year, and his bank records reflect that he has transferred thousands of dollars, including the transfer of $100,000 to his daughter within the last year." Sept. 9, 2020 Tr. at 16:4-14. Ms. Kirshner: "While the government has indicated he has the means to flee, I know and I assume they know that they spoke with Mr. Hadden's daughter today, and they learned that the monies that were transferred to her [$100,000] was to assist her in purchasing her first home. They also know, because . . . Mr. Hadden said it . . . essentially what he has in terms of assets is about $174 in cash and a home, and that's what he's got." Id. at 21:19-22:3. Magistrate Judge Lehrburger: "[I]n regard to the amount of the bond based on the resources that have been disclosed or talked about . . . I'm just looking at his financial information in the Pretrial Report, I just want to check that. All right, yes, so I think a million dollars is appropriate, it must be secured by pledging the home, whatever equity is in there, and it must be cosigned by three financially responsible persons." Id. at 39:23-40:8.

II. Legal Standard

An "accused defendant [] retains a presumption of innocence throughout the trial process." Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 162 (2000). "Thepresumption of innocence [] attaches to every criminal defendant." Herrera v. Collins, 506 U.S. 390, 399 (1993).

Pursuant to the Criminal Justice Act of 1964, 18 U.S.C. § 3006A(b) ("CJA"), "whenever a defendant charged with a felony . . . appears without counsel . . . 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 . . . [I]f satisfied after appropriate inquiry that the person is financially unable to obtain counsel, [the Court] shall appoint counsel to represent him." United States v. Barton, 712 F.3d 111, 117 (2d Cir. 2013) (quoting 18 U.S.C. § 3006A(b)). Pursuant to 18 U.S.C. § 3006A(c), "if at any stage of the proceedings . . . the court finds that the person is financially unable to pay counsel whom he had retained, it may appoint counsel . . . as the interests of justice may dictate." United States v. Parker, 439 F.3d 81, 91 (2d Cir. 2006) (quoting 18 U.S.C. § 3006A(c)). "The CJA Guidelines . . . indicate that the standard applies to a defendant whose net financial resources and income are insufficient to enable him to obtain qualified counsel." Id.

"CJA funds are a necessarily limited resource" and courts must be "cognizant of the public's strong interest in how its funds are being spent in the administration of criminal justice." Id.

"[B]efore appointing counsel, a judge must first conduct an appropriate inquiry into the defendant's financial eligibility.'" Barton, 712 F.3d at 117. "[T]he defendant seeking appointment of counsel must 'prove by a preponderance of the evidence that he is financially unable to afford counsel.'" United States v. Hilsen, 2004 WL 2284388, at *3 (S.D.N.Y. Oct. 12, 2004) (citing Harris, 707 F.2d. at 660). "The Court has considerable discretion in inquiring into the defendant's finances in determining eligibility for appointed counsel." United States v. Hyde, 208 F.Supp.2d 1052, 1054 (N.D. Cal. 2002). "[A] defendant's claim of inability to afford counsel can be rebutted 'by inference and circumstantial evidence.'" Parker, 439 F.3d at 95.

"Documents to which the public has a qualified right of access may be sealed only if 'specific, on the record findings are made demonstrating that closure is essential to preserve higher...