United States v. Jenkins

• Decision Date: 17 September 2015
• Docket Number: No. 14–CR–0088 EAW.,14–CR–0088 EAW.
• Citation: 130 F.Supp.3d 700
• Parties: UNITED STATES of America, v. Joseph JENKINS, Defendant.
• Court: U.S. District Court — Northern District of New York

130 F.Supp.3d 700

UNITED STATES of America,

v.Joseph JENKINS, Defendant.

No. 14–CR–0088 EAW.

United States District Court, N.D. New York.

Signed Sept. 17, 2015.

Tamara Thomson, Office of United States Attorney, Syracuse, NY, for United States of America.

Joseph Jenkins, Owego, NY, Randi Juda Bianco, Office of the Federal Public Defender, Syracuse, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD^* , District Judge.

INTRODUCTION

Pro se defendant Joseph Jenkins ("Defendant") seeks appointment of counsel to assist with his sentencing in the above matter, or alternatively he requests that sentencing be indefinitely suspended until he exhausts his legal remedies in other civil and criminal matters. For the reasons discussed in detail below, the Court determines that Defendant has not established that he is financially eligible for appointment of counsel, and therefore denies Defendant's request for appointment of counsel. In addition, the Court declines to continue the sentencing in this case while Defendant pursues unrelated legal remedies.

BACKGROUND

On April 1, 2015, following a three-day trial, a jury convicted Defendant of perjury in violation of 18 U.S.C. § 1621(2), for false statements contained in a Criminal Justice Act Form 23 ("CJA 23 Form"). (Dkt. 68). The CJA 23 Form had been completed in connection with Defendant's request for counsel in a prosecution against him in this Court for the transportation and possession of child pornography (Case No. 11–cr–00602–GTS–1).

The Court set a sentencing date of August 12, 2015. (Dkt. 73). In an undated letter that was received by the Court on June 25, 2015, Defendant requested that the Court appoint "an attorney (competent)" to represent him for sentencing and delay sentencing until a garnishment proceeding against Defendant was resolved. (Dkt. 76). The Court set a hearing for July 24, 2015, to address Defendant's requests. (Dkt. 77).

On July 22, 2015, Defendant reported through his stand-by counsel, Randi Bianco, Assistant Federal Public Defender, that he was medically unable to go forward with the hearing scheduled for July 24, 2015. (Dkt. 80). As a result, the Court adjourned without date the sentencing and rescheduled the hearing concerning appointment of counsel to August 12, 2015. (Id. ).

On August 12, 2015, the Court discussed at length Defendant's request for counsel and his financial eligibility, and conducted an in camera hearing outside the presence of the Government to discuss these issues.¹ Defendant explained that he is seeking assigned counsel from the Court for sentencing but will not complete a CJA 23 Form based on Fifth Amendment concerns. In addition, Defendant indicated that he would refuse the appointment of counsel from the panel of attorneys maintained by the Court pursuant to the Criminal Justice Act of 1964, and he similarly told the Court that he would not accept appointment of his current standby counsel, Ms. Bianco.² Instead, Defendant wishes to be represented by an attorney of his choosing located in New York City, who is apparently handling Defendant's appeal of his convictions for transportation and possession of child pornography.

Defendant also contended that he cannot afford to retain counsel because his assets are currently subject to a garnishment proceeding, thus alternatively requesting that the sentencing be delayed pending the resolution of the garnishment proceeding. Specifically, the Government applied for a writ of garnishment under 28 U.S.C. § 3205(b)(1), against Defendant's assets at Ameriprise Financial Services, Inc. ("Ameriprise"), to satisfy the balance due of $52,200.00 owed on the criminal judgment entered in connection with the child pornography convictions (Case No. 15–cv–0018–GTS–TWD). On February 12, 2015, Ameriprise produced documentation noting that Defendant had two accounts—an Ameriprise Brokerage account and an Ameriprise One account—with a total value of $57,000.76, which would satisfy Defendant's debt. (See Case No. 15–cv–00018–GTS–TWD, Dkt. 8).³ Defendant objected to the writ of garnishment, and on June 4, 2015, United States Magistrate Judge Dancks issued a Report and Recommendation that Defendant's objections be overruled. (Case No. 15–cv–00018–GTS–TWD, Dkt. 13). On August 25, 2015, United States District Judge Suddaby accepted and adopted the Report and Recommendation in its entirety. (See Case No. 15–cv–00018–GTS–TWD, Dkt. 15). Defendant has subsequently filed a notice of appeal seeking review of that decision. (Case No. 15–cv–0018–GTS–TWD, Dkt. 18).

Although two of Defendant's accounts held with Ameriprise are restrained by the garnishment proceeding, Defendant holds two other accounts with Ameriprise that are not subject to the garnishment proceeding, including a RiverSource Life of NY Annuity ("RiverSource Account") that had an account value of $94,383.26 as of March 19, 2015, and a SEP–IRA account that had an account value of $3,608.28 as of March 19, 2015.⁴ In addition, Mary Halvorson, a representative of Ameriprise, testified at Defendant's jury trial concerning the account values held at Ameriprise, including the RiverSource Account. According to Ms. Halvorson, the "Value If Surrendered" amount in the account statements (admitted at trial as Government Exhibits 6A and 6B) refers to the moneys that Defendant would receive if he cashed out the RiverSource Account. Thus, for example, according to Ms. Halvorson, as reflected at Bates page 140 of Government Exhibit 6A, the total value of the RiverSource Account as of December 30, 2011, was $92,121.83, but there would be a $3,937.55 charge if that account was surrendered, so that the amount that Defendant would actually receive if he cashed out the account as of December 30, 2011, was $88,184.28. In other words, the fees or penalties that Ameriprise would charge Mr. Jenkins for cashing out the RiverSource Account appear to be relatively minimal.⁵

Defendant does not dispute the existence of these accounts with Ameriprise, but argues that he should not have to utilize the money contained in these accounts because he would have to pay taxes and penalties to withdraw the money. Defendant has refused to provide additional information concerning these accounts or sign releases authorizing the disclosure of financial information about these accounts from Ameriprise.

On August 12, 2015, the Court reserved decision on Defendant's request for counsel, allowing both parties an opportunity to make further submissions regarding the issue. Thereafter, Defendant filed a letter requesting that this proceeding be stayed pending his appeal of the child pornography convictions. (Dkt. 81). The Government filed a response in opposition on August 26, 2015. (Dkt. 83).

DISCUSSION

I. APPOINTMENT OF COUNSEL

Defendant has a Sixth Amendment right to counsel at the sentencing stage of this proceeding. "[S]entencing is a critical stage of the criminal proceeding at which [the defendant] is entitled to the effective assistance of counsel." Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) ; see United States v. Tribote, 297 F.2d 598, 602 (2d Cir.1961) (district court erred when defendant was sentenced without the presence of counsel and defendant was not advised of his right to counsel or possibility of assignment of counsel); Perez v. Greiner, No. 01 CIV. 5522(AKH), 2002 WL 31132872, at *7 (S.D.N.Y. Sept. 25, 2002) ("The Sixth Amendment guarantees criminal defendants the right to representation by a competent attorney, a right that continues through every stage of a criminal proceeding, even after a defendant is convicted and before he is sentenced.").

Defendant claims that he is unable to pay for an attorney and requests assignment of counsel for his sentencing proceeding. The Criminal Justice Act permits district courts to appoint publicly financed counsel for "any person financially unable to obtain adequate representation." 18 U.S.C. § 3006A(a). "This standard means something less than indigency or destitution." United States v. Harris, 707 F.2d 653, 660 (2d Cir.1983).

" ‘In many cases, the court's inquiry may properly be limited to review of financial information supplied on the standard form financial affidavit.’ " United States v. Parker, 439 F.3d 81, 93 (2d Cir.2006) (quoting United States v. Gravatt, 868 F.2d 585, 589 (3d Cir.1989) ). However, "conditioning the assignment of court-appointed attorneys on the execution of financial affidavits has been found to be improper." United States v. Auen, 846 F.2d 872, 879 (2d Cir.1988). The CJA 23 Form "is not a required statutory form. It is an administrative tool used to assist the court in appointing counsel." United States v. Moore, 671 F.2d 139, 141 (5th Cir.1982) ("The defendant was prejudiced in the prior trial by the mere fact that the district court refused to appoint counsel without making adequate inquiry into the need to appoint counsel, since the court improperly demanded that the defendant fill out a CJA Form 23 before the court would further consider the appointment of counsel."). "When, as here, a defendant asserts a colorable claim that disclosure to the government of a completed CJA 23 would be self-incriminating, the court may not adopt an unconditional requirement that the defendant complete the CJA 23 before his application for appointment of counsel will be considered." Gravatt, 868 F.2d at 589.

In the present case, in light of the nature of the underlying conviction for perjury based upon Defendant's falsification of his assets and financial information on the CJA 23 Form, the Court agreed with Defendant that he should not be required to complete a financial affidavit in connection with his request for counsel at sentencing. Instead, the Court held an in camera hearing to permit Defendant to disclose his financial circumstances without completing a CJA 23 Form. Yet, other than claiming in a conclusory fashion that he lacks assets and he does not want to withdraw funds from the...