United States v. Leslie Burk & Treble Clef Techs. LLC
| Decision Date | 18 June 2014 |
| Docket Number | EP-14-CR-240-DCG |
| Court | U.S. District Court — Western District of Texas |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. LESLIE BURK and TREBLE CLEF TECHNOLOGIES LLC, Defendants. |
On this day, the Court considered Plaintiff United States of America's ("Government" or "United States") "Motion to Reconsider Appointment of Publicly Funded Counsel for Defendant Leslie Burk, Vacate Appointment of Publicly Funded Counsel for Defendant Treble Clef Technologies, LLC, or in the Alternative to Inquire into Joint Representation" ("Motion for Reconsideration") (ECF No. 36), filed April 7, 2014. After due consideration, the Court enters the following order.
On February 12, 2013, a grand jury sitting in the Western District of Texas, El Paso Division, handed down a one-count wire fraud indictment against Defendants Leslie Burk ("Burk") and Treble Clef Technologies, LLC ("TCT"). See Indictment, ECF No. 1.
On February 25, 2014, Burk was arrested and filled out a Criminal Justice Act ("CJA") Financial Affidavit indicating he was unable to afford counsel. See CJA Affidavit, ECF No. 19.
On February 26, 2014, Burk appeared before the Honorable United States Magistrate Judge Miguel A. Torres who appointed the Federal Public Defender's Office to represent Burk in this matter. See Order Appointing Burk FPD, ECF No. 15. Also on February 26, 2014, Assistant Federal Public Defendant Edgar Holguin, entered a Notice of Attorney Appearance for Burk. See Notice of Attorney Appearance, ECF No. 18.
On March 4, 2014, TCT, through Burk, appeared before the Honorable United States Magistrate Judge Norbert J. Garney, who also appointed Assistant Federal Public Defender Edgar Holguin to represent TCT in this matter. See Order Appointing TCT FPD, ECF No. 26.
On April 7, 2014, United States filed the presently considered Motion for Reconsideration. Therein, the Government requests that the Court vacate both the February 24, 2014, order appointing publicly funded counsel to Defendant Burk and the March 4, 2014, order appointing publicly funded counsel to Defendant TCT. See Pl.'s Mot. for Recons. 1.
Federal Rule of Criminal Procedure 59 provides that a Fed. R. Crim. P. 59. The appointment of publicly-funded counsel is a non-dispositive matter. As such, the Court will vacate an order appointing counsel only upon a finding that it is "contrary to law or clearly erroneous." Id.
Plaintiff seeks reconsideration of both: (I) a March 4, 2014, order appointing publicly funded counsel to Defendant TCT, and (II) a February 24, 2014, order appointing publiclyfunded counsel to Defendant Burk. Plaintiff's objections to each order are addressed individually below.
Plaintiff, first, objects to a March 4, 2014 order, rendered by United States Magistrate Judge Norbert J. Garney, appointing publicly funded counsel to represent Defendant TCT. The order provides, in relevant part, that "the Federal Public Defender of this District is hereby appointed, pursuant to the Criminal Justice Act, to represent . . . Defendant [TCT] in this case." Order Appointing TCT FPD 1. Plaintiff requests that the Court vacate the order because the Criminal Justice Act permits the appointment of publicly funded counsel only to natural "persons . . . [and] makes no mention of corporations, LLCs, or other business organizations." Pl.'s Mot. for Recons. 4-5. Defendant TCT disagrees, arguing that the use of the term "person" in the Criminal Justice Act is intended to refer to both natural persons and corporations and it is, therefore, entitled to the appointment of counsel to assist in its defense. See Defs.' Resp. 3.
As correctly noted by Defendant, the applicability of the Criminal Justice Act to a corporate defendant is an issue of first impression in the Fifth Circuit. Id. However, the Court notes that every other court to address the issue has concluded that corporations are not entitled to the appointment of publicly funded counsel pursuant to the Criminal Justice Act. See United States v. JB Tax Prof'l Servs., Inc., Crim. A. No. 13-CR-127, 2013 WL 6004047, at *1 (E.D. La. Nov. 13, 2013) ().1
Notwithstanding this general consensus, upon an independent analysis of the matter, the Court notes that three sources of authority arguably authorize the appointment of publicly funded counsel to represent a corporate defendant: (A) the Sixth Amendment's constitutional guarantee to effective assistance of counsel, (B) the statutory authority to appoint publicly-funded counsel contained in the Criminal Justice Act, 18 U.S.C. 3006A, et seq.; and (C) the Court's inherent authority to ensure the fair and efficient administration of justice. Each of these grants of authority is individually addressed below.
The Sixth Amendment to the United States Constitution provides as follows:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
U.S. Const. amend. VI (emphasis added). At issue is the extent to which the Sixth Amendment's guarantee — that '"the accused shall enjoy the right . . . to have the Assistance of Counsel for hisdefence'"— applies to a corporate defendant. Texas v. Cobb, 532 U.S. 162, 166 (2001) ). While the "amendment describes the class of persons protected by its terms with the word 'accused[,' t]his language does not suggest that the protection of [S]ixth [A]mendment rights is restricted to individual defendants." United States v. Rad-O-Lite of Phila., Inc., 612 F.2d 740, 743 (3d Cir. 1979). A corporation, like an individual, may stand accused of a crime and Id. at 743 (citing Powell v. Alabama, 287 U.S. 45, 68-69 (1932)). As such, it is generally understood that "the [Sixth Amendment's] guarantee of effective assistance of counsel applies to corporate defendants" as well as individuals. Id.; see also Unimex, 991 F.2d at 549 ().2 A corporation's "right to counsel [,however,] does not precisely mirror . . . [an] individual's right to counsel." Rocky Mountain Corp., 746 F. Supp. 2d at 800. A Id. (emphasis added). Consequently, "a corporation's Sixth Amendment right to counsel distills to two components: (1) its right to choose counsel it can afford, and (2) . . . the proscription of governmental interference or the application of rules that degrade counsel's effectiveness inways the Constitution would not tolerate if an individual were charged with an offense." Id. at 799-800.
The reason for this asymmetry between a corporate and an individual right to counsel can be traced back to the purposes and justifications that initially motivated the recognition of a right to court-appointment of counsel. The United States Supreme Court first recognized a categorical right to the appointment of counsel3 in its 1938 Johnson v. Zerbst decision which construed the Sixth Amendment's guarantee that '"the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence' . . . to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived." Gideon v. Wainwright, 372 U.S. 335, 339-40 (1963) ). Specifically, in Zerbst, the Court explained that: "The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel." Zerbst, 304 U.S. at 463 (emphasis added). Thus, the Court went on to explain, "the humane policy of the modern criminal law . . . provides that a defendant . . . if he be poor . . . may have counsel furnished him by the state." Id. Three decades later, in Gideon v. Wainwright, the Court held that the right to counsel recognized in Zerbst was fundamental and, therefore, incorporated by the Fourteenth Amendment's due process clause against the states. See Gideon, 372 U.S. at 335.
Based upon the holdings in Zerbst and Gideon, whether a defendant faced the potential for a loss of his "life or liberty" upon conviction in a criminal proceeding became the 'dividingline' to assess whether he is entitled to court-appointed counsel pursuant to the Sixth Amendment. See Lassiter v. Dep't of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 25 (1981) (...
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