UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Transcription

1 2:10-cr DML-MAR Doc # 335 Filed 05/31/13 Pg 1 of 8 Pg ID 6782 UNITED STATES OF AMERICA, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION v. Plaintiff, BOBBY W. FERGUSON, Case No Hon. David M. Lawson Defendant. / DEFENDANT S BRIEF REGARDING THE COURT S AUTHORITY TO APPOINT COUNSEL IN THE ABSENCE OF A CJA FORM 23 I. Introduction Defendant Bobby Ferguson is financially unable to retain private criminal defense counsel to represent him in this matter. But due to legitimate concerns about his Fifth Amendment right against self-incrimination, as well as his exposure to additional charges, he has refused to complete the detailed Financial Affidavit that typically accompanies a request for appointed counsel. The Court has therefore ordered the Federal Defender Office to file a brief regarding whether the Court has the authority to depart from the Criminal Justice Act to appoint counsel. As explained below, the Criminal Justice Act does not require the completion of a financial affidavit or the disclosure of particular or detailed financial information. So long as the Court is satisfied after appropriate inquiry that Mr. Ferguson is financially unable

2 2:10-cr DML-MAR Doc # 335 Filed 05/31/13 Pg 2 of 8 Pg ID 6783 to obtain counsel, the Court shall appoint counsel to represent him. 18 U.S.C. 3006A(b). After two lengthy high-profile trials and the Government s seizure of his assets, Mr. Ferguson no longer has the financial means to retain private defense counsel. Under the Criminal Justice Act, this representation is legally sufficient to demonstrate that Mr. Ferguson is financially unable to retain counsel, and the Court need not depart from the Criminal Justice Act in order to appoint counsel. Furthermore, in the event of a change in Mr. Ferguson s financial circumstances, the Court retains the statutory authority to order the repayment of attorney fees pursuant to 18 U.S.C. 3006A(f). II. Background On March 26, 2013, this Court issued an Order permitting Mr. Ferguson s retained criminal defense attorney, Gerald K. Evelyn, to withdraw in this matter. (R. 312.) On April 23, 2013, the Court convened a status conference concerning future representation, at which Mr. Ferguson accepted the Court s offer to explore the possibility of court-appointed counsel. (R. 333 at 9-10.) Further demonstrating the need for appointed counsel, attorney David Steingold, counsel for Ferguson Enterprises, Inc., requested leave to withdraw on the basis of financial hardship, explaining that Mr. Ferguson is not in a position, as I understand it, to pay me. (R. 333 at 14.) A request for appointed counsel is typically accompanied by a Financial Affidavit called a CJA Form 23, which requires detailed disclosures concerning assets such as income, 2

3 2:10-cr DML-MAR Doc # 335 Filed 05/31/13 Pg 3 of 8 Pg ID 6784 cash, and property, as well as obligations and debts. But Mr. Ferguson told the Court that he did not wish to complete such a detailed affidavit given the risk that any detailed financial disclosures could violate his Fifth Amendment right against self incrimination and/or expose him to additional criminal charges. (See Case No , R. 295 at 4 (stating the Government s belief that Mr. Ferguson has access to over $83 million in revenues gained from... extortionist conduct ).) In light of Mr. Ferguson s position, the Court appointed the Federal Defender Office for the limited purpose of advising Mr. Ferguson regarding the obligations and risks associated with a request for court-appointed counsel. At a hearing on May 20, 2013 before Magistrate Judge Mark A. Randon, undersigned counsel reiterated that Mr. Ferguson would not sign a detailed financial affidavit. Judge Randon then issued an Order Denying Appointed Counsel on the ground that he has failed to complete[] the financial affidavit or disclose[] his finances under oath in open court. (R. 332.) Notwithstanding the absence of a formal financial affidavit, the record amply demonstrates Mr. Ferguson s financial inability to retain private counsel in this matter. As the Court is aware, Mr. Ferguson has already retained several of this city s most prominent attorneys to represent him through two lengthy and high-profile trials. The Government has seized $2.2 million in cash and liquid assets. (Case No , R. 295 at 4.) Mr. Ferguson has stipulated to the forfeiture of nearly a half-million dollars in cash and property. (Case No , R. 279.) Simply put, he no longer has the resources to pay private 3

4 2:10-cr DML-MAR Doc # 335 Filed 05/31/13 Pg 4 of 8 Pg ID 6785 criminal defense counsel. At a May 23, 2013 status conference, the Court asked the Federal Defender Office to file a Brief explaining the Court s authority to appoint counsel in the absence of a detailed financial affidavit. III. Argument The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence. U.S. Const. amend. VI. Where a defendant is unable to employ counsel for financial reasons, the Government must appoint counsel on his behalf. Gideon v. Wainwright, 372 U.S. 335, 340 (1963). In federal court, this guarantee is codified in the Criminal Justice Act, which provides in part that the Court must advise a criminal defendant that counsel will be appointed to represent him if he is financially unable to obtain counsel. 18 U.S.C. 3006A(b). If the Court is satisfied after appropriate inquiry that the person is financially unable to obtain counsel, it shall appoint counsel to represent him. Id. The CJA Plan for this District uses identical language. E.D. Mich. CJA Plan at 8. And while the CJA Plan expresses a preference for the use of the CJA Form 23, it recognizes that a defendant may establish financial inability either (a) by affidavit... or (b) under oath in open court, id., and there is precedent for relaxing this formal requirement where 4

5 2:10-cr DML-MAR Doc # 335 Filed 05/31/13 Pg 5 of 8 Pg ID 6786 appropriate. See, e.g., United States v. Herrington, E.D. Mich. Case No Thus, under the Criminal Justice Act, a defendant seeking appointed counsel need not complete a detailed CJA Form 23 or provide any specific financial information under oath. CJA Form 23 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). Nor must a defendant provide detailed financial information, or even prove that he is indigent. Congress was careful... to avoid the use of the term indigent in setting the standard under which counsel must be appointed for financial reasons.... Id. In his Order Denying Appointed Counsel, Magistrate Judge Randon appears to have been under the mistaken impression that a defendant must fill out a particular affidavit, or make a particular declaration under oath, in order to establish financial inability. He relied primarily on United States v. Krzyske, 836 F.2d 1013 (6th Cir. 1988), which involved a tax evasion prosecution in which the defendant initially waive[d] his right to counsel, id. at 1017, by insisting that he would not be as well represented by an attorney as by his friends because lawyers were not as familiar with his tax protest views.... Id. at At the beginning of trial, however, he had a change of heart, telling the court that if he could not be assisted by a nonlawyer, he would consider accepting the help of a court-appointed attorney. Id. at But he refused to fill out the indigency affidavit out of a fear that 1 In Herrington, counsel was appointed in spite of the defendant s refusal to make any statements concerning his financial inability. 5

6 2:10-cr DML-MAR Doc # 335 Filed 05/31/13 Pg 6 of 8 Pg ID 6787 he might be waiving [his] right to privacy unless he was allowed to do so in the absence of the Government s participation. Id. In light of his refusal, the district court declined to appoint counsel. Id. On appeal, the defendant argued that it was error for the district court to allow him to go to trial without assistance of counsel. Id. at The Sixth Circuit rejected the argument. Although the court acknowledged authority to the contrary, it adopted the following rule from a Tenth Circuit decision: The burden is on the defendant to demonstrate financial ability in order to obtain counsel.... [A] defendant should not be relieved of this burden when any conflict with the Fifth Amendment right is speculative and prospective only. The time for protection will come when, if ever, the government attempts to use the information against the defendant at trial. Id. at 1019 (quoting United States v. Peister, 631 F.2d 658, 662 (10th Cir. 1980)). Although it appears at first glance to be similar to the instant case, Krzyske is materially distinguishable. There, because the defendant did nothing to satisfy his burden of establishing financial inability, the Sixth Circuit found that it was not error for the district court to decline to appoint counsel. Id. at Here, by contrast, Mr. Ferguson has informed the Court of his financial inability to retain private defense counsel, and the record fully supports his position. To be sure, the Court may, in its discretion, require the disclosure of [additional] information, United States v. Aguirre, 605 F.3d 351, 358 (6th Cir. 2010), or permit the Government to rebut Mr. Ferguson s statement in an adversarial proceeding, see United 6

7 2:10-cr DML-MAR Doc # 335 Filed 05/31/13 Pg 7 of 8 Pg ID 6788 States v. Harris, 707 F.2d 653, 663 (2d Cir. 1983), or deny appointed counsel if it is not satisfied of Mr. Ferguson s financial inability, Krzyske, 836 F.2d at But Mr. Ferguson has met his formal obligations under the Criminal Justice Act to establish his financial inability to retain counsel. Any doubts about a defendant s financial inability should be resolved in his favor, since an erroneous determination[] of eligibility may be corrected at a later time. 7 Administrative Office of the United States Court, Guide to Judiciary Policies and Procedures In particular, the Court retains the statutory authority to order Mr. Ferguson to reimburse the Court for any public money spent on his representation. 18 U.S.C. 3006A(f). 7

8 2:10-cr DML-MAR Doc # 335 Filed 05/31/13 Pg 8 of 8 Pg ID 6789 IV. Conclusion For the reasons discussed above, and based on Defendant Bobby Ferguson s financial inability to retain a private attorney to represent him in this matter, the Court should appoint counsel under the Criminal Justice Act. Dated: May 31, 2013 Respectfully Submitted, FEDERAL DEFENDER OFFICE Legal Aid and Defender Assn., Inc. s/ Bradley R. Hall, P68924 s/ Miriam L. Siefer Counsel for Defendant 613 Abbott St., Fifth Floor Detroit, MI Telephone: (313) Bradley_Hall@fd.org CERTIFICATE OF SERVICE Counsel certifies that on the above date, the foregoing paper was filed with the clerk of the Court using the ECF system, which will send notification to opposing counsel. 8