Order on Motion Regarding CJA Appointment — United States v. Nathan Reardon (D. Me., Dkt. 58)

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Order on Motion Regarding CJA Appointment, filed August 13, 2021 as Document 58, Case 1:21-cr-00061-LEW, United States of America v. Nathan Reardon, District of Maine. The Government moves to determine whether the Court's order appointing counsel to represent Defendant should continue (Motion, ECF No. 17). The Order states that an indictment (ECF No. 20) includes a perjury count concerning Defendant's financial affidavit, and concludes that further proceedings on his ability to retain counsel would implicate Defendant's Fifth Amendment rights and would require findings central to the perjury charge. The Court dismisses the Government's motion without prejudice and states that the issue can be revisited at the conclusion. It is signed /s/ John C. Nivison, U.S. Magistrate Judge.

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Case 1:21-cr-00061-LEW Document 58 Filed 08/13/21 Page 1 of 4               PageID #: 121




                          UNITED STATES DISTRICT COURT
                               DISTRICT OF MAINE

UNITED STATES OF AMERICA                  )
                                          )
       v.                                 )      1:21-cr-00061-LEW
                                          )
NATHAN REARDON,                           )
                                          )
              Defendant                   )

            ORDER ON MOTION REGARDING CJA APPOINTMENT

       The Government moves to determine whether the Court’s order appointing counsel

to represent Defendant should continue. (Motion, ECF No. 17.) Following a review of the

motion and after consideration of the relevant issues, the Court dismisses without prejudice

the Government’s motion.

                                       DISCUSSION

       The Government filed a criminal complaint against Defendant on April 8, 2021,

charging him with bank fraud and attempted wire fraud in connection with applications

Defendant submitted for Paycheck Protection Program loans and disbursement of

federally-funded Economic Injury Disaster Loans. (Complaint, ECF No. 1.) On April 13,

2021, Defendant requested court-appointed counsel through the filing of a financial

affidavit. Upon review of the affidavit, the Court approved Defendant’s request and

appointed counsel to represent Defendant. (Order, ECF No. 7.)

       On May 13, 2021, in an eleven-count indictment, Defendant was charged with bank

fraud, attempted bank fraud, making false statements to a bank, and perjury. (Indictment,

ECF No. 20.) The perjury count alleges that Defendant’s statements on the financial
Case 1:21-cr-00061-LEW Document 58 Filed 08/13/21 Page 2 of 4                           PageID #: 122




affidavit are inconsistent with a written statement Defendant made under penalty of perjury

on April 15, 2021, in the U.S. Bankruptcy Court for the District of Maine (Docket No.

1:21-bk-10097). (Id. ¶¶ 21-25.)

        Through its motion, the Government asks the Court, with the information provided

in the bankruptcy proceeding, to assess whether Defendant is financially able to retain

counsel. 1 Defendant contends a substantive response to the Government’s motion would

implicate his Fifth Amendment rights particularly as to the perjury charge and would

effectively shift the burden of proof on the perjury charge to Defendant. (Response at 2,

ECF No. 30.) The Government asserts that to determine whether Defendant is eligible for

court-appointed counsel, the Court need only review Defendant’s statements in the

bankruptcy matter, and thus Defendant’s Fifth Amendment rights are not implicated.

(Reply at 2, ECF No. 31.)

        “The Fifth Amendment declares in part that ‘No person … shall be compelled in

any Criminal Case to be a witness against himself.’” Hoffman v. U.S., 341 U.S. 479, 485-

86 (1951) (quoting U.S. Const. amend. V). “The privilege afforded not only extends to

answers that would in themselves support a conviction under a federal criminal statute but

likewise embraces those which would furnish a link in the chain of evidence needed to


1
  The right to counsel is guaranteed by the Sixth Amendment. U.S. Const. amend. VI; Gideon v.
Wainwright, 372 U.S. 335 (1963). This right is fundamental: “a fair trial in our adversary system of
criminal justice cannot be assured if the defendant is unrepresented.” U.S. v. Gravatt, 868 F.2d 585, 591
(3d Cir. 1989). Pursuant to the Criminal Justice Act of 1964 (CJA), 18 U.S.C. § 3006A, a district court is
authorized to appoint counsel for a defendant “if satisfied after appropriate inquiry that the person is
financially unable to obtain counsel.” 18 U.S.C. § 3006A(b). “The burden rests on the defendant to
‘establish insufficient financial means to employ counsel.’” U.S. v. Cameron, 697 F. Supp. 2d 126, 128
(D. Me. 2010) (quoting U.S. v. Foster, 867 F.2d 838, 841 (5th Cir. 1989)).


                                                    2
Case 1:21-cr-00061-LEW Document 58 Filed 08/13/21 Page 3 of 4                PageID #: 123




prosecute the claimant for a federal crime.” Id., 341 U.S. at 86. “ʻTo qualify for the Fifth

Amendment privilege, a communication must be testimonial, incriminating, and

compelled.’” U.S. v. Bokhari, 185 F. Supp. 3d 254, 264 (D. Mass. 2016) (quoting U.S. v.

Hilsen, No. 03 CR.919(RWS), 2004 WL 2284388, at *2 (S.D.N.Y. Oct. 12, 2004)).

       As part of the determination of whether Defendant is financially able to retain

counsel, the Court must assess which of Defendant’s statements regarding his financial

statement are accurate. In addition, if the Court concluded the information provided in the

bankruptcy proceeding regarding Defendant’s business income was accurate, the Court

would also have to explore the extent and validity of any business expenses Defendant

claims. The Court’s assessment would likely require an explanation by and further

information from Defendant. A directive by the Court that Defendant provide additional

financial information would have “the result of requiring a communication that is

compelled and testimonial.” Bokhari, 185 F. Supp. 3d at 264.

        “[N]umerous courts have acknowledged the tension between a defendant’s Fifth

and Sixth Amendment rights in the related context of the requirement that a defendant

disclose financial information to obtain court-appointed (CJA) counsel” in some

circumstances. Bokhari, 185 F. Supp. 3d at 265 (citing, e.g., U.S. v. Hyde, 208 F. Supp. 2d

1052, 1057 (N.D. Cal. 2002) (financial affidavit to obtain appointed counsel compelled

testimony where defendant charged with mail fraud, health care fraud and money

laundering); U.S. v. Hickey, 997 F. Supp. 1206, 1208-09 (N.D. Cal. 1998) (motion to unseal

financial affidavits denied where defendants charged with mail fraud, wire fraud and

securities fraud because of substantial risk of self-incrimination)). Given the nature of the

                                              3
Case 1:21-cr-00061-LEW Document 58 Filed 08/13/21 Page 4 of 4                 PageID #: 124




criminal charges asserted against Defendant, further proceedings to determine Defendant’s

ability to retain counsel would implicate Defendant’s Fifth Amendment rights.

       Furthermore, because Defendant is charged with perjury related to his financial

affidavit, an inquiry into Defendant’s eligibility for CJA counsel at this time would likely

require the Court to assess issues and make findings that are central to the perjury charge.

Whether Defendant’s statements in this proceeding and in the bankruptcy proceeding are

accurate should be assessed in the first instance at the trial on the perjury charge.

       The Court, therefore, will not conduct further proceedings on Defendant’s eligibility

for CJA counsel at this time. The issue, however, can be revisited at the conclusion of this

matter. As the Court in Cameron noted, “[t]he Guide to Judiciary Policy provides that

‘[a]ny doubts as to a person’s eligibility [for a CJA appointment] should be resolved in the

person’s favor; erroneous determinations of eligibility may be corrected at a later time.’”

697 F. Supp. 2d at 130 (quoting Guide to Judiciary Policy, Vol. 7, Pt. A, Ch. 2, §

210.40.30(b)).

                                        CONCLUSION

       Based on the foregoing analysis, the Court dismisses without prejudice the

Government’s motion regarding the CJA appointment.

                                          NOTICE

      Any objections to this Order shall be filed in accordance with Federal Rule of
Criminal Procedure 59.

                                                   /s/ John C. Nivison
                                                   U.S. Magistrate Judge
Dated this 13th day of August, 2021.


                                              4


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