USA v. REARDON

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
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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)).
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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
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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)).
C ONCLUSION
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.
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