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UNITED STATES v. HICKEY

February 26, 1998

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN HICKEY and MAMIE TANG, Defendants.



The opinion of the court was delivered by: MARIA ELENA JAMES

 INTRODUCTION

 On July 16, 1997, the government filed an indictment charging Defendant Hickey and Defendant Tang ("Defendants") with securities fraud, mail fraud, and wire fraud. In October 1996, Defendants sought court appointed counsel under the Criminal Justice Act, 21 U.S.C. ┬ž 3006A(b). After reviewing the Defendants' completed CJA 23 financial affidavits, Magistrate Judge Joan S. Brennan appointed counsel for Defendants. At Defendants request, Judge Brennan then sealed the financial affidavits.

 On September 11, 1997, the government filed a motion to unseal the financial affidavits and a motion to show cause why counsel should not be terminated. Defendants oppose the government's motions based on their Fifth Amendment right against self-incrimination. Defendants claim that the information contained in the affidavits is privileged and may be incriminatory.

 After careful consideration of the parties' papers and all other matters submitted, the Court hereby denies the government's motion to unseal the financial affidavits and hereby grants the order to show cause why counsel should not be terminated for the reasons set forth below.

 DISCUSSION

 I. Motion to Unseal Financial Affidavits

 The Fifth Amendment privilege against self-incrimination protects the accused from being incriminated by his or her own compelled testimonial communications. Fisher v. United States, 425 U.S. 391, 409, 48 L. Ed. 2d 39, 96 S. Ct. 1569 (1976). The privilege can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. Kastigar v. United States, 406 U.S. 441, 445, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972). To claim the Fifth Amendment privilege against self incrimination the claimants must be confronted by "substantial and real," not merely "trifling or imaginary," hazards of incrimination. Marchetti v. United States, 390 U.S. 39, 53, 19 L. Ed. 2d 889, 88 S. Ct. 697 (1968); see Argomaniz v. United States, 925 F.2d 1349, 1353-54 (9th Cir. 1991) (holding that where defendant was being prosecuted for tax evasion, the hazards were substantial and real, not remote and speculative because the "production of [the financial] documents would establish two of the essential elements of the crime"); see also Seattle Times v. United States District Court, 845 F.2d 1513, 1520 (9th Cir. 1988) (holding that unsealing financial affidavits in a product tampering case would not result in real and appreciable hazards of self-incrimination).

 Relying on Seattle Times, 845 F.2d at 1518-1519, and United States v. Harris, 707 F.2d 653, 662 (2d Cir. 1983), the government argues that the Court should unseal Defendants' financial affidavits because the Fifth Amendment privilege against compelled self-incrimination does not justify sealing a defendant's financial affidavit.

 In Seattle Times, the court found that unsealing the defendant's financial affidavits would not implicate the Fifth Amendment privilege. Seattle Times, 845 F.2d at 1518-19. The court stated:

 
the district court's determination here was based on an assumption that unsealing the financial affidavits would tend to incriminate Nickell. This assumption is premature. We do not know what use, if any, the government will try to make of the information contained in the affidavits. Therefore, any fifth amendment problem is at this juncture speculative and prospective only.

 Id. at 1519.

 The Government also contends that the Court should follow the Second Circuit in Harris, 707 F.2d at 662. In Harris, the court refused to seal the defendant's financial affidavit or conduct the financial eligibility hearing ex parte. Id. The court stated that "our legal system is rooted in the idea that facts are best determined in adversary proceedings; secret, ex parte hearings are 'manifestly conceptually incompatible with our system of criminal jurisprudence.'" Id. (citations omitted).

 Defendants argue that Seattle Times is inapplicable to this case. Defendants assert that the court in Seattle Times balanced the media's First Amendment right to the information contained in the defendant's financial affidavit against the defendant's Sixth Amendment right to a fair trial. Defendants argue that what is at issue in this case is Defendants' Fifth ...


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