US v. Browns

2007 DNH 053

• Court: District Court, D. New Hampshire
• Decided: April 18, 2007
• Docket: 06-CR-071-SM
• Status: Published

Opinion

US v . Browns 06-CR-071-SM 04/18/07 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America, Government

v. Criminal N o . 06-cr-71-1,2-SM Opinion N o . 2007 DNH 053 Elaine A . Brown and Edward L . Brown, Defendants

O R D E R

Defendants have each filed nearly identical motions for

transcripts of all trial proceedings, at government expense. The

import of defendants’ motions is that they seek free trial

transcripts for use at their sentencing hearing, on grounds that

they are financially unable to pay for them, and so qualify for

assistance under the Criminal Justice Act (“CJA”). 18 U.S.C §

3006A.

In support of her motion, Defendant Elaine Brown has filed a

financial declaration, executed under penalties of perjury on

March 5 , 2007, approximately one month before the motion was

filed. That declaration is facially incomplete in that it does

not disclose defendant’s beneficial interest in a trust or trusts

that hold title to real estate currently used by defendant as her personal residence, and commercial real estate that once housed

her dental practice. Evidence presented at trial established

defendant’s interest in each property through trusts, and she has

joined with her husband in publically placing a value on the

commercial building at one million dollars (in connection with an

Internet offer they made to give the commercial building to

anyone who could persuade them that their income is subject to

taxation under federal income tax laws). The affidavit also

omits any reference to vehicles, tractors, equipment, or other

items of value defendants appear to own — again, based on

evidence presented at trial, information contained in the record,

and information that defendants have publically disclosed.

Defendant Edward L . Brown has not filed a financial

declaration in support of his motion; he merely appends his

wife’s declaration, noting in passing that it “is [the] same as

his.”

Transcripts at government expense are available to persons

charged with federal crimes who are financially unable to obtain

adequate representation. See 18 U.S.C. § 3006A(d) (authorizing

reimbursement for expenses reasonably incurred, including

transcripts authorized by the court in CJA cases); see also 28

2 U.S.C. § 753(f). Before approving such requests, however, the

court is required to conduct an “appropriate inquiry” into the

financial status of defendants. 18 U.S.C. § 3006A(b). The

defendants bear the burden of proving financial inability.

United States v . Harris, 707 F.2d 653, 660 (2d Cir. 1983) (citing

cases).

Defendants have not come close to meeting that burden in

this case. The inquiry into financial eligibility is a broad

one, and a necessary first step in determining the facts is full

and complete disclosure by defendants of their financial

resources, which they have not done. See United States v .

Anderson, 537 F.2d 839, 840 (8th Cir. 1977). This district’s

Plan for the Adequate Representation of Defendants Pursuant to

the Criminal Justice Act (CJA) provides, at Section IV(D)(1),

that “[i]n determining whether the defendant is financially

unable to obtain counsel [or transcripts], the court shall act

only upon statements made by the defendant either (a) under oath

in open court, or (b) by sworn affidavit. The personal

appearance of the defendant is not required.”

Elaine Brown’s affidavit is insufficient in that regard

because she has not accounted for potentially valuable assets

3 that could materially affect her eligibility for CJA funds —

either fully or partially. She does not deny ownership interests

in the identified real estate through a trust. Instead, she

simply left the relevant spaces on the declaration form blank.

Defendant Edward Brown has not filed a financial declaration at

all. To the extent he seeks to rely upon his spouse’s

declaration, his declaration is insufficient for the same

reasons. His is also deficient because Elaine Brown’s disclosure

is not necessarily descriptive of his assets.

The motions are denied as insufficiently supported, but

without prejudice to refiling. Defendants are advised that they

may file renewed motions for transcripts at government expense,

supported by affidavits and other materials, and may (but of

course are not required to) file them ex parte, for in camera

review by the court. And they are entitled to move for an ex

parte hearing with respect to their financial eligibility for CJA

funds. Ex parte motions and in camera inspection of supporting

materials is the usual manner in which requests for services

under the CJA are considered. That procedure avoids disclosure

of potentially privileged information and/or litigation strategy

to the prosecution. But, to be successful, defendants’ renewed

4 motions must be adequately supported and demonstrate actual

financial inability to pay for the requested transcripts.

Finally, while free trial transcripts are generally provided

as a matter of routine to CJA-eligible defendants who appeal

convictions, trial transcripts are not usually necessary for

sentencing purposes. The court is familiar with the evidence

presented at trial and defendants need only make reference to

that evidence, or other trial-related factors they think

pertinent to sentencing issues. But, if defendants still believe

a trial transcript is particularly necessary for sentencing in

this case, they must explain why a transcript, or a specific part

of a transcript, is necessary for sentencing (again, they may

file pleadings ex parte, for in camera review, to avoid premature

disclosure of their contemplated sentencing arguments to the

prosecution).1

Conclusion

The motions are denied, but without prejudice to refiling,

supported by complete and reliable financial affidavits that

1 Given defendants’ fugitive status and that they have publically suggested their intentions not to appear in court for sentencing, as required, the request for a free transcript for use during the sentencing hearing is puzzling.

5 fully disclose all assets held by, or available t o , defendants,

including cash, deposits, stocks, bonds, real estate, trusts,

beneficial interests in property, inheritances, vehicles,

equipment, and other tangible and intangible property of

significant or substantial value, as well as any liabilities that

ought to be considered, such as debts, liens, encumbrances,

mortgages, judgments, etc.

SO ORDERED.

Steven J. __ McAuliffe Chief Judge

April 18, 2007

cc: Robert J. Rabuck, Esq. William E. Morse, Esq. Glenn A. Perlow, Esq. Elaine A. Brown, pro se Edward L. Brown, pro se U.S. Marshal U.S. Probation