United States District Court, D. Maine
MEMORANDUM DECISION AND ORDER ON DEFENDANT'S
MOTION TO SEAL FINANCIAL AFFIDAVIT
H. Rich III, United States Magistrate Judge.
sex trafficking and prostitution case, defendant Derong Miao
seeks to seal her Criminal Justice Act (“CJA”)
financial affidavit. See Motion To Seal
Defendant's CJA Financial Declaration
(“Motion”) (ECF No. 55). The government opposes
sealing the affidavit. See Government's Response
to Defendant's Motion To Seal Defendant's CJA
Financial Declaration (“Opposition”) (ECF No.
58). I conclude that sealing the defendant's affidavit is
unnecessary because her concerns can be addressed by granting
use immunity, which comports with the government's
representation that it does not intend to use her affidavit
in its case-in-chief. Accordingly, I deny the Motion, but,
without objection, grant the defendant immunity from the use
of that information, except for impeachment purposes or at
indictment filed on November 30, 2018, the defendant was
charged with one count of conspiracy (Count One), two counts
of sex trafficking (Counts Two and Three), and five counts of
interstate transportation for prostitution (Counts Five
through Nine). See Indictment (ECF No. 3) at 2-11.
The government also seeks forfeiture of the defendant's
property that was either used to commit the charged conduct
or derived from it. See id. at 12-14. On December
27, 2018, the defendant filed both her financial affidavit,
see ECF No. 42, and an ex parte motion to
seal that affidavit, see ECF No. 41. During a
conference with counsel later that day, the defendant's
counsel withdrew the ex parte motion to seal, noting
that the defendant would file a new motion to seal.
See ECF Nos. 43-44. I sealed the affidavit pending
decision on the substitute motion, which was filed on January
16, 2019. See ECF Nos. 42, 55, 57.
defendant argues that the premature disclosure of the
contents of her CJA financial affidavit will violate both her
Fifth Amendment right against self-incrimination and her
Sixth Amendment right to counsel. See Motion at .
She asserts that the affidavit should remain sealed from the
government until the conclusion of the case or, in the
alternative, until such time as she chooses to testify at
trial, at which point it may be accessed by the government
for impeachment purposes only. See id. at -.
The government rejoins that the defendant has failed to
demonstrate how the disclosure of her financial affidavit
would violate her Fifth Amendment right against
self-incrimination. See Opposition at . In the
alternative, it represents that it does not intend to use her
financial declaration in its case-in-chief and will not make
use of it “other than, possibly, in support of its
motion for detention as to a risk of flight argument, and/or
in order to impeach Defendant Miao in the event she testifies
at trial.” Id.
Sixth Amendment provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the [a]ssistance of [c]ounsel for his defence.”
Gideon v. Wainwright, 372 U.S. 335, 339 (1963)
(internal quotation marks omitted). If a criminal defendant
cannot afford private counsel, the trial court must appoint
counsel to represent him, absent a knowing and explicit
waiver of the right to counsel. See id. at 340.
Criminal Justice Act of 1964, 18 U.S.C. § 3006A, sets
out the duties of the trial court regarding the appointment
of counsel. In pertinent part, the CJA provides that, in
every case in which a person entitled to representation
appears without counsel,
the United States magistrate judge or the court shall advise
the person that [she] has the right to be represented by
counsel and that counsel will be appointed to represent [her]
if [she] is financially unable to obtain counsel. Unless the
person waives representation by counsel, the United States
magistrate judge or the court, if satisfied after appropriate
inquiry that the person is financially unable to obtain
counsel, shall appoint counsel to represent [her].
18 U.S.C. § 3006A(b).
defendant and the government agree on the standard to be
applied in resolving the instant dispute, both citing
United States v. Gravatt, 868 F.2d 585 (3rd Cir.
1989), and United States v. Salemme, 985 F.Supp. 197
(D. Mass. 1997). See Motion at ; Opposition at 1.
That is a reasonable choice, and I follow suit.
recognized that, “when . . . a defendant asserts a
colorable claim that disclosure to the government of a
completed CJA [financial affidavit] would be
self-incriminating, the court may not adopt an unconditional
requirement that the defendant complete the CJA [financial
affidavit] before [her] application for appointment of
counsel will be considered[, ]” which might
“place the defendant in the constitutionally untenable
position of having to choose between [her] Sixth Amendment
right to counsel and [her] Fifth Amendment privilege against
self-incrimination.” Gravatt, 868 F.2d at 589;
see also Salemme, 985 F.Supp. at 202 (citing
reasoned that a trial court that is placed “in the
difficult position of resolving the conflict between the
constitutional rights of the defendant and the interest of
the government in limiting appointment of counsel to
financially qualified individuals . . . may properly
reconcile these competing concerns in either of two
ways”: (i) through in camera examination of
the financial affidavit, which then would be sealed and not
be made available for the purpose of prosecution, or (ii)
through an adversarial hearing on the defendant's request
for appointment of counsel, during which the court would
grant use immunity to the defendant's testimony at
hearing. Gravatt, 868 F.2d at 590; see also
Salemme, 985 F.Supp. at 202.
case, unlike in Gravatt, in which the defendant had
refused to complete a CJA financial affidavit, see
Gravatt, 868 F.2d at 588, the defendant submitted her
completed CJA financial affidavit along with her motion to
seal that affidavit, see ECF Nos. 41, 42, and I have
already reviewed the affidavit in camera. Moreover,
the government has already represented that it will not use
the defendant's CJA financial affidavit in its
case-in-chief. See Opposition at . In these
circumstances, I deny the defendant's motion to seal her
CJA financial affidavit. However, while I am skeptical that
she has made a colorable claim that any information contained
therein would be self-incriminating, I grant her use immunity
for that testimony, coextensive with that provided by the
Supreme Court in Simmons v. United States, 390 U.S.
377 (1968). As a consequence, the government may not