A recent decision from the Fourth Circuit Court of Appeals is a reminder of both the strength of federal forfeiture laws and the limits on the right to appellate counsel. On a practical level, it illustrates the danger of assuming that assets that might be subject to postconviction forfeiture will be available to pay for an appeal.
Following his convictions for a host of drug, conspiracy, and money laundering offenses, and following the court's order for forfeiture in the amount of $51.3 million, the defendant in United States v. Marshall, 872 F.3d 213 (4th Cir. 2017), made a motion in the district court to release $59,000 in the defendant's credit union account in order to pay for his appeal. The motion correctly noted that the order of forfeiture did not specifically mention the $59,000 credit union assets. Although the Government previously had filed a bill of particulars providing notice that it intended to seek the forfeiture of the $59,000 in the credit union account, the bill did not indicate whether the Government classified the credit union funds as assets derived from the crimes pursuant to 21 U.S.C. § 853(a) or substitute assets pursuant to 21 U.S.C. § 853(p), that is, assets that are a substitute for assets derived from the crime that cannot be located due to an act or omission of the defendant. Three and one-half weeks later, the Government filed—and the district court granted—a motion for a second order of forfeiture, specifically requesting the forfeiture of the funds in the credit union account and classifying them as substitute assets. The defendant then brought his motion to use the "untainted" substitute assets to pay for his appeal in the Fourth Circuit Court of Appeals, which stayed appellate proceedings while it decided the motion. The court ultimately denied his motion.
The defendant made two arguments to the appellate court: (1) the U.S. Constitution requires the release of substitute assets forfeited by a defendant after conviction if the funds are needed for appellate representation, and (2) the Government violated Rule 32.2 of the Federal Rules of Criminal Procedure by waiting several months after the verdict before seeking forfeiture of the credit union funds as substitute assets. In addressing the first issue, the circuit court reviewed Supreme Court precedent establishing that while there is no constitutional right to appeal, when a statute provides a right of appeal, the criminal appellant enjoys a constitutional right to appellate counsel, including the right of effective assistance of appellate counsel. However, the appellate court noted that the Supreme Court had never found a right to counsel of one's choice on appeal. The court continued that even if a right to choice of appellate counsel existed, with two decisions "the Supreme Court has plainly foreclosed [appellant's] request to use his forfeited funds to hire appellate counsel." Marshall, 872 F.3d at 217-18.
First, in Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989), the Supreme Court held that a defendant does not have a Sixth Amendment right to use forfeited "tainted funds," that is, assets connected to the crimes charged, to pay trial counsel's accumulated fees. The Fourth Circuit explained that
the Sixth Amendment does not require the release of forfeited funds to pay for trial counsel postconviction because "[a] defendant has no Sixth Amendment right to spend another person's money for services rendered by an attorney, even if those funds are the only way that that defendant will be able to retain the attorney of his choice." Id. at 626, 109 S. Ct. 2646. Because the defendant's forfeited property was connected to the crime, title to the forfeited property vested in the Government "at the time of the criminal act giving rise to forfeiture." Id. at 627, 109 S. Ct. 2646. The Supreme Court succinctly stated its holding as to the defendant's Sixth Amendment claim: "It is our view that there is a strong governmental interest in obtaining full recovery of all forfeitable assets, an interest that overrides any Sixth Amendment interest in permitting criminals to use assets adjudged forfeitable to pay for their defense." Id. at 631, 109 S. Ct. 2646.
Marshall, 872 F.3d at 218.
Later, in Luis v. United States, 136 S. Ct. 1083 (2016), the Supreme Court determined that the Government may not freeze untainted assets pretrial that a defendant needs to hire trial counsel of choice. Unlike the Government's interest in "tainted" assets, which vested at the time of the offense, "in Luis, the Government's interest in the property at issue was a contingent future interest, which could vest only postconviction." Marshall, 872 F.3d at 219. "Thus, in the pretrial context, Luis' Sixth Amendment right to counsel of choice outweighed 'the Government's contingent interest in securing its punishment of choice (namely, criminal forfeiture) as well as the victims' interest in securing restitution (notably, from funds belonging to the defendant, not the victims).'" Id. at 219-20 (quoting Luis, 136 S. Ct. at 1093). Accordingly, the Supreme Court recognized "'a Sixth Amendment right to use [the defendant's] own innocent property to pay a reasonable fee for the assistance of counsel' pretrial." Id. at 220 (quoting Luis, 136 S. Ct. at 1096).
According to the Fourth Circuit, the principle gleaned from reading Caplin & Drysdale in conjunction with Luis is "if the defendant owns the property, he is entitled to use it for his defense; if he does not own the property, he may not." Id. "Title in property connected to the crime of conviction vests in the Government when the crime is committed. . . . Conversely, title to substitute property vests in the Government upon order by the district court after conviction, at the latest." Id. Thus, title to the $59,000 in substitute property vested in the Government when the district court issued its order of forfeiture following conviction, and the appellant simply did not own the property he sought to use to pay appellate counsel. Id. at 221. Any argument that the right to appellate counsel of choice outweighs the Government's interest in the credit union funds he no longer owns is undermined by the Supreme Court's implicit, if not direct, holding in Caplin & Drysdale "that the Government's interest in substitute property postconviction overrides any Sixth Amendment right of a defendant to those funds." Id. The appellate court concluded, on the first point, that "[t]he Constitution requires only that [the appellant] be represented by counsel upon his first appeal of right, and the Court will appoint counsel if the forfeiture renders him indigent or he cannot secure pro bono counsel."
The court made short work of the appellant's second point, that is, the Government was late in filing its motion to forfeit his substitute assets. Reviewing the plain language of Rule 32.2, the appellate court observed, that "[the district] court . . . could not determine whether the substitute assets were forfeitable until the Government filed its motion, and Rule 32.2(e) does not require the Government to make its motion at any particular time. Id. at 223. Even if there had been a violation of the procedural rule, "a violation of Rule 32.2 does not automatically require this Court to vacate the forfeiture order.” Id.