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Media Alerts - United States v. Marshall -- Fourth Circuit
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October 31, 2017
  United States v. Marshall -- Fourth Circuit
Following Conviction, Substitute Assets Cannot Be Used To Hire Appellate Counsel


Areas of Law: Criminal, Forfeiture

Issue Presented: Whether Marshall may use substitute assets in a credit union account to hire appellate counsel of his choice for the appeal of his criminal convictions.

Brief Summary: Andracos Marshall filed a motion in the United States Court of Appeals for the Fourth Circuit seeking to use substitute assets from a credit union account to hire appellate counsel following his conviction. Addressing Marshall's constitutional argument, the Fourth Circuit explained that title to the credit union account vested with the Government upon Marshall's conviction. Accordingly, Marshall had no constitutional right to the assets, which no longer belonged to him. Next, the court explained that the timing requirements in Federal Rule of Criminal Procedure 32.2 were not fatal to the forfeiture the Government sought. In conclusion, the Fourth Circuit denied Marshall's motion to use the substitute assets to hire appellate counsel.

Extended Summary: On February 24, 2014, Andracos Marshall was charged with several drug-related crimes and money laundering. The Government indicated it would seek forfeiture of substitute assets if the property derived from Marshall's alleged crimes was not located. On November 5, 2015, the Government filed a Bill of Particulars, specifying that it would seek forfeiture of the $59,000 in Marshall's National Institutes of Health Federal Credit Union Account.

After a ten-day trial in the United States District Court for the District of Maryland, a jury found Marshall guilty of all counts. The Government moved to order forfeiture. The District Court entered an order of forfeiture for $51.3 million against Marshall, but it did not specifically mention Marshall's credit union account. The Government filed a motion for a second order of forfeiture, requesting the credit union funds be forfeited as substitute assets under 21 U.S.C. § 853(p). The District Court entered the second forfeiture order. Marshall filed a motion in the United States Court of Appeals for the Fourth Circuit to use the untainted funds in his credit union account to hire appellate counsel.

First, Marshall argued that the Constitution required his substitute assets be released so he could hire appellate counsel. The Fourth Circuit assumed, but did not decide, that Marshall had a constitutional right to appellate counsel of choice. Then, the court looked to two Supreme Court cases. In Caplin & Drysdale, Chartered v. United States, the Supreme Court held that a defendant may not use tainted funds forfeited after conviction to pay trial counsel fees. 491 U.S. 617 (1989). The Caplin Court reasoned that title to the tainted property vested in the Government at the time of the criminal act. Also, the government's interest in the property outweighed the defendant's interest. In Luis v. United States, the Supreme Court held that a defendant may use untainted assets pretrial to hire counsel of choice. 136 S. Ct. 1083 (2016). Unlike tainted assets, title to untainted "substitute" property does not vest with the government until after conviction.

Marshall sought to use untainted assets after conviction. The Fourth Circuit explained that title to the funds in the credit union account, which were substitute assets, vested in the Government when Marshall was convicted. Marshall therefore had no interest in property that was no longer his, whereas the Government had an ownership interest and an interest in making victims whole through the assets. Under these circumstances, the Fourth Circuit concluded that the Constitution did not require Marshall's substitute assets be released for Marshall to hire appellate counsel.

Second, Marshall contended that the Government violated Federal Rule of Criminal Procedure 32.2 by waiting months after the verdict to seek his credit union funds as substitute assets. Looking to the language of the Rule, the Fourth Circuit explained that an order of forfeiture can be entered "at any time." Moreover, the timing requirements in Rule 32.2 have been interpreted as time-related directives. As such, they serve to keep the process moving, but are not dispositive if a deadline is missed. Lastly, Marshall had notice that the Government intended to seek forfeiture of the credit union funds because it was in its Bill of Particulars. In conclusion, the Fourth Circuit denied Marshall's motion to use his forfeited funds to hire appellate counsel of choice.

To read the full opinion, click here.

Panel: Judges Agee, Keenan, and Harris

Argument Date: 05/11/2017

Date of Issued Opinion: 09/25/2017

Docket Number: No. 16-4494

Decided: Motion denied by published opinion.

Case Alert Author: Ashley Fellona, Univ. of Maryland Carey School of Law

Counsel: Marvin David Miller, LAW OFFICES OF MARVIN D. MILLER, Alexandria, Virginia, for Appellant. Evan Thomas Shea, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee

Author of Opinion: Judge Agee

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 10/31/2017 11:28 AM     4th Circuit  

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