By Adam McCoy

On Monday, September 25, 2017, the Fourth Circuit issued a published opinion in a criminal case, United States v. Marshall.  Andracos Marshall (“Marshall”) was found guilty of several crimes including conspiracy to commit money laundering.  The Government filed motions for forfeiture and district court entered an order for forfeiture in amount of $51,300,000, including $59,000 in untainted funds in Marshall’s credit union account as substitute assets.  Marshall filed a motion to use the $59,000 in untainted funds to hire appellate counsel.  The Fourth Circuit denied his motion to use forfeited funds to hire appellate counsel.

Facts and Procedural History

In 2014, the Government indicted Marshall for several crimes, including conspiracy to distribute a controlled substance, possession of a controlled substance with intent to distribute, and conspiracy to commit money laundering.  In the indictment, the Government indicated it would seek forfeiture of substitution assets if property from Marshall’s crimes could not be found.  Under 21 U.S.C. § 853(a), the Government may seek forfeiture of tainted property connected to certain felonies, and § 853(p) allows forfeiture of substitute property if the tainted property is not available.  Marshall was eventually convicted on all counts, and the Government sought forfeiture of $108 million of criminally obtained proceeds.  The district court entered an order of forfeiture for $51,300,000.  In a second motion for forfeiture, the Government requested forfeiture of $59,000 in Marshall’s credit union account as substitute assets under § 853(p).  The district court granted the motion, but the Fourth Circuit stayed it until the Court could hear Marshall’s motion to use the untainted $59,000 to hire appellate counsel.

Defendant Does Not Have Right to Forfeited Funds to Pay for Appellate Counsel

Marshall argues he has a Constitutional right to substitute assets forfeited after his conviction if the funds are needed for his appellate representation.  The Fourth Circuit relied on Supreme Court precedent regarding the right to appellate counsel to make its decision in this case.  The right to appellate counsel is statutory, not constitutional. However, courts have held that when right to appellate counsel is granted, counsel must be provided.  The Supreme Court did recognize in United States v. Gonzales-Lopez, 548 U.S. 140, 144 (2006) that defendants who do not require court-appointed counsel have the right to choose who will represent them.  However, the Supreme Court has never recognized a right to choose one’s counsel on appeal.  Even assuming Marshall had the right to choice of counsel on appeal, he still did not have right to use forfeited funds to hire appellate counsel.  In Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989), the Supreme Court held the Sixth Amendment right to counsel does not allow a defendant to use forfeited funds connected to the crimes charged to pay trial counsel’s fees after conviction.  The Court reasoned property connected to a crime that was forfeited became the Government’s property  “at the time of the criminal act giving rise to forfeiture.” Id. at 627.  The Supreme Court did allow access to untainted assets that were frozen pretrial and needed to hire an attorney. Luis v. United States, 136 S. Ct. 1083 (2016).  However, the focus of this decision was on the pretrial nature of the assets and their lack of connection to the crime.  The Court said the defendant still had a clear ownership of the assets because there was no conviction, as opposed to the post-conviction setting when forfeiture gives the Government a clear interest.

The Fourth Circuit used the Supreme Court’s approach to pretrial restrictions of untainted assets in Luis and the approach to post-conviction assets in Caplin & Drysdale to determine that Marshall could not use his forfeited untainted assets to hire appellate counsel.  The ability of defendants to use assets to pay for counsel depends on who clearly owns the property.  According to Luis, if the defendant clearly owns the property he has a right to use it to pay for his counsel of choice. 136 S. Ct. at 1091.  However, the Government takes title to forfeited property, including § 853(p) substitute property, at the time of conviction. 136 S. Ct. at 1101.  The Fourth Circuit applied this to mean Marshall’s substitute property, the $59,000 credit union funds, became the Government’s property when the district court issued the forfeiture order after Marshall’s conviction.  This means Marshall no longer owns the property.  The Fourth Circuit further held that the Government’s ownership of the property was enough to override Marshall’s Sixth Amendment right to use those funds to hire appellate counsel of his choice. 491 U.S. at 631.  Relying primarily on Caplin & Drysdale and Luis, the Fourth Circuit held the $59,000 forfeited untainted assets were the property of the Government, and therefore Marshall had no right to use them to hire his appellate counsel of choice.


The Fourth Circuit denied Marshall’s motion to use his forfeited funds to hire his appellate counsel of choice.