Following conviction, substitute assets not available to pay for appellate counsel

US v. Marshall:  Marshall petitioned the court to permit him to use funds in a credit union account not specified as part of the government’s forfeiture order, filed after his convictions for several drug-related crimes.  The government then filed a second order of forfeiture for the funds in Marshall’s credit union account, classifying them as substitute assets under § 853(p).   Marshall filed a separate motion to use the untainted funds in the credit union account to hire appellate counsel. 

The Fourth Circuit considered Marshall’s arguments that 1) the Constitution required the release of substitute assets forfeited by a defendant after conviction if the funds are needed for appellate representation, and 2) the government violated a rule of criminal procedure by failing to seek forfeiture for several months after Marshall’s convictions for the credit union funds. 

The Fourth Circuit discussed how defendants are entitled to effective counsel on appeal, but not the right to counsel of choice on appeal.  The Supreme Court has plainly foreclosed Marshall’s request to use his forfeited funds to hire appellate counsel.  When a defendant’s forfeited property is connected to a crime, title to the forfeited property vests in the government at the time of the criminal act that gives rise to the forfeiture.  In contrast, the government may not freeze untainted assets (i.e., those assets not connected to crimes charged) before trial that a defendant needs to hire counsel of choice. 

Marshall’s case involved the restraint of untainted assets post-conviction.  The Fourth Circuit concluded that based on the Supreme Court’s holdings that Marshall may not use his forfeited assets to hire appellate counsel (title to substitute property vests in the government upon order by the district court after conviction, at the latest).  Marshall’s funds ceased to be his upon issuance of the district court’s forfeiture order following his conviction.  The Court will appoint counsel if the forfeiture renders him indigent or he cannot secure pro bono counsel.

Procedurally flawed revocation sentence vacated

US v. Slappy:  Slappy received a supervised release revocation sentence of 36 months; she appealed, arguing that the sentence was plainly unreasonable because the sentencing court failed to address any of her non-frivolous arguments in support of a within-guidelines range sentence, or to explain at all why it imposed the statutory maximum sentence upon her.  The government countered that the court provided enough explanation and that it was not required to address mitigating evidence if it didn’t think a lower sentence was appropriate.  The Fourth Circuit vacated Slappy’s sentence and remanded for resentencing.

The Fourth Circuit reasoned that the district court committed procedural error by failing to address her arguments in favor of a sentence within-policy-statement range, and that the Fourth Circuit and the Supreme Court have both made clear that in imposing revocation sentences, like original sentences, the court must address arguments like Slappy’s, and if it rejects them, it must explain why.
 
The Fourth Circuit held here that a district court, when imposing a revocation sentence, must address the parties’ nonfrivolous arguments in favor of a particular sentence, and if it rejects these arguments, the court must explain why with sufficient detail that the appellate court can meaningfully consider the procedural reasonableness of the sentence imposed.