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.