We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

GOVERNMENT SAYS “WHAT’S YOURS IS MINE,” AND COURT AGREES

It has long been the case that the Government would freeze a defendant’s criminally-derived assets even before trial, crippling his or her ability to pay for a defense. The theory – not a bad one – is that the assets obtained from bank robbery, drug dealing, and stock frauds never really belonged to the defendant to begin with, because it was illegally obtained. Of course, the theory does not explain why that money suddenly belongs to the government, instead of the people who lost it to theft, fraud or illegal drugs… but that is a question for another day.

Restitution was another matter. Restitution to victims is paid out of a defendant’s assets other than those obtained by crime. Every inmate who has to pony up $25.00 a quarter to IFRP knows that. Many years after release, defendants continue to pay restitution out of paychecks, inheritances and even social security.

But the requirement that restitution be paid never interfered with a defendant’s right to use his or her legally-obtained cash to hire the lawyer of his or her choice – until now.

Last week, the 5th Circuit ruled in a white-collar case that once defendant Bob Scully was convicted, the government held a lien over all of his property to see that restitution was paid, even if the lien prevented him from hiring the appellate attorney of his or her choice.

The Court said, “precedent strongly suggests that the Government’s lien against the untainted funds outweighs any Sixth Amendment right Scully has to them… The Government’s lien on Scully’s funds is superior to Scully’s alleged Sixth Amendment interest in using them to pay appellate counsel… Scully no longer has any equity interest in the untainted funds he wishes to use for appellate counsel. He has no Sixth Amendment entitlement to use the Government’s money to pay for appellate counsel, ‘even if those funds are the only way that he will be able to retain the attorney of his choice.’ Further, it is established that a defendant is not entitled to ‘representation by an attorney he cannot afford…’ Scully does have a constitutional right to be represented by counsel for his first appeal of right, and court-appointed counsel are readily available if he qualifies as indigent.”

United States v. Scully, Case No. 17-50223 (5th Cir., Feb. 14, 2018)

– Thomas L. Root