but see you again it be good to hear from him thank you donna nice to see you all this morning i'm here on behalf of mr marshall this is a little bit of an unusual case the funds that issue had been earned from george washington university directly deposited into the account that's at issue before the alleged conspiracy was even claimed to have begun during trial there was no evidence that he ever sold a new drug standing body had any priors or customers and now he wants to use those bonds for the first direct appeal of right to determine whether or not the conviction was lawful and a successful appeal would bake a conviction and sentence morning because that an amount or not being provided the case was moved over to july there was a hearing there was sentencing there was forfeiture after that there was a delay to file the final order notice of appeal was spiles request was filed to have the spawns made available to the defense for purposes of appeal that never been a motion to forfeit demonstrate sceptically at any time up till this time much is in july or august after the trial in fact that ended february eight series of other cases is an error correction appeal it's part of the supreme court has once declared of the system of guilt or innocence because on an error correction appeal the question is whether or not the conviction and sentence or lawful so affective assistance on appeal converge in this situation and both of them rely on strickland versus washington which is interesting because it's not just a narrow strip on versus walking is a fundamental error which is grounded  thing of mr miller with regard to the luis versus united states opinion yes you're on to what extent did that opinion rely on the fact that there had been no factual determination regarding guilt or innocence majority all agreed on the sixth amendment includes the right to counsel of choice and that's where their focus was and their focus was more on the right to counsel of choice when you're going against the state the government to t that you're not guilty and to protect yourself from a prosecution but then in kaplan and drysdale right where it is already held that post conviction don't have a right to these even for your right to counsel of choice i don't know in capital drysdale they were tainted from from the get go this is something i just don't understand as a matter of logic you can explain it to me why does it matter whose conviction and after there's been a judgment of forfeiture why does it matter whether they're tainted funds or not right even if they're substitute assets doesn't the government own them no when the government does not own them for two reasons number one the government does not own them judge harris because there's a stay and if there's success on appeal the government will never have them the other reason the government doesn't own and one of the things that you're looking at for which is part of sentencing if it's on lawful or in direct air review they don't never get it the second and you can have a situation where the defendant could maybe be found not to have an issue or trial but an illegal sentence in addition to which there's the issue of third party proceedings there's a third party innocent person has a right to contest that they haven't happened known now but that's a factor of the government's why the government owns or not all the force your order would have gone if it was not state would have taken away mr marshall's interest in the assets that were not invested them in the government the government the governments because they were the proceeds of criminal activity that invested when the activity took place subsequent assets on the same category i guess this is what i just don't understand and maybe i'm getting something wrong so there directly traceable assets that are forfeit of all here the government couldn't find those so they're taking this money instead why doesn't it take on the character of the directly traceable assets and belong to the government subject to the state because the law says that the proceeds has been determined by the law under captain drysdale to be the government's when the crime occurred there is no case that from the supreme court of the of the united states or from this circuit that says that substitute assets when the crime occurs become the property of the government and in order through their government to get substitute assets they have to prove two things one they have to prove that the assets that they're that worth the proceeds aren't available and b they have to prove that the defendant did something to make them on available the defendant who substitute assets they want there's a case pending there's no decision and honey cutters argued last month in supreme court big boy makes a lot of money in this operation selling off filters to meth manufacturing labs little boy gets a little bit of money the issue is can they go after a little boy's substitute assets when he's not really the one making the money and we don't know what the decision i going to be but that kind of issue has not been decided and is pending so there is no case that goes that substitute assets automatically become the same as proceeds and the issue is still up in the air and hasn't been decided yet that's the right to counsel of one's own choosing ever been extended to the public counsel no it has not this is the only case that i know in the country where the issue is pending and here's another point in point of the luis decision and it's something that i your honest to take into account punishment for substitute assets which means that the these guys made x amount of money you're part of the conspiracy we can find their money when you did something that was and made honest money going take it from you that's punishment that sentencing under eight fifty three ok but it's a statute we're talking about a constitutional right we're talking about a constitutional right that's so fundamental counsel of choice is structural error so the question then becomes like it was in luis in what we say is saying we want to hold these things because if there's a conviction then we have a right to go after him well right now these are in suspension suspended animation under a motion to stay and the question then becomes if we're successful on appeal they never got them and their number of issues in there that could repeat lead to that result without going into the appeal issues now and so we're looking at the constitutional right that is sacrosanct pearse's a stacia tory right about a conditional contingent future interest that may or may not come into into force  and does the constitutional right to protect yourself from a prosecution not in all appeals just in this one narrow first appeal of right directly dealing with air or review of the trial itself which makes a distinct punishment that they may be able to impose sometime down the road depending on what happens in appeal and sort of the right protect yourself from the government more important than their right to get this one account when the difference is his right to protect himself and in the luis decision they recognize based on the amicus of public defender c j bruce and so on that when you get a court appointed counsel they're often overworked underpaid  recognize this is their first impression i appreciate your allowing me to address you wanted to smalling but this is a very important matter because this is a different kind of appeal this is still part as they said when they were talking about the system of guilt or innocence this level of appeal is still part of the system of guilt or innocence and so the accused we're saying can't be made by the prosecution and denied something that would otherwise be structural error when they're determining guilt or innocence the lawfulness of the conviction on the awfulness of the sentence because the constitutional right argument councils appointed by the court the intricacies of an appeal are critical and when you've got a complicated case like this one where there are all these pretrial issues plus trial issues and post trial issues and it needs a great deal of time and energy to address and what the request is that and up until luis you could not use innocent bonds to get a lawyer because the government had a right to hold him for pot possible punishment right now the funds are being held for possible punishment but the punishment hasn't been finally decided and that's the whole purpose behind the right to counsel now the sixth  in louise is part of the component of the core of the ability to exercise your constitutional rights that's what they said empowering gideon without a lawyer you can't get your other rights and abbots they talk about the effective assistance of counsel referring back to getting in referring back to power because if you don't have a lawyer you can't navigate the intricacies of appeals all the procedural requirements all the intricacies necessary for an appropriate appendix for making sure that the issues that you're addressing have been properly preserved in the record doing the research on the law looking to see what changed in the law yesterday it's like when they decided that materiality was a jury question and all of a sudden everybody dealing with fraud had to change what they were doing the middle of trial back when the governor mandela's case was gone so what we're saying to your honor's is this you have a fundamental core right without which the system doesn't work the government has as they said in luis a contingent possible future interest in this asset and the interest of the constitution from where we sit looking at louise abbott's whole bart douglas versus california how and gideon and all the history through sad is that the constitutional right is paramount it trumps the statutory ri contingent potential future interest and that the defendant's right and the right of the system to see that their fairness is done and that first direct appeal of right that's attacking whether or not there's a valid conviction  please the court evan chandler half the united states i was not the trial counsel in this case but i'm handling this aspect of the appeal as the asset forfeiture chief in our district the issue before this court is whether it should allow the defendant to claw lay out exactly why the property here is is the property of the government and touch briefly on the other side of the equation which is the defendant's right to counsel in this context and that touch briefly at the end about the procedures  entered here and why they were appropriate but to move back to kaplan kaplan said that the defendant has no right to spend another person's money on his privately respect to substitute assets in the pretrial context the property is not the government's yet the government has a contingent interest and the we score said the difference between that case  capital drysdale was that the property in the luis was the defendants they said pure and simple that is not the case here this property is the property of the united states there's been a poor preacher order there's been a conviction there's been a could be an appeal that could overturn the conviction and that would upset the poor for trying to get there there could potentially be third party claims of the assets although i think that's that's time is passed at this point both of those two conditions apply equally to directly traceable property if if there is directly traceable property that's forfeit in and there's an appeal that overturns the conviction that property is no longer forfeited just like the sentence is overturned same thing with third party claims if there's directly traceable properties there is never a will never the less a third party process whereby third parties can come and claim under various legal positions that that property is theirs so there's simply nothing to distinguish and drysdale here again this is a property of the government's and another thing that the defendant raised in their brief and briefly this morning is this idea that we take great exception to that the purpose of this forfeiture was simply to deprive the defendant of the ability to hire counsel on appeal that's absolutely not why this property was forfeited this this property was sought seized and sought to be forfeited from very early on in this case there was ample notice that it was going to be forfeited and it was forfeited for the same reason all other properties forfeited by the department of justice and the reasons are laid out in the kaplan decision there's number of them one is punishment in a victim case forfeitures are used to return money to the to remove the economic power that the defendant has earned through his illegal conduct and part of that is to deprive him of the ability to hire a high powered defense with funds that are connected to the crime so those are the reasons why forfeiture was saw in the case it was not some sort of plan to prevent prevent the hiring of counsel that is if we hypothetically if we agreed with you on sort of the ownership of property issue there's no need to reach this question about the amendment versus the sixth amendment in this case they're absolutely right no need to reach that at all i this reason why i raised the the ownership issue first that ends the case and there's no luis looked at which was government's interest on one side and defendants interest on the other certainly talked about the government's interest in under cap and that certainly carries the day you don't need to reach the other issue but the defendant's interest here is certainly appeal i want a constitutional issue at all i would say the court doesn't need to reach that here your honor i would say that it would it would depend on the facts of the case but i think that the court should should and tread carefully with  reaching that level of protection to the right i mean that's a very very substantial right that's provided to the defendant structural right you know the whole the whole case is infected with just  you're gone so just me but just to just to hit on the last point that i wanted to to hit on which is not a major point of the case but the the procedures that were followed in this case with respect to the forfeiture order there really two points one is the rules were not violated and two even if they were there's no remedy there's and there's and this is not the type of error that would cause the the court should determine what property is subject to forfeiture as soon as practical after the guilty verdict and to rule thirty two point two b two large b which is that the court should enter the forfeiture order prior to sentencing unless impractical and the key word to both of those is the word practical right this is something that is basically rests with the district court to manage their poor room appropriately and do what makes sense in the given case so issue here were seized in september of two thousand and fifteen there was a second superseding i'm sorry that there was a bill of particulars stating that this property was going to be forfeited the government tended to forfeit this property in november two thousand and fifteen  the in second superseding indictment was returned in january of two thousand and sixteen which again specifically mentioned these assets the fifty nine thousand dollars from this national institutes of health federal credit union account that the jury trial went forward in january two thousand and sixteen and at the right before the case went to the jury the district court inquired the defendant has a limited right to have the jury hear the forfeiture issue only with respect to specific property that is directly traceable there's no jury right to a money judgment a determination or a determination of substitute assets and at that point the government represented that they were only going to seek a money judgment and they're going to seek to forfeit we were going to seek the poor fit these forty fifty nine thousand dollars as substitute assets and wind up with all that just to say that there was plenty of notice here that this property was going to be forfeited in june the tennessee was scheduled for june thirteenth of two thousand and sixteen june the friday before the sentencing the government moved for a handling again the judge has now handling the case as is practical said ok the friday the friday before the sentencing is and isn't going to work let's postpone it for a month to allow everyone to respond to make argument to think about it order then so all that to say the way that that procedure played out was absolutely practical and the person who was in the best position to decide what was practical was just chasa now she is an experienced district judge she knows how to handle courtroom and a month to address all these issues was more than enough time the second point is even if there was some error this is a  standard as opposed to rule whether some ambiguity even if there was an error the martin case from this court controls what the remedy is and what the martin court said in that case there was a right of a violation of a bright line rule there was a a in order of forfeiture that was entered after the judgment was entered and that's a violation of federal thirty two point two excuse me before capital b which says that the for needs to be made as part of the judgment the the court in martin analyzing the standard laid out by the supreme court in another case having to do with restitution said basically this was a that the rules and thirty two point two are not to allow the forfeiture to go forward if that this report said it was pretty much over everything you want to cover that covers everything your honor thank you and i'll submit on that all right thank you very much m first of all katherine version is dr bailes i asked if you take a look at it you'll see there was a stipulation by the government and defense that before the indictment was returned the money issue belonged to the government that's not the case you would have to ignore all the relation back law and cases in order to put this case in the same place is that case because under that case they were proceeding which by definition me when the crime occurred and they received the illegal money the day they received it ten seconds later belonged invested in the government that is not this case that is not this case in this case can't be equated to this case and you have to look at also that she's real history in this case she's will history in this case is when sentencing was toast to take place in june and did not because they didn't follow the rules about providing their fortune on time and didn't follow the rules about filing their sentencing memorandum on time with the defendants and the judge moved it in july when we were in front of judge has now they did not ask for this money it's not that they did not know about it everybody knows they knew about it in two thousand and fifteen they didn't want certainly file the notice of appeal we ask can we have it cause everybody agrees it's not proceeds and you can't treat it like proceeds and you can't put it in a cap and drysdale monsanto proceeds box cause it's never proceeds it's always innocent money and at most it could be a substitute nothing more than that the second thing is that this is a situation where since relation back doesn't apply and that substitute assets and they knew about it the question then becomes what about their violation of rule thirty two point two martin was not the way they portray it martin had extensive forfeiture hearings and so on he complained about nothing he was convicted he was sentenced the fourth year occurred he did not a thing he had a clever creative lawyer goes may be the noncompliance of school thirty two point two could be jurisdictional misquotes says no it's not jurisdictional but this court said something else and martin it said that the time requirements and rules thirty two point two are in forcible they are enforceable we're not claiming jurisdiction we're claiming enforceability since martin no court has been asked to decide in force ability we can't find a case here where that issue was raised after martin said it's in forcible we do know that in the should court case that we cited in our brief in another circuit they look at enforceability and they determined that the time frames are enforceable now counsel said that the rules say that they should do this and they should do that and he should do something else but that's not what congress wrote congress wrote that you must as soon as practicable after conviction the term and what assets affordable the court must have a hearing the court must answer in the order and why is that so that everybody knows what's going on and then they can take their positions accordingly before you get to sentencing did they do that in this case no even the other assets that are not a to be forfeited as soon as practicable after february eighth conviction not until the friday before the monday june the thirteenth sentencing did they file did they file for these assets then no to continue hearing no did they file for these between the continued hearing and the end to the final order no they didn't do it until after we asked for it and when we asked for it they asked the forfeit no they opposed then i asked the forfeit so that makes this case a little bit different and we're sitting here in a situation where we have a rule that was not  and this is an issue where as the judge has now said she hadn't seen the cases on it but close it was martin it said in force ability but it didn't say what that meant should cory's another circuit ok so now since martin has addressed and for stability here we are is it in forcible not congress says you may get this you may get that you can do this you can do that and here's the rules you have to follow you know it's i think it was might have been just as frank burgess said that the government is a great teacher in law because you have the ones that set how the rules are to be followed so what we're saying here is we have a constitutional right that is preeminent and we're asking this court to allow us to be able to use the spawns which are not part of the crime that are in suspended animation that they came in and asked for late to be able to  on first direct to repeal error correction whether or not he's battling conviction convicted rather not as a valid sentence and whether or not the forfeiture itself is valid which have a holes and lot of issues including th case that's pending to has to know when it's going to be decided i assume by the end of his term but that's beside the point about honey cut we have a constitutional right it trumps a statute the constitution is the law of the land it's supreme and it takes precedence