case but i will i will mention that we have some traffic rules and when you have two minutes the light comes on and when you have when the red light signals on the podium  you conclude your argument as quickly as possible we are familiar with the briefs and record excerpts we have not necessarily gone into the record and therefore the accent you can give us record citations those would be helpful this first case is united states versus scully number seventeen five zero two two three mr crown you getting paid for this event are you working on the before the court talked about that made pleas to court judge justice and judge cain and judge all right here we come to the issue of a post conviction pre sentencing prejudgment restraint of assets and so we come to an intersection of two different interests on a different path one is the defendant's constitutional right to counsel of choice for appeal and the other is to do the government's right or interest we're actually looking at it there's our judgment was already entered in this case correct and as i understand the law which i may not i miss it there's a layin that arises under the federal law once the judgement is attard so what you're basically saying is you know never mind that never mind the creation of a liam as on this property and your argument therefore is based on not the not whatever may have happened at the beginning of this case when when or what but it's something at the very end when you're talking about a post trial post judgment motion to vacate in effect to vacate a lien that arose at judgment right yes judge but it did my my argument is not a flippant one and it doesn't matter if there's a lien it's it's it rests in the in that intersection between a defendant's constitutional right versus that government interest and enforcement of a lien the monies were restrained prior to the judgment head of the defendant had already advanced me the funds put in my trust account pending we knew that an appeal was coming obviously from the trial we didn't know at that point when he advanced me the funds and they were restrained months later by the government we didn't know whether or not there would be an order of restitution or forfeiture we felt those issues were arguable there were two potential parties that were entitled to restitution there was the i r s because there were some tax counts and there was a partner of the defendant who are the government was alleging had lost millions of dollars we felt we had i felt we had good arguments on both indeed i won on the partner aspect of it the the court found at sentencing that the partner was not entitled to raise millions of dollars in restitution wasn't title to any so i felt i had a second yes this money was already in the trust account at that's exactly that's exactly right i made that clear in my motion as well as in in a motion to reconsider the order that just as in the louise cases from court cases we're not asking for that the government shouldn't have restrained all of his assets indeed they have an interest of securing types of payment of funds prior to sentencing so how do you explain kaplan how i explain as oppose point the fact that it was restrained pretrial makes no difference the court can still read could still restrain you know you didn't challenge that so the blue rescored i think it's very clear that you look at the character of the fun's not the timing of the lane it doesn't say that you look at it for all purposes it does it does it does purport to distinguish but it also says everything in louise is directed to pretrial restraint untainted assets but we're talking about pows file restraint when you allow the government a bunch of money well it was a pretty sentencing restraint well loud now you're drawing a distinction it seems between that is highly technical had you made this motion post sentencing you would lose under kaplan would you not i'd submit that i wouldn't because it's untainted assets and the louise  is it your money government or is it my money defendant and in that sense because it's untainted judge because it's untainted the government has a right to attach a link to to restrain assets prior to sentencing attach to the lane attaches everything right no judge is not tainted is just subject to restraint or securing by the government the tainted character of it is that it's important because the defendant never had a right to the funds because they are tainted assets they were the proceeds o acts in that distinction but i'm also so i am using you know change is not a highly specific legal proposition so i'm just saying that the government the chording to the statute plainly has  it's too bad isn't it well it's not too bad for me but it's too bad or it's too bad for the defendant because he's deprived of his constitutional right to counsel of choice it's too bad for the judiciary because now it has to expend its funds i'm on the c do judge and and i will continue if that's what the court deems is appropriate to this court just last year i actually in two thousand and twelve addressed that very very situation in iran hope versus thompson and an attorney as an officer of the court on duty bound to render service when required to do so by appointment and so if the court appoints me it's mandatory and i understand that but as this court has held in that case this power of mandatory appointment is to be used in the last as a last resort to jail right i think you authored that opinion in two thousand and twelve this powers that is a power of last resort and it's inherent power of the court that must be used with great strength restraint caution and only when there is no other option available only in the rarest of cases here you have a defendant who has a legitimate untainted assets to pay for the attorney of his choice and this is not one of those situations where there is it calls upon the court to have appoint someone i will do it judge if you if that's what you are but what the effect of that judge if if we lose this case one of three things is going to happen one of two one things going to happen the defendant's going to be forced into edge and indigency and going to have to get an appointed counsel of not his choice or the court's going to mandatorily compel me to do it personally it's not it's not offensive to me what i think what's a greater concept here is the principle of whether the government can affectively by doing this  person's effective right to counsel of choice on appeal because that's what it's doing here if the government is given this right to come in and take all of its assets tainted and untamed off and as a criminal attorney with dr on after if he thinks the client has meritorious grounds for appeal simply because he says well you can't pay me what i want to charge you therefore i'm with there i quite often i don't but quite often i have done many pro bono cases it's not an issue of many problems in the private deprived of counsel of his choice in that situation where attorneys were draws yes he has deprived of his council of choice and the sixth amendment guarantees that right is not just a right to counsel this court in united states versus mason also a quote a case decided two years ago or in two thousand and twelve authored also by judge iraq said that the sixth amendment gender guarantees a criminal defendant the distinct right not only to representation of counsel but representation by counsel of their choice citing the supreme court case power versus alabama and so that is an inherent constitutional right by a defendant and that's what i'm here for judge not just so i can get paid i'll do the appeal either way that's not the issue but what we're doing is if you decide against mr scully in this case is that you were giving the department of justice blank power to this or a person of person right of counsel of choice that's what's happening that's the effectiveness of of going with the government in this case what about did you talk about the second circuit yeah way i've done a judge but i'm not sure the taji oh again dealt with tainted assets it's the same concept it was it was for football assets because they were tainted this is that my notes say the defendant deposited five hundred thirty distinguished by the supreme court and the way each as dealing with only that theory was only dealing with tainted assets let me just i mean here's another problem with your arguments in that we said it seems to me we know the justice thomas she finds monsanto troubling which is a pretrial restraint by implication she doesn't find kaplan problematic and she also says there's a serious problem  distinction between painted untainted assets so basically you have four members of this very court if you for one thing you're talking about a plurality opinion for another thing you talk four members of the court where you now have a fifth member who appears to be an originalist so what you're saying is that kaplan needs to be extended so our opinion is either going to basically say capital needs to be extended or or luis needs to be extended now how would you bet on that well first of all judge i disagree respectfully would judge thomas being a part of the dissent he was a concurring opinion fully he fully agreed  and was on board with the character of the funds you know his i believe if he wouldn't on the riginal us view that of the six the moment draws a distinction between or the common law between pre not just a poor put your case it's a restitution and forfeiture case but in forfeiture funds will often be frozen and in hopes of restoration under the forfeiture statutes there's a whole different body of law that arises w the might be owed on restitution and they are specifically balancing the victims they say and we understand there may be victims but we still balance this the other way yet for the fraud injunctions statute  that was at issue in that case under eighteen u s c thirteen forty five is to specific to forfeiture but the language in the case and the explanation for the reasoning is to applies to restitution specifically by its terms it does mention restitution i do agree with that but the context of the case is a forfeiture case that's not the situation in which we find ourselves today and often people confuse the forfeiture with the post judgment collection there are two different sections in the united states attorney's offices that do those collections very aware of them so that the reason for that is the lien that arises when a defendant is sentence that is essentially spoken into existence when he is sentenced right then they're not challenging that the lien can have to have a role to play but they're saying that their sixth amendment right trumps the lien and that's what they're saying because the lien applies to protect funds that may be do after sentencing but they will be dissipated in case they are due and in fact part of the funds were not do after the sentencing in this case because they were not found to be a problem restitution but they were would the defendant be able to avoid that lean to the extent of his attorneys fees no because the bank can foreclose and actually in this instance the government has foreclosed on those proceeds we have we have a final word of garnishment today that was entered on september seventh of two thousand and seventeen and the finding now belong to the government but that's irrelevant as to what the status of the funds was at the time that the court intruded yes and the timing of  is also critical the defendant had been sentenced in november of two thousand and fifteen or or i should let me back up he had been convicted by a jury in november of two thousand and fifteen he was reset his sentencing was reset five times when we came in on july seventh of two thousand and sixteen the defendant did not show unbeknownst to the government and so the sentencing could not be held on that day it was at that point that the government's thought it's restraining order and the reason for that is partly because there was a fear that the defendant would have gone and in the syncing transcript by the court he talks about the defendant's ability to sail across the seas to thailand and being in the coast guard and lane arises when the defendant is sentenced not not the conviction now in the r a's already contemplated at the time of the conviction and these cases do talk about the forfeiture statutes being relevant upon the time of of do it that's the lesson for defendants who want to keep them away or money is that right yes that's what they should do going forward yes that is the lesson for them the key component that continues to be missing the defendant's argument is that judgment lien although he's asking the court to find that there's a right to counsel in spite of the judgment lien the judgment lien is critical because the government can foreclose on it any time after the defendant is senate a matter of fact the government could have sought a writ of execution the day he was sentenced and taken those the funds straight from his account we have a number of remedies the problem with that is of course the time delay and the remedies that occur and that's the reason that we get the restraining order we get it in order that we can seek the remedies from the court that we would the other issue here that's been overlooked is the difference in the statutes that have been contemplated by the other case law eighteen  ourselves today is the court's exercise of its power and really all writs act which is twenty eight u s c thirteen forty five the court was exercising its power to enforce the judgment it would enter and the defendant did not object prior to sentencing i ask you to uphold the court's power in that situation say that the trial court erred district court erred in because it's not the same we were looking pretrial of the defendant is trying to defend themselves from the sort of the government and sort of acting as a shield that's what the court found and i believe the court was absolutely correct in that trumps any kind of lean wouldn't we know we would not again they're still looking they're still looking prejudgment and justice thomas did talk about at the point of conviction and that is it although lame hasn't arisen at that point what has happened is that there is contemplated there would be restitution remember the mandatory victim restitution act mandates the court to enter restitution when it finds that there is a victim lost and the court had that well  its mind at this stage here when it was preparing to send it to the defendant as a matter of fact when we walked in on july seventh of two thousand and sixteen the court was prepared to sentence the defendant the lien would have arisen have that date ok it says trial and judgment in the lien would not have arisen yet would have arisen if he had been sentenced on july seventh when he went in for sentencing that day but failed to appear and justice thomas does talk about  conviction and judgment it's trial and judgement well and i think what he's doing is looking is not talking about the sentencing in the judgment but the judgment of the judgment he said i don't think he means final judgment doesn't when he's talking about it will call the law of the judgment in a felony was basically death so there wasn't much role for the jury or the judge to play and the money convictions come along i don't think he got into the you know degree of specificity nor would the governments lane of been an issue in that case either because that that is the distinction i'm trying to make between the forfeiture of the non forfeiture aspect there were there was no security interest in that case the government's had not a reason in that case they're still operating under those forfeiture statutes which are not an issue here we're talking about the mandatory victim restitution act and the all writs act we're not talking about tainted versus untainted we're talking about nonexempt fines in this sense because the defendant has a right to keep his exempt fines so their wages and other things that are exempt he has a right to  funds to pay as attorney to the extent that he has them but in this sense he does not have them apparently and because he doesn't have them he can't afford to hire counsel that's why he couldn't work all those homes in california because they're underwater t well so he was sentenced to fifteen years which is quite a lot in a fraud case so what was the underlying i'm sorry i don't know what the underlying crime was the underlying crime was a fraud where in he was  manufacturing records to hide kickbacks to himself if you will so in other words he had a company called gourmet express and that that company had partners at least two of those partners he and his nephew alleged if there is a distinction between tainted and painted you have never alleged that this florida property proceeds is correct it's not exempt property and then the proceeds from it are nonexempt so that means that they're su one other thing once the jury found scully guilty as the court found the anticipated restitution was not nebulous or speculative at that point and that is part of the issue in all the pretrial restraining order cases which this that the partners were not entitled to it because the of the partners received a judgment or they were paid outside of the court right so why is that not why and did not know until after it's actually done  in the standard that what pays what is mandated by statute under three six six three and a in the mandatory victim restitution act it's mandated that the court order it and that is what the court row in its opinion because he is  mandated it doesn't have discretion anymore but it's mandated that he order restitution to anyone who has suffered a loss right but there's lots of litigation about who suffered loss and how to the extent of their losses that we've had two or three opinions that's three months about if the person actually suffered the loss that's found in this in that same court were reversed is correct and those losses are based on what has happened but in this case it wasn't that that partner didn't suffer a loss it was th i only have five minutes i'd like to address quickly the judge thomas is concurrent he says several things going to the original intent but i think the court has focused on that are very important one he says that the common law for f tradition provides the limits of the six amendment guarantee their traditional draws a clear line between tainted and on tainted assets to freeze a defendant's potentially for for protects in the sixth amendment applies to appeal as well and that's why this is whether whether luis dealt with just pretrial it's also post conviction post for a public purposes because a six member protects that so it says here as understood in seventeen ninety one sixth amendment protected a defendant's right to return retain an attorney he could afford it's thus no answer as a principle of dissent replies that defendant rendered in a gent by a pretrial acid breeze can resort to public defenders the fact that he can get appointed counsel is of no answer in the context of a sixth amendment whether a retrial or whether it's post conviction judge because it if it's just limit to pretrial judge then we're saying that the sixth amendment counsel choice doesn't apply to apollo and that's and that's not the case law it's always applied to public situations as well what you're basically saying is that only pretrial defendant if you let me just make a little point here if you go if you want sixty five thousand dollars for the appeal i'm sure you got paid extraordinarily well to try this case and therefore you know the fact that the lawyer has to continue his representation as an ethical matter you know doesn't doesn't really impress me too much because he it is clear that under louise you were entitled to whatever you got right judge i do the fact that you did you know my point is that much on the audio council he was not deprived of right to excellent counsel you do are the excellent counsel now whether you happen to be able to bill by the hour earth time percentage for this appeal is wealthy client or reasonably middle class client or or someone in the lower class what this opinion if it goes in favor the department of justice will do was tell them that they can go and take all their assets and i choice and so the defendant needs a portion of his untainted assets which judges justice thomas as well as the the other many judges of the majority but there was a good let me ask you the same question that i asked  miss callahan and yet is if if this right is so important why couldn't he sell his properties on which the bank has a lien and pay you he doesn't have any properties left all he in theoretically ok fine he already did have a couple of houses and according to the briefs and according to the briefs there was no leconte in those houses if the right is so important why can't he a bridge to lean to the bank in the same way that he should you're saying he should be able to bridge the lean to the united states you're bringing out of it a great point it has to do with superior interests and there's luis case talks about that who has a superior exception for that but the last pacifically says you can't do that here the law says that a sixth amendment right to counsel of choice supersedes a government's right to take assets that will take away that constitutional right