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United States v. Marshall

United States Court of Appeals, Fourth Circuit

September 25, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ANDRACOS MARSHALL, a/k/a Draco, Defendant-Appellant.

          Argued: May 11, 2017

         Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, Senior District Judge. (8:13-cr-00492-DKC-3)

         Motion denied by published opinion. Judge Agee wrote the opinion, in which Judge Keenan and Judge Harris joined.

         ARGUED:

          Marvin David Miller, LAW OFFICES OF MARVIN D. MILLER, Alexandria, Virginia, for Appellant.

          Evan Thomas Shea, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

         ON BRIEF:

          Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

          Before AGEE, KEENAN, and HARRIS, Circuit Judges.

          AGEE, Circuit Judge.

         After Andracos Marshall was convicted of various crimes at trial, the Government initiated forfeiture of his substitute assets. In response to the Government's motion, the district court entered an order of forfeiture. Marshall now petitions this Court to release the subject assets so that he may hire appellate counsel of his choice for the appeal of his criminal convictions. We deny his motion for the reasons stated below.

         I.

         The Government filed a sealed criminal complaint against Marshall on January 3, 2014, in the United States District Court for the District of Maryland. On February 24th, the Government filed its first superseding indictment, charging Marshall and three others with several crimes, including conspiracy to distribute a controlled substance, possession of a controlled substance with intent to distribute, and conspiracy to commit money laundering. The first superseding indictment also included a forfeiture allegation, which stated that the Government would seek the forfeiture of substitute assets if the property derived from Marshall's alleged criminal actions could not be found. On November 5, 2015, the Government filed a Bill of Particulars providing notice that it intended to seek the forfeiture of approximately $59, 000 from Marshall's National Institutes of Health Federal Credit Union account upon his conviction.[1] However, the Bill did not indicate whether the Government classified the credit union funds as assets derived from the crimes or substitute assets.[2]

         On January 4, 2016, the Government filed a second superseding indictment, charging Marshall with the same crimes as the first superseding indictment but removing his co-defendants as a result of their guilty pleas. This later indictment included a forfeiture allegation as before but this time listed the $59, 000 in Marshall's credit union account as property to be forfeited under § 853(a) and alleged that Marshall was responsible for at least $108 million of criminally-obtained proceeds.

         After a ten-day trial, the jury found Marshall guilty on all counts. The court set sentencing for June 6, 2016, but the proceeding was later rescheduled for June 13th.

         On June 10th, the Government filed a motion for order of forfeiture seeking a $108 million judgment. The district court then continued the sentencing hearing to July 13, 2016, because Marshall had not timely received the Government's sentencing memorandum. In addition, because the Government did not file the motion for order of forfeiture until three days before the previously scheduled sentencing date, the court instructed the parties to file briefs addressing the effect of the Government's delay on the forfeiture proceedings. In its brief, where it urged the court to proceed with the forfeiture, the Government stated the following:

In this case, the indictments provided notice [of the forfeiture] as required by [Federal] Rule [of Criminal Procedure] 32.2. Consequently, the defendant received notice that the government was seeking a money [judgment] in the amount of $108, 000, 000.00. In spite of being on notice of the forfeiture, the defendant did not invoke his right to request a hearing at any time after the verdict. The government did not submit a motion for forfeiture with proposed order until the last business day prior to the sentencing date. As a result the court did not enter a preliminary order of forfeiture as soon as practicable after verdict or before sentencing [as required by Rule 32.2].

ECF No. 358, at 4 (emphasis added).[3] Ultimately, the district court entered an order of forfeiture in the amount of $51, 300, 000 against Marshall at the sentencing hearing on July 13, 2016. The order did not specifically mention the $59, 000 in Marshall's credit union account.

         Two days later, Marshall filed a motion in the district court to release the funds in the credit union account for use in his appeal. He requested that the district court permit him to access those funds because they were not a specified part of the forfeiture order. On August 9th, the Government filed a motion for a second order of forfeiture, specifically requesting the forfeiture of the funds in Marshall's credit union account and classifying them as substitute assets under § 853(p). The district court granted the motion on August 12th. Marshall subsequently filed a motion to stay the court's second order of forfeiture pending appeal, and the district court granted the motion.

         After the district court entered the second forfeiture order, Marshall filed a separate motion in this Court to use his untainted funds-the $59, 000 in the credit union account-to hire appellate counsel and a motion to suspend appellate proceedings until the Court ruled on his motion for funds.[4] We granted the motion to stay, ordered briefing limited to the motion to use funds and heard oral argument. Marshall's motion to use funds is now ripe for decision.[5]

         II.

         On appeal, Marshall argues that the Constitution requires the release of substitute assets forfeited by a defendant after conviction if the funds are needed for appellate representation. He also contends that the Government violated Federal Rule of Criminal Procedure 32.2 by waiting several months after the verdict before seeking ...


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