In Luis v. United States, the Supreme Court held that pretrial restraint of untainted assets needed by a criminal defendant to retain counsel of choice violates the Sixth Amendment. But what about pretrial restraint of untainted assets not needed to hire counsel? The Fourth Circuit, alone among federal circuits, permits pretrial restraint of untainted substitute assets, subject to Sixth Amendment concerns. In United States v. Chamberlain, in the Eastern District of North Carolina, the government moved for a post-indictment pretrial restraining order against the defendant's untainted substitute asset pursuant to 21 U.S.C. Section 853(e). Both the defendant and government agreed that the untainted asset in question, a parcel of land, was not needed by Chamberlain in order to secure criminal defense counsel. The defendant opposed the government's motion, arguing that Justice Breyer's language/analysis in Section II.B.1. of Luis foreclosed pretrial restraint of any substitute asset under Section 853, in effect overruling Fourth Circuit precedent. The government maintained that Luis was inapplicable since Chamberlain raised no Sixth Amendment issue. Judge Mack Howard sided with the government. "While the undersigned agrees that the Supreme Court may in fact interpret Section 853 in this way in the future, it has not yet ruled on this issue and has not upset applicable Fourth Circuit precedents governing the instant question presented before this court." Steve West was on the briefs for the government and Elliot Abrams (Cheshire Parker Schneider & Bryan) and Tommy Manning (Manning Law Firm) were on the briefs for Chamberlain. According to Abrams, this all matters at a practical level for the criminal defense bar:

Consider the facts of Luis.  There the government established probable cause to believe that the defendant obtained more in illegal proceeds than she currently possesses. 

 

Under Luis, she can use her innocent/substitute assets to pay her attorneys a reasonable fee.  But under Billman and its progeny the relation-back doctrine of 853(c) applies to all of those innocent/substitute assets such that, if she is convicted, the government’s ownership interest in all of her assets will be deemed to have vested before she paid her attorneys.

 

Therefore, if she is convicted, the government can forfeit all funds paid for legal services, despite that a court authorized those payments under the Sixth Amendment. 

 

Section 853(n) does not help because the lawyer’s right vested after the property became forfeitable and because the lawyer had reason to believe that the property was subject to forfeiture.  And since forfeiture is mandatory, the court could not exempt those funds from forfeiture. 

 

This would create the same Sixth Amendment problem that Luis solved—people being unable to use their innocent assets to hire counsel.  It would also force lawyers to take such cases on contingency, which is ethically improper.

 

Here are the government and defense briefs and Judge Howard's opinion.  U.S. v. Chamberlain – Gov Application Restraining Order,  U.S. v. Chamberlain – Response in Opposition to Gov Motion for Restraining Order,  U.S. v. Chamberlain-Government's Reply Memorandum,  U.S. v. Chamberlain-Defendant's Sur-Reply,  U.S. v. Chamberlain-Order Granting Government's Motion.

Judge Howard's Order is being appealed to the Fourth Circuit.

(wisenberg)