Week Thirty-Nine

Week of September 25, 2017 through September 29, 2017

Ricky Brown v. Commissioner Social Security (King 9/29/2017): The Fourth Circuit held that an administrative law judge should not assign more credibility to a non-treating physician’s testimony than that of a treating physician because that practice violates the “treating physician rule.” The court vacated the judgment of the district court and remanded with instructions for that court to remand to the administrative law judge for further proceedings. Full Opinion

Joseph Di Biase v. SPX Corporation (Gregory 9/28/2017): The Fourth Circuit held that ambiguous evidence is insufficient to support a finding that success on the merits is likely for purposes of issuing a preliminary injunction. The plaintiffs to this class action appealed the district court’s denial of their motion for preliminary injunction to enjoin the corporation from terminating its current healthcare plan, but the Fourth Circuit upheld denial of the preliminary injunction. A further component of the court’s rationale was that the plaintiffs did not show irreparable injury where they did not show they availed themselves of the opportunities to avoid the injuries. Consequently, the court affirmed the lower court’s denial of plaintiff’s motion for preliminary injunction. Full Opinion

US v. Andracos Marshall (Agee 9/25/2017): The Fourth Circuit held that the United States Constitution does not require the release of a criminal defendant’s forfeited funds to pay for appellate counsel of Defendant’s choice post-conviction because the funds become vested in the Government upon an order of forfeiture. Further, the Fourth Circuit reasoned that Rule 32.2(e) does not require the Government to make its forfeiture motion at any particular time. The court denied Defendant’s motion to use forfeited funds to hire his counsel of choice. Full Opinion


Highlight Case

US v. Andracos Marshall, No. 16-4494

Decided: September 25, 2017

The Fourth Circuit held that the United States Constitution does not require the release of a criminal defendant’s forfeited funds to pay for appellate counsel of Defendant’s choice post-conviction because the funds become vested in the Government upon an order of forfeiture. Further, the Fourth Circuit reasoned that Rule 32.2(e) does not require the Government to make its forfeiture motion at any particular time. The court denied Defendant’s motion to use forfeited funds to hire his counsel of choice.

On February 24, 2014, Andracos Marshall (“Marshall”) was charged 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. On November 5, 2015, the Government provided notice that it intended to seek the forfeiture of approximately $59,000 from Marshall’s credit union account upon his conviction. The notice did not indicate whether the Government classified the credit union funds as assets derived from the crimes or substitute assets. After Marshall’s conviction, the district court entered an order of forfeiture in the amount of $51,300,000 against Marshall. The order did not specifically mention the $59,000 in Marshall’s credit union account. Marshall filed a motion in the district court to release the funds for use in his appeal because they were not specified in the forfeiture order. The Government filed a motion for a second order of forfeiture, specifically requesting the forfeiture of the funds in Marshall’s credit union account. The district court granted the motion. Marshall filed a motion in the Fourth Circuit to use the $59,000 in the credit union account to hire appellate counsel.

On appeal, Marshall argued that the Constitution requires the release of substitute assets forfeited by a defendant after conviction if the funds are needed for appellate representation. The court reasoned that the Sixth Amendment does not require the release of forfeited funds to pay for trial counsel post-conviction because a defendant has no right to spend another person’s money for services rendered by an attorney, even if those funds are the only way that the defendant will be able to retain the attorney of his choice. The court stated that generally, if the defendant owns the property, he is entitled to use it for his defense. However, in this case, the district court entered a forfeiture order after Marshall’s conviction, and title to the substitute property vested in the Government at that time. Thus, Marshall’s substitute property had vested in the Government and he was not entitled to use it to pay for post-conviction defense.

Next, Marshall argued that the Government violated Federal Rule of Criminal Procedure 32.2 by waiting several months after his conviction before seeking forfeiture. The court noted that Rule 32.2(e) does not require the Government to make its motion at any particular time. Further, a violation of Rule 32.2 does not automatically require the forfeiture order to be vacated.

Accordingly, the Fourth Circuit denied Marshall’s motion to use his forfeited funds to hire appellate counsel of his choice.

Full Opinion

Jacob D. Taylor