Supreme Court turns aside Bowie drug dealer’s appeal

Turning aside a convicted Bowie drug dealer’s appeal, the U.S. Supreme Court let stand without comment Monday a federal appeals court’s decision that convicts seeking to pay for appellate counsel are not entitled to assets seized by the government even though the government failed to show they were ill-gotten gains.

The 4th U.S. Circuit Court of Appeals ruled in September that while convicts such as Andracos Marshall have a Sixth Amendment right to counsel on appeal, the Constitution does not entitle them to the attorney of their choice. In its published 3-0 ruling against Marshall, the 4th Circuit said forfeited funds – whether ill-gotten or not — are no longer the convicts’ to spend, as the money belongs to the government.

In the failed effort for Supreme Court review, Marshall’s attorney noted the statutory distinction between “tainted assets” – those the government seizes via court order from a defendant as ill-gotten – and “substitute” or “untainted” assets, which the government seizes when illicit funds are unavailable.

In the high-court filing, Erek L. Barron wrote that the justices have ruled defendants do not have a constitutional right to pay for counsel with tainted assets. But the high court has not addressed whether convicts such as Marshall have a right to access their seized-but-untainted assets so they can pay private appellate counsel, he added.

“Leaving this question unresolved will sow confusion among the lower courts, and poses a serious threat to the fundamental constitutional right to counsel of choice and the balance of power in a criminal case,” wrote Barron, of Whiteford Taylor & Preston LLP in Bethesda and a member of the Maryland House of Delegates.

Denying defendants access to their untainted funds “will embolden prosecutors to more aggressively target legitimate assets for restraint, often through ex parte proceedings, and stack the deck in the government’s favor by crippling the defendant’s ability to afford high-quality counsel,” added Barron, D-Prince George’s.

The U.S. Justice Department waived its right to submit a brief to the Supreme Court opposing Marshall’s petition for review, opting instead to see if the justices would request a response before deciding whether to hear the appeal.

The case was docketed at the Supreme Court as Andracos Marshall v. United States, No. 17-7651.

Marshall, also known as Draco, sought the $59,000 forfeited to the government following his 2016 conviction in U.S. District Court in Greenbelt for possession with intent to distribute cocaine, conspiracy to distribute cocaine and conspiracy to launder money. Marshall, who is serving a 23-year prison sentence, was a cog in a $108 million illegal drug operation, according to the U.S. Justice Department.

In its ruling, the 4th Circuit applied to untainted assets the Supreme Court’s 1989 decision in Caplin & Drysdale Chtd. v. United States that forfeited, ill-gotten gains are not available to convicts on appeal because the money belongs to the government. Convicts, if rendered indigent by the forfeiture, are entitled to appointed counsel for their initial appeal, the 4th Circuit said.