from the United States District Court for the Western
District of Texas
KING, JONES, and ELROD, Circuit Judges.
H. JONES, Circuit Judge
Robert Warren Scully was convicted of conspiracy to defraud
the United States, conspiracy to commit wire fraud, and
aiding and abetting a wire fraud scheme. 18 U.S.C.
§§ 371, 1343, 1349. The district court later
granted the Government's motion to restrain Scully's
assets to preserve them for restitution and forfeiture.
Scully was then sentenced and ordered to pay $1, 206, 539.94
in restitution. See 18 U.S.C. § 3613(c). The
district court denied Scully's motion to partially vacate
its earlier restraining order on his assets. Because the
Sixth Amendment does not entitle Scully to use funds subject
to the Government's post-conviction forfeiture lien to
pay for appellate counsel of his choice, this court AFFIRMS.
Warren Scully was convicted of conspiracy to defraud the
United States, conspiracy to commit wire fraud, and aiding
and abetting a wire fraud scheme on November 25, 2015. The
Government filed a motion to restrain Scully's assets on
July 7, 2016; the motion was granted that same day. The
motion specifically mentioned over $220, 000 from the sale of
a home in Florida. The Government moved to restrain these
proceeds (and Scully's other assets) to preserve them for
Scully's expected restitution obligations. The district
court sentenced Scully to 180 months of imprisonment and
ordered him to pay $1, 206, 539.94 in restitution, a $5, 000
fine, and a $500 special assessment. The district court
entered judgment on November 29, 2016.
filed his notice of appeal for his conviction and sentence in
early December 2016. He then filed a motion to partially
vacate the July 7, 2016 restraining order so he could use
$65, 000 of his house proceeds to cover attorney and
transcript fees for his appeal. The district court denied
Scully's motion. Scully filed a timely notice of appeal.
appeal, Scully contends that the district court reversibly
erred by denying his motion to partially vacate the
restraining order as to the funds from the sale of his home
in Florida. He argues that the proceeds are
"untainted" because they are not fruits or
instruments of crime, and the district court's continued
restraint on his untainted assets denies his Sixth Amendment
right to counsel of his choice on appeal.
court has jurisdiction over the instant appeal pursuant to 28
U.S.C. § 1292(a)(1). This court reviews the district
court's denial for abuse of discretion. Castillo v.
Cameron Cty., Tex., 238 F.3d 339, 347 (5th Cir. 2001).
The district court's legal conclusions are reviewed
de novo. Id.
argues that United States v. Floyd, 992 F.2d 498
(5th Cir. 1993), and Luis v. United States, 136
S.Ct. 1083 (2016), mandate reversal of the district
court's order. A review of Supreme Court precedent and
the Floyd opinion shows that Appellant has no right
to use the funds at issue to pay for appellate counsel.
Supreme Court's opinion in Caplin & Drysdale,
Chartered v. United States lays out important principles
for this court's analysis. The defendant there was
charged with violations of the RICO statutes and their
forfeiture provision. Caplin & Drysdale, Chartered v.
United States, 491 U.S. 617, 619-21, 109 S.Ct. 2646,
2649-50 (1989). The Court held that a defendant is not
entitled to use tainted funds forfeited after conviction to
pay for attorneys' fees from trial. See id. The
Court held that "[a] defendant has no Sixth Amendment
right to spend another person's money for services
rendered by an attorney, even if those funds are the only way
that that defendant will be able to retain the attorney of
his choice." Id. at 626, 109 S.Ct. at 2652.
Notably, under 21 U.S.C. § 853(c), which codified the
"relation-back" doctrine, the Government had a
property interest in the assets at issue from "the time
of the criminal act giving rise to forfeiture."
Id. at 627, 109 S.Ct. at 2653. The Court held that
the Government's interest in recovering all forfeitable
assets overrode any Sixth Amendment right criminal defendants
may have to use forfeitable assets for attorneys' fees.
Id. at 631, 109 S.Ct. at 2655. Therefore, the Court
"reject[ed] petitioner's claim of a Sixth Amendment
right of criminal defendants to use assets that are the
Government's-assets adjudged forfeitable . . . to pay
attorneys' fees, merely because those assets are in their
possession." Id. at 632, 109 S.Ct. at
Court in Luis addressed whether the Sixth Amendment
bars the Government from restraining a defendant's
untainted assets before trial. Similar to Scully, the
defendant in Luis was indicted for violations of 18
U.S.C. §§ 371 & 1349. 136 S.Ct. at 1087. The
Government sought a pretrial restraining order pursuant to 18
U.S.C. § 1345(a)(2) to prevent dissipation of any of
Luis's assets that might later become subject to
forfeiture. Id. at 1087-88. The Court noted that the
"nature of the assets at issue" differed from those
in Monsanto and Caplin & Drysdale.
Id. at 1089-90. Notably, Luis's assets were
untainted (not traceable to the crimes charged) and
unquestionably belonged to her preceding a judgment of
conviction, whereas the assets in Monsanto and
Caplin & Drysdale, were tainted in a way that
rendered defendants' ownership interest imperfect under
the "relation-back" forfeiture statute.
Id. at 1090. The Court observed that its prior
decisions established "that whether property is
forfeitable or subject to pretrial restraint under
Congress' scheme is a nuanced inquiry that very much
depends on who has the superior interest in the property at
issue." Id. at 1091.
owned the assets, while the Government's interest in them
was entirely contingent on a conviction at some later time.
Id. at 1092-93. Therefore, the Court held that
Luis's interest in her untainted property and her Sixth
Amendment right to assistance of counsel before trial
outweighed "the Government's contingent interest in
securing its punishment of choice . . . as well as the
victims' interest in securing restitution . . . ."
Id. at 1093. The Court acknowledged that the
Government's interest, while important, "would seem
to lie somewhat further from the heart of a fair, effective
criminal justice system" than the defendant's Sixth
Amendment right. Id. Accordingly, the Court held
that Luis had "a Sixth Amendment right to use her own
'innocent' property to pay a reasonable fee for the
assistance of counsel" pretrial. Id. at 1096.
court's precedent is in line with Luis. In
United States v. Floyd, this court held only that a
district court erred in issuing a "pretrial
restraining order freezing certain . . . assets that were
untainted by the ...