United States v. Lillard

57 F.4th 729

UNITED STATES of America, Plaintiff-Appellee,

v.Lonnie Eugene LILLARD, Defendant-Appellant.

Nos. 18-30106

18-30114

20-30110

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 2022 Portland, Oregon

Filed January 17, 2023

Carlton F. Gunn (argued), Law Office of Carlton F. Gunn, Pasadena, California, for Defendant-Appellant.

Michael S. Morgan (argued), Rebecca Shapiro Cohen, and Michelle Jensen, Assistant United States Attorneys; Erin Becker ; Teal Luthy Miller ; Charlene Koski ; Tessa M. Gorman, Acting United States Attorney; Office of the United States Attorney, Seattle, Washington; for Plaintiff-Appellee.

Before: Mary M. Schroeder and Jennifer Sung, Circuit Judges, and John Antoon II,^* District Judge.

SUNG, Circuit Judge:

Defendant-Appellant Lonnie Eugene Lillard was serving a sentence of supervised release for a prior federal conviction from Nevada when he was arrested and indicted on one count of Conspiracy to Commit Bank Fraud, 18 U.S.C. §§ 1344(2), 1349. Soon after Lillard's arrest, the government obtained an order permitting it to seize the funds in his inmate trust account and apply them to a restitution obligation for a prior federal conviction from Washington. Lillard pleaded guilty in the conspiracy case, admitted a violation of his supervised release in his Nevada case, and was sentenced in both cases.

Lillard urges that the seizure of his inmate funds violated his Sixth Amendment right to counsel of choice and his Fifth Amendment due process right. He also contends that the district court's imposition of an undisputedly illegal sentence for his supervised release violation is reversible error. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We conclude that the government's seizure of Lillard's inmate funds did not violate his right to either counsel of choice or due process. We also conclude that the district court's imposition of an illegally excessive sentence for Lillard's supervised release violation was plain error that requires vacatur of that sentence and remand for re-sentencing.¹

FACTS AND PROCEDURAL BACKGROUND

In 2016, Lillard was arrested and indicted in the Western District of Washington for conspiracy to commit bank fraud. At the time of his arrest, Lillard was serving a term of supervised release for a 2006 conviction in the District of Nevada. He also had an outstanding restitution obligation of more than $79,000 from a 1998 conviction in the Western District of Washington.² Soon after his arrest, the government encumbered his inmate trust account, which contained about $6,500. The government then moved for, and obtained over Lillard's objection, an order directing that those funds be applied towards his restitution obligation.

Lillard pleaded guilty to the conspiracy charge without a plea agreement. At that time, he also admitted having violated the terms of his supervised release in his District of Nevada case. The district court sentenced Lillard to 196 months of incarceration, to be followed by 5 years of supervised release, in the conspiracy case. The court also sentenced Lillard to 36 months of incarceration for the supervised release violation, to run concurrent with the sentence in the conspiracy case.

DISCUSSION

I. Seizure of Funds

Lillard claims that the government's seizure of his inmate funds pursuant to the restitution order from his 1998 conviction violated his constitutional rights in the present case, in two ways: First, he claims the seizure violated his Sixth Amendment right to counsel of choice by preventing him from hiring a lawyer. Second, he claims the seizure violated his Fifth Amendment due process right to a court-appointed expert and investigative assistance. We address each claim in turn.³

A. Sixth Amendment

The Sixth Amendment provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." That guarantee includes, among other things, the right to "be represented by an otherwise qualified attorney whom the defendant can afford to hire, or who is willing to represent the defendant even though he is without funds," which we commonly refer to as the right to counsel of choice.⁴ Caplin & Drysdale, Chartered v. United States , 491 U.S. 617, 624, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989).

In this case, the government seized Lillard's inmate funds to satisfy his post-conviction restitution obligation from a prior case in which judgment had been entered. Lillard does not dispute the validity of the restitution order or the judgment in the prior case. Rather, citing Luis v. United States , 578 U.S. 5, 136 S.Ct. 1083, 194 L.Ed.2d 256 (2016), Lillard contends that the seizure of funds violated his Sixth Amendment right to counsel of choice because the funds were "untainted," meaning that the funds were not traceable to his alleged crime.

In Luis , the Court held that the pretrial restraint of the defendant's untainted assets violated her Sixth Amendment right, but there, the pretrial restraint order had not been issued pursuant to a valid, existing restitution order. 578 U.S. at 23, 136 S.Ct. 1083. Thus, Luis did not decide the issue presented here: whether the government violates a defendant's Sixth Amendment right to counsel of choice when it seizes untainted funds pursuant to a valid restitution order and judgment from a prior case. We hold that it does not.

The Court's discussion of the scope of the Sixth Amendment right to counsel in Caplin & Drysdale establishes the applicable principles. On the one hand, the Sixth Amendment guarantees a defendant in a criminal case "the right to be represented by an otherwise qualified attorney whom [they] can afford to hire." 491 U.S. at 624, 109 S.Ct. 2646. On the other hand, a defendant has no constitutional right to representation by a particular attorney whom they cannot afford to hire. Id. Further, "[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 the defendant will be able to retain the attorney of their choice. Id. at 626, 109 S.Ct. 2646.

Applying those principles, the Court concluded in Caplin & Drysdale that the Sixth Amendment did not give the defendant the right to use forfeitable assets to pay counsel because, by operation of the forfeiture statute, 21 U.S.C. § 853, those assets belonged to the government, not the defendant, even though they remained in the defendant's possession. Id. at 627, 632, 109 S.Ct. 2646. In so holding, the Court rejected the argument that the defendant's interest in the forfeitable assets outweighed the government's. Id. at 629, 109 S.Ct. 2646. Because the forfeiture statute authorized the government to use forfeitable assets to fund law enforcement activities and return property to crime victims, the government had a "strong ... interest in obtaining full recovery of all forfeitable assets" that outweighed "any Sixth Amendment interest" in permitting defendants "to use assets adjudged forfeitable to pay for their defense." Id. at 631, 109 S.Ct. 2646.

In United States v. Monsanto , 491 U.S. 600, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989), a case decided the same day as Caplin & Drysdale , the issue was whether the government could freeze a defendant's assets before he is convicted and before the assets are finally adjudged to be forfeitable, as authorized by 21 U.S.C. § 853. The Court acknowledged that such pre-trial freezing of assets "raises distinct constitutional concerns." 491 U.S. at 615, 109 S.Ct. 2657. But, applying the principles set forth in Caplin & Drysdale , the Court concluded that the Sixth Amendment does not bar the government from freezing assets in a defendant's possession before trial if there has been a finding of probable cause to believe that the assets are forfeitable under the statute. Id. at 615–17, 109 S.Ct. 2657.

Thus, we must first determine whether the government had a property right in the seized funds, even though they were in Lillard's inmate account. As noted above, Lillard acknowledges that the government seized those funds to satisfy the valid restitution order from Lillard's 1998 case—after Lillard was convicted and judgment had been entered against him. That restitution order was issued pursuant to the Mandatory Victims Restitution Act. See 18 U.S.C. § 3663A. Under 18 U.S.C. § 3613(c), such a restitution order gives the government a lien "on all property and rights to property of the person" against whom judgment is entered until the liability is satisfied or otherwise terminated.

Because of the restitution order and § 3613(c) lien, the government's property interest in Lillard's funds was comparable to the government's property interest in the forfeitable assets considered in Caplin & Drysdale. See Luis , 578 U.S. at 16, 136 S.Ct. 1083 (noting that application of § 853(c)'s relation-back provision made the government in Caplin & Drysdale "something like a secured creditor with a lien on the defendant's tainted assets superior to that of most any other party"). Because the seized funds effectively belonged to the government, Lillard did not have a Sixth Amendment right to use those funds to retain an attorney.⁵ See Caplin & Drysdale , 491 U.S. at 631–32, 109 S.Ct. 2646.

Lillard argues, however, that the holdings of Caplin & Drysdale and Monsanto are limited to "tainted" funds, meaning funds obtained as a result of, or traceable to, a crime. Lillard further contends that under Luis , the Sixth Amendment bars the government from seizing untainted funds when doing so prevents the defendant from retaining their counsel of choice. We disagree.

The dispositive distinction between Luis on the one hand and Caplin & Drysdale and Monsanto on the other was not whether the assets were tainted, but instead whether the government had a substantial property interest in the assets. In Caplin & Drysdale and Monsanto , the tainted nature of the...