     Case: 17-50223   Document: 00514346588     Page: 1   Date Filed: 02/14/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals

                                 No. 17-50223
                                                                        Fifth Circuit

                                                                      FILED
                                                               February 14, 2018

UNITED STATES OF AMERICA,                                        Lyle W. Cayce
                                                                      Clerk
                  Plaintiff - Appellee

v.

ROBERT WARREN SCULLY,
also known as Robert Scully,
also known as Robert W. Scully

                  Defendant - Appellant



                Appeal from the United States District Court
                     for the Western District of Texas


Before KING, JONES, and ELROD, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Appellant 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
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the Government’s post-conviction forfeiture lien to pay for appellate counsel of
his choice, this court AFFIRMS.
                               BACKGROUND
      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 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.
      Scully 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.
                                DISCUSSION
      On 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.
      This 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


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                                  No. 17-50223
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.
      Appellant 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.
      The 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




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                                        No. 17-50223
forfeitable . . . to pay attorneys’ fees, merely because those assets are in their
possession.” Id. at 632, 109 S. Ct. at 2656. 1
       The 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.
       Luis 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




       1 The Supreme Court decided another forfeiture case, United States v. Monsanto, on
the same day Caplin & Drysdale was announced. 491 U.S. 600, 109 S. Ct. 2657 (1989).
Monsanto involved the pretrial restraint of the alleged proceeds from the defendant’s drug
enterprise. Id. at 602, 109 S. Ct. at 2659. The Court held that there was no constitutional
issue with a “restraint on [the defendant’s] property to protect its ‘appearance’ at trial and
protect the community’s interest in full recovery of any ill-gotten gains.” Id. at 616. 109 S. Ct.
at 2666.
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                                  No. 17-50223
“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.
      This 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 alleged criminal
offenses.” 922 F.2d at 499 (emphasis added).
      Caplin & Drysdale, Monsanto, Luis, and Floyd compel the conclusion
that Scully may not use the house proceeds to pay for appellate counsel and
fees. Caplin & Drysdale addressed restraint of tainted assets postconviction,
while Luis and Floyd each addressed the pretrial restraint of untainted assets.
Moreover, Scully is not appealing the district court’s initial order restraining
his untainted assets (which occurred after trial, but before entry of judgment),
but rather, the district court’s denial of his post-conviction motion to vacate the
restraining order.
       More than six months passed between the district court’s initial
restraint of Scully’s assets and his motion to vacate the order. Two legally
significant events occurred during this time. First, the district court entered
judgment against Scully, which included restitution. The district court’s entry
of judgment triggered the second event, a statutory lien against all of Scully’s
property.
            [A]n order of restitution made pursuant to [relevant
      sections] of this title, is a lien in favor of the United States on all

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                                  No. 17-50223
      property and rights to property of the person fined as if the liability
      of the person fined were a liability for a tax assessed under the
      Internal Revenue Code of 1986. The lien arises on the entry of
      judgment and continues for 20 years or until the liability is
      satisfied, remitted, set aside, or is terminated . . . .

18 U.S.C. § 3613(c).

      Precedent strongly suggests that the Government’s lien against the
untainted funds outweighs any Sixth Amendment right Scully has to them.
See Caplin & Drysdale, 491 U.S. at 631, 109 S. Ct. at 2655 (holding that the
“strong governmental interest in obtaining full recovery of all forfeitable assets
. . . overrides any Sixth Amendment interest in permitting criminals to use
[those assets] to pay for their defense” lest there be “interference with a
defendant’s Sixth Amendment rights whenever the Government freezes or
takes some property in a defendant’s possession before, during, or after a
criminal trial.”). The Court held that allowing a defendant to claim “a share of
the forfeited assets postconviction” would support the untenable suggestion
that “the Government could never impose a burden on assets within a
defendant’s control that could be used to pay a lawyer.” Id.
      The instant case is more analogous to Caplin & Drysdale than Luis.
Unlike the defendant in Luis, Appellant challenges the continued restraint of
his funds after conviction and entry of judgment. Luis turned on the balance
between Luis’s property interest in her untainted assets and the Government’s
interest in her untainted assets, which was no more than a contingent interest
hinging on the outcome at trial. Luis, 136 S. Ct. at 1092-93. At the time the
district court denied Scully’s motion to vacate its restraining order, the




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                                       No. 17-50223
Government unquestionably had an interest in all of Scully’s property because
of the lien arising under 18 U.S.C. § 3613(c). 2
       The Government’s lien on Scully’s funds is superior to Scully’s alleged
Sixth Amendment interest in using them to pay appellate counsel. Caplin &
Drysdale, Luis, and section 3613(c) dictate that Scully no longer has any equity
interest in the untainted funds he wishes to use for appellate counsel. 3 He has
no Sixth Amendment entitlement to use the Government’s money to pay for
appellate counsel, “even if those funds are the only way that [he] will be able
to retain the attorney of his choice.” Caplin & Drysdale, 491 U.S. at 626,
109 S. Ct. at 2652. Further, it is established that a defendant is not entitled
to “representation by an attorney he cannot afford.” Wheat v. United States,
486 U.S. 153, 159, 108 S. Ct. 1692, 1697 (1988).                      Scully does have a
constitutional right to be represented by counsel for his first appeal of right,
and court-appointed counsel are readily available if he qualifies as indigent.
See 18 U.S.C. § 3006A.
       For all these reasons, the Sixth Amendment does not entitle Scully to
use funds subject to the Government’s forfeiture lien to pay for appellate
counsel of his choice. AFFIRMED.




       2 Floyd is similarly distinguishable, as that defendant appealed a pretrial restraining
order freezing untainted assets before entry of judgment. See Floyd, 992 F.2d at 498-99.

       3 The court notes that all nine members of the Supreme Court have not disclaimed the
Government’s right to post-conviction forfeiture. See Luis, 136 S. Ct. at 1091-92; id. at 1099
(Thomas, J., concurring) (“[F]or in personam criminal forfeitures like that at issue here, any
interference with a defendant’s property traditionally required a conviction. Forfeiture was
‘a part, or at least a consequence, of the judgment of conviction.’”) (citation omitted); id. at
1106 (Kennedy, J., dissenting) (“The government does not own property subject to forfeiture,
whether tainted or untainted, until the Government wins a judgment of forfeiture or the
defendant is convicted.”); id. at 1112 (Kagan, J., dissenting) (“Following conviction,
[forfeitable] assets belong to the Government, and ‘[t]here is no constitutional principle that
gives one person the right to give another’s property to a third party.’”) (citation omitted).
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                                  No. 17-50223
JENNIFER WALKER ELROD, Circuit Judge, concurring in the judgment:
      Because a valid statutory lien for restitution attached upon entry of
judgment as to all of Scully’s property, tainted and untainted, I agree that the
district court did not err in denying Scully’s motion to partially vacate its
earlier order restraining his assets. I write separately to emphasize that the
dispositive issue is not that the restraint of Scully’s untainted assets was post-
conviction rather than pre-trial, but rather that Scully’s motion came after a
valid lien attached to all of his untainted assets post-judgment. Had Scully
challenged the restraint of his untainted funds before the lien attached at the
time of judgment, we would confront a much more difficult constitutional
question: whether a post-conviction but pre-judgment restraint of untainted
assets violates the Sixth Amendment. Because Scully did not challenge the
pre-judgment restraint of his assets until after judgment was entered and the
lien attached, the inquiry is a relatively straightforward one.
                                        I.
      Under the Mandatory Victim Restitution Act (MVRA), the government
may enforce restitution orders in the same way that it enforces fines and by
any other available means. 18 U.S.C. § 3664(m)(1)(A)(i)–(ii). Moreover, under
18 U.S.C. § 3613(a), the government may collect criminal fines and restitution
according to the practices and procedures for enforcing a civil judgment under
federal or state law. United States v. Phillips, 303 F.3d 548, 551 (5th Cir. 2002)
(holding that the MVRA authorizes the government to garnish accounts for
restitution to be paid to private individuals). In practice, this means that “[t]he
government may use the garnishment provisions of the Federal Debt
Collection Procedures Act, 28 U.S.C. §§ 3001–3308, to collect a restitution
obligation imposed by a judgment of conviction.” United States v. Mire, 838
F.3d 621, 626 (5th Cir. 2016) (holding that the government must be allowed to
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                                  No. 17-50223
intervene in an action concerning property that is subject to an order of
restitution).
      A restitution order may be enforced to the same extent as a tax lien. Id.
at 625. In establishing tax liens, Congress used broad language so as “to reach
every interest in property that a taxpayer might have.” United States v. Nat’l
Bank of Commerce, 472 U.S. 713, 720 (1985) (holding that the IRS may place
a lien on joint bank accounts for delinquent federal income taxes owed by only
one of the persons whose name is on the joint account).           In enforcing a
restitution order, a court may garnish “property . . . in which the debtor has a
substantial nonexempt interest and which is in the possession, custody, or
control of a person other than the debtor, in order to satisfy the judgment
against the debtor.” Mire, 838 F.3d at 626 (quoting 28 U.S.C. § 3205(a)). The
expansive definition of property applicable in this restitution context includes
“any present or future interest, whether legal or equitable, in real,
personal . . . , or mixed property, tangible or intangible, vested or contingent,
wherever located and however held (including community property and
property held in trust (including spendthrift and pension trusts)).” 28 U.S.C.
§ 3002(12); see Mire, 838 F.3d at 626 (applying this definition of property in the
context of a restitution order under 18 U.S.C. § 3613).
      “Although federal law thus creates a lien on property, it is state law that
‘defines the property interests to which the lien attaches.’” Mire, 838 F.3d at
626 (citation omitted). “[T]he consensus across jurisdictions is that ‘property
held in an attorney’s client trust account belongs to the client.’” In re Kappa
Dev. & Gen. Contracting Inc., No. 17-51155, 2017 WL 4990438, at *3 (Bankr.
S.D. Miss. Oct. 31, 2017) (citation omitted).       Texas Disciplinary Rule of
Professional Conduct 1.14 supports this conclusion, as it states that a lawyer
shall hold in a trust account “funds and other property belonging in whole or
in part to clients or third persons that are in a lawyer’s possession in connection
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                                       No. 17-50223
with a representation.” (emphasis added). Accordingly, a statutory lien placed
on a defendant’s property under 18 U.S.C. § 3613 attaches to the defendant’s
assets placed in an attorney’s client trust account.
       Here, Scully sold a house in Florida, and over $220,000 of the sale
proceeds were placed in his attorney’s client trust account before the district
court issued a restraining order prohibiting him from transferring or
dissipating the funds. The government does not contest that the proceeds from
the sale of the home are assets untainted by crime. However, Scully did not
move to partially vacate the order restraining the untainted assets from the
Florida house sale until approximately two months after sentencing and entry
of judgment. Upon entry of judgment, a lien arose in favor of the United States
on all Scully’s property. 18 U.S.C. § 3613(c). The statutory lien operates
pursuant to the MVRA, which Congress has indicated should be aggressively
enforced. Phillips, 303 F.3d at 551. Thus, the money placed in the trust
account properly became subject to a statutory lien once the district court
sentenced Scully and entered judgment. 1
       The problem for Scully is that he is appealing a denial of a motion that
he filed post-judgment. The Supreme Court has rejected the proposition that
there is “an interference with a defendant’s Sixth Amendment rights whenever
the Government freezes or takes some property in a defendant’s possession
before, during, or after a criminal trial,” noting that IRS “seizures of assets to
secure potential tax liabilities . . . may impair a defendant’s ability to retain
counsel” but are nevertheless constitutional. Caplin & Drysdale, Chartered v.



       1 Scully does not contest the district court’s authority to restrain at least some of his
untainted assets post-conviction but pre-judgment, stating at oral argument that the
government has a pre-sentencing interest in preserving funds for payment. Scully contests
the restraining order only to the extent it impacted his right to appeal, and he seeks to vacate
the order only as to the $65,000 allegedly needed for attorney’s fees and costs associated with
his appeal.
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United States, 491 U.S. 617, 631 (1989) (holding that a federal drug forfeiture
statute does not violate the Sixth Amendment even though it provides no
exemption for tainted assets that a defendant wishes to use to hire an
attorney).
      Had Scully transferred some of the proceeds from the Florida house sale
to his attorney of choice after conviction but before entry of judgment or
restraint of those assets, the government (as it conceded at oral argument)
arguably would have had no right to obtain a lien on those funds under 18
U.S.C. § 3613. 2 Had Scully challenged the restraining order prior to entry of
judgment, he would be in a much stronger position to argue that his Sixth
Amendment rights outweighed the government’s interest in preserving funds
to satisfy an expected order of restitution. However, in light of the statutory
lien that attached upon entry of judgment to all Scully’s property—tainted and
untainted—and in light of the statutes and precedent indicating that the lien
attaches to funds in an attorney’s client trust account, the district court did not
err in denying Scully’s post-judgment motion.
                                            II.
      “It is settled that the Sixth Amendment right to counsel includes the
right to counsel on appeal and that this right does not depend upon a request.”
Crawford v. Beto, 383 F.2d 604, 605 (5th Cir. 1967) (holding that appellant was
deprived of his constitutional right to counsel on appeal when the trial court
denied his request for appointed counsel). 3 In addition, the Supreme Court has
stated that “[t]he right to select counsel of one’s choice . . . has never been
derived from the Sixth Amendment’s purpose of ensuring a fair trial. It has


      2  Moreover, at oral argument, defense counsel admitted that he could have taken a
larger retainer in advance to cover the cost of trial and appeal.
       3 We agree with the majority opinion that Scully has “a constitutional right to be

represented by counsel for his first appeal of right” and that “court-appointed counsel are
readily available if he qualifies as indigent.”
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been regarded as the root meaning of the constitutional guarantee.” United
States v. Gonzalez–Lopez, 548 U.S. 140, 147–48 (2006) (footnote omitted)
(considering “whether a trial court’s erroneous deprivation of a criminal
defendant’s choice of counsel entitles him to a reversal of his conviction”).
       Whether there is a Sixth Amendment right in the restitution context to
use untainted funds to pay for appellate counsel of choice prior to entry of
judgment is a thorny question. 4 The majority opinion correctly relies on Luis
v. United States for the proposition 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.”
See Luis v. United States, 136 S. Ct. 1083, 1091 (2016).
       As the plurality noted in Luis, the distinction between tainted and
untainted property is not a mere “technicality.” Luis, 136 S. Ct. at 1091.
Rather, “[i]t is the difference between what is yours and what is mine.” Id. 5
While Luis did not concern a post-conviction restraint of assets, its central
distinction between tainted and untainted property arguably remains relevant
after conviction but before entry of judgment. See id. at 1087 (holding that a
pre-trial restraint of a defendant’s untainted assets needed to retain counsel of
choice violates the Sixth Amendment). Our decision in United States v. Floyd
rejected the idea that the government “has the power to seize property that is
not evidence of a crime nor the fruits of a crime.” 992 F.2d 498, 502 (5th Cir.
1993). Neither Caplin nor United States v. Monsanto says otherwise, as both




       4 Because of the potential Sixth Amendment implications, district courts may wish to
exercise caution in entering orders restraining untainted assets after conviction but before
entry of judgment.
       5 The majority opinion refers to the untainted assets at issue here as the

“Government’s money.” While this may be merely shorthand, I would point out that Scully’s
assets were held in trust and subject to an order of restitution for victims only after entry of
judgment.
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                                  No. 17-50223
involved tainted, not untainted, assets. See Caplin, 491 U.S. at 631; United
States v. Monsanto, 491 U.S. 600, 602–03 (1989).
      As noted above, the statutory lien under 18 U.S.C. § 3613 does not arise
until entry of judgment. The entry of final judgment is not a mere formality.
See Sherri A.D. v. Kirby, 975 F.2d 193, 202 (5th Cir. 1992) (footnote omitted)
(“Because we do not regard the magistrate judge’s delay in entering a final
judgment to be a mere formality, but an important limit to appellate
jurisdiction under 28 U.S.C. § 1291, we cannot treat the order from which
plaintiff appeals ‘as if’ it were a final judgment.”). Scully’s situation highlights
the importance of the distinction between conviction and judgment: A jury
found Scully guilty in November 2015, but the district court did not impose the
approximately $1.2 million order of restitution until November 2016. “There
is a constitutionally significant distinction between a trial of the elements of
an offense and the selection of an appropriate penalty from an available range
once guilt has been determined . . . .” United States v. Fields, 483 F.3d 313,
333 n.22 (5th Cir. 2007).
      The Sixth Amendment’s text and the common-law principles informing
it support a general distinction between pre-conviction and post-conviction in
the forfeiture context. See Luis, 136 S. Ct. at 1099 (Thomas, J., concurring in
the judgment) (discussing the longstanding common-law rule “against
restraining a criminal defendant’s untainted property before conviction”). This
common-law distinction reinforces rather than undermines the distinction
between pre-judgment and post-judgment stages of conviction. “It is well
known, that at the common law, in many cases of felonies, the party forfeited
his goods and chattels to the crown. The forfeiture was a part, or at least a
consequence, of the judgment of conviction.” Luis, 136 S. Ct. at 1094 (emphasis
added) (quoting The Palmyra, 12 Wheat. 1, 14 (1827) (Story, J.)). “The common
law thus offers an administrable line: A criminal defendant’s untainted assets
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are protected from Government interference before trial and judgment.” Luis,
136 S. Ct. at 1101 (Thomas, J., concurring in the judgment) (emphasis added). 6
       Here, the district court restrained untainted assets from the Florida
house sale in July 2016 but did not enter judgment until November 2016.
While Scully failed to challenge the restraint until after the lien properly
attached to his assets, a restraint of untainted funds after conviction but before
sentencing and entry of judgment implicates Sixth Amendment concerns.
While I would affirm the district court’s denial of Scully’s post-judgment
motion, I would do so because the statutory lien arose upon entry of judgment
and because our precedents indicate that once the lien arises the government
can reach funds in an attorney’s client trust account.




       6  If the common law did not always speak specifically of the judgment of conviction as
being the critical point for commencing forfeiture, this generality of language finds
explanation in the historical context. “For much of English history, and for most of the
colonial period in the United States, the criminal justice system relied heavily on the death
penalty.” Erik Lillquist, The Puzzling Return of Jury Sentencing: Misgivings About
Apprendi, 82 N.C. L. Rev. 621, 628–29 (2004). “[J]uries, in conjunction with judges, made
the most important sentencing decision: whether a particular felony defendant should be
sentenced to death or receive some alternative punishment.” Id. at 629. Thus, a common-
law emphasis on the different forfeiture consequences that attach post-conviction versus pre-
conviction should be read in terms of this historical context, when it often would have made
little sense to draw distinctions between the points of conviction, sentencing, and entry of
judgment.
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