Monday, August 21, 2017

Bye Bye Billman. Bye Bye Bollin. Fourth Circuit Rejoins Legal Civilization and Prohibits Pretrial Restraint of Substitute Assets.

In an en banc decision in United States v. Chamberlain, issued on Friday, the Fourth Circuit overruled United States v. Billman and United States v. Bollin, holding that 21 USC 853(e) does not authorize pre-conviction seizure of untainted substitute assets: "[W]e overrule our precedent construing Section 853 and other identically phrased restraint provisions allowing the pretrial restraint of substitute assets and vacate the district court’s order relying on that precedent." In the process of explaining itself, the Fourth Circuit implicitly acknowledged that its precedent was never based on proper statutory construction: "[T]he plain language of Section 853 indicates that Congress did not intend the statute to permit such restraint. Accordingly, we hereby overrule Billman and Bollin." No other federal circuit had adopted the Fourth Circuit's view of Section 853. While Bollin was something of a legal laughingstock, it was no laughing matter to the countless defendants who saw their untainted assets seized before trial, effectively denying them the right to counsel of their choice.

The re-examination of Billman and Bollin was prompted by the Supreme Court's language and rationale in Luis v. United States 136 S.Ct. 1083 (2016) and the Government's brief in Honeycutt v. United States 137 S.Ct. 1626 (2017), which conceded that "under Luis, Section 853(e)(1)(A) does not permit the pretrial restraint of substitute property."

This is a great victory for the criminal defense bar, textualists, and all who oppose result-oriented statist jurisprudence.

Congratulations first and foremost to Chamberlain's attorney Elliot Sol Abrams of Cheshire Parker Schneider & Bryan in Raleigh, NC.

The following attorneys also deserve recognition for the role each played:

Abbe Lowell - lead counsel and author for amicus Cato Institute and NACDL.

Scott Coyle (Patton Bogs, formerly Chadbourne and Park) - counsel and co-author of brief for amicus Cato Institute and NACDL.

Thomas Maher - counsel for amicus NACDL.

Samuel Hartzell (Womble Bond, formerly Womble Carlyle, Raleigh, NC) - co-author of Chamberlain briefs. 

Howard Srebnick, Josh Greenberg, Josh Shore & Terrance Reed - who identified the relevant Solicitor General's position in the Honeycutt appeal and provided additional advice and assistance.


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