UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                   No. 17-4268


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

JIAN-YUN DONG, a/k/a John Dong,

                 Defendant - Appellant.



                                   No. 18-4852


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

JIAN-YUN DONG, a/k/a John Dong,

                 Defendant - Appellant.
                                     No. 19-4359


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

JIAN-YUN DONG, a/k/a John Dong,

                   Defendant - Appellant.


                                     No. 19-4511


UNITED STATES OF AMERICA,

                   Plaintiff - Appellee,

             v.

JIAN-YUN DONG, a/k/a John Dong,

                   Defendant - Appellant.



Appeals from the United States District Court for the District of South Carolina, at
Charleston. Bruce H. Hendricks, District Judge. (2:11-cr-00511-BHH-1)


Submitted: July 30, 2020                                    Decided: August 6, 2020


Before MOTZ, AGEE, and DIAZ, Circuit Judges.


Motion denied by unpublished per curiam opinion.



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Emily Deck Harrill, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. A. Lance Crick, Acting
United States Attorney, Carrie A. Fisher Sherard, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       After a bench trial in 2015, Jian-Yun Dong was convicted of conspiracy to commit

offenses or to defraud the United States, in violation of 18 U.S.C. § 371 (2018), theft of

government property and aiding and abetting such conduct, in violation of 18 U.S.C. §§ 2,

641 (2018), and 22 counts of wire fraud and aiding and abetting such conduct, in violation

of 18 U.S.C. §§ 2, 1343 (2018). The district court restrained several direct and substitute

assets prior to trial. The court had found that the directly forfeitable asset, a building that

had not been completed, would most likely be insufficient to fulfill Dong’s monetary

obligation if he was convicted and ordered to pay a money judgment. After Dong’s

conviction, the United States moved for a preliminary order of forfeiture of the building,

and the restraint of several substitute assets. The United States then moved to hold the

forfeiture of the substitute assets in abeyance pending sale of the building. Prior to

sentencing, the court issued a preliminary order of forfeiture against the building while

restraining Dong’s substitute assets with the understanding that those assets would be

forfeited to fulfill the money judgment. Dong was sentenced to 70 months’ imprisonment,

3 years’ supervised release, and restitution of $3,211,599.83. The court incorporated the

preliminary order of forfeiture into the judgment. After Dong appealed, he moved in this

court for the release of substitute assets to cover the cost of retained appellate counsel.

Dong’s retained counsel filed an amended motion. It is this motion that is the subject of

this consolidated appeal. 1 We deny the motion.



       1
        Dong’s appellate brief raises a number of issues that have nothing to do with the
motion presently before the court. We will not review those issues.

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       In Luis v. United States, 

(2016), the Supreme Court held that a

criminal defendant’s Sixth Amendment right to counsel prohibits the district court from

restraining the defendant’s untainted assets pretrial.

The Court concluded that

the United States had only a contingent interest in the defendant’s innocent assets.

held that a criminal defendant may not use forfeited assets, including

forfeited substitute assets, to pay for appellate counsel. United States v. Marshall, 

, 220 (4th Cir. 2017).

       Here, Dong has been convicted and a money judgment issued.               There is no

indication that Dong had any directly forfeitable tainted assets other than the building.

When the district court issued a preliminary order of forfeiture against the building, it

restrained Dong’s substitute assets in well-founded anticipation that the sale of the building

would fall short of meeting Dong’s monetary obligations.

       Accordingly, because the United States’ interest in receiving the full amount of the

money judgment is an important interest that supersedes Dong’s interest in the substitute

assets, we deny Dong’s amended motion to release funds. 2

                                                                                    DENIED




       2
         We previously granted Dong’s motion to submit this motion on the briefs without
oral argument.

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