OCTOBER TERM, 1995
Syllabus
LIBRETTI
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT
No. 94-7427. Argued October 3, 1995-Decided November 7,1995
During petitioner Libretti's trial on federal drug and related
charges, he entered into a plea agreement with the Government,
whereby, among other things, he pleaded guilty to engaging in a
continuing criminal enterprise under 21 U. S. C. § 848; agreed to
surrender numerous items of his property to the Government under §
853, which provides for criminal forfeiture of drug-tainted
property; and waived his constitutional right to a jury trial. At
the colloquy on the plea agreement, the trial judge explained the
consequences of Libretti's waiver of the latter right, but did not
expressly advise him as to the existence and scope of his right
under Federal Rule of Criminal Procedure 31(e) to a jury
determination of forfeitability. After sentencing Libretti to
imprisonment and other penalties, the judge entered a forfeiture
order as to the property in question despite Libretti's objection
to what he saw as a failure to find any factual basis for the
entire forfeiture. The Court of Appeals rejected both of Libretti's
challenges to the forfeiture order, ruling that Federal Rule of
Criminal Procedure 11(f) does not require a district court to
ascertain a factual basis for a stipulated forfeiture of assets and
that Libretti had waived his Rule 31(e) right to a jury
determination of forfeitability.
Held:
1. Rule l1(f)-which forbids a court to enter judgment upon "a
plea of guilty" without assuring that there is "a factual basis"
for the plea-does not require a district court to inquire into the
factual basis for a stipulated forfeiture of assets embodied in a
plea agreement. Pp.37-48.
(a) The Rule's plain language precludes its application to a
forfeiture provision contained in a plea agreement. The Rule
applies only to "a plea of guilty," which refers to a defendant's
admission of guilt of a substantive criminal offense as charged in
an indictment and his waiver of the right to a jury determination
on that charge. See,
e. g., United States v.
Broce,
488 U. S. 563,
570. In contrast, forfeiture is an element of the sentence imposed
following a plea of guilty, and thus falls outside Rule
l1(f)'s scope. That forfeiture operates as punishment for criminal
conduct, not as a separate substantive offense, is demonstrated by
the
30
Syllabus
text of the relevant statutory provisions, see,
e.
g., §§ 848(a) and 853(a), by legislative history, and by
this Court's precedents, see,
e. g., Alexander v.
United
States, 509 U. S.
544, 558.
Caplin &
Drysdale, Chartered v.
United States, 491 U. S. 617, 628, n. 5,
distinguished. In light of such weighty authority, the Court is not
persuaded by Libretti's insistence that the forfeiture for which §
853 provides is, in essence, a hybrid that shares elements of both
a substantive charge and a criminal punishment. Pp. 38-41.
(b) Libretti's policy arguments for construing Rule 11(f) to
reach asset forfeiture provisions of plea agreements-that the
Rule's factual basis inquiry (1) is essential to ensuring that a
forfeiture agreement is knowing and voluntary, (2) will protect
against government overreaching, and (3) is necessary to ensure
that the rights of third-party claimants are fully protected-are
rejected. Pp. 41-44.
(c) The District Court did not rest its forfeiture order solely
on the stipulation contained in the plea agreement. There is ample
evidence that the District Judge both understood the statutory
requisites for criminal forfeiture and concluded that they were
satisfied on the facts at the time the sentence was imposed. Pp.
44-48.
2. On the facts of this case, Libretti's waiver of a jury
determination as to the forfeitability of his property under Rule
31(e)-which provides that, "[i]f the indictment ... alleges that
... property is subject to criminal forfeiture, a special verdict
shall be returned as to the extent of the ... property"-was plainly
adequate. That waiver was accomplished by the plea agreement, in
which Libretti agreed to forfeiture and waived his right to a jury
trial, together with the plea colloquy, which made it abundantly
clear that the plea agreement would end any proceedings before the
jury and would lead directly to sentencing by the court.
Accordingly, Libretti cannot now complain that he did not receive
the Rule 31(e) special verdict. The Court rejects his argument that
the Rule 31(e) right to a jury determination of forfeitability has
both a constitutional and a statutory foundation, and cannot be
waived absent specific advice from the district court as to the
existence and scope of this right and an express, written waiver.
Given that the right, as an aspect of sentencing, does not fall
within the Sixth Amendment right to a jury determination of guilt
or innocence, see,
e. g., McMillan v.
Pennsylvania, 477 U. S. 79, 93, but is
merely statutory in origin, the plea agreement need not make
specific reference to Rule 31(e). Nor must the district court
specifically advise a defendant that a guilty plea will result in
waiver of the Rule 31(e) right, since that right is not among the
information that must be communicated to a
31
defendant under Rule l1(c) in order to ensure that a guilty plea
is valid. Pp. 48-51.
38 F.3d
523, affirmed.
O'CONNOR, J., delivered the opinion of the Court, Parts I and
II-A of which were joined by REHNQUIST, C. J., and SCALIA, KENNEDY,
SOUTER, THOMAS, GINSBURG, and BREYER, JJ., Parts II -B and II -C of
which were joined by REHNQUIST, C. J., and KENNEDY, SOUTER,
GINSBURG, and BREYER, JJ., and Parts III and IV of which were
joined by REHNQUIST, C. J., and SCALIA, KENNEDY, THOMAS, and
BREYER, JJ. SOUTER, J.,
post, p. 52, and GINSBURG, J.,
post, p. 53, filed opinions concurring in part and
concurring in the judgment. STEVENS, J., filed a dissenting
opinion,
post, p. 54.
Sara Sun Beale, by appointment of the Court, 514 U. S.
1095, argued the cause for petitioner. With her on the briefs was
Paul K. Sun, Jr.
Malcolm L. Stewart argued the cause for the United States. With
him on the brief were Solicitor General Days, Assistant Attorney
General Harris, Deputy Solicitor General Dreeben, and David S.
Kris.
*
JUSTICE O'CONNOR delivered the opinion of the Court.t Petitioner
Joseph Libretti pleaded guilty to engaging in a continuing criminal
enterprise, in violation of 84 Stat. 1265, 21 U. S. C. § 848 (1988
ed. and Supp. V), and agreed to forfeit numerous items of his
property to the Government. We must decide whether Federal Rule of
Criminal Procedure 11(f) requires the District Court to determine
whether a factual basis exists for a stipulated asset forfeiture
embodied in a plea agreement, and whether the Federal Rule of
Crimi-
*Briefs of
amici curiae urging reversal were filed for
the Forfeiture Endangers American Rights Foundation by
Brenda
Grantland; and for the National Association of Criminal Defense
Lawyers by
David B. Smith and
Richard J.
Troberman.
tJUSTICE SCALIA and JUSTICE THOMAS join all but Parts II-B and
II-C of this opinion. JUSTICE SOUTER and JUSTICE GINSBURG join only
Parts I and II.
32
nal Procedure 31(e) right to a special jury verdict on
forfeiture can only be waived following specific advice from the
District Court as to the existence and scope of this right and an
express, written waiver.
I
In May 1992, Joseph Libretti was charged in a multicount
superseding indictment with violations of various federal drug,
firearms, and money-laundering laws. Included in the indictment was
a count alleging that Libretti engaged in a continuing criminal
enterprise (CCE), in violation of 21 U. s. C. § 848, by operating a
cocaine and marijuana distribution organization in Wyoming and
Colorado from 1984 to 1992. Conviction under § 848 subjects a
defendant to, among other penalties, "the forfeiture prescribed in
section 853." 1 21 U. s. C. § 848(a). Accordingly, the indict-
1 Section 853(a) provides for criminal forfeiture of
drug-tainted property:
"(a) Property subject to criminal forfeiture. Any person
convicted of a violation of this subchapter or subchapter II of
this chapter punishable by imprisonment for more than one year
shall forfeit to the United States, irrespective of any provision
of State law-
"(1) any property constituting, or derived from, any proceeds
the person obtained, directly or indirectly, as the result of such
violation;
"(2) any of the person's property used, or intended to be used,
in any manner or part, to commit, or to facilitate the commission
of, such violation; and
"(3) in the case of a person convicted of engaging in a
continuing criminal enterprise in violation of section 848 of this
title, the person shall forfeit, in addition to any property
described in paragraph (1) or (2), any of his interest in, claims
against, and property or contractual rights affording a source of
control over, the continuing criminal enterprise.
"The court, in imposing sentence on such person, shall order, in
addition to any other sentence imposed pursuant to this subchapter
or subchapter II of this chapter, that the person forfeit to the
United States all property described in this subsection. In lieu of
a fine otherwise authorized by this part, a defendant who derives
profits or other proceeds from an
33
ment further alleged that the Government was entitled to
forfeiture of property that was obtained from or used to facilitate
Libretti's drug offenses, including, but not limited to, various
assets specified in the indictment. See Fed. Rule Crim. Proc.
7(c)(2) ("No judgment of forfeiture may be entered in a criminal
proceeding unless the indictment or the information shall allege
the extent of the interest or property subject to forfeiture").
Trial began in September 1992. The Government presented
testimony from 18 witnesses, including several individuals who had
purchased cocaine or marijuana from Libretti, to establish
Libretti's involvement in the possession and distribution of
considerable amounts of narcotics. The testimony also reflected
Libretti's purchase of a home, an automobile, and dozens of
automatic and semiautomatic weapons during a time when he had only
modest sources of legitimate income. Finally, the testimony
revealed that Libretti stored large amounts of money and drugs in
safety deposit boxes and storage facilities away from his home.
Following four days of testimony, Libretti and the Government
entered into a plea agreement, by the terms of which Libretti
agreed to plead guilty to the CCE count of the indictment (count
6). The Government in return agreed not to pursue additional
charges against Libretti and to recommend that he be sentenced to
the mandatory minimum of 20 years' imprisonment. Paragraph 10 of
the plea agreement provided that Libretti would
"transfer his right, title, and interest in all of his assets to
the Division of Criminal Investigation of the Wyo-
offense may be fined not more than twice the gross profits or
other proceeds."
In addition, § 853(p) provides that, when property subject to
forfeiture under subsection (a) cannot be recovered for various
reasons, "the court shall order the forfeiture of any other
property of the defendant up to the value of" the forfeitable but
unrecoverable assets.
34
ming Attorney General including, but not limited to: all real
estate; all personal property, including guns, the computer, and
every other item now in the possession of the United States; all
bank accounts, investments, retirement accounts, cash, cashier's
checks, travelers checks and funds of any kind."
Two other paragraphs of the plea agreement also made reference
to the contemplated forfeiture. Paragraph 2 described the maximum
statutory penalty for the offense to which Libretti agreed to plead
guilty, which included "forfeiture of all known assets as
prescribed in 21 U. S. C. § 853 and assets which are discovered at
any later time up to $1,500,000." In paragraph 9, Libretti agreed
to "identify all assets that were used to facilitate his criminal
activity" and to "provide complete financial disclosure forms
requiring the listing of assets and financial interests." Finally,
Libretti acknowledged in the agreement "that by pleading guilty to
Count Six of the Indictment, he waive[d] various constitutional
rights, including the right to a jury trial." It is beyond dispute
that Libretti received a favorable plea agreement. The Government
recommended that Libretti receive the minimum sentence for
conviction under § 848, and agreed to drop all other counts in the
indictment. One of those counts charged Libretti with use of a
firearm equipped with a silencer during the commission of a drug
offense, which mandates a 30-year sentence consecutive to the term
of imprisonment on the underlying drug offense. 18 U. S. C. §
924(c)(1). Libretti also faced a potential fine of up to $2
million. 21 U. S. C. §§ 848(a), 853(a).
At the subsequent hearing on the plea agreement, the trial judge
advised Libretti of his rights, including his right to a jury
trial. The court also clarified the consequences of Libretti's
plea, including the facts that a plea of guilty would mean "the end
of this trial," that "the jury [would] not ... decide whether
[he's] guilty or not," and that "all the property that's described
in ... Count 6 could be forfeited to
35
the United States." App. 87, 88. Libretti was then placed under
oath. He admitted that his plea was voluntary and indicated that he
had read and understood the significance of the indictment and the
plea agreement, including the fact that "all of [his] property
could be forfeited, the property that is owned by [him] by reason
of any drug transaction."
Id., at 100. Libretti's only
question about the plea agreement pertained to paragraph 2, which
provided for future forfeiture of assets up to $1,500,000. The
District Court assured Libretti that future forfeiture would be
limited to subsequently discovered drug-tainted assets, and that
his future legitimate income would not be forfeited.
Id., at
88-89. After a lengthy exchange, in which the court reviewed each
subparagraph describing the violations that composed the CCE charge
and Libretti acknowledged each factual allegation, the District
Court found that the guilty plea was voluntary and factually based.
Id., at 121.
Following preparation of a presentence report, the District
Court held a sentencing hearing, at which Libretti was sentenced to
20 years' imprisonment, to be followed by 5 years of supervised
release, and ordered to pay a $5,000 fine as well as a mandatory
$50 assessment and to perform 500 hours of community service. The
Government filed a motion for forfeiture of Libretti's assets, in
keeping with the plea agreement. Libretti's counsel offered no
objection at the sentencing hearing, declaring that the forfeiture
statute was "a harsh law" and "a bitter pill dealt by Congress,"
but conceding that it was "a pill we must swallow."
Id., at
149. At the conclusion of the hearing, however, Libretti stated on
the record that he "would just like to object to what [he saw] as a
failure to find any factual basis for the whole forfeiture."
Id., at 154. The District Judge noted the objection, but
replied that "the evidence that I heard before me in the two
[sic] days of trial I think is sufficient to warrant the
granting of forfeiture. I think I have no alternative."
Ibid. On December 23, 1992, the District Court entered an
order
36
of forfeiture pursuant to 21 U. S. C. § 853. The order listed
specific property to be forfeited, including a parcel of real
property in Wyoming, two condominiums, two automobiles, a mobile
home, a diamond ring, various firearms, cash, several bank
accounts, and a number of cashier's and traveler's checks.
App.155-164. One check was forfeited as a substitute asset.
Id., at 162. Libretti filed an appeal from the order of
forfeiture.
While this appeal was pending, the District Court entertained
third-party claims to some of the property ordered forfeited. See
21 U. S. C. § 853(n). Following a March 1993 hearing, the court
amended its forfeiture order to return certain property to the
third-party claimants. The court also modified its order with
respect to Libretti, stating that "it may be unjust to enforce the
specific forfeiture provisions in the plea agreement" and reasoning
that Libretti's concession to forfeiture in the plea agreement
provided insufficient basis for the order of forfeiture. App. 309.
The court ordered a Magistrate to conduct a hearing at which
Libretti would be given the opportunity to show, by a preponderance
of the evidence, that any portion of his property was not subject
to forfeiture. Upon motion by the Government, the District Court
stayed the proceedings before the Magistrate Judge pending
resolution of Libretti's appeal.
The Court of Appeals for the Tenth Circuit rejected both of
Libretti's challenges to the forfeiture order.
38 F.3d
523 (1994). The court ruled first that the District Court
lacked jurisdiction to consider Libretti's claims to the property
ordered forfeited at the third-party hearing, because Libretti had
filed a notice of appeal. After noting the divergence in the Courts
of Appeals regarding the applicability of Rule 11(f) to forfeiture
provisions in plea agreements, the court rejected Libretti's
contention that Rule 11(f) requires a district court to ascertain a
factual basis for a stipulated forfeiture of assets. This
conclusion, the Court of Appeals reasoned, follows from the fact
that forfeiture "is a part of the
37
sentence, not a part of the substantive offense."
Id., at
528. The Court of Appeals also determined that Libretti had waived
his Rule 31(e) right to a jury determination of forfeitability,
despite the fact that the District Court did not expressly advise
Libretti of the existence and scope of that right during his plea
colloquy.
Id., at 530-531. We granted certiorari to resolve
disagreement among the Circuits as to the applicability of Rule
11(f) to asset forfeiture provisions contained in plea agreements 2
and the requisites for waiver of the right to a jury determination
of forfeit ability under Rule 31(e).3 514 U. S. 1035 (1995).
II
Libretti insists that the District Court's forfeiture order must
be set aside (or at least modified), because the court neglected to
establish a "factual basis" for forfeiture of the
2 Compare
United States v.
Reckmeyer, 786 F.2d
1216, 1222
(CA4) (Rule 11(f) applies to forfeiture
provisions in plea agreements), cert. denied, 479 U. S. 850 (1986),
and
United States v.
Roberts, 749
F.2d 404, 409
(CA7 1984) (same), cert. denied, 470 U. S.
1058 (1985), with
United States v.
Boatner, 966 F.2d
1575, 1581
(CAll 1992) (Rule 11(f) does not apply to
stipulated forfeiture provisions in plea agreements),
United
States v.
Bachynsky, 949 F.2d
722, 730-731
(CA5 1991) (Rule 11(f) does not apply to
forfeiture provisions, but a forfeiture order will be upheld only
if the record provides a factual basis for forfeiture), cert.
denied, 506 U. S. 850 (1992), and
38 F.3d
523, 528 (CAlO 1994) (case below).
3 Compare,
e. g., id., at 531 ("specific reference
to" the Rule 31(e) right to a special jury verdict is not required
when a defendant's "unambiguous plea agreement" and "knowing and
voluntary plea" establish waiver);
United States v.
Robinson, 8 F.3d
418, 421
(CA7 1993) ("[A] defendant's waiver of his
statutory right [under Rule 31(e)] to have a jury determine which
portion of his property is subject to forfeiture is only valid if
knowingly and voluntarily made");
United States v.
Garrett, 727 F. 2d lO03,
1012 (CAll 1984) (a
defendant has a constitutional right to a jury trial to determine
forfeit ability; waiver of that right must be in writing), aff'd on
other grounds,
471 U.
S. 773 (1985);
United States v.
Zang, 703 F.2d
1186, 1194-1195 (CAlO 1982) ("The parties can waive their right
to a special verdict [under Rule 31(e)] by not making a timely
request"), cert. denied, 464 U. S. 828 (1983).
38
property covered by the order under Federal Rule of Criminal
Procedure 11(f). Absent such a finding, Libretti argues, even his
concession to forfeiture in the plea agreement cannot authorize the
forfeiture.
A
Libretti's first claim is that the Rule by its very terms
applies to a forfeiture provision contained in a plea agreement.
Accordingly, our analysis must begin with the text of Rule
11(f):
"Determining Accuracy of Plea. Notwithstanding the acceptance of
a plea of guilty, the court should not enter a judgment upon such
plea without making such inquiry as shall satisfy it that there is
a factual basis for the plea."
By its plain terms, the Rule applies only to a "plea of guilty."
Our precedent makes clear that this language refers to a
defendant's admission of guilt of a substantive criminal offense as
charged in an indictment and his waiver of the right to a jury
determination on that charge. See,
e. g., United
States v.
Broce, 488 U. S. 563, 570 (1989)
("By entering a plea of guilty, the accused is not simply stating
that he did the discrete acts described in the indictment; he is
admitting guilt of a substantive crime");
North Carolina v.
Alford, 400 U. S. 25, 32 (1970);
Boykin v.
Alabama, 395
U. S. 238, 242
(1969); McCarthy v.
United States,
394 U. S. 459,
466 (1969). With this definition in mind, we have held that a
district judge satisfies the requirements of Rule 11(f) when he
"determine[s] 'that the conduct which the defendant admits
constitutes the offense charged in the indictment or information or
an offense included therein to which the defendant has pleaded
guilty.'"
Id., at 467 (quoting Advisory Committee's Notes on
Fed. Rule Crim. Proc. 11, 18 U. S. C. App., p. 730).
A forfeiture provision embodied in a plea agreement is of an
entirely different nature. Forfeiture is an element of the
39
sentence imposed
following conviction or, as here, a plea
of guilty, and thus falls outside the scope of Rule 11 (f). The
text of the relevant statutory provisions makes clear that Congress
conceived of forfeiture as punishment for the commission of various
drug and racketeering crimes. A person convicted of engaging in a
continuing criminal enterprise "shall be
sentenced ... to
the forfeiture prescribed in section 853." 21 U. S. C. § 848(a)
(emphasis added). Forfeiture is imposed "in addition to any other
sentence." 21 U. S. C. § 853(a) (emphasis added). See also
18 U. S. C. § 1963 (forfeiture is imposed "in addition to any other
sentence" for a violation of the Racketeer Influenced and
Corrupt Organizations Act (RICO)). The legislative history of the
Comprehensive Crime Control Act of 1984, Pub. L. 98-473, Tit. II,
98 Stat. 1976, also characterizes criminal forfeiture as
punishment. See,
e. g., S. Rep. No. 98-225, p. 193
(1983) (criminal forfeiture "is imposed as a sanction against the
defendant upon his conviction"). Congress plainly intended
forfeiture of assets to operate as punishment for criminal conduct
in violation of the federal drug and racketeering laws, not as a
separate substantive offense.
Our precedents have likewise characterized criminal forfeiture
as an aspect of punishment imposed following conviction of a
substantive criminal offense. In
Alexander v.
United
States, 509 U. S.
544 (1993), we observed that the criminal forfeiture authorized
by the RICO forfeiture statute "is clearly a form of monetary
punishment no different, for Eighth Amendment purposes, from a
traditional 'fine.'"
Id., at 558. Similarly, in
United
States v.
$8,850, 461 U. S. 555 (1983), we
recognized that a "criminal proceeding ... may often include
forfeiture as part of the sentence."
Id., at 567. And in
Austin v.
United States, 509 U. S. 602 (1993), we
concluded that even the
in rem civil forfeiture authorized
by 21 U. S. C. §§881(a)(4) and (a)(7) is punitive in nature, so
that forfeiture imposed under those subsections is subject to the
limitations of the Eighth Amendment's Excessive Fines
40
Clause. 509 U. S., at 619-622. Libretti himself conceded below
that criminal forfeiture "is a part of the sentence, not a part of
the substantive offense." 38 F. 3d, at 528.
It is true, as Libretti points out, that we said in
Caplin & Drysdale, Chartered v.
United
States, 491 U. S.
617 (1989), that "forfeiture is a substantive charge in the
indictment against a defendant."
Id., at 628, n. 5. That
statement responded to the defendant's claim that his Sixth
Amendment right to counsel "for his defense" could be transformed
into a defense to a forfeiture count in the indictment. We intended
only to suggest that a defendant cannot escape an otherwise
appropriate forfeiture sanction by pointing to his need for counsel
to represent him on the underlying charges. Elsewhere in that
opinion we recognized that forfeiture is a "criminal sanction,"
id., at 634, and is imposed as a sentence under § 853,
id., at 620, n. 1.
Libretti nonetheless insists that the criminal forfeiture for
which § 853 provides is not "simply" an aspect of sentencing, but
is, in essence, a hybrid that shares elements of both a substantive
charge and a punishment imposed for criminal activity. In support
of this contention, Libretti points to three Federal Rules of
Criminal Procedure that, according to him, treat forfeiture as a
substantive criminal charge. Rule 7(c)(2) provides that "[n]o
judgment of forfeiture may be entered in a criminal proceeding
unless the indictment or the information shall allege the extent of
the interest or property subject to forfeiture." If the indictment
or information alleges that a defendant's property is subject to
forfeiture, "a special verdict shall be returned as to the extent
of the interest or property subject to forfeiture, if any." Fed.
Rule Crim. Proc. 31(e). And a finding of forfeitability must be
embodied in a judgment. Fed. Rule Crim. Proc. 32(d)(2) ("When a
verdict contains a finding of criminal forfeiture, the judgment
must authorize the Attorney General to seize the interest or
property subject to forfeiture on terms that the court considers
proper").
41
Although the procedural safeguards generated by these Rules are
unique in the realm of sentencing, they do not change the
fundamental nature of criminal forfeiture. The fact that the Rules
attach heightened procedural protections to imposition of criminal
forfeiture as punishment for certain types of criminal conduct
cannot alter the simple fact that forfeiture is precisely that:
punishment. The Advisory Committee's "assumption" that "the amount
of the interest or property subject to criminal forfeiture is an
element of the offense to be alleged and proved," Advisory
Committee's Notes on Fed. Rule Crim. Proc. 31, 18 U. S. C. App., p.
786, does not persuade us otherwise. The Committee's assumption
runs counter to the weighty authority discussed above, all of which
indicates that criminal forfeiture is an element of the sentence
imposed for a violation of certain drug and racketeering laws.
Moreover, even supposing that the Committee's assumption is
authoritative evidence with respect to the amendments to Rules 7,
31, and 32, it has no bearing on the proper construction of Rule
11.
Tome v.
United States, 513 U. S. 150 (1995), is
not to the contrary. The
Tome plurality treated the Advisory
Committee's Notes on Federal Rule of Evidence 801(d)(1)(B) as
relevant evidence of the drafters' intent
as to the meaning of
that Rule. 513 U. S., at 160163. In contrast, Libretti seeks to
use the Note appended to Rule 31 to elucidate the meaning of an
entirely distinct Rule. We cannot agree that the Advisory
Committee's Notes on the 1972 amendment to Rule 31(e) shed any
particular light on the meaning of the language of Rule 11(f),
which was added by amendment to Rule 11 in 1966.
B
Libretti next advances three policy arguments for construing
Rule 11(f) to reach asset forfeiture provisions of plea agreements.
First, he claims, Rule l1(f)'s factual basis inquiry is essential
to ensuring that a forfeiture agreement is knowing and voluntary.
Next, Libretti declares that a Rule
42
11(f) inquiry will protect against Government overreaching. And
lastly, Libretti insists that a factual basis inquiry is necessary
to ensure that the rights of third-party claimants are fully
protected. We consider these contentions in turn.
We are unpersuaded that the Rule 11(f) inquiry is necessary to
guarantee that a forfeiture agreement is knowing and voluntary.
Whether a stipulated asset forfeiture is "factually based" is a
distinct inquiry from the question whether the defendant entered an
agreement to forfeit assets knowingly and voluntarily. Libretti
correctly points out that Rule 11(f) is intended to ensure that a
defendant's "plea of guilty" is knowing and voluntary.
McCarthy, 394 U. S., at 472 (the Rule 11 inquiry is
"designed to facilitate a more accurate determination of the
voluntariness of [a] plea"); Advisory Committee's Notes on Fed.
Rule Crim. Proc. 11, 18 U. S. C. App., p. 730 (Rule 11(f) protects
defendants who do not "realiz[e] that [their] conduct does not
actually fall within the charge"). But a "plea of guilty" and a
forfeiture provision contained in a plea agreement are different
matters altogether. Forfeiture, as we have said, is a part of the
sentence. If the voluntariness of a defendant's concession to
imposition of a particular sentence is questionable, the relevant
inquiry is whether the sentencing stipulation was informed and
uncoerced on the part of the defendant, not whether it is factually
sound.
Libretti's second argument-that a Rule 11(f) factual basis
inquiry is necessary to prevent prosecutorial overreachingproves
equally unavailing. As Libretti properly observes, § 853 limits
forfeiture by establishing a factual nexus requirement: Only
drug-tainted assets may be forfeited. Libretti suggests that
failure to ensure, by means of a Rule 11(f) inquiry, that this
factual nexus exists will open the door to voluntary forfeiture
agreements that exceed the forfeiture authorized by statute,
particularly in light of the Government's direct financial interest
in forfeiture as a source of revenue and the disparity in
bargaining power between the
43
Government and a defendant. We recognized in
Caplin &
Drysdale that the broad forfeiture provisions carry the
potential for Government abuse and "can be devastating when used
unjustly." 491 U. S., at 634. Nonetheless, we concluded that
"[c]ases involving particular abuses can be dealt with individually
by the lower courts, when (and if) any such cases arise."
Id., at 635. However valid Libretti's concern about
prosecutorial overreaching may be, Rule 11(f) simply does not, on
its face, address it.
We do not mean to suggest that a district court must simply
accept a defendant's agreement to forfeit property, particularly
when that agreement is not accompanied by a stipulation of facts
supporting forfeiture, or when the trial judge for other reasons
finds the agreement problematic. In this regard, we note that the
Department of Justice recently issued a Revised Policy Regarding
Forfeiture by Settlement and Plea Bargaining in Civil and Criminal
Actions, Directive 94-7 (Nov. 1994), to instruct that, among the
procedures necessary to ensure a valid forfeiture agreement, "[t]he
settlement to forfeit property must be in writing and the defendant
must concede facts supporting the forfeiture."
Id., at 13.
In this case, however, we need not determine the precise scope of a
district court's independent obligation, if any, to inquire into
the propriety of a stipulated asset forfeiture embodied in a plea
agreement. We note that the Sentencing Guidelines direct only that
a district court "may" accept an agreement reached by the parties
as to a specific, appropriate sentence, as long as the sentence is
within the applicable guideline range or departs from that range
"for justifiable reasons." United States Sentencing Commission,
Guidelines Manual § 6B1.2(c)(2) (Nov. 1993). Libretti's plea
agreement correctly recognized that the District Court was not
bound by the parties' agreement as to the appropriate sentence:
"[T]he sentencing judge is neither a party to nor bound by this
plea agreement and is free to impose whatever sentence he feels is
justified." App. 81, , 11.
44
Libretti finally argues that a Rule 11(f) factual basis inquiry
is essential to preserving third-party claimants' rights. A
defendant who has no interest in particular assets, the argument
goes, will have little if any incentive to resist forfeiture of
those assets, even if there is no statutory basis for their
forfeiture. Once the Government has secured a stipulation as to
forfeitability, third-party claimants can establish their
entitlement to return of the assets only by means of the hearing
afforded under 21 U. s. C. § 853(n). This hearing, Libretti claims,
is inadequate to safeguard third-party rights, since the entry of a
forfeiture order deprives thirdparty claimants of the right to a
jury trial and reverses the burden of proof. He concludes that
insisting on a factual basis inquiry before entry of the forfeiture
order will lessen the need for third-party hearings following a
broad-ranging forfeiture agreement, and may even result in the
conservation of scarce judicial resources. Whatever the merits of
this argument as a matter of policy, Congress has determined that §
853(n), rather than Rule 11(f), provides the means by which
third-party rights must be vindicated. Third-party claimants are
not party to Rule 11(f) proceedings, and Libretti's assertion that
their interests are best protected therein fits poorly within our
adversary system of justice.
C
Contrary to the suggestion of the dissent,
post, at 57,
the District Court did not rest its forfeiture order on nothing
more than Libretti's stipulation that certain assets were
forfeitable. In fact, there is ample evidence that the District
Court both understood the statutory requisites for criminal
forfeiture and concluded that they were satisfied on the facts of
this case at the time the sentence was imposed. First, the District
Judge correctly recognized the factual nexus requirement
established by § 853. App. 89 (change-of-plea hearing) ("[I]t has
to be the product of a drug transaction to be forfeited"). Count 6
of the indictment specified numerous
45
items of property alleged to be subject to forfeiture under that
statute, including a parcel of real property in Wyoming; two
automobiles; over $100,000 in cash proceeds from drug transactions;
$12,000 in cash that Libretti had stored inside a paint can at his
home; a diamond ring; "[a]ll United States currency and travelers
checks" recovered from Libretti's storage lockers, safes, home, and
person; a mobile home; a computer system; four bank accounts; two
GNMA investment certificates; bonds; three cashier's checks; and
the contents of two safe deposit boxes. Additional property was
identified in a bill of particulars and a restraining order issued,
and subsequently amended, by the District Court pursuant to 21 U.
S. C. § 853(e) ("Upon application of the United States, the court
may enter a restraining order ... to preserve the availability of
property described in subsection (a) of this section for forfeiture
under this section"). After one week of trial, the parties
submitted to the court an agreement which set out, in detail,
specific items of property to be forfeited following Libretti's
plea of guilty, including "all real estate; all personal property,
including guns, the computer, and every other item now in the
possession of the United States; all bank accounts, investments,
retirement accounts, cash, cashier's checks, travelers checks and
funds of any kind." App. 81. The plea agreement also explained that
the maximum penalty for the offense to which Libretti agreed to
plead guilty included "forfeiture of all known assets as prescribed
in 21 U. S. C. § 853 and assets which are discovered at any later
time up to $1,500,000." App. 79.
Before issuing the order of forfeiture, the trial judge listened
to four days of testimony, in which Government witnesses detailed
numerous drug transactions with Libretti. See,
e. g.,
2 Tr. 124-126, 137-139; 3
id., at 271-272; 4
id., at
495-501; 5
id., at 946-949. One witness recounted Libretti's
purchase of a home in 1985 with a $100,000 down payment, at a time
during which he was earning an annual salary of approximately
$20,000. 2
id., at 179-180,210-216; App. 123
46
(Presentence Report, Prosecutor's Statement , 6); Presentence
Report' 37. Another told of Libretti's purchase of a sports car
with a check for $19,114. 5 Tr. 907-913. Other witnesses described
Libretti's possession, in his capacity as a federal firearms
dealer, of numerous automatic and semiautomatic firearms, later
determined to be worth at least $243,000. See,
e. g.,
2
id., at 140-141, 156-162; 5
id., at 844853; App.
123 (Presentence Report, Prosecutor's Statement , 9). One witness
testified that Libretti admitted having "quite a bit of money
stashed away" in safe deposit boxes, 5 Tr. 834, and on at least one
occasion had "a couple thousand" dollars in cash "sitting around,"
id., at 835. Other witnesses established that Libretti often
stored cash and drugs in safe deposit boxes and storage facilities
away from his home. See,
e. g., 2
id., at
155-156; 4
id., at 718-720, 738743. One of Libretti's drug
customers testified that he broke into a storage facility at which
Libretti had rented a storage locker and discovered a briefcase
containing a large amount of cash (later estimated in the
presentence report to be approximately $150,000), a large block of
cocaine, and five large trash bags, at least one of which was
filled with marijuana.
Id., at 558-566, 588-589.
Prior to sentencing, the court received the presentence
investigation report, which contained, among other things, a
summary of Libretti's legitimate income during the relevant time
periods. During 1985 and 1986, Libretti worked as a restaurant and
grocery store manager, earning approximately $20,000 per year. In
early 1987, he was employed as a temporary stock broker and was
paid on commission only. Later that year, he managed a Tenneco
thrift store. In 1989, Libretti reported an income of approximately
$50,000 from his firearms business. During 1988 and 1989, Libretti
also owned a partnership interest in two condominiums; he reported
that the rental income did not meet his expenses and thus he did
not earn a profit. Between June 1989 and his arrest in December
1991, Libretti worked as a full-time
47
accounting supervisor, earning a salary of approximately $40,000
per year. Presentence Report "35-37.
Included in the presentence report was a prosecutor's statement
detailing the amounts of cocaine and marijuana involved in
Libretti's drug operation and various sums of money Libretti earned
from his drug dealing. App. 122135. The statement described
Libretti's substantial expenditures, including the $100,000 cash
deposit on a house in 1985 ($72,000 of which was derived from
Libretti's sale of drugs) and the purchase of a $20,000 mortgage in
1986 (again, allegedly with proceeds from his distribution of
drugs).
Id., at 123. Paragraph 12 reported that Libretti had
opened a safe deposit box in 1987 in which he placed $48,000 in
cash. On another occasion, Libretti placed approximately $10,000
into an account bearing his brother's name.
Id., at 124-125.
The statement described Libretti's practice of storing large
amounts of cash and drugs in safes, storage lockers, and safe
deposit boxes.
Id., at 124, 129. Libretti also stored drugs,
a weapon, and a cashier's check for $65,000 in his personal locker
at his place of employment.
Id., at 129. The statement
related Libretti's investment of at least $243,000 in numerous
firearms.
Id., at 123-124. These funds again reportedly
derived from Libretti's drug distribution activities; the statement
indicated that "Libretti's gun business was used to launder drug
proceeds" and served as a means by which Libretti could "justify
his income since [he] was not working at times during the
conspiracy and, when he was working, was not bringing in the money
that would pay for the Lakewood house and other investments."
Id., at 127. Finally, the statement suggested that
substantial sums of cash derived from Libretti's drug activities
were never recovered by law enforcement authorities.
Id., at
134. Defense counsel conceded at the sentencing hearing that "the
[presentence] report of Mr. Libretti's background, education,
financial circumstances are
[sic] accurate."
Id., at
138. In light of these facts, defense counsel acknowledged that
"the
48
forfeiture is going to take regular money and illegal money
under the substitute assets" provision of §853.
Id., at
149.
In view of the plea agreement, the indictment, and the amended
restraining order, the trial judge issued an order forfeiting to
the Government the Wyoming lot, both condominiums, both
automobiles, $8,000 in cash proceeds of Libretti's drug
transactions, the diamond ring, the mobile home, all firearms, an
IRA account, three bank accounts, bonds, two GNMA certificates, and
several cashier's and traveler's checks. One check was ordered
forfeited as a substitute asset "for assets dissipated and
otherwise expended by Libretti."
Id., at 162.
It is not, as Libretti maintains, implausible that the court
concluded on the record before it that the forfeiture order was
appropriate. Following Libretti's objection to the forfeiture order
for lack of factual foundation, the trial judge replied that "the
evidence that I heard before me in the two
[sic] days of
trial I think is sufficient to warrant the granting of forfeiture."
Id., at 154. We cannot say that the District Judge, despite
his subsequent uncertainty, erred in issuing the forfeiture order
on the facts before him.
III
Libretti also challenges the adequacy of his waiver of a jury
determination as to the forfeitability of his property under
Federal Rule of Criminal Procedure 31(e). The right, he argues, has
both a constitutional and a statutory foundation, and cannot be
waived absent specific advice from the district court as to the
nature and scope of this right and an express, written agreement to
forgo the jury determination on forfeit ability. We disagree.
Federal Rule of Criminal Procedure 31(e) provides that, "[i]f
the indictment or the information alleges that an interest or
property is subject to criminal forfeiture, a special verdict shall
be returned as to the extent of the interest or property subject to
forfeiture, if any." Libretti would have
49
us equate this statutory right to a jury determination of
forfeitability with the familiar Sixth Amendment right to a jury
determination of guilt or innocence. See,
e. g., United
States v.
Gaudin, 515 U. S. 506, 511 (1995)
("The Constitution gives a criminal defendant the right to demand
that a jury find him guilty of all the elements of the crime with
which he is charged"). Without disparaging the importance of the
right provided by Rule 31(e), our analysis of the nature of
criminal forfeiture as an aspect of sentencing compels the
conclusion that the right to a jury verdict on forfeit ability does
not fall within the Sixth Amendment's constitutional protection.
Our cases have made abundantly clear that a defendant does not
enjoy a constitutional right to a jury determination as to the
appropriate sentence to be imposed. See,
e. g.,
McMillan v.
Pennsylvania, 477 U. S. 79,93 (1986)
("[T]here is no Sixth Amendment right to jury sentencing, even
where the sentence turns on specific findings of fact");
Cabana v.
Bullock, 474 U. S. 376, 385 (1986)
("The decision whether a particular punishment ... is appropriate
in any given case is not one that we have ever required to be made
by a jury");
Spaziano v.
Florida, 468 U. S. 447, 459 (1984)
(no right to a jury determination as to the imposition of the death
penalty).
Given that the right to a jury determination of forfeitability
is merely statutory in origin, we do not accept Libretti's
suggestion that the plea agreement must make specific reference to
Rule 31(e). Nor must the district court specifically advise a
defendant that a plea of guilty will result in waiver of the Rule
31(e) right. Federal Rule of Criminal Procedure l1(c) details the
information a district court must communicate to a defendant in
order to ensure that a guilty plea is valid. Advisory Committee's
Notes on 1974 Amendment of Fed. Rule Crim. Proc. l1(c), 18 U. S. C.
App., p. 731 (the Rule "codifies ... the requirements of
Boykin v.
Alabama, 395 U. S. 238 ...(1969),
which held that a defendant must beapprised of the fact that he
relinquishes certain constitu-
50
tional rights by pleading guilty") (emphasis added).
Specific advice regarding the Rule 31(e) right is not among the
Rule l1(c) safeguards, and we decline Libretti's invitation to
expand upon the required plea colloquy. That is not to say,
however, that a trial judge may not mention the nature and scope of
the Rule 31(e) right during a plea colloquy. In fact, the Advisory
Committee's Notes make plain that "a judge is free to" inform a
defendant about specific consequences that might follow from a plea
of guilty if the judge "feels a consequence of a plea of guilty in
a particular case is likely to be of real significance to the
defendant." Advisory Committee's Notes on 1974 Amendment of Fed.
Rule Crim. Proc. 11, 18 U. S. C. App., p. 731.
On these facts, Libretti's waiver of a jury determination as to
the scope of forfeiture was plainly adequate. In the plea
agreement, Libretti "acknowledge[d] that by pleading guilty to
Count Six of the Indictment, he waive[d] various constitutional
rights, including the right to a jury trial and a speedy trial."
App. 80. He stipulated to the forfeiture of specific assets.
Id., at 80-81. The District Court engaged Libretti in an
extensive colloquy at his change-of-plea hearing, during which the
court reviewed with Libretti the consequences of his guilty plea,
including the fact that the plea would result in dismissal of the
jury. Libretti's responses made clear that he fully understood the
nature and consequences of his guilty plea and was prepared to be
sentenced in accordance with the plea agreement. At the sentencing
hearing, neither Libretti nor his counsel specifically objected to
resolution of forfeiture issues by the court without a jury. See,
e. g., id., at 150, 154.
In addition, Libretti was represented by counsel at all stages
of trial and sentencing. Apart from the small class of rights that
require specific advice from the court under Rule 11 (c), it is the
responsibility of defense counsel to inform a defendant of the
advantages and disadvantages of a plea agreement and the attendant
statutory and con-
51
stitutional rights that a guilty plea would forgo. Libretti has
made no claim of ineffectiveness of counsel before this Court. As
we noted in
Broce, "[a] failure by counsel to provide advice
may form the basis of a claim of ineffective assistance of counsel,
but absent such a claim it cannot serve as the predicate for
setting aside a valid plea." 488 U. S., at 574.
Of course, a district judge must not mislead a defendant
regarding the procedures to be followed in determining whether the
forfeiture contemplated in a plea agreement will be imposed, nor
should the court permit a defendant's obvious confusion about those
procedures to stand uncorrected. On this record, however, we find
no hint that Libretti labored under any misapprehension. Although
the District Judge did not spell out for Libretti that, had he
declined to enter a plea of guilty, and had the trial gone forward,
the jury would eventually have been required to determine which of
Libretti's assets were forfeitable, when viewed in its entirety,
the plea colloquy made it abundantly clear that the plea agreement
would end any proceedings before the jury and would lead directly
to sentencing by the court. As the Court of Appeals observed,
"there is no evidence at [the change-ofplea] hearing that
[Libretti] wanted a jury trial on the forfeiture issue, or thought
he was going to have one." 38 F. 3d, at 531. Taken together, the
plea agreement and the plea colloquy waived Libretti's right to
insist on a jury determination of forfeit ability under Rule
31(e).
IV
For these reasons, we reject Libretti's challenges to the
District Court's forfeiture order. Under the plain language of Rule
11(f), the District Court is not obliged to inquire into the
factual basis for a stipulated forfeiture of assets embodied in a
plea agreement. And because Libretti agreed to this forfeiture and
waived his "right to a jury trial," he cannot now complain that he
did not receive the special jury
52
Opinion of SOUTER, J.
verdict on forfeit ability for which Rule 31(e) provides.
Accordingly, the judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE SOUTER, concurring in part and concurring in the
judgment.
I join in the judgment and Parts I and II of the Court's
opinion. I would not reach the question of a Sixth Amendment right
to trial by jury on the scope of forfeiture or whether the
Constitution obliges a trial court to advise a defendant of
whatever jury trial right he may have. In cases like this one, any
such right to instruction will be satisfied by the court's
obligatory advice to the defendant of the right to jury trial
generally. See Fed. Rule Crim. Proc. 11 (c) (3) ("Before accepting
a plea of guilty ... the court must address the defendant
personally in open court and inform the defendant of, and determine
that the defendant understands, ... that the defendant has ... the
right to be tried by a jury"). It is reasonable to understand the
scope of the right as covering all matters charged in the
indictment, which under Rule 7(c)(2) will include the forfeiture
claim. Since a defendant will have been provided a copy of the
indictment, see Fed. Rule Crim. Proc. 10 ("The defendant shall be
given a copy of the indictment or information before being called
upon to plead"), and will have heard it read or summarized, see
ibid. ("Arraignment shall be conducted in open court and
shall consist of reading the indictment or information to the
defendant or stating to the defendant the substance of the
charge"), he will naturally understand that his right to jury trial
covers a verdict on the forfeiture claim.
If, in speaking to the defendant or in other statements within
his hearing, the court should affirmatively say or suggest that the
right to jury trial would not extend to the forfeiture, that would
be error under the current law, whatever the constitutional status
of that right may be. While there is some reason to argue that the
court's colloquy with the
53
defendant in this case was misleading, see App. 87 ("[I]f you
plead guilty .... the jury is not going to decide whether you're
guilty or not"), I think JUSTICE GINSBURG is right to conclude
otherwise, for the reasons given in her separate opinion.
JUSTICE GINSBURG, concurring in part and concurring in the
judgment.
Rule 11(f), I agree for reasons the Court states, does not
impose on district courts an obligation to find a "factual basis"
for asset forfeitures stipulated in a plea agreement. I therefore
join in Parts I and II of the Court's opinion and concur in the
judgment. But the jury-trial right for which Rule 31(e) provides,
as I see it, must be known in order to be given up voluntarily. I
therefore set out briefly my view of the second issue the Court
decides.
At the plea hearing, the District Court carefully and
comprehensively informed Libretti that his guilty plea would waive
his right to jury trial on the crimes charged in the indictment.
The court did not then refer to the unusual jury-trial right on
criminal forfeiture provided by Rule 31(e) of the Federal Rules of
Criminal Procedure:
"If the indictment or the information alleges that an interest
or property is subject to criminal forfeiture, a special verdict
shall be returned as to the extent of the interest or property
subject to forfeiture, if any."
See also Fed. Rule Crim. Proc. 7(c)(2) ("No judgment of
forfeiture may be entered in a criminal proceeding unless the
indictment or the information shall allege the extent of the
interest or property subject to forfeiture"); Fed. Rule Crim. Proc.
l1(c)(l) (court must address defendant personally in open court and
inform him of "the nature of the charge" when plea of guilty is
offered).
Just as intelligent waiver of trial by jury on the underlying
offense requires that the defendant be advised of the right,
54
so waiver of the extraordinary jury-trial right on forfeiture
should turn on the defendant's awareness of the right his plea will
override. That right, uncommon as it is, may not be brought home to
a defendant through a bare reading of the forfeiture clause in the
indictment. Clarity, however, is easily achieved. In cases like
Libretti's, trial judges can readily avoid unknowing relinquishment
of the procedural right to a jury verdict on forfeiture by
routinely apprising defendants, at plea hearings, of Rule 31(e)'s
atypical specialverdict requirement.
Failure to mention Rule 31(e) at Libretti's plea hearing is not
cause for revisiting the forfeiture of his property, however,
because at least two pretrial references were made to Rule 31(e)'s
requirement. First, there was a brief exchange between court and
counsel on the need for a special-verdict form. 1 Tr. 8. Second,
and more informative, the trial judge explained to the jurors
during
voir dire that the indictment included
"a provision for a forfeiture of all property of any kind
constituting or derived from proceeds that Mr. Libretti received
directly or indirectly from engaging in said continuing criminal
enterprise. And that's a subject matter on which the jury will be
required at the end of the case to answer a specific question
relating to it." Id., at 188.
In view of this statement to the lay triers-telling them in
Libretti's presence that they would be called upon specifically to
decide the matter of forfeiture-Libretti cannot persuasively plead
ignorance of the special-verdict right Rule 31(e) prescribes.
JUSTICE STEVENS, dissenting.
While I agree with the Court's conclusions (1) that Federal Rule
of Criminal Procedure 11(f) does not create a duty to determine
that there is a factual basis for a forfeiture of
55
assets pursuant to 21 U. s. C. § 853 and (2) that the record in
this case does establish a factual basis for forfeiting the assets
described in Count 6 of the indictment, I believe it important to
emphasize the underlying proposition that the law-rather than any
agreement between the partiesdefines the limits on the district
court's authority to forfeit a defendant's property. Moreover,
entirely apart from Rule 11(f), the district court has a legal
obligation to determine that there is a factual basis for the
judgment entered upon a guilty plea. For that reason, the Court of
Appeals was plainly wrong in holding that simply because the
defendant unequivocally agreed to "'forfeit all property,'" the
law authorized the forfeiture of all of his assets.
38 F.3d
523, 526 (CAlO 1994).
The facts of this case well illustrate the particular need for
the district court to determine independently that a factual basis
supports forfeiture judgments that it enters pursuant to plea
agreements. As the Court correctly notes, this defendant received a
favorable plea agreement. The record demonstrates that the facts
would have supported a much longer term of imprisonment than was
actually imposed. In such circumstance, it is not unthinkable that
a wealthy defendant might bargain for a light sentence by
voluntarily "forfeiting" property to which the government had no
statutory entitlement. This, of course, is not the law. No matter
what a defendant may be willing to pay for a favorable sentence,
the law defines the outer boundaries of a permissible forfeiture. A
court is not free to exceed those boundaries solely because a
defendant has agreed to permit it to do so. As Judge Cudahy aptly
put it, "[t]he mere fact that the defendant has agreed that an item
is forfeitable, in a plea agreement, does not make it so."
United States v.
Roberts, 749
The proposition that the law alone defines the limits of a
court's power to enter a judgment can be traced to this Court's
early precedents. In
Bigelow v.
Forrest, 9 Wall.
339
56
(1870), the Court explained that a court "transcend[s] its
jurisdiction" when it orders the forfeiture of property beyond that
authorized by statute.
Id., at 351. In a similar vein,
Ex
parte Lange, 18 Wall. 163 (1874), concluded that a judgment
imposing punishment in excess of statutory authorization is not
merely voidable, but "void."
Id., at 178. Precisely because
extrastatutory punishments implicate the very power of a court to
act, the district court must, entirely apart from the specific
procedure mandated by Rule 11(f), satisfy itself that there is a
factual basis for any judgment entered pursuant to a guilty plea
that threatens to exceed statutory bounds.1 Were a court to do
otherwise, it would permit the parties to define the limits of its
power.
In sum, Rule 11(f) does not create a substantive right.
Instead, it prescribes a procedure that is intended to protect
every defendant's pre-existing right not to receive any sentence
beyond statutorily prescribed limits. Rule 11(f) states that if
there is no factual basis for the guilty plea, the court has no
power to "enter a judgment upon such plea .... " In so stating, the
Rule does not impliedly authorize courts to impose sentences upon a
plea of guilty greater than the maximum prescribed for the admitted
offense. The pre-existing substantive limits on the court's power
to impose a judgment upon a plea of guilty, which apply to the
forfeiture aspect of the judgment as well as to the finding of
guilt, preclude such a result. Nothing in the Rule suggests
otherwise.
Because the foregoing thoughts are implicit in this Court's
independent examination of the record to assure itself that there
is indeed a factual basis for the forfeiture of the property
described in Count 6, and for the further conclusion that the
forfeiture order does not extend beyond the line that the law has
drawn, I endorse almost all of the Court's opinion.
10f course, the court's power to act is not similarly implicated
when it imposes a sentence that is arguably erroneous but
nonetheless within the range authorized by statute.
57
Nevertheless, I do not agree with the Court's disposition of the
case because I believe the opinion of the Court of Appeals can
fairly be read to approve of the forfeiture of
all
petitioner's property, rather than just the assets described in
Count 6.2
Although the majority marshals ample support for much of the
forfeiture authorized here, the record simply does not provide a
factual basis for the whole of it. For example, nothing in the
Court's opinion provides a basis for concluding that the small bank
account that petitioner opened while a young boy, and which had not
been augmented since 1975, should be subject to forfeiture. Nor can
all of his assets necessarily be deemed subject to forfeiture as
"substitute assets." As the Court recognizes, the District Court
determined that only one check was subject to forfeiture on that
basis.
Ante, at 48.
The sole basis for the wholesale forfeiture affirmed here stems
from one paragraph in the defendant's plea agreement which states
his willingness to "transfer his right, title, and interest in all
of his assets to the Division of Criminal Investigation of the
Wyoming Attorney General."3 App.81. As I have explained, however, a
defendant's bare stipulation does not determine what property a
court may forfeit. The district court must independently make that
determination. Here, the record reveals that the District Court had
not determined that a factual basis existed for the sweeping
forfeiture it ordered. Indeed, the District Court subsequently
sought to hold a hearing for the very purpose of determining
whether a factual basis existed. The District Court was precluded
from undertaking that necessary inquiry only because this
pro
se petitioner filed an early notice of appeal
2 Moreover, I agree with JUSTICE GINSBURG that the jury trial
right that Rule 31(e) provides must be known in order to be given
up voluntarily.
3 The record does not make clear why the property would be
transferred to state, rather than federal, law enforcement
authorities.
58
that divested the court of jurisdiction. However, that
jurisdictional bar did not, and could not, relieve the District
Court of its prior duty to find a factual basis for its forfeiture
judgment.
Because the District Court had not assured itself that its
judgment fell within the bounds established by law, and because the
record does not support the conclusion that it did, I would vacate
and remand for further proceedings consistent with this
opinion.
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