Respondent, who allegedly directed a large-scale heroin
distribution enterprise, was indicted for alleged violations of
racketeering laws, creation of a continuing criminal enterprise,
and tax and firearm offenses. The indictment also alleged that
respondent had accumulated three specified assets as a result of
his narcotics trafficking, which were subject to forfeiture under
the Comprehensive Forfeiture Act of 1984, 21 U.S.C. § 853. After
the indictment was unsealed, the District Court granted the
Government's
ex parte motion under § 853(e)(1)(A) for a
restraining order freezing the assets pending trial. Respondent,
raising various statutory arguments and claiming that the order
interfered with his Sixth Amendment right to counsel of his choice,
moved to vacate the order to permit him to use frozen assets to
retain an attorney. He also sought a declaration that if the assets
were used to pay attorney's fees, § 853(c)'s third-party transfer
provision would not be used to reclaim such payments if respondent
was convicted and his assets forfeited. The District Court denied
the motion. However, the Court of Appeals ultimately ordered that
the restraining order be modified to permit the restrained assets
to be used to pay attorney's fees.
Held:
1. There is no exemption from § 853's forfeiture or pretrial
restraining order provisions for assets that a defendant wishes to
use to retain an attorney. Pp.
491 U. S.
606-614.
(a) Section 853's language is plain and unambiguous. Congress
could not have chosen stronger words to express its intent that
forfeiture be mandatory than § 853(a)'s language that upon
conviction a person "shall forfeit . . . any property" and that the
sentencing court "shall order" a forfeiture. Likewise, the statute
provides a broad definition of property which does not even hint at
the idea that assets used for attorney's fees are not included.
Every Court of Appeals that has finally passed on this argument has
agreed with this view. Neither the Act's legislative history nor
legislators' post-enactment statements support respondent's
argument that an exception should be created because the statute
does not expressly include property to be used for attorney's fees,
or because Congress simply did not consider the prospect that
forfeiture
Page 491 U. S. 601
would reach such property. To the contrary, in the Victims of
Crime Act -- which requires forfeiture of a convicted defendant's
collateral profits derived from his crimes and which was enacted
simultaneously with the statute in question -- Congress adopted
expressly the precise exemption from forfeiture which
respondent is seeking to have implied in § 853. Moreover,
respondent's admonition that courts should construe statutes to
avoid decision as to their constitutionality is not license for the
judiciary to rewrite statutory language. Pp.
491 U. S.
606-611.
(b) Respondent's reading of § 853(e)(1)(A) -- which provides
that a district court "may enter a restraining order or injunction
. . . or take any other action to preserve the availability of
property . . . for forfeiture" -- misapprehends the nature of § 853
by giving a district court equitable discretion to determine
whether to exempt assets from pretrial restraint and by concluding
that, if such assets are used for attorney's fees, they may not
subsequently be seized for forfeiture to the Government under §
853(c). Section 853(e)(1)(A) plainly is aimed at implementing §
853(a)'s commands, and cannot sensibly be construed to give the
district court discretion to permit the dissipation of the very
property it requires be forfeited upon conviction, since this would
nullify § 853(a)'s strong language, as well as § 853(c)'s powerful
"relation-back" provision. Pp.
491 U. S.
611-614.
2. The restraining order did not violate respondent's right to
counsel of choice as protected by the Sixth Amendment or the Due
Process Clause of the Fifth Amendment. For the reasons stated in
Caplin & Drysdale, Chartered v. United States, post p.
491 U. S. 617,
neither the Fifth nor the Sixth Amendment requires Congress to
permit a defendant to use assets adjudged to be forfeitable to pay
the defendant's legal fees. Moreover, a defendant's assets may be
frozen before conviction based on a finding of probable cause to
believe the assets are forfeitable.
See, e.g., United States v.
$8,850, 461 U. S. 555;
Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.
S. 663. Indeed, concluding that the Government could not
restrain such property would be odd considering that, under
appropriate circumstances, the Government may restrain persons
accused of a serious offense on a probable cause finding.
See
United States v. Salerno, 481 U. S. 739. Pp.
491 U. S.
614-616.
852 F.2d 1400, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined.
BLACKMUN, J., filed a dissenting opinion, in which BRENNAN,
MARSHALL, and STEVENS, JJ., joined,
post, p.
491 U.S. 635.
Page 491 U. S. 602
JUSTICE WHITE delivered the opinion of the Court.
The questions presented here are whether the federal drug
forfeiture statute authorizes a district court to enter a pretrial
order freezing assets in a defendant's possession, even where the
defendant seeks to use those assets to pay an attorney; if so, we
must decide whether such an order is permissible under the
Constitution. We answer both of these questions in the
affirmative.
I
In July 1987, an indictment was entered, alleging that
respondent had directed a large-scale heroin distribution
enterprise. The multicount indictment alleged violations of
racketeering laws, creation of a continuing criminal enterprise
(CCE), and tax and firearm offenses. The indictment also alleged
that three specific assets -- a home, an apartment, and $35,000 in
cash -- had been accumulated by respondent as a result of his
narcotics trafficking. These assets, the indictment
Page 491 U. S. 603
alleged, were subject to forfeiture under the Comprehensive
Forfeiture Act of 1984 (CFA), 98 Stat. 2044,
as amended,
21 U.S.C. § 853(a) (1982 ed., Supp. V), because they were "property
constituting, or derived from . . . proceeds . . . obtained" from
drug law violations. [
Footnote
1]
On the same day that the indictment was unsealed, the District
Court granted the Government's
ex parte motion, pursuant
to § 853(e)(1)(A), [
Footnote 2]
for a restraining order freezing
Page 491 U. S. 604
the above-mentioned assets pending trial. Shortly thereafter,
respondent moved to vacate this restraining order, to permit him to
use the frozen assets to retain an attorney. Respondent's motion
further sought a declaration that, if these assets were used to pay
an attorney's fees, § 853(c)'s third-party transfers provision
would not subsequently be used to reclaim such payments if
respondent was convicted and his assets forfeited. [
Footnote 3] Respondent raised various
statutory challenges to the restraining order, and claimed that it
interfered with his Sixth Amendment right to counsel of choice. The
District Court denied the motion to vacate.
Page 491 U. S. 605
On appeal, the Second Circuit concluded that respondent's
statutory and Sixth Amendment challenges were lacking, but remanded
the case to the District Court for an adversarial hearing "at which
the government ha[d] the burden to demonstrate the likelihood that
the assets are forfeitable"; if the Government failed its burden at
such a hearing, the Court of Appeals held, any fees paid to an
attorney would be exempt from forfeiture, irrespective of the final
outcome at respondent's trial. 836 F.2d 74, 84 (1987). Pursuant to
this mandate, on remand, the District Court held a 4-day hearing on
whether continuing the restraining order was proper. At the end of
the hearing, the District Court ruled that it would continue the
restraining order because the Government had "overwhelmingly
established a likelihood" that the property in question would be
forfeited at the end of trial. App. to Pet. for Cert. 86a.
Ultimately, respondent's criminal case proceeded to trial, where he
was represented by a Criminal Justice Act-appointed attorney.
[
Footnote 4]
In the meantime, the Second Circuit vacated its earlier opinion
and heard respondent's appeal en banc. [
Footnote 5] The en
Page 491 U. S. 606
banc court, by an 8-to-4 vote, ordered that the District Court's
restraining order be modified to permit the restrained assets to be
used to pay attorney's fees. 852 F.2d 1400 (1988). The Court was
sharply divided as to its rationale. Three of the judges found that
the order violated the Sixth Amendment, while three others
questioned it on statutory grounds; two judges found § 853 suspect
under the Due Process Clause for its failure to include a statutory
provision requiring the sort of hearing that the panel had ordered
in the first place. The four dissenting judges would have upheld
the restraining order.
We granted certiorari, 488 U.S. 941 (1988), because the Second
Circuit's decision created a conflict among the Courts of Appeals
over the statutory and constitutional questions presented.
[
Footnote 6] We now
reverse.
II
We first must address the question whether § 853 requires, upon
conviction, forfeiture of assets that an accused intends to use to
pay his attorneys.
A
"In determining the scope of a statute, we look first to its
language."
United States v. Turkette, 452 U.
S. 576,
452 U. S. 580
(1981). In the case before us, the language of § 853 is plain and
unambiguous: all assets falling within its scope are to be
forfeited upon conviction, with no exception existing for the
assets used to pay attorney's fees -- or anything else, for that
matter.
Page 491 U. S. 607
As observed above, § 853(a) provides that a person convicted of
the offenses charged in respondent's indictment "shall forfeit . .
. any property" that was derived from the commission of these
offenses. After setting out this rule, § 853(a) repeats later in
its text that upon conviction a sentencing court "shall order"
forfeiture of
all property described in § 853(a). Congress
could not have chosen stronger words to express its intent that
forfeiture be mandatory in cases where the statute applied, or
broader words to define the scope of what was to be forfeited.
Likewise, the statute provides a broad definition of "property"
when describing what types of assets are within the section's
scope: "real property . . . tangible and intangible personal
property, including rights, privileges, interests, claims, and
securities." 21 U.S.C. § 853(b) (1982 ed., Supp. V). Nothing in
this all-inclusive listing even hints at the idea that assets to be
used to pay an attorney are not "property" within the statute's
meaning.
Nor are we alone in concluding that the statute is unambiguous
in failing to exclude assets that could be used to pay an attorney
from its definition of forfeitable property. This argument,
advanced by respondent here,
see Brief for Respondent
12-19, has been unanimously rejected by every Court of Appeals that
has finally passed on it, [
Footnote
7] as it was by the Second Circuit panel below,
see
836 F.2d at 78-80;
id. at 85-86 (Oakes, J., dissenting);
even the judges who concurred on statutory grounds in the en banc
decision did not accept this position,
see 852 F.2d at
1405-1410 (Winter, J., concurring). We note also that the Brief for
American Bar
Page 491 U. S. 608
Association as
Amicus Curiae 6, frankly admits that the
statute "on [its] face, broadly cover[s] all property derived from
alleged criminal activity and contain[s] no specific exemption for
property used to pay bona fide attorneys' fees."
Respondent urges us, nonetheless, to interpret the statute to
exclude such property for several reasons. Principally, respondent
contends that we should create such an exemption because the
statute does not expressly include property to be used for
attorneys' fees, and/or because Congress simply did not consider
the prospect that forfeiture would reach assets that could be used
to pay for an attorney. In support, respondent observes that the
legislative history is "silent" on this question, and that the
House and Senate debates fail to discuss this prospect. [
Footnote 8] But this proves nothing:
the legislative
Page 491 U. S. 609
history and congressional debates are similarly silent on the
use of forfeitable assets to pay stockbroker's fees, laundry bills,
or country club memberships; no one could credibly argue that, as a
result, assets to be used for these purposes are similarly exempt
from the statute's definition of forfeitable property. The fact
that the forfeiture provision reaches assets that could be used to
pay attorney's fees, even though it contains no express provisions
to this effect, "
does not demonstrate ambiguity'" in the
statute: "
I
t demonstrates breadth.'" Sedima, S.P.R.L. v. Imrex
Co., 473 U. S. 479,
473 U. S. 499
(1985) (quoting Haroco, Inc. v. American Nat. Bank & Trust
Co. of Chicago, 747 F.2d 384, 398 (CA7 1984)). The statutory
provision at issue here is broad and unambiguous, and Congress'
failure to supplement § 853(a)'s comprehensive phrase -- "any
property" -- with an exclamatory "and we even mean assets to be
used to pay an attorney" does not lessen the force of the statute's
plain language.
Page 491 U. S. 610
We also find unavailing respondent's reliance on the comments of
several legislators -- made following enactment -- to the effect
that Congress did not anticipate the use of the forfeiture law to
seize assets that would be used to pay attorneys.
See
Brief for Respondent 15-16, and n. 9 (citing comments of Sen. Leahy
and Reps. Hughes and Shaw). As we have noted before, such
post-enactment views "form a hazardous basis for inferring the
intent" behind a statute,
United States v. Price,
361 U. S. 304,
361 U. S. 313
(1960); instead, Congress' intent is "best determined by [looking
to] the statutory language that it chooses,"
Sedima, S.P.R.L.,
supra, at
473 U. S. 495,
n. 13. Moreover, we observe that these comments are further subject
to question because Congress has refused to act on repeated
suggestions by the defense bar for the sort of exemption respondent
urges here, [
Footnote 9] even
though it has amended § 853 in other respects since these
entreaties were first heard.
See Pub.L. 99-570, §§
1153(b), 1864, 100 Stat. 3207-13, 3207-54.
In addition, we observe that in the very same law by which
Congress adopted the CFA -- Pub.L. 98-473, 98 Stat. 1837 --
Congress also adopted a provision for the special forfeiture of
collateral profits (
e.g., profits from books, movies,
etc.) that a convicted defendant derives from his crimes.
See Victims of Crime Act of 1984, 98 Stat. 2175-2176 (now
codified at 18 U.S.C. §§ 3681-3682 (1982 ed., Supp. V)). That
forfeiture provision expressly exempts "pay[ments] for legal
representation of the defendant in matters arising from the offense
for which such defendant has been convicted, but no more than 20
percent of the total [forfeited collateral profits] may be so
used." § 3681(c)(1)(B)(ii). Thus, Congress adopted
expressly -- in a statute enacted
simultaneously
with the one under review in this case -- the
precise
exemption from forfeiture
Page 491 U. S. 611
which respondent asks us to imply into § 853. The express
exemption from forfeiture of assets that could be used to pay
attorney's fees in Chapter XIV of Pub.L. 98473 indicates to us that
Congress understood what it was doing in omitting such an exemption
from Chapter III of that enactment.
Finally, respondent urges us,
see Brief for Respondent
2029, to invoke a variety of general canons of statutory
construction, as well as several prudential doctrines of this
Court, to create the statutory exemption he advances; among these
doctrines is our admonition that courts should construe statutes to
avoid decision as to their constitutionality.
See, e.g., Edward
J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr.
Trades Council, 485 U. S. 568,
485 U. S. 575
(1988);
NLRB. v. Catholic Bishop of Chicago, 440 U.
S. 490,
440 U. S. 500
(1979). We respect these canons, and they are quite often useful in
close cases, or when statutory language is ambiguous. But we have
observed before that such "interpretative canon[s are] not a
license for the judiciary to rewrite language enacted by the
legislature."
United States v. Albertini, 472 U.
S. 675,
472 U. S. 680
(1985). Here, the language is clear and the statute comprehensive:
§ 853 does not exempt assets to be used for attorney's fees from
its forfeiture provisions.
In sum, whatever force there
might be to respondent's
claim for an exemption from forfeiture under § 853(a) of assets
necessary to pay attorney's fees -- based on his theories about the
statute's purpose, or the implications of interpretative canons, or
the understandings of individual members of Congress about the
statute's scope -- "[t]he short answer is that Congress did not
write the statute that way."
United States v. Naftalin,
441 U. S. 768,
441 U. S. 773
(1979).
B
Although § 853(a) recognizes no general exception for assets
used to pay an attorney, we are urged that the provision
Page 491 U. S. 612
in § 853(e)(1)(A) for pretrial restraining orders on assets in a
defendant's possession should be interpreted to include such an
exemption. It was on this ground that Judge Winter concurred below.
852 F.2d at 1405-1411.
The restraining order subsection provides that, on the
Government's application, a district court
"may enter a restraining order or injunction . . . or take any
other action to preserve the availability of property . . . for
forfeiture under this section."
21 U.S.C. § 853(e)(1) (1982 ed., Supp. V). Judge Winter read the
permissive quality of the subsection (
i.e., "may enter")
to authorize a district court to employ "traditional principles of
equity" before restraining a defendant's use of forfeitable assets;
a balancing of hardships, he concluded, generally weighed against
restraining a defendant's use of forfeitable assets to pay for an
attorney. 852 F.2d at 1406. Judge Winter further concluded that
assets not subjected to pretrial restraint under § 853(e), if used
to pay an attorney, may not be subsequently seized for forfeiture
to the Government, notwithstanding the authorization found in §
853(c) for recoupment of forfeitable assets transferred to third
parties.
This reading seriously misapprehends the nature of the
provisions in question. As we have said, § 853(a) is categorical:
it contains no reference at all to § 853(e) or § 853(c), let alone
any reference indicating that its reach is limited by those
sections. Perhaps some limit could be implied if these provisions
were necessarily inconsistent with § 853(a). But that is not the
case. Under § 853(e)(1), the trial court "may" enter a restraining
order if the United States requests it, but not otherwise, and it
is not required to enter such an order if a bond or some other
means to "preserve the availability of property described in
subsection (a) of this section for forfeiture" is employed. Thus, §
853(e)(1)(A) is plainly aimed at implementing the commands of §
853(a), and cannot sensibly be construed to give the district court
discretion to permit
Page 491 U. S. 613
the dissipation of the very property that § 853(a) requires be
forfeited upon conviction.
We note that the "equitable discretion" that is given to the
judge under § 853(e)(1)(A) turns out to be no discretion at all as
far as the issue before us here is concerned: Judge Winter
concludes that assets necessary to pay attorney's fees
must be excluded from any restraining order.
See
852 F.2d at 1407-1409. For that purpose, the word "may" becomes
"may not." The discretion found in § 853(e) becomes a command to
use that subsection (and § 853(c)) to frustrate the attainment of §
853(a)'s ends. This construction is improvident. Whatever
discretion Congress gave the district courts in §§ 853(e) and
853(c), that discretion must be cabined by the purposes for which
Congress created it: "to preserve the availability of property . .
. for forfeiture." We cannot believe that Congress intended to
permit the effectiveness of the powerful "relation-back" provision
of § 853(c), and the comprehensive "any property . . . any
proceeds" language of § 853(a), to be nullified by any other
construction of the statute.
This result may seem harsh, but we have little doubt that it is
the one that the statute mandates. Section 853(c) states that
"[a]ll right, title, and interest in [forfeitable] property . .
. vests in the United States upon the commission of the act giving
rise to forfeiture."
Permitting a defendant to use assets for his private purposes
that, under this provision, will become the property of the United
States if a conviction occurs cannot be sanctioned. Moreover, this
view is supported by the relevant legislative history, which states
that
"[t]he sole purpose of [§ 853's] restraining order provision . .
. is to preserve the
status quo, i.e., to assure the
availability of the property pending disposition of the criminal
case."
S.Rep. No. 98-225, p. 204 (1983). If, instead, the statutory
interpretation adopted by Judge Winter's concurrence were applied,
this purpose would not be achieved.
Page 491 U. S. 614
We conclude that there is no exemption from § 853's forfeiture
or pretrial restraining order provisions for assets which a
defendant wishes to use to retain an attorney. In enacting § 853,
Congress decided to give force to the old adage that "crime does
not pay." We find no evidence that Congress intended to modify that
nostrum to read, "crime does not pay, except for attorney's fees."
If, as respondent and supporting
amici so vigorously
assert, we are mistaken as to Congress' intent, that body can amend
this statute to otherwise provide. But the statute, as presently
written, cannot be read any other way.
III
Having concluded that the statute authorized the restraining
order entered by the District Court, we reach the question whether
the order violated respondent's right to counsel of choice as
protected by the Sixth Amendment or the Due Process Clause of the
Fifth Amendment.
A
Respondent's most sweeping constitutional claims are that, as a
general matter, operation of the forfeiture statute interferes with
a defendant's Sixth Amendment right to counsel of choice, and the
guarantee afforded by the Fifth Amendment's Due Process Clause of a
"balance of forces" between the accused and the Government. In this
regard, respondent contends, the mere prospect of post-trial
forfeiture is enough to deter a defendant's counsel of choice from
representing him.
In another decision we announce today,
Caplin &
Drysdale, Chartered v. United States, post, p.
491 U. S. 617, we
hold that neither the Fifth nor the Sixth Amendment to the
Constitution requires Congress to permit a defendant to use assets
adjudged to be forfeitable to pay that defendant's legal fees. We
rely on our conclusion in that case to dispose of the similar
constitutional claims raised by respondent here.
Page 491 U. S. 615
B
In addition to the constitutional issues raised in
Caplin
& Drysdale, respondent contends that freezing the assets
in question before he is convicted -- and before they are finally
adjudged to be forfeitable -- raises distinct constitutional
concerns. We conclude, however, that assets in a defendant's
possession may be restrained in the way they were here based on a
finding of probable cause to believe that the assets are
forfeitable. [
Footnote
10]
We have previously permitted the Government to seize property
based on a finding of probable cause to believe that the property
will ultimately be proved forfeitable.
See, e.g., United States
v. $8,850, 461 U. S. 555
(1983);
Calero-Toledo v. Pearson Yacht Leasing Co.,
416 U. S. 663
(1974). Here, where respondent was not ousted from his property,
but merely restrained from disposing of it, the governmental
intrusion was even less severe than those permitted by our prior
decisions.
Indeed, it would be odd to conclude that the Government may not
restrain property, such as the home and apartment in respondent's
possession, based on a finding of probable cause, when we have held
that (under appropriate circumstances), the Government may restrain
persons where there
Page 491 U. S. 616
is a finding of probable cause to believe that the accused has
committed a serious offense.
See United States v. Salerno,
481 U. S. 739
(1987). Given the gravity of the offenses charged in the
indictment, respondent himself could have been subjected to
pretrial restraint if deemed necessary to "reasonably assure [his]
appearance [at trial] and the safety of . . . the community," 18
U.S.C. § 3142(e) (1982 ed., Supp. V); we find no constitutional
infirmity in § 853(e)'s authorization of a similar restraint on
respondent's property to protect its "appearance" at trial and
protect the community's interest in full recovery of any ill-gotten
gains.
Respondent contends that both the nature of the Government's
property right in forfeitable assets and the nature of the use to
which he would have put these assets (
i.e., retaining an
attorney) require some departure from our established rule of
permitting pretrial restraint of assets based on probable cause. We
disagree. In
Caplin & Drysdale, we conclude that a
weighing of these very interests suggests that the Government may
-- without offending the Fifth or Sixth Amendments -- obtain
forfeiture of property that a defendant might have wished to use to
pay his attorney.
Post, p.
491 U. S. 617.
Given this holding, we find that a pretrial restraining order does
not "arbitrarily" interfere with a defendant's "fair opportunity"
to retain counsel.
Cf. Powell v. Alabama, 287 U. S.
45,
287 U. S. 69,
287 U. S. 53
(1932). Put another way: if the Government may, post-trial, forbid
the use of forfeited assets to pay an attorney, then surely no
constitutional violation occurs when, after probable cause is
adequately established, the Government obtains an order barring a
defendant from frustrating that end by dissipating his assets prior
to trial.
IV
For the reasons given above, the judgment of the Second Circuit
is reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
[
Footnote 1]
The CFA added or amended forfeiture provisions for two classes
of violations under federal law, racketeering offenses and CCE
offenses,
see 98 Stat. 2040-2053,
as amended. The
CCE forfeiture statute at issue here, now provides:
"§ 853. Criminal forfeitures"
"(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 offense may be fined not more
than twice the gross profits or other proceeds."
[
Footnote 2]
This statutory provision, the principal focus of this petition,
says that:
"Upon application of the United States, the court may enter a
restraining order or injunction . . . or take any other action to
preserve the availability of property described in subsection (a)
of [§ 853] for forfeiture under this section -- "
"(A) upon the filing of an indictment or information charging a
violation . . . for which criminal forfeiture may be ordered under
[§ 853] and alleging that the property with respect to which the
order is sought would, in the event of conviction, be subject to
forfeiture under this section."
§ 853(e)(1).
[
Footnote 3]
Section 853(c), the third-party transfer provision, states
that:
"All right, title, and interest in property described in [§ 853]
vests in the United States upon the commission of the act giving
rise to forfeiture under this section. Any such property that is
subsequently transferred to a person other than the defendant may
be the subject of a special verdict of forfeiture and thereafter
shall be ordered forfeited to the United States, unless the
transferee [establishes his entitlement to such property pursuant
to § 853(n)]."
As noted in the quotation of § 853(c), a person making a claim
for forfeited assets must file a petition with the court pursuant
to § 853(n):
"If, after [a] hearing [on the petition], the court determines
that the petitioner has established . . . that -- "
"(A) the petitioner has a legal right, title, or interest in the
property . . . [that predates] commission of the acts which gave
rise to the forfeiture of the property under [§ 853]; or"
"(B) the petitioner is a bona fide purchaser for value of the .
. . property and was at the time of purchase reasonably without
cause to believe that the property was subject to forfeiture under
this section;"
"the court shall amend the order of forfeiture in accordance
with its determination."
§ 853(n)(6).
An attorney seeking a payment of fees from forfeited assets
under § 853(n)(6) would presumably rest his petition on subsection
(B) quoted above, though (for reasons we explain in
Caplin
& Drysdale, Chartered v. United States, post at
491 U. S. 632,
n. 10) it is highly doubtful that one who defends a client in a
criminal case that results in forfeiture could prove that he was
"without cause to believe that the property was subject to
forfeiture."
Cf. 852 F.2d 1400, 1410 (CA2 1988) (Winter,
J., concurring).
[
Footnote 4]
At the end of the trial, respondent was convicted of the charges
against him, and the jury returned a special verdict finding the
assets in question to be forfeitable beyond a reasonable doubt.
Accordingly, the District Court entered a judgment of conviction
and declared the assets forfeited.
We do not believe that these subsequent proceedings render the
dispute over the pretrial restraining order moot. The restraining
order remains in effect pending the appeal of respondent's
conviction,
see App. to Pet. for Cert. 77a-78a, which has
not yet been decided. Consequently, the dispute before us
concerning the District Court's order remains a live one.
[
Footnote 5]
Respondent's trial had commenced on February 16, 1988, after the
Court of Appeals had agreed to hear the case en banc, but before it
rendered its ruling. Consequently, respondent's assets remained
frozen, and respondent was defended by appointed counsel.
In the midst of respondent's trial -- on July 1, 1988 -- the en
banc Court of Appeals rendered its decision for respondent. At a
hearing held four days later, the District Court offered to permit
respondent to use the frozen assets to hire private counsel.
Respondent rejected this offer, coming as summations were about to
get underway at the end of a 4 1/2-month trial, and instead
continued with his appointed attorney. Three weeks later, on July
25, 1988, the jury returned a guilty verdict.
[
Footnote 6]
See, e.g., United States v. Moya-Gomez, 860 F.2d 706
(CA7 1988);
United States v. Nichols, 841 F.2d 1485 (CA10
1988);
United States v. Jones, 837 F.2d 1332,
rehearing granted, 844 F.2d 215 (CA5 1988);
In re
Forfeiture Hearing as to Caplin & Drysdale, Chartered, 837
F.2d 637 (CA4 1988) (en banc).
[
Footnote 7]
See United States v. Bissell, 866 F.2d 1343, 1348-1350
(CA11 1989);
United States v. Moya-Gomez, supra, at
722-723;
United States v. Nichols, 841 F.2d at 1491-1496;
id. at 1509 (Logan, J., dissenting);
In re Forfeiture
Hearing as to Caplin & Drysdale, Chartered, supra, at
641-642 (en banc);
id. at 651 (Phillips, J., dissenting).
Only one Court of Appeals -- the Fifth Circuit -- has issued any
decisions providing support for this reading of the statute,
see, e.g., United States v. Jones, supra, but this ruling
is currently being reconsidered en banc, 844 F.2d 215 (1988).
[
Footnote 8]
Respondent is correct that, by and large, the relevant House and
Senate Reports make no mention of the attorney's fees question.
However, in discussing the background motivating the adoption of
the CFA, the House Judiciary Committee discussed the failure of
previous, more lax forfeiture statutes:
"One highly publicized case . . . is illustrative of the
problem. That case was
United States v. Meinster. . . . In
this prosecution . . . a Florida-based criminal organization had .
. . grossed about $300 million over a 16-month period. The Federal
Government completed a successful prosecution in which the three
primary defendants were convicted and this major drug operation was
aborted. However, forfeiture was attempted on only two [residences]
worth $750,000. . . . "
"Of the $750,000 for the residences, $175,000 was returned to
the wife of one of the defendants,
and $559,000 was used to pay
the defendant's attorneys. . . ."
"The Government wound up with $16,000. . . ."
"It is against this background that present Federal forfeiture
procedures are tested and found wanting."
H.R.Rep. No. 98-845, pt. 1, p. 3 (1984) (emphasis added).
This passage suggests, at the very least, congressional
frustration with the diversion of large amounts of forfeitable
assets to pay attorney's fees. It certainly does not suggest an
intent on Congress' part to exempt from forfeiture such fees.
Respondent claims support from only one piece of preenactment
legislative history: a footnote in the same House Report quoted
above, which discussed the newly proposed provision for pretrial
restraint on forfeitable assets. The footnote stated that:
"Nothing in this section is intended to interfere with a
person's Sixth Amendment right to counsel. The Committee,
therefore, does not resolve the conflict in District Court opinions
on the use of restraining orders that impinge on a person's right
to retain counsel in a criminal case."
Id. at 19, n. 1.
Respondent argues that the Committee's disclaimer of any
interest in resolving the conflict among the District Courts
indicates the Committee's understanding that the statute would not
be employed to freeze assets that might be used to pay legitimate
attorney's fees.
See Brief for Respondent 14, and n.
8.
This ambiguous passage however, can be read for the opposite
proposition as well, as the Report expressly refrained from
disapproving of cases where pretrial restraining orders similar to
the one issued here were imposed.
See H.R.Rep. No. 98-845,
supra, at 19, n. 1 (citing
United States v.
Bello, 470 F.
Supp. 723, 724-725 (SD Cal.1979)). Moreover, the Committee's
statement that the statute should not be applied in a manner
contrary to the Sixth Amendment appears to be nothing more than an
exhortation for the courts to tread carefully in this delicate
area.
[
Footnote 9]
See, e.g., Attorneys' Fees Forfeiture: Hearing before
the Senate Committee on the Judiciary, 99th Cong., 2d Sess.,
148-213 (1986); Forfeiture Issues: Hearing before the Subcommittee
on Crime of the House Committee on the Judiciary, 99th Cong., 1st
Sess., 187-242 (1985).
[
Footnote 10]
We do not consider today, however, whether the Due Process
Clause requires a hearing before a pretrial restraining order can
be imposed. As noted above, in its initial consideration of this
case, a panel of the Second Circuit ordered that such a hearing be
held before permitting the entry of a restraining order; on remand,
the District Court held an extensive, 4-day hearing on the question
of probable cause.
Though the United States petitioned for review of the Second
Circuit's holding that such a hearing was required,
see
Pet. for Cert. I, given that the Government prevailed in the
District Court notwithstanding the hearing, it would be pointless
for us now to consider whether a hearing was required by the Due
Process Clause. Furthermore, because the Court of Appeals, in its
en banc decision, did not address the procedural due process issue,
we also do not inquire whether the hearing -- if a hearing was
required at all -- was an adequate one.
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