*1 through our fund- meeting those needs America, UNITED STATES County of the Calvert Board of Edu- Plaintiff-Appellee, allowing
cation. We believe that formal education centers to be used for v. duplication would amount to of services. McHAN; Martha Bea- Charles William county’s that the plaintiffs contend McHan; Ray McHan, vers Samuel speech free position right violates personal representative of John Davis protected by the First Amendment. I McHan, Defendants-Appellants. not, disagree. county even America, United States of challenged plaintiffs implication, what Plaintiff-Appellee, can teach or what their students can learn county, including location at v. County Community Northeast the Calvert McHan; Martha Bea- Charles William While the of matters Center. substance McHan, McHan; Ray vers Samuel taught homeschooling may protected personal representative of Davis John by Judge in Part speech, as noted Goodwin McHan, Defendants-Appellants. II.A, ante, county’s regulation does not aim in any way taught, what is what is America, United States of learned, any subject matter or even how Plaintiff-Appellant, taught. county’s reg- To conclude that the v. community ulation of the use of its center McHan; William Martha Bea- a regulation speech would convert McHan; Ray McHan, vers Samuel every governmental regulation pub- use personal representative of John Davis spaces lic into a First Amendment issue. McHan, Defendants-Appellees. agree judge’s I with the district conclusion regulation that the this case does not 01-2060, Nos. 02-2067 and 02-2090. implicate the First Amendment. Accord- Appeals, United States Court of ingly, respectfully I dissent from Parts Fourth Circuit. II.A II.B Judge Goodwin’s fine opinion. Argued: 2003. June Sept. Decided: my colleagues
Because two of conclude I implicated, the First Amendment is consider the issues that follow therefrom subsequent
and concur First II.C,
Amendment discussions Parts
II.D, Judge opinion. and II.E of Goodwin’s I, III,
I also concur in Parts and IV and in judgment. *3 offenses, determined, the district court
ed 853(a), to 21 pursuant required to forfeit to the Unit- McHan approximately million in ed States $1.5 as a result of his crimi- proceeds obtained When McHan could ac- nal conduct. pro- the whereabouts of these count for entered, ceeds, the court sentence, a order preliminary McHan’s McHan forfeiting property” “substitute assets, estate and other form real *4 853(p). to pursuant U.S.C. sons, wife, Martha, and his two McHan’s (the Jr., petitioners and Charles John herein) McHan, petition filed a in Charles pursuant sentencing proceedings to Sr.’s 853(n), in asserting U.S.C. in prelimi- much of the listed After nary hearing of forfeiture. a order court amend- petition, on their district order of forfeiture to preliminary ed some of the substitute release Smith, En- Benjamin David ARGUED: order with and issued a final of forfeiture Alexandria, Smith, Virginia, for glish & respect to the remainder. Ascik, Assis- Appellants. Thomas Richard Asheville, Attorney, tant States United John, Martha, and appeal, On their Carolina, ON Appellee. North (1) the Due contend that under Charles Jr. Jr., Conrad, BRIEF: J. Robert to they were entitled Process Clause Carolina, Asheville, Attorney, North district court issued the heard before Appellee. (2) forfeiture; order preliminary 853(c), §of principle the relation-back NIEMEYER, WIDENER, Before criminal forfeiture provides which LUTTIG, Judges. Circuit to include owned relates back the time of the commis- the defendant at part part, Affirmed in reversed forfeiture, of the act rise sion opinion. Judge published remanded of substi- apply does not opinion, wrote NIEMEYER the district property; tute joined. Judge Judge WIDENER violated the Seventh Amendment opinion concurring LUTTIG wrote an hearing have denying request their concurring judgment jury. conducted before part. to de- They challenges make several that were specific to assets terminations OPINION from the order. On released NIEMEYER, Judge. Circuit contends the United States cross-appeal, releasing district court erred of Charles Following the conviction forfeiture order. McHan, assets from the and relat- certain drug-trafficking Sr. for follow, remand, For the reasons that we affirm in for a On moved preliminary part, order of forfeiture of substi- part, reverse and remand.
tute
had
property because Charles Sr.
“re-
give
fused to
credible information concern-
I
$1,489,350.
disposition”
granted
government’s
district court
McHan,
(“Charles Sr.”)
Sr.
Charles
motion, “subject
third-party inter-
charged in a seventeen-count
indictment
ests therein.”
and the
Charles Sr.
three
drug trafficking
in western North
objected
then
prelimi-
Carolina between November 1984 and No-
forfeiture,
nary
arguing
order of
that most
Specifically,
vember
the indictment
belonged
in fact
substitute
with,
charged
among
Charles Sr.
other
Martha,
Jr.,
Charles
and John because
things,
conspiracy to distribute and to
conveyed
Sr.
had
possess with intent
over
to distribute
them. The district court ruled that
marijuana, in
kilograms of
violation of 21
objection was
out
order because the
846;
evasion;
§§ 841 and
tax
petitioners’
adequately pro-
interests were
engaging
continuing
criminal enter-
853(n).
Martha,
tected
prise with regard
marijuana
distribu-
*5
Jr.,
Charles
and John
filed a petition
then
tion. Count Seventeen
that
alleged
§
Adjudi-
under
for a “Hearing to
property
Charles Sr.’s interest in
enumer-
Validity
cate the
of
[Their] Interest
ated
in the
both
indictment and in several
Property Preliminarily Ordered Forfeit-
incorporated
appendices
therein
refer-
ed.” In their petition,
petitioners
ar-
subject
was
ence
to forfeiture under 21
(1)
gued
that a forfeiture of substitute
853,
authorizing
a statute
the in
property does
“relate back”
not
to include
personam criminal
of property
forfeiture
property
owned
the defendant at the
illegal drug
used
connection with
activi-
time of the
giv-
commission of the offense
ties.
forfeiture; (2)
ing rise
that
of
much
pleading guilty
After
to Counts 2-7 of property
actually
was
vested Martha at
indictment,
Charles
the time of
Sr. was tried
a
Charles Sr.’s criminal conduct
jury
pursuant
to a
agreement
convicted on Counts 1
1981 written
and 8-16.
be-
(“the
Thereafter,
tween Martha
jury
he
and Charles Sr.
waived a
trial on Count
(3) that,
17,
Agreement”);
event,
in any
the forfeiture
Following
count.
a
trial,
petitioners obtained title to
proper-
bench
district
court found that
ty
purchasers
fide
as bona
for value by
proceeds
Sr.
received
virtue
a
agreements
series
three
en-
$1,489,350
amount of
of illegal
as
result
into
tered
between
Mar-
Charles Sr. and
sales,
marijuana
and, after deducting
tha,
1,
July
petitioners
dated
1988. The
expenses
Charles Sr.’s
incurred to obtain
requested
jury
that a
find the facts on
proceeds
those
co-conspirator’s
petition.
proceeds,
share of the
the court ordered
$395,670.
forfeiture to the United States of
The
petitioners’
district court
denied
appeal,
On
we affirmed Charles
con
Sr.’s
for
request
hear-
conducted a
ruled,
victions but
respect
to the for
taking
ing,
testimony from several wit-
feiture, that the district court should have
Following
nesses.
the hearing, the court
gross proceeds,
(1)
forfeited the
not the net
concluded
that
property
the substitute
profits, from the illegal activities.
eligible
for forfeiture related back to in-
McHan,
(4th
v.
To protect subject of property of the order of interests forfeiture.” Id. 853(n) 853(n)(7). § parties, third provides process §
269 85S(n) course, § 21 erty § under U.S.C. Of authorized at trial to opportunity Sr. had the through which a third Charles avenue the exclusive oppose preliminary forfeiture before the in property his interest may protect party entered as order of a forfeiture order. subject been that has 853(a); § 853(k) 21 Li his sentence. See U.S.C. any “claim- prohibits person Section States, 29, 39, 116 v. United subject to for- bretti U.S. property ing an interest (1995) 356, 133 (1) (holding L.Ed.2d 271 intervening or S.Ct. in the trial feiture” from statute, § sentencing applied is a involving case forfei- appeal of a criminal “following conviction ... commencing punishment ture of such drug of various ... for the commission equity against action at law an noting imposes of crimes” and for concerning validity United States ”) any “in other feiture addition sentence party’s alleged the third (emphasis in But original). the statute property. that, until provides this sentence forfei statutory scheme that is the This entered, party claiming no an inter ture challenge in this case several petitioners may intervene est the forfeited respects. in the criminal case. See Libretti, 853(k); see also 516 U.S. at Ill (reaffirming that a 116 S.Ct. error, the assignment first For their ... “only is the means” should have they contend that his party may safeguard which a third oppose the opportunity an given been rights ordered forfeited under preliminary motion government’s complaint is that even where the evidentiary ba- forfeiture and order of unsupported the forfeiture itself was They the Due argue sis thereof. evidence). the sentence Only factual after Fifth Clause of the Amendment Process of forfeiture and an order is entered they receive notice of “required that may per given public notice is entry seeking motion government’s assert an interest forfeited son forfeiture] order [preliminary 853(n). petition pursuant by filing a heard to be before —or opportunity an 853(n). after the Then entry [prelimi- least after-—the soon resolved, a parties are of third petitions that would seri- nary forfeiture] order of id is entered. See final order They ously rights.” impair (7). 853(n)(6), given opportu- that if were assert nity government’s motion oppose court followed Because district forfeiture, they preliminary for a order challenge procedure, petitioners’ *8 many have out that of “pointed could must the Due Process Clause be under in forfei- properties [of the Order listed statutory In es challenge to the scheme. wholly at all or not were not owned ture] sence, arguing are that due petitioners Charles, at time his Sr. owned third required they, par that process thereto.” subsequent arrest or ties, interject opportunity an to given be phase of sentencing into the themselves petitioners’ argument
The
misconstrues
against
Sr. be
criminal case
Charles
of the
and the
the nature
forfeiture
potential
to
in it.
his sentence had
petition-
The
cause
appropriate
their
role
they
But
interests.
affect their
defendants in the criminal
ers were not
See
McHan,
support
proposition.
for the
trial;
the defen-
have no
Sr. was
356,
29,
116 S.Ct.
dant,
he
516 U.S.
prop-
and was who forfeited his
Libretti
356;
provides
L.Ed.2d
116 S.Ct.
all
It
process
due.
re-
Reckmeyer,
v.
271 § 853(p). for forfeiture. government’s the unavailable Id. themselves from protect the This section thus seems to substi- legal equate claim to future unforeseeable to tute tainted property property As an alternative when substitute assets.” tainted has been prin- property placed that the be- argument the relation-back (1) yond date the the reach of forfeiture in be limited the of ciple should (2) located, cannot has been transferred judgment when substi- criminal forfeiture (3) forfeited, been argue party, placed to a third has be- tute is property (4) court, yond jurisdiction reasons the of the policy sound “common sense value, substantially been diminished in the forfeiture should relate dictate commingled prop- the indict- has been with other than the date of back no further erty that it suggesting alternative so cannot be divided without ment.” date, great difficulty. See id. petitioners place weight the legislative propos- of Justice Department But any doubt about this construction recognized ambiguity al the surround- statutory the should be eliminated in- 853(c) the rela- ing applicability the of liberally struction construe the statute principle property to substitute tion-back “to its 21 purposes.” effectuate remedial amendment and that recommended 853(o). of purpose U.S.C. remedial that substitute asset providing the statute provision both the relation-back the back to the date of forfeitures relate provision property substitute thwart indictment. efforts to the impact defendant’s avoid a criminal of forfeiture. ar petitioners’ first
To address 21 Congress When enacted U.S.C. language gument, express we note that Act of of Criminal Forfeiture 853(c), contrary petition what the of provi- asset it included substitute claim, preclude application ers does not sion to one of most serious “address[ ] to substitute principle of the relation-back impediments significant criminal forfei- 853(c) “[a]ll states that property. Section tures,” i.e., may that “a defendant succeed title, in property de right, and interest avoiding simply the forfeiture sanction (a) of this section scribed subsection another, by transferring plac- his assets com upon vests beyond jurisdiction them giving act rise to forfeiture mission court, other actions render his taking 853(c). under this U.S.C. section.” unavailable at time forfeitable all de While it is clear that 98-225, S.Rep. No. at of conviction.” §in tainted 853(a) property scribed — reprinted 1984 U.S.C.C.A.N. for relationship to criminal conduct—is its (discussing purpose the shared at the time feited United States provisions of the substitute to forfei the criminal conduct rise (the § 853 and ture, application preclude this does statute)). Describing this analogous RICO principle to substitute relation-back detail, Congress substantial problem Indeed, property. language noted: otherwise, “If stating, § 853(p) suggests forfeitures, gov- in which the Unlike civil
any [tainted] described (a) of the asset occurs ... been ernment’s seizure [has subsection of this section after the commencement beyond forfeiture] the reach of a or soon placed forfeitures, action, in criminal ... the court shall order the forfeiture in the custo- generally remain up to assets other of the defendant until time of his dy of the defendant property” tainted] the value [the *10 272 upon the the operation
conviction for offense of forfeiture laws ab- Only forfeiture is based. after convic- with sconding proceeds RICO and then tion does seize as- transferring his substitute third assets to a Thus, person set. anticipates who person qualify who does not as a fide bona property may subject some his value”). purchaser for To conclude other- only criminal forfeiture has not an obvi- wise would invite defendants who antici- incentive, ample opportuni- ous but also pate drug- conviction their unlawful ty, to his transfer assets remove them trafficking activities to undertake obvi- jurisdiction from the prior ous step transferring their assets trial and so shield them from removing pri- them from court’s reach possibility impor- of forfeiture.... conviction, or to thereby indictment and impact imposing tant economic circumventing important economic im- against sanction of defen- pact of forfeiture. dant is lost. thus position, of their support petition- In 195, reprinted Id. at in 1984 U.S.C.C.A.N. ers make the policy argument that our at 3878. It is thus that the apparent re- interpretation would leave innocent trans- §of purpose generally medial way ferees of substitute assets “no § 853(p) particular towas thwart efforts protect government’s from themselves by a defendant to circumvent the economic unforeseeable claim legal future to the of an impact anticipated criminal forfeiture argument substitute assets.” But this fails sentence. to take into account provisions purpose Given that the of the relation- that explicitly statute protect innocent 853(c) provision §in “prevent back was to purchaser transferees. A bona fide impact defendants escaping from value of the defendant’s who by transferring assets to third at the time of “reasonably transfer without 203, parties,” Reckmeyer, 836 F.2d at cause to believe that the [defendant’s] purpose similarly 853(p) subject forfeiture,” property was very “impediment[ signifi- address this to] 853(n)(6)(B), given U.S.C. the right to forfeitures,” S.Rep. cant criminal No. 98- 853(n) file a petition to have such substi- 201, reprinted tute property removed from the forfeiture prop- U.S.C.C.A.N. at the substitute order, 853(n)(2) (allowing id. any person subject erty that to forfeiture under asserting legal for- § 853(p) be read to prop- must include all feited “pursuant to this section” to file erty the time of defendant at petition). giving commission of the acts rise to the forfeiture. States v. Phillips, See United Accordingly, we conclude that the forfei- (4th Cir.1999) 185 F.3d (holding ture of substitute property pursuant to title, that all right, and interest § 853(p) relates back to the date of substitute defendant acts rise to the forfeiture under transferred to third on the eve party 21 U.S.C. 853. conviction “vested in the United States
upon the commission the act giving rise V (citing forfeiture” 21 U.S.C. 853(c))); Billman, next re contend that 915 F.2d (4th Cir.1990) third-party petition the analo- filed under 21 (interpreting
gous RICO criminal forfeiture statute judg- the criminal forfeiture holding that “a defendant thwart ment in this [cannot] case initiated a
273 whether, where the legislature to to right down Amendment the Seventh which Therefore, con- an action unheard of at common created trial attaches. jury deny- law, in rights court erred remedies involved are that the district tend trial. Because in jury traditionally for a request of the sort enforced ing their hearing that the provides itself at the statute action common law.” United States v. (4th Cir.1984). “shall be held 175, petitioners’ Dudley, on the F.2d 179 739 alone, 21 jury,” without a before the Elaborating analytical framework 853(n)(2), petitioners, in mak- a determining whether Seventh Amend challenging the con- argument, are ing this jury proceeding trial attaches a ment requirement statutory stitutionality enactment, congressional created hearing by the court States, be conducted that the in Tull v. United Supreme Court jury. 1831, a 412, 417-18, without U.S. 107 95 481 S.Ct. (1987), L.Ed.2d 365 stated: Amendment provides: The Seventh First, compare statutory action we law, common where the value In at Suits in 18th-century brought actions twenty dol- exceed controversy shall merger England prior courts of jury shall be lars, right of trial Second, equity. the courts law jury, no fact tried a preserved, and remedy and de- sought we examine otherwise reexamined shall be legal equitable whether it is termine States, than accord- Court of in nature. law. the rules of the common omitted.) Const, (Internal The task of citations phrase VII. The “Suits U.S. amend. eighteenth-century the nearest identifying law” has “been construed at common statutory to modern cause of analog a adoption prior refer cases tried compari- unsatisfying invites action often in courts of law Amendment the Seventh distinguishable existing actions sons customary was as dis jury trial eighteenth century. law common equity from courts admi tinguished this, Supreme Court has Recognizing trial not.” Atlas ralty jury in which stated: & Occupational Safety Roofing Co. v. 442, Comm’n, 449, 430 97 U.S.
Health Rev.
not rest our conclusion what
We need
(1977).
1261,
Ac
Amendment
to a
trial
does
third,
And
assuming
purposes
still
*14
an ancillary third-party
attach to
proceed-
petitioners’ argument
pro
that
853(n)).
§
under U.S.C.
853(n)
ceeding
§
independent
under
is an
third-party
The
that a
petitioners argue
action, we
ignore
nonetheless cannot
that
853(n)
hearing
analogous
under
is more
853(n) hearing
ancillary
to a sen
independent
to an
in rem civil forfeiture
tencing proceeding. And as we have al
them,
action
against
directed
for which a
noted,
ready
jury
no
trial attaches to the
jury
trial
been afforded.
C.J.
predicate sentencing
See Li
proceeding.
Moore,
133, 153,
v.
Hendry Co.
318 U.S.
49, 116
516 U.S. at
S.Ct. 356.
bretti
(1943).
S.Ct.
was also in Cf. Finally, petitioners challenge several F.2d at 223 (noting equitable that action determinations made the district court action). to quiet personam title an was ownership about the of property and its Second, the action in this case inclusion the order of forfeiture. We against was petitioners not or arguments address these seriatim. but property, against Charles Sr. Because the government that concluded Charles Sr. A transferred peti- forfeited tioners, First, the order of against argues Martha McHan that Charles implemented against Sr. was clearly district court it erred when found property. transferred The that a agreement executed her did petitioners’ Sr., not seek to forfeit and Charles dated December (the property; it alleged prop- rather that Agreement”), “1981 did not establish erty petitioners’ belonged hands to her entitlement to the forfeited substitute Charles Sr. was transferred to them property Agreement. covered the 1981 Therefore, after gov- it was forfeited. Agreement She contends that the 1981 establishes, ernment contended it could reach the satisfaction 853(n)(6)(A), Agreement” superior that was at the time of com- acts, or his Sr.’s title interest at the time of the relevant criminal she mission of criminal conduct. property. a half-owner in rele- Agreement provides The 1981 B part: vant petitioners also contend Any personal property titled either acquired by directly both “property them shall Martha McHan Charles McHan or indirectly by way of a series of three by the equally to be owned deemed 1, 1988, agreements, July all dated be titled. of how other rejgardless [Charles tween Martha McHan Sr.] Martha McHan McHan and Charles-W. subject pursuant not to forfeiture no whatsoever rights shall have 853(n)(6)(B) are because bona fide owned held personal property real or purchasers for value Jr. for Charles W. McHan in trust reasonably were without cause believe D. McHan. John subject forfeiture.” and Martha McHan Charles W. McHan sup that the government contends record title to sometimes take[ ] did meet ports equal Both shall have owner- trustee. 853(n)(6)(B) in two *15 their burden under type ownership. in ship this failed show respects: The shall be agreement This or contract any that for transfers were shall re- upon parties both and binding value, that they failed demonstrate agreements main in effect unless further of the forfei knowledge were without changing into and contracts are entered ture. of such. the terms peti- found that The district court contextual Based on substantial for purchasers were not “bona fide tioners evidence, court found that “the the district agreements, because the 1988 even value” likely by agreement was created authentic, concededly if not arm’s- were order avoid [Charles Sr.] Defendant length The district court transactions. (Defendant’s long after forfeiture “the from the that inferred evidence credible).” The testimony contra is not fact, were, attempt agreements found because “the record court also by Sr.] to avoid [Charles the Defendant particular replete ... is this case pointed particularly forfeiture.” It Sr.] fal [Charles that Defendant evidence timing suspicious convenient real estate records and transactions sified agreements: laundering in money engaged [and] only one Notably, Petitioners tendered fraud, ... agreement the 1981 bank Agreements during dis- part of the 1988 little weight.” entitled to parts of the covery. The other two July not until supports were disclosed amply agreement this case record addition, ex- In Petitioners never The 1981 the district court’s conclusion. why parts how two just plained the other Agreement was one of sea of fraudu- ear- find not disclosed agreement no were lent documents uncovered. We pur- delay recording by in the made lier. clear error determinations signifi- likewise concluding ported assignments that Mar- the district court’s also found [This has] cant. prove by preponderance tha failed to understanding of Martha had little that she had title evidence exclusively on Defen- relied by agreement, in the covered the “1981 properties dant value properties, equitably future rents. In its motion the forfei- them, order, apportion and execute all transac- government sought ture to for- necessary carry tions out the terms feit deposit “sums on within the bank ac- the agreement. Petitioners’ lack of presently by count held the United States knowledge Service,” was also evident their reli- Customs which included accumu- during ancillary ance on Defendant lated rents from the Cherokee Lanes. addition, proceeding. Moreover, In Court this the final order of in- reject[ed] not the Government’s [has] “the on Deposit presently cluded Sums ... argument both 1981 and 1988 held Customs Ser- Agreements vice, were “shams.” including ... [a]ll rents derived from the seizure of Lanes Bowling Cherokee Addressing government’s argument (ex- Alley, located on the 35-acre agreements July dated McHan).” cept 50% owned Martha represented transfers, fraudulent the dis- request Because the did trict court found that “the Government has the forfeiture of rents from Chero- future arguments the better and the better facts.” Lanes in preliminary kee its motion for a In the context of all con- evidence order forfeiture and no future rents record, tained in the we cannot conclude order, were included we clearly that the district court erred in find- conclude that future rents are not covered ing agreements July dated by the final order forfeiture. reach- 1988, were not length made at arm’s conclusion, we clarify confu- that they attempt constituted a deliberate that may sion been have created by Charles Sr. to im- avoid economic language district court’s its memoran- pact of forfeiture. opinion dum referring to the that fu- fact *16 rents ture were forfeited. C D McHan Martha contends that was clear error for the district court to find Finally, Martha McHan returns that of one-half the accumulated fu- and Agreement terms of the argue that (the ture of a bowling alley rents “Chero- the district erred in finding court Lanes”) kee located on as known partnership 100% Charles Sr.’s “35 Acres” were forfeitable. She contends Partnership in Marriott Motel was for- preclusion that claim preclusion and issue feitable. previous from a civil forfeiture re- action Based our affirmance of the district quire a conclusion that these rents cannot court’s finding Agreement the 1981 now be forfeited in this case. She “likely created in Defendant preliminary notes that the and final orders long order avoid forfeiture and after applied only to accumulated 1981,” reject we this argument as well. rents, not future rents. VII our parties’
While review arguments and the record below lead us to its cross-appeal, government On con- conclude that previous civil litigation tends that the district court in erred con- does not preclusive cluding have a effect on that six Notla deeds of trust and forfeitability lots; Pratt, Teesateskie, of the from bowling rents two and two alley, agree trust; we do that the and preliminary Raye deeds of and the deed Weeks final orders of forfeiture do not include of trust were not forfeitable. themselves, properties after Charles Sr. to forfeit the since
The record shows good offenses these in faith drug-trafficking purchased indicted for were case, began parties, only transfer- the interests an earlier Martha third but rather in jointly by owned in the properties certain ring proceeds retained Charles Sr. for parties, i.e., third and Charles Sr. to these his properties, her from sale of her gave deeds of deeds of trust. parties the third in the joint which ownership Billman, she September in return. In re (holding trust at 921 915 F.2d lo- eight properties Notia transferred a defendant cannot defeat forfeiture , parties in ex- Georgia to third illegal cated by hiding proceeds activi- trust, she although change deeds assets ty transferring and then substitute reacquired properties two person). later third to a earlier, in A month through foreclosure. we the district Accordingly, reverse Pratt, she transferred August properties court’s as to these rulings Teesateskie, Raye to her properties to the district for reconsider- remand court Jr., son, exchange and received Charles ation the forfeiture order to these And in she trans- of trust. deeds 853(n)(6)(B). 21 U.S.C. properties under Weeks, receiving ferred Jan government return. a deed trust VIII trust the various deeds of sought forfeit reasons, foregoing For the we affirm that were reac- properties the two fur- part, and remand for part, reverse through foreclosure. quired opin- consistent with this proceedings ther assets, the district As to each of these ion. government held could PART, IN AFFIRMED REVERSED these proceeds properties, forfeit PART, REMANDED IN AND jointly to belonged had Martha Sr., because Martha became LUTTIG, concurring in Judge, Circuit by selling fide value purchaser for bona concurring judgment parties value to third properties part. knowledge third party’s and without the I, VI, takes the II, III, the forfeiture. I concur in full Parts *17 that the “allowed position Although district majority opinion. of the VII immunize” the deeds of trust Martha to that agree majority’s holdings I with by of “simple expedient from forfeiture ref- 853(p) in section property” “substitute deeds trading ... the forfeitable assets for at the property of the defendant erences trust,” thereby thwarting purposes of giving of of the acts time the commission agree. We jury of the forfeiture statute. are to and that trials rise required proceedings under section not jointly of Martha’s conversion 853(n), I concur in Parts IV and V do not only into of trust properties held deeds not opinion because I do majority’s the form of Sr.’s interest changed by reasoning employed to the subscribe not as property, in the its status substitute reaching holdings. these majority in is no subject to forfeiture. There property holds, IV, opinion Part majority a The that Martha herself became evidence that is sub- “the fide value of Charles that substitute purchaser bona 853(p) must to forfeiture under section ject tender properties interests Sr.’s de- all be read include for the properties. consideration time the commission Moreover, fendant at the sought not 280 rise the forfeiture.” is acts created statute answered first
Ante at 272. I that is the “compar[ing] statutory believe action to 18th interpretation of 853(p). century correct section brought actions in the courts of However, I believe that it is so for reasons England prior merger courts different than ma- expressed States, those and equity,” of law Tull v. United jority. 412, 417, 1831, 481 U.S. 95 S.Ct. (1987), “examin[ing] L.Ed.2d 365 and then I in- majority,
Unlike the
am neither
remedy sought
determin[ing]
clined,
need,
do I
nor
see the
to rest our
equitable
whether it is
legal
nature.”
85S(p)
interpretation
section
on section
418,
Id. at
S.Ct.
853(o)’s amorphous direction that section
853 should be construed so as to further
principal ground
majority’s
for the
Instead,
purpose.
the section’s remedial
I
rejection
jury
right
trial
is its con-
our interpretation
would rest
on the com-
853(n)
that a
proceeding
clusion
section
paratively straightforward
textual
ancillary
sentencing
to a criminal
hearing,
that,
analysis
structural
were
hold
we to
jury
right
for which the
trial
does not
substitute
under
section attach.
I understand this characteristic of
853(p) comprises
only
property owned
853(n)
be
section
imma-
by the defendant at the time of his convic-
Supreme
under
terial
Court’s frame-
tion, section 853 would be irreconcilable
a jury
required.
work whether
trial is
853(n)(6),
provides
section
which
Bernhard,
Ross v.
See
396 U.S.
540 &
party,
pur-
third
who is not
bona fide
n.
S.Ct.
L.Ed.2d
chaser, may only
prevail
an action for
(holding that the derivative nature of the
property upon showing
title to substitute
plaintiffs’
suit
not
shareholder
rele-
that his interest in that
vest-
had
question
jury
vant
whether
trial
ed at the time
the commission
attached to their cause of action under the
gave
acts
rise to
criminal forfei-
observing
Seventh Amendment and
863(n)(6)(A).
ture.
party’s
the same is true
aof
status as an
words,
other
if
we were
construe section intervenor).
explained,
As that Court
853(p)
appellants urge,
that section “[t]he Seventh Amendment question de-
recognize
would
entitlement to
pends
the nature of the
issue
853(n)(6)
that section
denies. We should tried rather than the character of the over-
not,
not,
I
and would
hold Congress (em-
all action.” Id. at
clusions, agreement. in full As to I am latter, however, I that it is correct believe v. than those recited different reasons Betty OSBORNE, Anne Defendant- majority. Appellant. appellants’ argu- majority dismisses No. 02-4089. 853(n) proceedings are ment section actions rem civil forfeiture analogous to in Appeals, United States Court trial) (and require jury because therefore Fourth Circuit. 85S(n) (1) are in personam, proceedings (2) rem, brought against the defen- not in 9,May 2003. Argued dant, ancillary petitioners, are Sept. Decided sentencing proceeding, to a criminal trial does not attach. See jury which a
ante I find none of these at 274-275. persuasive, to be
bases of distinction explains provides nor majority neither any of
support legal relevance of
them. reject appellants’
I analo- would instead on
gy to an in rem civil forfeiture action the relevant issues grounds legal dramatically differ from such an action 853(n). under section
those in an action legal proceedings,
section the sole ownership the court is the
issue before parties, a con- competing of the
interests that is often irrelevant in an
sideration action, in-
rem which turns civil culpability
stead owner prohibited role States, v.
activity. See Austin 611-18,
U.S. 113 S.Ct. na- (detailing history
L.Ed.2d 488 actions).
ture of civil forfeiture reservations, I agree
With these appellants are not majority trial under
entitled to the Seventh
Amendment.