*1 al- rules would be governing pation Plaintiff, America, in the future. UNITED STATES some time tered at v. Due Process Challenge Under 2. JONES, Defendant. F. Milton Fifth Amendment. Clause America, STATES UNITED immigra- argues that also Petitioner Appellant, belonged to a rules judge applied tion law, following agency: different Bright prejudiced judge immigration & Bernard Charles CAMPION hearing. meaningful aof deprived Appellees. him Campion, As dis- any merit. lacks This contention 87-5556, 87-5575. Nos. judge used above, immigration cussed Appeals, Court of petition- time of in effect procedures Fifth Circuit. His decision hearing. deportation er’s his was within grant a continuance Feb. sound discretion. grant of a that “the held court has Our discretion in the sound rests

continuance may grant an judge, who immigration hearing only deportation aof adjournment ” Patel v. United ‘good cause.’ Service, Naturalization

Immigration and Cir.1986) (citing 8 804, 806 F.2d deportation 242.13). Bright’s At

C.F.R. § clearly did judge immigration

hearing the refusing to his discretion

not abuse Bright’s continuance.

grant an indefinite any show- lacked

motion for continuance cause; fact, it was based good

ing of judge did assumption that

the mistaken the hear- authority to conduct

not have

ing. hearing. received He

Bright had a fair in or-

notice, granted one continuance hearing, and was prepare for

der to respond to each

given opportunity Ac- order. show cause

allegation in the claim lacks Amendment

cordingly, his Fifth

any merit. opinion, stated

For the reasons

Bright’s petition

DENIED. *2 with Jones’ defbnse. in connection

rendered 7,May Although hearing was set a for cancelled at the was the considering request. After opposition government’s motion the Foster, Atty., San Sp. Asst. U.S. Todd attorneys’ Campions’ request for the Chief, Rosenthal, Tex., Antonio, Samuel court, our decision in on United relying the Div., Section, Dept, of Jus- Crim. Appellate Thier, 801 F.2d 1463 Cir. v. States D.C., for U.S. tice, Washington, (1987), 1986), modified, 809 F.2d 249 as Campion, San Campion, Charles Bernard exempt property was from the that held Tex., Antonio, pro se. the order forfeiture Upon legitimate and fees. reasonable of detailed Campions’ submission a the and in fees of their statement concerning prop the the value of formation GARZA, and REAVLEY Before that the fees were erty, the court found DAVIS, Judges. Circuit value property’s that the and reasonable of the Con amount fees. less than the was REAVLEY, Judge: Circuit prior forfei lifted its sequently, the court represent- Campion Charles and Bernard property the over and order turned ture engaging in at his trial for Milton Jones ed government did not Campions. the Following enterprise. racketeering the then, currently, contest and does held conviction, court the district Jones’ respect to the with determination by and property owned that certain Campions’legal fees of the reasonableness 18 U.S. government under forfeited property. the the value of forfeiture exempt from C. § at- Campions’ reasonable pay the order to appeals torneys’ fees. II. affirm. judgment. person 1963(a) any that specifies Section provisions of violates the who I. States to the United forfeit” “shall RICO convicted September 1986 Jones was In main- acquired or person any interest Racketeer- violating the of two counts rights, title All of RICO. in violation tained Organizations Corrupt ing Influenced at in the United vests and interest (d). 1962(c) & (“RICO”), 18 U.S.C. Act § illegal commission time of the verdict, that jury found By special 1963(c). party A third 18 U.S.C. act. § (the estate in certain real Jones’ interest property in forfeited asserting an interest to 18 pursuant forfeitable “property”) was hearing after for a court may petition the 13, 1986 1963(a). On November U.S.C. § order. entry of the proper- forfeiture of court ordered specifies (2). 1963(Z)(1), The Act further § notice gave formal ty. The that: had individuals who court’s order deter- hearing, the court If, after the property, accordance interest petitioner has established mines that the 1963(i)(2). evidence of the preponderance notice, receiving Bernard Upon that— attorneys who Campion, Charles purchaser ais bona petitioner trial, petition filed represented Jones title, right, for value of their hearing to determine requesting a time and was in the pursuant property, in the interests cause to reasonably without purchase alleged Campions 1963(0(2). The property was believe by Jones pledged property had been section; under this to forfeiture legal services compensation them attorney’s necessary the defense the order of forfei- amend the court shall knowledge charges against his with its determination. in accordance ture defeat his interest in client cannot receiv- 1963(i)(6)(B). 18 U.S.C. § ing payment out of the defendant’s for- Thier, 801 F.2d 1463 In legitimate legal feited assets for servic- (5th Cir.1986), district court had en- aptly stated: es. As the court Bassett parte ex tered a *3 representing a client un- attorney The disposition of certain of which barred for a RICO der indictment violation Id, at 1465. These assets. the defendant’s continuing enterprise drug- in an indictment identified assets had been certainly is not “inno- related offense arose from the defend- as which knowledge money cent” of activity. The defendant ant’s criminal paid might tainted. with he is be which Continuing Crimi- indicted under been however, not, certainly just a He is (“CCE”), 21 U.S.C. Enterprise Statute nal money bogus conduit for this when restraining order was seq., and the 848 et § providing legal services. bona 853(e)(1)(A). Id. pursuant entered § orig- of his as- argued F.Supp. (emphasis that the restraint in Thier 632 at 1315-16 inal). Sixth Amend- his Fifth and in the statute sets violated We see no indication he was not afforded rights history Congress because legislative hearing, that the court’s fail- adversary attorneys to exclude from intended attorneys’ exempt assets to cover ure to bringing third-party claim for a reason- right Amendment his Sixth fees violated attorneys against potentially for- able fee counsel, failure to ex- that the court’s and post-conviction hear- feitable assets in a living expenses empt violat- assets cover ing. say This not to that a defendant’s is process due his Fifth Amendment ed always immunize payment of fees will rights. at 1466. Id. forfeiture, only post-trial fees from such knowledge lawyer's that a defense constitution- to consider the We declined charges against ipso the client does not 853(e)(1)(A), instead held that ality of but § attorney’s claim to disqualify the 65 are requirements of Fed.R.Civ.P. facto purchaser under the RICO be a bona fide restraining applicable to the issuance provisions. and CCE forfeiture that section. Because the orders under hearing parte ex order exceeded the 1474, 809 F.2d at 249. modified, Id. 65, set forth Rule and durational limits right to claim Because the case to the district court we remanded assets arises after the fees out of forfeited proceed in accordance with instructions to parte completion and the court's ex of trial at 1468-69. with Rule 65. Id. trial, issued before remand, We then considered whether assets the court on when we instructed attorneys exempt pay fees are restraining reasonable determining issue a whether to noting After that the for- from forfeiture. pursuant to Fed.R.Civ.P. bal- order CCE, under feiture section obtaining the defendant’s interest ance 853(n)(6), is identical to RICO’s against interest counsel 1963(Z)(6),and con- provision, 18 U.S.C. depletion potentially preventing law, conclud- sidering the relevant case we Similarly, held that forfeitable assets. we ed that: making the court this determination must also balance the defendant’s agree v.] [United (D.Md.1986) ordinary ], having access to funds to

Bassett, F.Supp. 1308 [632 living expenses against necessary Ianniello and [644 [United v.] Final- (S.D.N.Y.1985)], government’s interest. Id. at 1474. F.Supp. 452 [United balancing inter- F.Supp. ly, 1191 we held that these Reckmeyer, “[i]n States v.] [631 ests, whether (E.D.Va.1986) the court should ... consider ], Bada States v.] [United (S.D.N.Y. possesses assets not F.Supp. 194 lamenti [614 living supply could 1985)], Rogers to forfeiture that States v.] [United (D.Colo.1985) expenses.” defense Id. at F.Supp. courts [602 ] prior panel binding decision is Circuit that a III. by the en until reconsidered and reversed argues that Thier government The court). banc involved a Thier inapplicable because order, this case restraining while government urges that we re attor claim to post-conviction concerns for a to determine mand this case government contends neys’ fees. has assets whether Jones non-forfeitable grounded upon the decision was the Thier fees could from which counsel, statu right constitutional court, paid. Although the at the be district the Sixth interpretation, and that tory Campions, hearing date request of the set a underlying Thier is Amendment 7, 1987, May hearing was cancelled because posi-trial action implicated government’s request on the morn enjoyed representation obviously has ing May May 7. On Alternatively, the by counsel. opposition a motion in Cam upon filed even if was based argues that Thier *4 request payment of attor pions’ in for the interpretation, our discussion statutory post-convictionright government in the ex attorney’s neys’ which of an Thier deny assets is dicta fees out of the court to the Cam pressly claim forfeited asked to by presently bound hearing. that we are not In request without a that pions’ argu reject these Finally, if we motion, Thier. the government did not address the re ments, seeks an order the assets of whether Jones had other issue court for a to district manding the case the paid, but from which fees could be Jones hearing to determine whether argu solely on the instead concentrated forfeiture from not to any assets appeal. After the advanced on ments this paid. could be Campions’ fees the which 2, in its decision on June court rendered request, granted Campions’ clearly which it the in was based decision Thier Our by file a motion for as evidenced did not statutory interpretation, the on in holding see no indication that our reconsideration. “[w]e history that Con legislative the statute or is on the recognize that burden We the attorneys from gress intended to exclude exemption an to to establish claimant a reason third-party claim for bringing a this To meet forfeiture section. RICO’s against potentially for- attorneys fee able establish, burden, at the attorney must hear post-conviction in assets feitable 1963(i), that the required under hearing The fact that F.2d at 1474. ing.” 801 as- nonforfeitable does not have involved a Thier paid. In could be from which the fees sets post-conviction case concerns this while however, only the hear- was case conse assets is of no to forfeited claim request, government’s ing cancelled fact, in requirement the Thier quence. In expressly moved government also the but balance court on remand that the district Campions’request court to rule on the obtaining coun in defendant’s interest file a mo- hearing to and failed without a in against sel the court after for reconsideration tion potentially forfeita- depletion of preventing govern- The favor. ruled holding in our had its foundation ble assets first time hearing for the requests a in a attorney may demonstrate that “an circumstances appeal. Under these hearing he rendered post-conviction hearing. right to a its government waived pay is entitled to legitimate services and Inter- Furthermore, of the Jessie Gutierrez This Id. the forfeited assets.” ment from Investigation Divi- Criminal nal Revenue directions holding was central our government’s case sion and one accord and was on remand district court trial of agents, testified Therefore, we are bound ingly not dicta. agent primar- special that he was Jones Watkins, Washington v. by Thier. See money end of responsible for ily Cir.1981), (5th 1346, n. 10 F.2d 1354 655 investigated he had investigation, and that 2021, denied, 102 S.Ct. 456 U.S. cert. had not of Milton Jones (firm Fifth the assets (1982) rule in L.Ed.2d 474 72 1336 payment indictment and in the sets other than of Jones any assets other found attorneys rep- gave the fee in cash their court below The question. ample cause resenting regards defendant] dark with [the in the therefore forfeitable un- the funds know that were nonfor- were other there or not to whether pay der use to could assets that feitable Id, wit- government’s own The omitted); his counsel. also (citations see 641 any further necessity of Monsanto, ness refuted F.2d 74 such a hearing and established Cir.1987). (2d fruitless. prove

would Caplin Drysdale also & The court statute court the district to find that the declined judgment the defendant rights secured to violated AFFIRMED. sixth amendments: the fifth and Judge, DAVIS, Circuit W. EUGENE expand qualified thus decline concurring. choice to an absolute right to counsel of illegally ac- retain counsel right to I opinion because I concur quired assets. requires us in Thier opinion agree our do free to If I were this result. to reach en the recent however, follow have no sixth so, I would defendants “Criminal in In re Circuit that crime- right the Fourth opinion of demand amendment banc Caplin Drysdale, kept & available Hearing assets be related Forfeiture Jan. counsel. The sixth Cir. retained privately 86-5050 F.2d 637 No. only the Caplin Drysdale, guarantees 1988). & amendment court *5 obtain the assist- legitimate that the assets to contention use the defendant’s rejected has If no exempts paid of counsel. sums ance assets, forfeiture statute requires amendment legitimate attor- the sixth for committed to counsel pre- It does of counsel. appointment ney’s fees: indigent or re- prosecution of the vent statute forfeiture language [T]he provide the quire the ei- of no mention makes of private counsel to retain wherewithal that is of in its definition ther choice.” 853(a)and in section subject to forfeiture third-party Brickey, for provision (quoting (b), 646. its Id. at Forfeiture 853(n). Impact Rico in section Fees: The exemption Attorneys of claims of of and CCE Right the statute of The clear terms Forfeitures (1986)). Counsel, without 72 Va.L.Rev. to forfeiture defendant’s assets to use them he intends regard to whether Similarly, the stat- attorney. pay an who have parties exempts only those

ute purchasers, fide claims or bona prior they are at- regard to whether

without here, Where, lan- statute’s torneys. task unambiguous, guage is RELATIONS LABOR NATIONAL an end is at statutory construction Petitioner, BOARD, lan- literal enforcement unless clearly ex- contravene guage would GROCERY BROOKSHIRE intention. pressed legislative CO., Respondent. to assets Further, limiting forfeiture No. 87-4258. would sham transactions transferred require- purchaser read the bona Appeals, Court Section the statute. out of Fifth Circuit. only who 853(n) says those plainly Feb. without value and purchase property subject to that it to believe cause an order exempt from be shall listing of as- specific of forfeiture.