United States v. Peter Monsanto

America, Appellee, UNITED STATES MONSANTO,

Peter

Defendant-Appellant. 87-1397. Docket

No. Appeals, Court of

United Circuit.

Second March 1988.

Argued July

Decided Chikofsky, City,

Edward M. New York defendant-appellant. Savarese, City, F. New York Asst. John Atty. (Rudolph S.D. New York W. U.S. York, Giuliani, Atty. S.D. New Aaron Marcu, Hansen, E. R. Mark C. Deborah Landis, counsel), Attys., Asst. U.S. appellee. Liman, (Gustave City

Arthur New York Newman, DePetris, H. Ronald E. New Lawyers, of Defense York Counsel New York Ass’n of Criminal Defense Law- State Ass’n, yers, Bar New York Criminal Asso- York, City ciation of the Bar of the of New Advocacy Committee on Criminal and Com- Law, counsel), mittee on Criminal as amicus curiae. Kuriansky, City,

Edward J. New York Atty. Deputy Gen. for Medicaid Fraud Con- (Arthur Munisteri, A. T. trol Elizabeth Bo- Gen., counsel), gren, Sp. Attys. Asst. amicus curiae. Miami, (Benedict Sonnett, August Fla. P. In

Neal R. Monsanto moved to va- Kuehne, Sonnett, P.A., Kuehne, Sale & modify order, cate or the restraining seek- Hollander, N.M., Albuquerque, Nancy ing use of the restrained assets to retain of Criminal Defense Law- Ass’n private National trial counsel and a declaration that curiae. as amicus yers), paid fees to such counsel exempt would be post-trial from argued forfeiture. He Beeler, Miami, Joseph Fla. and Bruce J. Congress did not intend the apply CFA to Winick, Beeler, Gables, (Joseph Coral Fla. property pay legitimate needed to attor- P.A., Winick, for National Net- Bruce J. ney’s fees and that if the statute apply did and Right for the to Counsel New work property to such it would violate his sixth Union), as amicus curi- York Civil Liberties amendment to counsel of choice. He ae. challenged post-indictment re- ' FEINBERG, Judge, Chief Before provision, 853(e)(1)(A), straint 21 U.S.C. § MESKILL, NEWMAN, OAKES, post-conviction but also “relation back” PIERCE, KEARSE, CARDAMONE, provision, 853(c), 21 U.S.C. which allows § WINTER, PRATT, MINER, ALTIMARI government post-conviction to seek for- MAHONEY, Judges. and Circuit property feiture of per- transferred to third sons, persons unless such establish that PER CURIAM: they purchasers were bona fide for value appeal an order of the This is an from purchase who at the time of the were rea- District Court for the South- sonably without cause to believe that the York, Ward, ern District of New Robert J. subject was to forfeiture. J., modify denying a motion to vacate or an The district court refused to vacate the restraining order parte post-indictment ex order, although it acknowl- pursuant provision to a of the Com- entered edged that the effect of the order was to (CFA), prehensive Forfeiture Act of 1984 indigent. render Monsanto The court ruled 853(e)(1)(A) and for a declara- prepared that it was not find the forfei- paid appellant’s tion that fees defense provisions ture of the CFA unconstitutional exempt post-convic- from counsel would be applied attorney’s as fees that Con- pursuant tion forfeiture to the “relation gress exempt did not intend to such fees CFA, 21 provision of the U.S.C. back” application of the statute. It also 853(c). appeal originally The heard § request denied Monsanto’s for a declara- court, panel of the F.2d 74 tion that to defense counsel Cir.1987), and has been reheard banc. exempt post-conviction would be for- case, The relevant facts of this which are indicated, however, The feiture. court greater panel described detail it would allow invasion of forfeitable opinion, are as follows. an indictment pay assets to Monsanto’s counsel of choice July 1987, unsealed Peter Monsanto was to the extent of rates established narcotics, RICO, on various con- indicted Act, 3006A the Criminal Justice 18 U.S.C. § enterprise tinuing criminal and firearms (CJA). charges. specified par- The indictment two brought expedited appeal Monsanto property, cels of residential real valued at panel and a of this court issued an $335,000 $30,000, $35,000 as as well judge in December with one dissent- cash, “constituting and derived from the (2d Cir.1987). ing. panel 836 F.2d 74 proceeds” of violations of III of the Title post-indictment that the restraint concluded Comprehensive Drug Prevention Abuse provisions Act of 21 U.S.C. 801 et and Control § apply pay the CFA can to funds needed to seq., pursu- to forfeiture thus held, panel legitimate attorney’s fees. The 853(a). ant to 21 U.S.C. The district pre-trial hear- that notice and parte restraining court entered an ex government pursuant 853(e)(1)(A)prohib- which the has the bur- to U.S.C. § —at iting transferring demonstrating den of the likelihood that Monsanto from or en- cumbering properties. the residential the assets the seeks to re- provi- To the extent these constitutionally own counsel. forfeitable —are

strain are who prevent to restrain an indicted defendant sions required for the retain counsel a defendant’s counsel otherwise be able to pay needed to so, doing they that where the are unconsti- held of choice from of choice. hearing a burden to meet such I do not that the government fails tutional. believe attorney’s legitimate pay panel opinion, to in the 836 F.2d any funds used envisioned post-trial forfei- exempt 74, from the fees would be is sufficient to overcome constitu- F.2d at 84. ture. 836 infirmities. tional and the district remanded The case was right The sixth amendment to counsel by hearing required the as court held right choice is a fundamental that serves to hearing, the Following the opinion. protect rights. constitutional It is a other government that the court ruled district system jus key element our of criminal demonstrating the its had met burden distinguishes system from tice and were assets that the restrained likelihood the others that do not allow individuals restraining order that the forfeitable and meaningful way chance to resist lifted. Monsanto’s need not be therefore government power upon imposition of February 1988 and is trial commenced Therefore, right to counsel of them. progress in the district court. We still in infringed compel choice cannot be unless a represent- Monsanto is are told that at trial governmental purpose outweighs it. ling appointed under the CJA. by counsel ed Many cases that allow limitations on only right to re- to counsel of choice deal January this court voted In banc, partial infringements, oral limitations or such appeal in and we heard hear the is indi- preventing March 1988. As a defendant from substitut argument on see, concurring opinions, separate begun, counsel once the trial has cated Paone, the in majority e.g., the members of banc 782 F.2d United States v. reasons, Cir.), denied, court, cert. varying agree albeit denying (1986), the order of the district court 93 L.Ed.2d 246 S.Ct. see, be vacated and disqualifying particular lawyer, e.g., Monsanto’s motion should DiTommaso, with instructions to the case remanded 817 F.2d permit (2d Cir.1987). contrast, to modify 219-20 restrained assets to the destroyed Monsanto access to is almost com right this case is, (that pay legitimate to pletely by depriving extent the defendant of the non-sham) attorney’s fees connection prior to retain counsel of choice means charges against Therefore, him. A with the criminal trial. the commencement of one majority the members of the court also suppose governmental justi that the to Monsan- agree that drastic is over fication for such action exempt counsel are from sub- whelmingly persuasive. to’s defense pursuant to 21 U.S.C. sequent forfeiture just contrary. is The fact 853(c). governmental suggested interests that are is vacated The order of the district court by restraining, permitting served the matter is remanded to the district of, that are ultimate forfeiture need- proceedings consistent court for further pay attorney’s ed to fees are not all that opinion. with this government’s compelling. The interests it are that assets seeks to obtain not be FEINBERG, Judge, with whom Chief dissipated relatively period in the brief KEARSE, Judges, OAKES and Circuit possible conviction and from indictment join, concurring: alleged that an criminal not be able to use power illegal holding I concur in the of the court be- his economic obtained former, govern- post-indictment re- As to the cause believe that the activities. disputed “relation back” ment’s claim to the assets at straint conditional, since provisions of the CFA conflict with the time of restraint government’s right their under the owner- of criminal defendants to select CFA permissible. argument per- is not determined seems in the assets ship interest prosecu- blush, analy- of the criminal suasive first but further until the outcome govern- say propo- not to not. stands tion. This is sis Salerno for the all, assets at claim to these liberty ment has no sition that an accused’s interest sufficiently the claim is not only that compelling but be overcome sometimes being those assets from strong prevent coping interest in im- with an defense when the spent on an accused’s public safety. threat mediate Here funds available. has no other accused anywhere there is no interest Moreover, that in it must be remembered compelling near as as that. Nor is the context, govern- amendment this sixth restraint here on alone. The re- freezing an prevented ment is straint affects counsel of indicted defendant’s other assets—those choice, important which in turn affects lib- payment counsel—so necessary not of erty interests. dissipation or conceal- that there will be no Therefore, applied the statute as is below ment of those. unconstitutional. The sixth amendment seeks government extent that the To the court, mandates that the district in evaluat- power strip accused of the economic to an order, ing restraining permit a a defendant activities, illegal alleged from he obtained pay legit- to sufficient funds to access in the context before this interest is weak remand, imate costs of his defense. On indicated, just defendants’ As I have us. permit of the re- court must invasion target are a fair for the generally assets assets to the extent strained are concerned here with government. We provide Monsanto with sufficient funds to power, of economic only aspect one government retain counsel of choice. The attorney in relation to the power to hire an prohibited seeking from later must also be course, weaken- prosecution. criminal Of to Monsanto’s coun- fees ability of an accused to defend ing the us, sel of choice. On the facts before advantage trial is an for the himself at provision of 21 “relation back” U.S.C. legitimate government. But it is not a 853(c) the same effect as a restrain- has used to government interest that can be fees, attorney’s applied order when right. justify invasion of constitutional practical keep considerations will an since holding not a criminal to Our does allow upon attorney accepting fees based illgotten power economic after retain his contingency of success at the criminal only they assets when conviction. It frees trial. attorney’s fees pay legitimate are used to holding permit no other assets are available. It does some who have and when Our to shelter un- activity does not allow defendants to obtain engaged criminal paying lawyer by they tainted assets attorney solely because particular Thus, if the accused property tainted first. through gained power economic have convicted, ultimately assets our And, may (although un- crime. be true forfeiture are holding will have saved from fortunate) power fre- greater financial spent on defense. have been ability present quently buys the government does have Admittedly, thorough defense. The stronger and more preventing criminals from some interest allowing cost of criminals small societal using ill-gotten power economic to hire at- to hire illegally their obtained wealth use simply does not torneys, but interest price must attorney, is the we outweigh an accused’s constitutional rights of the inno- pay protecting to counsel of choice. cent, deprived might who otherwise waging a full legitimate power economic argues that since Unit- — adversarial It is a cost of our Salerno, -, defense. 107 ed States great pro- system, places value (1987), L.Ed.2d held that S.Ct. rights the accused. The trial, tecting the pending a defendant be detained statute, applied in this as trouble with the the restraint on a defendant’s case, deprives of their (as is that it defendants opposed liberty) to his must be here 2550, 2555, attorney hire an 45 L.Ed.2d 593 power to before economic Cloud, Forfeiting (1975). See also to be criminals. they proven are Defense Attorneys’ Applying Fees: an Institu- dissenting opinion true, It is as the Theory to tional Role Individual Define out, that other cir- Judge Mahoney points Rights, 1987 Wis.L.Rev. Constitutional cuits, disagreement although not without 8-15; Note, Against Attor- Forfeiture of circuit, held the statute as within the have neys’ Protecting Fees Under RICO: For the rea- applied here constitutional. Rights De- Constitutional Criminal above, respectfully dis- sons set forth fendants, 61 N.Y.U.L.Rev. 146-48 opinions. agree reasoning of those with the (1986). By permitting prosecutors to un- prove that an ac- must quality dermine the of the defendants’ beyond a reasonable doubt. guilty cused is very type complex counsel crimi- obtaining convincing It must do this (RICO, CCE) astute, experi- nal case where guilt, evidence of the defendant’s needed, pretrial enced counsel most retaining preventing defendant restraint “relation As Rubin said counsel of choice. provisions applied back” forfeiture Thier, concurring in legitimate attorneys’ deny defendants Cir.1986), modified, (5th F.2d and a counsel choice fair trial. These (1987): 809 F.2d 249 Sixth Amendment considerations are not permitted should not be The Government by pretrial saved mini-trial such as was at the outset of cripple the defendant here, had for the in reasons stated 836 F.2d him the by depriving of funds [trial] at 86-87. he needs to retain counsel.... process The Fifth Amendment due clause agree. I believe, implicated, is also I now for several OAKES, Judge (concurring): Circuit puts The forfeiture statute reasons. too per opinion I curiam and in concur power prosecu- much in the hands of the Judge Feinberg’s Amendment Chief Sixth not tion to determine who will be defense goes. As the dissenter so far as counsel, power perni- particularly that is original panel, on 836 F.2d 85 present system provid- of cious because Cir.1987), the court pleased I am that saw indigent may pro- ing counsel for the not fit the case en banc and that the to rehear representation long, vide effective in the majority reverse the district sees fit See complicated RICO and cases. CCE only court. I write a few additional words Thier, v. United States 801 F.2d 1473 views, amplify my as set forth in that (5th Cir.1986) (Rubin, J., concurring), mod- dissent, that the forfeiture statute is “un- (5th Cir.1987). ified, 809 F.2d 249 The on Amend- constitutional at least Sixth provisions system forfeiture infect the with ment, possibly Fifth Amendment the unavoidable conflicts of interest and Id. process, grounds.” due attorney ethical dilemmas for the defense Amendment, view, my The Sixth jeopardize right process. that to due implicated on the individual level Badalamenti, See United States v. 614 particular right of the defendant’s (S.D.N.Y.1985). See F.Supp. 196-97 choice, but also on the insti counsel of his Note, Attorney Forfeiture, also Fee 86 justice system tutional level of the criminal (1986). 1030-36 Colum.L.Rev. is, systemic as a whole. That there is addition, forfeiture, pretrial especially permitting interest defense counsel detention, see coupled pretrial when with perform proper adversary their role our Rios, Ojeda v. 846 F.2d 167 system justice, role in and of itself (2d Cir.1988), closely too Al- resembles the Strickland Wash worthy protection. Queen’s first, 668, 685-86, ington, 466 U.S. ice-in-Wonderland “sentence (1984); 2052, 2063-64, justice. verdict afterward” mode of Unit 80 L.Ed.2d 674 Cronic, ed 648, 655-56, history underlying adoption of the Fifth 466 U.S. 2039, 2044-45, Amendment, involving pretrial confine- S.Ct. 80 L.Ed.2d 657 York, (1984); counsel, attainder, Herring v. New 853, ment, right no bills conviction, including expenditures ment to more, Levy, Origins L. see Fifth private the in- for the retention of counsel. Sim- (1968), together with Amendment ilarly, provisions governing the forfeiture terrelationship principles embodied parties third Oakes, transfers to are also discre- Proper Rights, Bill see in the 1963(a)(3) tionary, (Supp. 18 U.S.C. IV Enforcing § the Federal Courts Role of 1986); 853(c) 1986), (Supp. U.S.C. § 54 N.Y.U.L.Rev. Rights, the Bill of least, very exempt and at the must (1979), me that persuades 919-24 any payments authorized have countenanced Founders would never 853(e)(1). court If under Section that inter- Forfeiture Act of Comprehensive correct, pretation process the due 21 U.S.C. 853. sixth amendment issues need not be ad- that sacrifices the statutory A scheme judg- dressed. I therefore concur in the attorney, client and relationship between My ment of the court. reasons follow. to undermine prosecutor invites the imposes process, and the adversarial (not trial to mention sentence before provision The so-called restraint his to counsel denies a defendant Act, 853(e)(1)provides in perti- choice) consti- not survive cannot must part: nent scrutiny. tutional (e) Protective orders WINTER, Judge, whom Circuit (1) Upon application of the United join, and NEWMAN Judges MESKILL States, enter the court concurring: injunction, require or execution bond, satisfactory performance of a unnecessary to address the I believe it preserve take other action to my reached col- constitutional issues availability property of described sub- (i) the leagues I conclude that: because (a) section of this section for forfeiture permit question statute in does not under this section— by funds needed pre-conviction restraint of (A) upon filing of an indictment or ordinary to make lawful ex- a defendant charging information a violation of this penditures, including expenditures to retain subchapter subchapter or II of this (ii) counsel; private legal expenditures criminal forfeiture chapter for which by the district court expressly authorized ordered under this section and be purposes subject post- are not for such respect alleging that the with forfeiture. conviction would, sought to which the order is provisions Compre- of the The relevant conviction, subject to the event of be Act, 98-473, No. hensive Forfeiture Pub.L. section; this ... forfeiture under (1984), permis- are drafted in 98 Stat. 2040 added). (emphasis “may”—rather mandatory— than sive— “shall”—terms. 1963(e) why statutory a frankly puzzled I am 18 U.S.C. See 853(e)(1)(A) permissive language 1986); provision 21 with such (Supp. IV 1986). by many so courts to autho- (Supp. “may” Because of the has been read matter, require, much less any of rize as a routine language and the lack of evidence of restraints on a de- congressional contrary, intent to the I read the most draconian any giving consid- district courts with the fendant’s assets without the Act to vest hardship such a restraint discretionary power iden- eration to the to restrain assets Indeed, of imposes. the established canon in an indictment as to forfei- tified reten- is to favor the statutory The exercise of that discretion is to construction ture. equitable powers courts ab- guided by equitable princi- traditional tion of full be contrary legisla- a of a ples hardships the relative sent clear statement balance many Congress “in so no inter- tive intent. Unless parties. has words, inescapable a preventing from the Act in or est derived inference, jurisdiction court’s making ex- restricts the ordinary defendant from lawful scope jurisdiction of that during period equity, indict- the full penditures 1406 authority hearing to hold a v. clude ... applied.” Porter recognized and

is to be 395, 398, entry Co., subsequent 66 to the initial of the order 328 U.S. Holding Warner (1946); 1089, ac may modify L.Ed. 1332 the order or 90 court S.Ct. cord, Village clearly Prod. Co. v. e.g., improp- Amoco vacate of 531, 107 S.Ct. Gambell, er_”). clear, U.S. legislative history 480 is (1987); 1402-03, 542 Brown 94 L.Ed.2d hearing not to inquire this 496, 503, (10 Pet.) 9 L.Ed. Swann, 35 U.S. evidentiary strength or into the weakness equity, (“The great principles of (1836) government’s criminality. case on not be complete justice, should securing hearing Immediately noting after that a inferences, con light or doubtful yielded may modify court may be held and “the lightly struction.”). should not We thus order,” Report states: Senate enacting the Congress, in presume that However, it is stressed that at such require Act, dispense “the intended to with hearing court is not to entertain chal- “back equity practice” their ments lenges validity of the indictment. years of histo of several hundred ground issuing restraining purposes For the 321, 329, Bowles, ry,” Hecht Co. order, probable cause established (1944), 587, 591, 88 L.Ed. 64 S.Ct. the indictment or information is be assuredly Congress history “of which regarding determinative of issue Weinberger v. aware.” Romero-Bar well government’s merits case 305, 313, celo, 456 U.S. the forfeiture is to be based. (1982). 1803, 72 L.Ed.2d 91 S.Rep. reprinted at in 1984 No. the word Congress if had used Even Cong. & Admin.News U.S.Code “may,” is caselaw instead there “shall” that if the It seems almost self-evident equitable discre- holding that an exercise of hearing purpose of the is not to test example, required. tion still be For criminality, government’s evidence then Price of 1942 Emergency Control Act to allow an informed purpose its must be certain “a provided that in circumstances balancing hardships the relative on the temporary injunction, re- permanent or principles parties according to traditional order, other straining order shall preconviction re- equity regard to v. Hecht granted without bond.” Brown upon a defendant’s assets. For straints Co., (D.C.Cir.1943), F.2d rev’d below, that should reasons balance stated Bowles, 321 U.S. Hecht sub nom. Co. as to allow a defendant to be struck so (1944). 321, 587, 88 L.Ed. 754 64 S.Ct. ordinary expendi- lawful continue to make Nevertheless, Supreme conclud- Court tures, pri- including expenditures to retain granted’ is mandato- ed ‘shall be less “that expenditures These legal vate counsel. might suggest.” reading a literal ry than controlled, prevent should be 328, at 64 S.Ct. at 591. The Court 321 U.S. making from unusual ex- the defendant Congress “that if had intended noted anticipation in penditures for luxuries departure such a drastic make forfeiture, executing conviction and practice, unequivo- equity traditions transfers, using and from sham assets purpose have cal statement of its short, may In the court purposes. criminal 329, made.” at at 591. been Id. S.Ct. of a defendant but seize the should assets addition, legislative history of the In ordinary expendi- lawful allow controlled re- supports the conclusion courts Act that tures. powers issuing in equitable their full tain pre-conviction The Act authorizes re- 853(e)(1). under The Senate orders Section protect government’s straint Report expressly indicates district that forfeiture. concerning may hearings hold re- courts potential hardship on the weighing the imposed on a defendant’s straints assets regard pre-conviction 225, government to a with No. S.Rep. under Section. See assets, a defendant’s there- 191, 203, restraint on Cong., reprinted 1st 98th Sess. fore, scrutinize its interest under Cong. we must 1984 U.S.Code & Admin.News (“This ultimately obtaining a Act in forfeiture provision not ex- does Although Today, Congress the Act’s rela- few in the assets. or the law of those community enforcement gives recognize fail to provision tion-back that the traditional criminal sanctions of property right a nominal imprisonment fine and inadequate are assets, property this potentially forfeitable punish enormously profita- deter or govern- solely from the rigfit is derived which, dangerous drugs ble trade in For exam- interest in crime control. -ment’s violence, plagu- its-inevitable attendant expressly disclaimed ple, country. Clearly, if law enforce- argument any interest in criminal at oral racketeering ment efforts to combat under the as a means of forfeitures Act drug trafficking successful, are to be raising revenue.1 The mere fact that they must include an attack eco- ultimately after forfeited conviction aspects nomic of these crimes. Forfei- preconviction may less than if a total be ture is the through mechanism which not, imposed there- restraint had been does such an attack made. fore, any purpose of the Act. contravene reprinted in Rep. No. S. at involving the .seizure of Cases Cong. U.S.Code & Admin.News at 3374 raising purposes impli are where revenue (footnote omitted). inapplicable. Similarly, cated are thus — United, nothing in language legis- There is Salerno, , States v. - history indicating lative of the Act (1987), 95 L.Ed.2d 697 Congress hoped orga- to eradicate criminal person upheld a restraint on the of a de racketeering nizations or to deter or narcot- fendant, government’s was based on the trafficking by imposing penal- ics financial preventing interest that defendant from upon ties defendants conviction and before pe committing pre-conviction crimes in the only passage remotely forfeiture. In the riod. view, supporting contrary the Senate Re- provides only The Act for forfeiture as a port provision stated that the restraint was penalty designed to eradicate certain crimi- only preserve availability intended “to organizations racketeering deter nal and to of a defendant’s assets for criminal forfei- trafficking. As the and narcotics Senate and, ture in those cases in which he does Report explained: transfer, deplete, property, or conceal his Profit is the motivation for this criminal to assure that he cannot as a result avoid activity, through pow- economic Id. impact the economic of forfeiture.” grows. er that it is sustained and More reprinted in 1984 U.S.Code Cong. & years ago, Congress recog- than ten added). (emphasis Admin.News at 3379 specifi- nized its enactment of statutes Congress “depletions” with which cally addressing organized crime il- thus those that enable concerned were legal drugs the conviction individ- impact a defendant to avoid the economic drug racketeers and dealers would be ual a forfeiture. Unlike un- of only limited effectiveness if the eco- expenditures of con- usual lavish to accelerate power organiza- criminal sumption pre-trial period, nomic bases of transfers intact, enterprises were left and tions or to friends or relatives as a desirable alter- forfeiture, authority designed pur- or transfers for so included forfeiture native to concealment, ordinary ex- strip organiza- poses and of lawful these offenders power. penditures do not enable a defendant tions of their economic verdict, argument suggests, forfeiture is not a forfeiture sion at oral 1. After obtains Indeed, reaps way of course bene- economic revenue. an efficient to raise by using forfeited assets them to relieve fit from Report Act was enacted in Senate notes that the aggressive burden forfeiture cases "the financial placet “defray escalating part ture, of forfei- costs” agencies.” law enforcement on our 225, 193, S.Rep. reprinted in 1984 No. at 197, S.Rep. reprinted No. at in 1984 U.S. Cong. at and & Admin.News U.S.Code 3380; Cong. & at see 21 U.S. Code Admin.News Congress hardly provisions enacted the at issue sale, 1986) 881(e) (Supp. (providing C. for defray applica- of their here in order to the cost governmental destruction or assets). use of forfeited tion. However, government's as the conces- restraint on or- pre-conviction Because a post-convic- impact of a avoid the economic expenditures punish- is a dinary lawful expenditures forfeiture, such tion because ment, on a defendant hardship is inflicted regard to without would have been made case, In this restraint. of the pre-A to the extent a forfeiture. prospect of such was to render of the restraint expendi- the effect ordinary lawful trial restraint on provi- no indigent. It contained irreparably impos- Monsanto the other hand tures on food, medical to assets for sion for access before impact of forfeiture es the economic If he were a lessee legal counsel. whole, legisla- care or Read as a conviction. homeowner, lack he would now of a Congress instead history indicates tive of a Given absence disposi- funds for shelter.4 “improper was concerned about the interest, it is countervailing governmental assets,” id. at re- tion of forfeitable acknowledge not to of discretion Admin. an abuse Cong. & printed in U.S.Code a interest priority of defendant’s defeating for- at “defendants News expenditures, in- ordinary making lawful transferring, or con- removing, feiture private to retain cluding those assets,” reprinted cealing their id. making expendi- actual counsel. The Cong. Admin.News at & in 1984 U.S.Code course, tures, directly controlled can ... forfei- be “shielding] them from and they are court to insure by the district ture.” Id.2 purposes. permissible for purposes Congress’s crime-prevention our point on this It should be noted that a defendant by preventing are thus served appears the dissent to be difference with making unusual ex- like Monsanto agrees that the anticipation quite narrow. dissent penditures on luxuries grocers or doc- permits payments to They are also CFA and incarceration forfeiture. tors, purveyors of presumably other friends and transfers to by preventing served services, ordinary goods and legitimate and anticipation or in the same and relatives Our difference and out of restrained assets. purposes of concealment transfers fees. payments limited to counsel purposes are thus Finally, Act’s later use. difference, we add the regard to that expenditures for With by preventing served First, their tra- following. if retain pre-conviction courts purposes during the criminal regarding scope equity powers ordinary ditional Preventing lawful ex- period. restraints, there is no reason any pre-trial not serve penditures, does distinguish between equity constitute a the law purpose of the Act and would far as legal counsel. So and medical care imposed conviction punishment before concerned, surgeon one’s choice a cost is forfeiture.3 ordinary needed for length portion discretion to restrain assets quotes at 2. The dissent (1) Congress living expenses concerning for three reasons: Report so-called "Black House given to achieve no indication that it wishes portions italicized the dis- has case. The Tuna” means; (2) preventing purpose by position. support Read this isolation its sent read in ordinary prior whole, goods and simply purchase of services quoted does statement fees, insignificant marginal legit- deterrent has an if to trial that either counsel not state imate, fact, compared prospect of substantial effect to forfeiture. would be sentences, prison such enhanced deter- equates counsel the statement manifestly outweighed by equities apparently a rence is who was amounts to wife ordinary purchase suggest- favoring the defendant’s No one has of the residence. co-owner services; (3) goods assertion of such a of an asset ed that a co-owner's share pro- purpose a substantial due expressed would encounter policy concern The forfeited. preventing pur- cess issue as to whether “a considerable amount of the statement is that pun- crime amounts to drug operation in order to deter 'proceeds' are else- chases of this the where, ” conviction. funding ishment in advance of probably future 'Black Tunas.’ restraining, 4.Logically, position identified purpose that all assets arguable of It is conviction, may before trial would as tainted be seized prior assets that would otherwise to home, prohibi- living expenses, rather than a spent entail seizure of for have been normal encumbrances, fees, engag- value ordinary legal so that the rental including is to deter tion on might preserved proceeds. ultimate forfeiture in- ing yield for activities that forfeitable being the defendant. purpose the exercise of stead of consumed cannot That warrant lawyer exception attorney’s which an for expensive as a of one’s may be as concerned, hardship judicially implied. far as is to be In- choice. So have pre-trial stead, restraint contemplates to a exemp- defendants the dissent government pro- can turn to on all assets tion from restraint and of a vari- legal care or coun- grams providing medical ety legitimate ordinary expenditures of Moreover, indigent. payments sel to persons possibility with notice of the of implicate a constitutional legal counsel for implies The forfeiture. dissent then an ex- protection for the re- provision providing ception permissible expenditures those counsel, hardly and it can private of tention barring payments legitimate attorney’s for the use equity disfavors be contended position Congress fees. Our is that if in- private purpose. funds for that of tended to courts in the exercise of allow equity powers to authorize ex- traditional Second, nothing in the CFA that there is penditures from otherwise restrained as- from the exercise exempts attorney’s fees sets, Congress’s provi- failure to include a point This equity powers. of traditional expressly disallowing payments for dissent’s sion by comparing the illustrated best play plain that of counsel fees calls into mean- interpretation of the statute with panel opinion upon by not- panel majority. panel. The rule relied language of the statute plain that “the ed straightforward applica- that a believe exception no categorical and contains statutory principles tion of standard of con- quot- F.2d at 78. It attorney’s fees.” 836 interpretation requires struction this of language, “Any person statutory ed 853(e)(1) Section even in the absence of the property,” any forfeit ... id. ... shall far-reaching a differ- constitutional issues opinion), and observed (emphasis panel reading of the statute encounters. ent all-encom- only exception to this However, anything if remains of the canon pur- fide passing language concerned bona differing interpre- capable that statutes that on the Id. at 79. It stated chasers. consti- tations should be construed to avoid language a fide statutory face of the bona issues, Dulles, 357 U.S. tutional see Kent v. purchaser purchaser simply meant with- (1958), L.Ed.2d property might be sub- out notice that surely applies here. panel next turned to ject to forfeiture. legisla- general in the various statements history upon by appellant relied

tive II limiting third-party forfeitures to sham pay- fide I turn now to whether bona panel concluded that the transactions. in- ordinary expenditures, ments for lawful “thoroughly ambig- legislative history was fees, pursuant to a cluding attorneys’ made “certainly enough clear not uous” equitable discre- district court’s exercise plain meaning from the departure warrant 853(e)(1),5may neverthe- tion under Section Legitimate Id. at 80. of the statute.” post-convictionforfeiture. subject to less be lawyers with notice counsel fees 853(a), provision, Section The forfeiture forfeited. might therefore be part: provides pertinent reasoning is at odds with The dissent’s (a) Property subject to criminal forfei- the dissent allows that of the because ture variety payments to a considerable of a violation Any person convicted ordinary goods providers legitimate subchapter II of this subchapter this that the who have notice and services by imprisonment for chapter punishable assets otherwise sub- payments are from year forfeit to more than one shall forfeiture. The dissent thus does ject provi- States, irrespective panel, a com- United contemplate, as did law— “any property” sion State plete restraint note, however, that the us. X do order rendered Mon- 5. Because question indigent, argument forfeiture seek santo that it will not stated at oral subject a Section assets that were not the of such assets. forfeiture 853(e)(1) appears proceeding not to be before your being fee.” That constituting, you or de- will lose (1) any property person message lawyers likely ob- from, proceeds the kind of are to any rived tained, indirectly, seriously, the result directly or take the defendant will find it violation; impossible represen- difficult or to secure of such ^[******] tation. Badalamenti, added). 853(a)(1) (emphasis 21 U.S.C. § (S.D.N.Y.1985). po- F.Supp. Other as- of forfeitable regard

With to transfers providers may tential of essential services sets, provides: the statute in engaging also be deterred from transac- (c) party Third transfers publicized highly tions with a defendant. in right, property interest All title and surgeon grocer A who knows that a (a) this section described subsection patient or customer is under indictment for upon the com- in the United States vests trafficking narcotics well have “rea- giving rise to forfei- mission of the act cause” to believe that his fees are sonable Any prop- such this section. ture under being paid tainted assets. If with id.Cf. transferred to a erty subsequently that is equitable authority to the district court’s may be person other than the defendant expenditures permit ordinary lawful is to special of forfei- subject of a verdict effective, parties payments be to third ordered for- ture and shall be thereafter authority pursuant made to that must be States, unless the feited to the United post-conviction immunized from forfeiture. hearing pur- establishes transferee (n) of this section event, suant to subsection any this construction is more purchaser that he is a bona fide for value language consistent with the of the statute time of property who at the any phrase “may than other. be cause purchase reasonably was without subject special verdict of forfeiture” subject property that the was to believe 853(c) Section should be read authorize under this section. to forfeiture exempt court to certain assets the district 853(c) added). (emphasis Id. § authority under vindicate the court’s Sec- Again, for the reasons set out at some 853(e) prevent injus- or otherwise to tion 853(e)(1), I length regard to Section parties. construction in tices to third This “may” construe the to vest the would word phrase way no nullifies “thereafter equitable court with discretion district ordered forfeited” in Section shall be Having read imposing forfeiture. Sec- 853(c). simply That means that forfeiture 853(e)(1) require the exercise of tion mandatory third-party assets becomes discretion, 853(c) interpret- Section must be “special verdict of forfei- after Otherwise, it pari ed in materia. would ture” as to those assets has been returned. eq- essentially nullify the district court’s 853(c) reading does this of Section Nor authority permit defendants to uitable mandatory language of Section defeat the ordinary expenditures under make lawful 853(a), applies only to its terms 853(e)(1). example, For one can Section person of the referenced “any convicted” lawyer hardly imagine that defense crimes. will able to show that he or she “was be reasonably cause to without believe Accordingly, a district court con- once to forfeiture....” expenditures may that controlled cludes 853(c). As Leval has otherwise restrained un- made from assets explained: 853(e)(1), expenditures those der Section exempt subsequent forfei- must be

No one is more on notice of likelihood 853(e). Again, this in- money may come from ture under Section that the [tainted] lawyer terpretation justified by prin- traditional prohibited activity than the ... re- represent ciples statutory construction without who is asked to the defendant gard If a different construction in the trial of the indictment. to whether him, issues. Be- applies message implicate to him constitutional statute its represent a different construction would raise is “Do not this defendant or cause

14H grocers, Supreme by deterring surgeons, Court has held such issues that an in selling ordinary yacht carrying services rem seizure of a lawyers illegal nar defendant, however, permissible cotics is parte applica an ex products to tion, light significant in adopting governmen my reason for construc- further involved, provided post- tal interest exists. that a tion of the statute hearing seizure is conducted. Calero-Tole judgment I concur in the therefore Co., Leasing do v. Pearson Yacht 416 U.S. court. 663, 676-80, 2080, 2088-90, (1974). L.Ed.2d 452 I see no difference MINER, Judge, Circuit with whom “restraint,” between “seizure” and since ALTIMARI, joins, Judge, Circuit deprive both an owner of access to or use concurring part dissenting property. of his The same fifth amend part: ment apply constraints should in either panel majority I agree While with the case. post-indictment restraining order that a me, however, It seems to that the hear- cannot be issued without the notice and ing procedure great established de- hearing constitutionally required as a mat- tail majority beyond our process, ter of fifth amendment due power simply place, to create. It is not our Cir.1987), F.2d hold the intent, contrary congressional in the face of procedural safeguards necessary that provide hearing spell to for a and to out the satisfy process requirements here due process specific proce- that is due. Such by Congress must established rather proof dural matters as the burden of are than this Court. legislative better left for determination af- provision pre-indictment for a re finding unconstitutionality. ter a “The order, 853(e)(1)(B), straining 21 U.S.C. § hearings nature and form of such ... ... sharp provision stands contrast to the legitimately open many potential are order, post-indictment restraining for a id. subject, point, variations and are a at this 853(e)(1)(A). requires While former legislation adjudication.” —not hearing prior notice and to issuance of the Shevin, 67, 96-97, Fuentes v. order, Congress the latter does not. That 2002-2003, 32 L.Ed.2d 556 S.Ct. ap intended to maintain this distinction is (1972). case, panel majority In this not parent legislative history: from the “[T]he only procedure has added an entire probable cause established in the indict Congress specifically rejected; has it also ment ... is to be determinative of something Congress has eliminated regarding govern the merits issue specifically provided by deciding ment’s case on which the forfeiture is to be post-trial there can be no forfeiture of at- S.Rep. Cong., based.” No. 98th 2d torney’s restraining if order is 203, reprinted Sess. in 1984 U.S. Code lifted. Cong. & Admin. News 3386. Ex Having relied on the fifth amendment to pressly rejected, according to the Senate post-indictment provi- declare the restraint Report, holding was the in United States v. require failure to sion unconstitutional for Crozier, (9th Cir.1982), 674 F.2d 1293 va hearing, I notice and do not consider the cated, (1984), requires 468 U.S. 1206 ripe fee issue of satisfy the standards of nothing There is in the record for review. post-in 65 in order to obtain a Fed.R.Civ.P. lawyer take the to indicate that no S.Rep. dictment order. No. inception if he at its case were supra, at 195-196 & n. 1984 U.S. possible funds forfeiture after Cong. Code & Admin. News at 3378-79 & problem Monsanto’s is that he conviction. n. 20. could not retain counsel of his choice after The forfeiture statute is in fail- defective his were restrained. Whether he ing provide hearing for notice and could have done so if the funds had been following least the issuance of a restrain- available to him the first instance post-indictment order in the context. the case before us. 1412 fees, legal to counsel as whatever payment per curiam in the I concur therefore hearing man- the trial. The restraining so outcome of order

opinion to vacate majority conducted panel the re- was access to dated Monsanto permit toas remand, prevailed, and to extent on to the strained assets trial with his fees for the de- on attorneys’ Peter Monsanto now legitimate pay (includ- charges. codefendants, I criminal of whom pending sixteen all fense of the Monsanto) represented by that such counsel the declaration are join in decline to exempt from 18 3006A appointed pursuant to U.S.C. fees shall be § of 21 U.S.C. provisions 1986). (Supp. forfeiture under IV 858(c). § in a majority in now concludes The banc majority opinion that the per curiam MAHONEY, Judge, with Circuit erred, was entitled to and that Monsanto Judges CARDAMONE whom choice from the restrained pay counsel of D except as to Section join PIERCE single a majority unites behind assets. No dissenting: opinion, of this Rather, supporting result. rationale that dissent, and would decide respectfully of votes for varying combinations there are with in accordance appeal in banc opinions These concurring opinions. four original panel deter- opinion the majority re- requires this that the statute conclude (2d Cir. F.2d 74 reported at 836 mination Winter), Judge (concurring opinion of sult is assumed. 1987), familiarity with which (concur- requires it amendment the sixth from denial of a appeal The case is here Feinberg), Judge both ring opinion of Chief modify post-indict- a motion to vacate require it sixth amendments the fifth and (1) permit appel- restraining ment Oakes), (concurring opinion Judge restrained as- to use lant Peter Monsanto panel majority exceeded its finally, that the (2) counsel, and private trial sets to retain hearing requirement by adding a authority to such counsel legal exempt statute, although if the statute called post-trial forfeiture. hearing pass constitutional a it would pertinent read the panel majority Judge Min- (concurring muster (e) 853(a) through statute, 21 U.S.C. they er). opinions, the issues These 1986), part (Supp. IV enacted raise, considered seriatim. will be Act of 1984 Comprehensive Forfeiture (“CFA”), orders to authorize (concurring Statutory A. The Issue pay a needed to freeze which would Winter). opinion of choice, conclud defendant’s counsel of (Supp. 853 whether 21 U.S.C. The issue in no constitutional ed that this resulted pre- 1986) exemption authorizes long pre-trial adversarial so as a violation assets to orders of sufficient trial freeze govern at which the hearing provided con- has been pay for counsel of choice established, independent “by evidence ment Al- circuit courts. by a number of sidered indictment, probability of convinc constitu- have on the though they divided both ing jury beyond a reasonable doubt issue, unanimously these have tional courts the statute the defendant has violated decided, exception that is now with one subject to forfei and that the assets are review, the statute can- under banc Monsanto, 836 ture.” United result. to reach not be read 1987) (2d (citations omitt F.2d Cir. so ruled In Re The Fourth Circuit ruled that if ed).1 majority further Caplin Drys & Hearing as prevail at the failed Forfeiture Cir.1988) (in banc). (4th dale, question 837 F.2d hearing, assets in pre-trial 641-42; J., (Phillips, id. at 651 recapture after id. at subject to See would not be evidence, ruling relying part in United beyond on our Although requirement proof (2d Grammatikos, F.2d forfeitability States v. Cir.1980), of assets is reasonable doubt as to rule, is not an element that forfeiture majority States v. we that United the Sandini, note offense, 1987), simply an additional but the criminal 874-75 Cir. 816 F.2d penalty preponderance therefor. requires only proof alleging so ruled ordered under this section and dissenting). The Tenth Circuit Nichols, 841 F.2d 1485 respect that the 1491-96; Cir.1988). (10th id. at sought would, See id. the order is in the event of J., dissenting). The (Logan, conviction, 1509 subject to be forfeiture under circuit, States v. opinion in this United this section.... Monsanto, (2d Cir.1987), was 836 F.2d 74 853(e)(1)(A) 1986) (Supp. 21 U.S.C. IV § 78-80; point. id. at unanimous on this See added). (emphasis (Oakes, J., dissenting). The id. at 85-86 (1) Judge analysis is that: Winter’s in v. Thi Fifth Circuit ruled United States “may” use of the word in this subdivision (5th Cir.1986), er, modified, 801 F.2d 1463 vests discretion in a court which a Cir.1987), (5th the statute 809 F.2d 249 that restraining sought order is under this sec- authorize, although not read to should be tion; (2) guided by that discretion is to be fees, mandate, attorney’s exemption an for equitable principles traditional that balance in ruling and this was reaffirmed United hardship (3) parties; relative Jones, (5th Cir. 837 F.2d legislative history a review of the establish- 1988). Jones, judge in how One concurred es that no has interest “[t]he ever, Thier, only constrained because [Comprehensive derived from the Forfei- expressed preference his for the con preventing Act in a defendant from ture] trary rule the Second and Fourth Cir of making ordinary expenditures lawful dur- J., (Davis, concurring). at 1336 cuits. Id. period from indictment to convic- has since decided to re The Fifth Circuit tion, including expenditures for the reten- consider Jones banc. United States private reaching tion of counsel.” In this (5th Cir.1988). Jones, 844 F.2d 215 conclusion, Judge Winter’s includes analyses Most of the these cases have any no citation of or reference to of the (a) (c) directed to subdivisions of been many cases that have construed this stat- 1986), (Supp. and have ute, excepting only a confession that he is (a) concluded that since subdivision extends “frankly puzzled” that none of them has “any property” obtained from or used read the statute as he does. violations, criminal and since subdivi with, begin obviously appropriate, To it is (c) recapture property of such sion calls for consulting legislative history, before except pur from all transferees bona fide (e)(1)(A) language look to the of subdivision chasers, category unlikely to include de purpose. See, presumably e.g., on to ascertain its Russello fense counsel who would be States, concerning any government claims 464 U.S. notice v. United forfeiture, (1983). 296, 298, All as to the statute does not autho 78 L.Ed.2d 17 See, exemption attorney’s “may” pursue pursu- fees. options rize an a court which e.g., Hearing Cap In Re as to provision ant to that are directed its Forfeiture Drysdale, Judge 837 F.2d at 641-42. unambiguous language express pur- lin & to one Winter, however, ex directs his attention preserve availability prop- of pose: “to (e)(1)(A)of sec clusively (a) to subdivision this of sec- erty described this subsection tion, provides: under this section.” tion for forfeiture 853(e)(1) 1986). States, (Supp. IV It is

Upon application U.S.C. of United restraining accordingly beyond dispute any trans- may the court enter a order require party property of injunction, or the execution of a fer to a third otherwise bond, frustrates, satisfactory performance or take to a any preserve property other action to the avail- of transfer- precise extent red, statutory ability expressly purpose. described subsec- stated (a) that, tion this section It also follows one balances however for forfeiture under this section— competing statutory and other inter- ests, wrong reading of transparently it is a A) upon filing or indictment conclude, Winter charging the statute information a violation this does, has “no interest subchapter subehapter chap- or II of this [Comprehensive Forfei- ter for which criminal forfeiture derived from the transfers, imported tion had pounds over a million preventing Act” in ture] the assets ulti- marijuana grossed fact that mere mil- $300 about “[t]he may be mately after conviction forfeited period. lion over a 16-month The Feder- restraint pre-conviction less than if a total completed al Government a successful not ... contravene imposed does had been prosecution primary which the three purpose the Act.” major were convicted and this defendants history However, the statute is legislative drug operation was aborted. purpose. For exam- equally as to its clear attempted forfeiture was two report states that: ple, pertinent Senate $750,000, residents worth an auto [sic] the bill’s purpose of “The sole auction business used as a “front” and in the current like that provision, yachts. five statutes, preserve the is to and CCE RICO $750,000 residences, the Of the availability i.e., the quo, to assure status $175,000 one was returned to the wife of the disposition of property pending defendants, $559,000 of the and was 225, 98th S.Rep. No. criminal case.” pay attorneys. used to the defendant’s 204, reprinted in 1984 Cong., 1st Sess. The auto auction was worthless business Cong. Admin. News U.S. Code & yachts and the five were never found. added) (hereinafter “Senate (emphasis $16,- up statutory purpose is The Government wound with Report”). The overall preserve in these terms: “both described assets for availability of a defendant’s organization This that lived in was and, in those cases criminal forfeiture privately jets, lane” the “fast owned transfer, conceal deplete, or which he does $60,000 yachts half million dollar a that he cannot as property, his to assure Although bills. there are restaurant impact of forfei- result avoid the economic many interrelated reasons Winter, Judge Report 196. ture.” Senate Government’s lack of success on the eco- however, disregards the first of completely level, that a considera- nomic it is obvious (i.e., Report Senate passages these two “proceeds” of this ble amount 204), enabling him to characterize the thus elsewhere, drug operation probably are (Senate 196) (emphasis add- Report second funding future “Black Tunas.” ed) legislative “only passage as the [in against background It is this remotely supporting a ... view” history] procedures present Federal added) contrary to his concern- (emphasis wanting. tested and are purpose. sug- I would ing statutory found quite gest, that in addition Cong., H.R.Rep. Part 98th 2d No. foregoing passages meaning of the clear added). (1984) (emphasis Sess. 3 history legislative statu- from the quarrel Judge no with Winter’s have following quotation tory language, “may” conclusion that the use of the word report the House of primary from the 1986) 853(e)(1)(A)(Supp. in 21 concerning the CFA se- Representatives equity brings a trial court’s traditional the notion that Con- verely undermines powers play. powers are to be into These those asset gress concerned was exercised, however, provided in the context it, that, puts depletions as Winter Congress It by the statute as wrote it. the economic a defendant to avoid “enable a thing one to conclude that district court forfeiture” impact of a case, might, given allow invasion (emphasis original): bill, pay grocer’s restrained assets to case, highly publicized although One emergency surgery. quite It provide anecdotal, problem. is illustrative of the autho- another to conclude that statute v. Meinster That case was United States outlays financial rizes the rather massive 79-105-CR-JKL, (Case et al. No. South- necessary pay private defense often Florida). prosecu- In this ern District of prosecutions, counsel in RICO and CCE tion, commonly “Black Tuna” called the judge’s case, organiza- precludes any exercise of a Florida based criminal payment, showing discretion ever to inhibit such a a sufficient to justify a restrain- order, long the defendant so as it is not “sham.” should not have private to bear the risk that counsel will sum, hardly reading it is credible prospect still be deterred of dis- congressional purpose, given explic- gorging attorney’s fees after trial. To statutory language legislative and clear the extent that some ultimately funds history, Congress en- conclude found to be forfeitable at trial will re- to, tirely indifferent or intended to create a main in the of attorneys, hands we view for, special exemption the use of restraina- this as a cost in this difficult Rather, attorney’s assets for fees. ble balance between the interests of the most of the circuit courts that have con- defendant’s sixth concluded, sidered the matter have the stat- right amendment counsel choice. utory fairly issue is not in doubt. This hand, On the other if brings question us to the of constitutionali- hearing, meets its burden we con- ty. clude that the defendant has no sixth exemption amendment of assets B. (concurring The Constitutional Issue attorney’s earmarked for fees either opinions Judge Feinberg and of Chief pre-trial post-con- restraint or from Oakes). Judge government viction forfeiture. Once the panel majority The rationale of the con- has established a likelihood that the as- cerning the constitutional issue was ex- forfeitable, sets are indeed the case is pressed as follows: analogous more to the situation in which Requiring hearing, an adversarial a defendant is denied access to contra- government which the has the burden to manifestly subject band that demonstrate the likelihood that the as- interest of someone other than the ac- forfeitable, proce- provide private sets are will a cused. The to retain coun- absolute; and, in against government’s sel of choice is not the dural check prevail event the defendant does not discretion to limit and RICO defend- CCE post-restraint hearing, at a he is still by simply ants’ choice of counsel obtain- guaranteed appointed counsel under the charge a forfeiture in the indictment. amendment. see no constitu- sixth We government If the cannot demonstrate principle requiring tional that a defend- jury the likelihood that a would find the ability pay private counsel ant whose crime, proceeds assets to be solely possession from the results using interest defendant acquired by property which he has crimi- property to retain counsel of choice property Congress activity, nal which has prevail.... should forfeitable, placed declared to must be In the event the district court finds position preferable to that of an government that the has not met its bur- indigent defendant who does not have order, den and lifts the more- disposal. at his over, we think the district court should (footnote omitted). 836 F.2d at 84-85 any also order that funds thereafter used pay legitimate attorney's ex- fees be The trial in which Peter Monsanto is empt post-trial engaged future forfei- a stark illustration of presently ture_ pre-trial stage, At the where There are defend- this rationale. seventeen innocent, trial, presumed (including the defendant is we ants in that all of whom Monsanto) appointed if counsel. The hold that cannot make have 853(e)(1)(A) Judge paragraph reads the which because it was deemed irrelevant Winter (a) appended major wholly unparticularized depar- conten- this footnote is to Monsanto’s that, statutory original panel opinion, a matter of con- ture from the 836 F.2d tion either as Cir.1987), (b) right, any significantly narrowing defendant and struction or constitutional always respectful- be allowed to use otherwise re- the differences between our views. I must (a), attorney’s ly disagree. panel opinion fees. assets for non-sham As to did not strainable (b), Judge accepts posi- Monsanto’s address the individualized discretion authorized As to Winter stated, by "may” reject and I it. the use of the word in 21 U.S.C. tion as thus Judge opinions Feinberg cordingly, Judge Chief next consider Miner’s hold, Judge although they put don’t concurring opinion, Oakes which holds that representation of exactly way, this panel majority authority exceeded its by ap- codefendants Monsanto’s sixteen requiring hearing. such a pointed poses no constitutional counsel problem, but that the constitution cannot (con- Requirement Hearing C. The aof of assets countenance the restraint Miner). curring opinion Judge private spend for Monsanto wants to coun- Judge “agree[s] Miner with the sel, indictment though even returned majority post-indictment restraining that a charges by grand jury that those assets order cannot be issued without the notice are forfeitable under CFA because de- hearing required as a matter of fifth illegal drug dealing, rived from process, amendment due ... [but] hold[s] probable, found it after an adversari- Ward procedural safeguards pre-trial hearing, al that the satisfy process require- due prove beyond a this reasonable ments here must be established Con- doubt. gress rather than this Here Court.” I view the situation as does the Fourth again, Judge acknowledge Miner does Circuit: any way decisions other circuits to accord this class of We ... decline ... which, question, faced with the identical unique criminal defendants favored required pre-trial hearing have as a mat- constitutional status. Such a rule would process, ter of due see United States v. constitutionally prefer drug mer- (4th Harvey, 814 F.2d 928-29 Cir. illicit chant with none but assets not 1987), rev’d sub nom. In Re Forfeiture indigent defendants to defendants but Caplin Hearing Drysdale, as to 837 assets, with untainted who must sacrifice (4th Cir.1988) (in banc); F.2d 637 United them to secure the counsel of their Crozier, 1376, v. 777 F.2d States 1382-84 choice. (9th Cir.1985); Lewis, v. 759 United States Hearing Caplin as

In Re & 1316, (8th Cir.), denied, F.2d 1324-25 cert. Forfeiture (4th Cir.1988) F.2d 646 Drysdale, 837 406, 407, 474 106 S.Ct. 88 L.Ed.2d (in banc). (1985); Spilotro, 357 United v. 680 States (9th Cir.1982); put it: F.2d 616-19

Or as the Tenth Circuit United Long, States v. 654 F.2d 915-16 legal system It is hard to conceive of a Cir.1981), statutory interpretation, or of see appointed routinely which counsel is ade- Thier, v. 801 F.2d United States case, quate penalty in a death but is (5th Cir.1986),modified, 1466-70 809 F.2d inadequate involving in a somehow case (5th Cir.1987). 249 pur- ‘the career criminal millionaire who cars, businesses, and real chases estate clear, furthermore, perfectly It is that with cash delivered to banks suitcas- hearing required by pan- the the Monsanto es.’ Narcotics Proceeds: [Forfeiture of majority el is not in conflict the with stat- Hearings the Subcomm. on Before 853(e)(1)(A)provides ute. Section a that Comm, the Senate Criminal Justice of “may” restraining court enter a order or Cong., on 96th 2d Judiciary, the Sess bond, injunction, require or a or take other (statement (1980)] Biden). of Sen. preserve property. action to If Nichols, United States v. F.2d action, “may” presum- court take then (10th Cir.1988). stresses, ably, Judge as Winter it also “may” decide not to take such action. Especially subsequent view these decisions, charged Since the court is thus with the depart I see no reason to duty panel exercising way its discretion one majority the conclusion of the other, provisions inherently the “freeze” of the CFA are it must have the au- constitutional, provided thority appropriate that an to obtain sufficient information to pre-trial hearing required respect wisely. logi- with exercise that discretion Both sought cally traditionally, to be restrained. Ac- when a court needs pre-trial adversary post-indictment, at a hearing. As a mat- holds a it information a restraint on assets. hearing to continue history quoted by fact, legislative ter of Monsanto, 85; 836 F.2d at Miner, prior to the two sentences 853(e)(3) (Supp. see also U.S.C. § pro- states that quotes, he sentence “[t]his concluded, 1986). panel majority The also 853(e)(1)(A)] does not vision U.S.C. § [21 “challenges validity hearing a authority to hold exclude ... holding appropriate, the indictment” were entry of the or- the initial subsequent to process required that due der_” Report 203. Senate pre-trial hearing, “by to establish at a evi- Judge Miner which contrast” “stark indictment, independent of the a dence pre-in- for a provision discerns between convincing jury beyond a a probability of order, 21 restraining U.S.C. dictment both that the defendant reasonable doubt hearing, 853(e)(1)(B), requires a which the statute and the assets are has violated re- post-indictment a provision subject to forfeiture....” United 853(e)(1)(A), order, 21 straining Monsanto, 836 F.2d at not, easily explained. does which thus clear that the Monsanto It is pre-indictment authorization impose hearing require- majority did not a call for a sufficiently novel to orders Congressional ment that is at odds with hearing process specific description hearing Rather, provided for a mandate. needed, not neces- description that was pertinent legisla- and the which the statute of ob- more familiar situation sary for the envisioned, history clearly Sec- tive pro- injunction in a preliminary taining a recognized, but previously has ond Circuit any already pending. ceeding that was legisla- indications rejected speculation, event, need for post-indictment there is no history that at such tive history quoted accept above the indictment legislative hearing, a court must since the regarding as “determinative issue Congress did unequivocally establishes government’s case the merits of exclude a not, enacting provisions, these is to be based.” See the forfeiture traditional au- normal and district court’s Report 203. Senate hearing respect to a thority to hold Fur- restraining order. indeed post-indictment clearly appropriate, This was thermore, judicial this court prior obvious, decision of of the normal exercise function, circuits to con- hearings are the five other that such as explicitly recognizes This is concluded. the matter have sider authorized, routinely will and but repudiation in the the case since especially States v. normally occur. United See v. Cro- Report of United States the Senate Cir.1987) 1175, Gelb, 1176-77 826 F.2d pre-trial hear- zier, required a a case which curiam). (per due of fifth amendment a matter as rejection, at Judge points Miner 1297, does not F.2d at process, 674 see 20, n. of Report 196 United Senate issue on amendment the sixth address (9th Cir.1982), Crozier, F.2d 1293 674 v. here, majority ruled see panel which the 3575, 1206, 82 vacated, 104 S.Ct. 468 U.S. Monsanto, 836 F.2d at 82 of his (1984), supportive 873 as L.Ed.2d history clearly evi- 7, legislative n. and rejected, position. Crozier leave the intent to congressional dences a in that case would rule stated because issue to amendment of the sixth resolution challenges to entertain the courts to “allow 845, 1, H.R.Rep. Part No. courts. See indictment, require and validity of the (1984). 19 n. 1 Cong., 2d Sess. 98th its well put on witnesses government Shevin, on Fuentes v. Judge Miner relies Report Senate in of trial....” advance 1983, 67, 96-97, 2002- 92 S.Ct. 407 U.S. (1972), to reach 03, 556 L.Ed.2d 32 opinion addressed the majority case held that That contrary conclusion. not, disclosure of wit- premature in the first problem of would Supreme Court pro- hearing court holding instance, that a district new by legislate broad nesses of Florida replevin Rules statutes by the Federal for the bound cedures would not be hardly precludes Pennsylvania. It Evidence, hearsay, thus admit and could of Aldens, Miller, application process (quoting due stan- Id. at 1233 Inc. v. of normal 538, (8th Cir.1979), pre-trial courts to 610 F.2d cert. de dards the federal Congress specifically nied, au- hearings, which 64 L.Ed. envisioned, (1980)). Int’l, in the course of 2d 273 thorized and See also Am. Medical HEW, litigation. Secretary Inc. v. 677 F.2d federal criminal (D.C.Cir.1981); Fed. Ins. v.Co. Life D. Post-trial States, (7th 527 F.2d 1098-99 United Forfeiture. Cir.1975); and Cosentino v. Local Int’l ap- whose denial is on Since the motion Masters, Pilots, Org. Mates and AFL- permission peal sought for Monsanto both CIO, (8th Cir.1959). 268 F.2d pri- the restrained assets to retain to use counsel, exemption legal special I legal vate stress that no or individualized post-trial presented from are to that counsel circumstances for our consid- forfeiture, Rather, ques- appeal. I reach the latter on this we are eration rule, panel majority, provide exempting did the asked to rule tion and blanket exemption appropriate required as to from forfeiture for non- that such all pre-trial of a fees. I find all of assets which are sham counsel Because concurring opinions does not reach hearing at which the and, post-trial unpersuasive virtually prevail. Permitting result their attorney’s disregard every pertinent fees would have the effect of total representing circuits, discouraging attorneys surprisingly from our sister insu- place, lar, respectfully clients the first I dissent. RICO and CCE deny such de- and thus would threaten PIERCE, Judge, with Circuit whom regardless fendants of their choice counsel joins, concurring CARDAMONE pre-trial hearing. of the outcome of dissenting part: part and rule, course, stops well short of the This per ruling curiam that Monsanto is to be substantially For the reasons set forth provided access to the restrained assets to original panel opinion in United States pay nons- whatever extent Monsanto, (2d Cir.1987), 836 F.2d 74 fees, legal ham that assets so used are Judge Mahoney’s in all D of but Section exempt subsequent forfeiture. herein, (1) separate opinion I would hold 853(e)(1)(A) (Supp. that 21 E. Conclusion. 1986) post-indictment, pre authorizes I would less than candid if failed to trial restraint of assets otherwise that, express my except (2) disappointment attorney; would be utilized to retain an passing Judge Fein- reference Chief that such a restraint violates the defend berg, concurring opinions my col- qualified sixth amendment ant’s address, leagues never or even acknowl- choice, pretrial unless at a ad counsel of edge, directly pertinent cases from sis- our hearing establish versarial contrary reach results on ter circuits which es, “by independent of the indict evidence precise the issues considered here. We ment, probability convincing jury are, course, go way. free to our own beyond a reasonable doubt both that the me that the con- But it would seem to has violated the statute and that defendant views of other circuits are at least sidered forfeiture,” subject the assets are Mon respectful entitled to our consideration. santo, 83; (3) F.2d at the States, in As was stated Keasler v. United authority court has the to hold the district (8th Cir.1985): 766 F.2d 1227 requisite pretrial hearing. Accordingly, I per by respectfully dissent from the curiam “Although we are not bound another decision, it remands this policy opinion we adhere to the to the extent that circuit’s circuit’s decision matter with instructions that the district that a sister reasoned weight whatever funds are great precedential court release deserves court, retain counsel of choice. I appellate As an we strive for Monsanto to value. original panel majority uniformity among in the that the to maintain law believe circuits, analysis to remand with instructions that our whenever reasoned correct appropriate conduct an will the district court allow.” potentially trial restraint of the forfeitable as hearing “at pretrial establishing the no sets contains intimation that it does not the burden will have fees, legitimate attorneys’ Monsanto will be convicted reach see 21 probability that question 853(a)(1), (b), (c), (e)(1)(A) in (Supp. the properties at trial and ... C. § 1986). at 85. subject legislative history sup to forfeiture.” Id. will be does not port Congress legit the claim that excluded opinion, per in the curiam how- I concur , attorneys’ imate fees from the forfeiture ever, exempts from the extent that S.Rep. Cong., provisions, see No. 98th .any forfeiture fide post-conviction bona 198-201, reprinted 1st Sess. in 1984 U.S. I actually paid to counsel. Monsanto’s Cong. Code & Admin. News 3381-84 original panel majority’s the agree with (describing provisions of 18 U.S.C. 1963 § post-convic- that “the threat observation 853). identical to those of 21 U.S.C. Inso § may effec- ... party third forfeiture tion issue, Congress far as the it left considered being able tively prevent a defendant H.R.Rep. it for the courts to decide. See at 84 counsel of choice.” Id. to retain Cong., No. Part 98th 2d Sess. 19 & I would therefore (emphasis original). in (1984) (report accompanying n. 1 draft of any forfeiture exempt amendments). Conse 1984 CCE subject the of a that have not been original panel’s quently, unanimous restraining order and that pretrial valid view—endorsed for Monsanto— amici fees; legal fide pay used to bona have been legitimate the statute reaches attor provide the to hold otherwise neys’ one that I adhere to. In fees is See ability to limit de- government with Hearing Caplin re as to & counsel, pretrial at the choice of fendant’s Forfeiture Chartered, 837 F.2d 641-42 Drysdale, necessity of stages, and trial without banc) (same (4th Cir.1988)(en view of stat likely forfeit- demonstrating in advance Nichols, ute); F.2d United States v. the extent subject assets. To ability of (10th Cir.1988) (same). particu- today majority invalidates in this case restraining order at issue lar Further, “may” in 21 the use of word legitimate possibility rejects 853(e)(1), sensibly read should be infringes upon the pretrial restraint into other- for certain invasions to allow choice, I would hold that right to counsel of appropriate It is wise restrainable assets. fee to Monsanto’s attor- any legitimate pro- a district court to therefore to allow post-conviction forfei- ney not be subsistence, necessary medical vide ture. costs, care, court-appointed shelter possessing question- counsel for an accused CARDAMONE, Judge, with Circuit necessary ex- these able assets because PIERCE, Judge, joins; whom Circuit those penses justify such an invasion dissenting part concurring part; pur- remedial light broad assets. of the stat- poses and liberal construction dissenting en banc fully I concur 853(o), imagine that ute, it is hard to see Judge Pierce and I concur terms, strictly statute, limits on its own Judge Mahoney for dissenting opinion of permits un- expenses, but legitimate these substantially reasons set forth the same expense. The adversarial legal limited opinion in Unit- original panel majority compro- “reasonable hearing held to be a Monsanto, 836 F.2d ed F.2d majority, 836 Instead, mise” the Monsanto Cir.1987), part “D”. except for 82-85, safeguards procedural provides at as per insofar concur curiam due satisfy Fifth Amendment sufficient actually paid to fees it holds bona fide Moreover, hearing process concerns. post-conviction exempt from counsel are majority, otherwise, mandated the Monsanto Judge as because 83, qualified Sixth F.2d at satisfies notes, 836 government by threat of Pierce choice and right to of Amendment counsel severely could forfeiture after conviction authority under the has district court of counsel at the limit a defendant’s choice hearing. to conduct such statute prosecution. of the pre-trial stages and trial opinions filed of that the To the extent language the stat- remedial The broad colleagues disagree with my other post-indictment pre- ute which authorizes 1420 process hearing. B. and a

above, dissent from their Due respectfully I views. expressed by agree I with the view Cardamone, Pierce, Judge Judge Judge and PRATT, Judge, Circuit GEORGE C. Mahoney hearing necessary that a dissenting in concurring part process due standards meet constitutional part. pretrial restraint of assets in a defend- opinion insofar per curiam I concur in the possession. agree I also that authori- ant’s of the district court the order as it reverses hearing may in the ty for the be found case, respectfully but I and remands need. I would also find au- constitutional per of the curiam as so much dissent from hearing, in the thority for that modify the re- court to the district directs discretionary language of the statute. Sec- access permit Monsanto straining order to 853(e)(1) tion states that “the court pay his attor- to the restrained injunction restraining enter a order or part fees, as from that ney's as well * * * preserve take other action to to Mon- per declares curiam that * * * ” (empha- availability exempt from sub- santo's defense counsel added). In obtain the informa- sis order to sequent forfeiture. tion to determine whether or not varying respect to some of With injunc- order or to enter such a my colleagues: expressed by some of views tion, necessarily the district court authority such a hear- have the to conduct choice. A.Counsel ing. Judge Fein- agree with Chief I do not Oakes, Judge Kearse that berg, Judge expenditures. C. lawful Defendant’s pos in Monsanto’s of assets the restraint Meskill, Judge Judge disagree I with counsel of choice session violates Winter, Newman, Judge who view the predomi amendment. under the sixth “may” guaran- discretionary term same amendment is to of the sixth nant function use of funds in his teeing to defendant advocate for a crim guarantee an effective “ordinary expendi- possession for lawful defendant, to insure that the de inal including legal counsel. United tures” See lawyer represented fendant will be — C.J., Monsanto, (Winter, concur- States, v. prefers. he v. United Wheat 1408). -, -, ring I am unable to understand 108 S.Ct. at U.S. (1988). Any qualified right to jurisprudence why principles equitable L.Ed.2d counsel is “circumscribed authorize, choose one’s own require, exten- even much less important respects.” several Wheat equitable protection to a sion of the court’s States, at -, 108 S.Ct. at 1697. United against whom the criminal defendant may not choose example, For a defendant shown both a likelihood of government has an who is not member advocate proof that the and a likelihoodof conviction bar, id., multiple may not defendants possesses illegally ac- property he by the same counsel where represented “clean quired. are the defendant’s Where would entail a conflict representation prerequi- normally thought to be a hands” Arkansas, interest, Holloway v. protection? equitable site to 475, 484, 1178, L.Ed. 98 S.Ct. (1978). Perhaps signifi even more 2d 426 D. Post-conviction forfeiture. “fi cantly, only defendants who are those Judge agree I Miner and enjoy qualified nancially could this able” Altimari that the issue of choice. See Morris v. right to counsel ripe is not forfeiture under the statute 23, 103 S.Ct. Slappy, 461 U.S. many open are so review. Because there J., (1983) (Brennan, 75 L.Ed.2d — it is unwise for this 'court questions, think U.S., concurring); see also Wheat advisory opinion on the give 1697; -, United U.S. at forfeiture of assets that McMann, 386 F.2d ex rel. Davis v. States might paid, been might otherwise have (2d Cir.1967); United States v. If de- legal counsel. Friedman, (D.C.Cir.1988). yet paid, 849 F.2d 1488 be de- his convicted fendant is jury, would bona by the

clared forfeited appeal on paid to counsel legal fees

fide so, must exempt? If be also the conviction is de- the forfeiture paid

they be before Or

creed, of conviction? in advance i.e.: prop- seizure government’s must of this by virtue statute

erty it owns claims of counsel all

made fees? litigation See United

future (D.C.Cir.1988) Friedman, F.2d 1488 v. pauperis in forma

(defendant proceeding were of assets that entitled to release solely after conviction forfeited declared retaining counsel purpose protec- Does appeal). him represent fide to bona sought to be accorded

tion particu-

attorney’s fees extend forfeiture is ordered?

lar case which defending extend Or against the brought actions criminal other issue is inevita- defendant? Since same say we since whatever

bly complex and dictum, refrain I think we should it is

about neces- until it is our views expressing fully case with a proper in a sary to do so picture.

developed factual SIMEON, Sr., Mae and Ida Griffin

Jules Sr., Simeon, Simeon, of Jules Wife Cross-Appellants,

Plaintiffs-Appellees,

Cross-Appellees, SON, INC., &

T. SMITH

Defendant-Appellee,

Cross-Appellant, INC., MARINE,

LUMAR

Defendant-Appellant,

Cross-Appellee.

No. 86-3389. Appeals, Court

Fifth Circuit.

Aug.

Case Details

Case Name: United States v. Peter Monsanto

Court Name: Court of Appeals for the Second Circuit

Date Published: Jul 1, 1988

Citation: 852 F.2d 1400

Docket Number: 436, Docket 87-1397

Court Abbreviation: 2d Cir.