United States v. Richard A. Ginsburg

precisely cannot know what this Since we course, (nor, entail do we

evidence will ruling of the trial court’s

have the benefit evidence) inappropriate we find

on such whether PSI would entitled consider nonrepair interest on ele- prejudgment damages time.12

ments of at this reasons, foregoing the case is

For the and Remanded for a new trial to Reversed princi- in accordance with the

be conducted

ples opinion. set forth America,

UNITED STATES of

Plaintiff-Appellee, GINSBURG,

Richard A.

Defendant-Appellant.

No. 84-1765. Appeals,

United States Court of

Seventh Circuit.

Argued June Sept. 13,

Decided said, Riley they simply 12. PSI and contend that the court entitled to make decision prejudgment separate ground interest on the appropriateness prejudgment about the inter- parties stipulated plaintiffs that all Indiana, est based on the law of not statements prejudgment be entitled to interest in the event previously parties. made The trial court jury against Although of a award Bath. it is position obviously in a much than we better points posi- clear that at various Bath took the (in part are to determine whether certain corded) unre- prejudgment appro- tion that interest would be stip- statements counsel constituted priate, computed by and should be the court in regarding prejudgment interest. ulation We it, the event of award the trial court stipu- find in its no error conclusion that such a stipulation concluded that to that effect had in fact lation did not occur. stipulation, occurred. In the such a absence of in an indictment with nineteen charged Atty., Turow, Deputy Chief U.S. Scott 1341) (18 and 111., of mail fraud U.S.C. Chicago, for counts Webb, Atty., K. Dan 1962(c) violating section one count of defendant-appellant. alleged that The indictment Gins- RICO. 111., Corfman, Chicago, A. Thomas employees at burg and Schmidt bribed plaintiff-appellee. (Tax) Appeals to obtain favor- Board of of their cases. able treatment CUMMINGS, Judge, Chief Before ESCHBACH, CUDAHY, WOOD, BAUER, trial, Ginsburg Following jury COFFEY, FLAUM, POSNER, EASTER- twenty guilty on all counts. found Judges, and RIPPLE, Circuit BROOK special verdict on jury also returned a FAIRCHILD, Judge. Circuit Senior count, finding RICO count legal fees Ginsburg had an interest FLAUM, Judge. Circuit firm of Gins- received Schmidt & of wheth- presents the issue appeal January September burg between 1976 and beyond a government must er the processed at the Board of 1982 for cases existence, at the time doubt the reasonable (Tax) Appeals. Ginsburg was sentenced to conviction, any interest a defendant’s years probation on each of counts five acquired in violation that the defendant concurrently, through to run with Racketeer Influenced of section 1962 condition that make restitution chapter of Organizations Corrupt $150,000 1,000 provide hours of sum 1970, 18 Act of Control Organized Crime further or- community service. He was (“RICO”), (1982) seq. be- 1961 et U.S.C. his one-half interest in the §§ dered to forfeit a forfei- government can obtain fees, $225,000, fore to the legal or firm’s under ture provi- government under RICO’s court, panel A of RICO. sion, 18 U.S.C. § circuit, of this prior decisions in reliance on credited of restitution was to be amount order that unpublished in an held against the forfeiture. burden, did such a Unit- bear government presented evidence F.2d 1079 Ginsburg, ed States Ginsburg possessed or con- at trial Cir.1985), majority of the court sub- and a conviction, trolled, time of his at the case banc. sequently voted to rehear the en legal fees had received in money that he We, impos- now hold appeal, Gins- 1976 and 1982. On between proof such es no burden contest his conviction burg ment, accordingly affirm district errors, rather any trial but assert Rich- judgment ordering defendant court’s trial court’s forfeiture order $225,- Ginsburg the sum of A. to forfeit ard failed vacated because the United States. 000 to doubt that prove beyond a reasonable he had received between legal fees I. in existence at and 1982 were still of this case are not Because the facts in March 1984. his conviction time of summarize them dispute appeal, we will Ginsburg Defendant and his code-

briefly. II. partners Theodore J. Schmidt were fendant Ginsburg’s sec- time of At the represented firm that clients be- in a law 1963(a)provided that (Tax) Ap- County Board fore Cook any provision of sec- [wjhoever violates September January 1976 and peals between chapter fined of this shall be firm re- tion 1962 stipulated that the It was $25,000 imprisoned not more than $450,000 during that legal fees ceived both, and twenty years, or more than processed at cases that were period from (1) any to the United States September shall forfeit (Tax) Appeals. On Board of acquired or maintained interest he has were Ginsburg and Schmidt (2) any in- conviction of the for which the forfei- of, in, security against, claim terest sought. Although ture is agree we with right any kind property or contractual premises, agree cannot over, any affording a source influence conclusion that because the established, op- he has which government’s interest does not attach until erated, controlled, conducted, partici- conviction, the time of it is limited to what- of, pated of in the conduct violation proceeds ever left at time of convic- section 1962. tion. 1963(a)(1982).1 determining 18 U.S.C. § Congress’s of use the criminal for section, “look scope of this we must feiture sanction in punish RICO revived a statutory If lan- language. first to its ment that had not been used in the United guage unambiguous, is in the of ‘a absence since States United v. See States clearly expressed intent to the 276, (7th Cir.), McManigal, 708 F.2d 288 contrary, language ordinarily — U.S.-, ” grounds, vacated other regarded as conclusive.’ v. Russello 419, Reed, (1983); 104 78 355 S.Ct. L.Ed.2d 16, 20, States, 464 104 United U.S. S.Ct. Criminal Compre Under the Forfeiture 296, 299, (1983) (quoting 78 L.Ed.2d 17 Raising hensive Act 1984: Forfeiture Turkette, 576, v. United States 452 U.S. Stakes, 747, 22 Am.Crim.L.Rev. 580, 101 S.Ct. 69 L.Ed.2d 246 (1985). As the Fifth Circuit stated in Unit (1981)). language We believe L’Hoste, (5th ed v. 609 States F.2d 796 1963(a)(1) section is vio- clear—whoever Cir.), denied, 833, cert. U.S. 449 101 S.Ct. lates section forfeit to 1962 RICO “shall 104, (1980): 66 L.Ed.2d 39 United States ... interest has penalty incorporated forfeiture acquired in violation ... of section 1962.” section 1963 presently differs from other

Nothing section existing provisions in federal 1963(a)(1)provides or suggests even statutes, statutes. Under other the for- limitation acquired that the interest in vio- proceeding against feiture rem is lation of 1962 section must be in existence property, property being since the for- at the time of conviction before it can be offender, is feited itself considered the forfeited. part and the pun- forfeiture is of the despite defendant its By ishment for the criminal offense. plain language, must be enacting 1963,however, Congress imposing read as concept revived the forfeiture as existence, burden proving at the individual, penalty criminal time of profits of a defendant’s the proceeding personam since is in proceeds activity. from racketeering against the and the defendant argument is primarily based part punishment. is of the fact that provi- RICO’s criminal forfeiture sion is personam proceeding, an in 609 F.2d at 813 n. rather 15. See also United Conner, 566, than a v. proceeding against (11th civil in rem the States 752 F.2d 576 itself, Cir.1985), property and thus petition that the filed, cert. 53 U.S. for (U.S. ment’s 24, 1985) (No. May L.W. 3870 84- attach 1853); until the time of the Kravitz, defendant’s United States v. 738 F.2d already amended this in the Com- pro settled law that section. 1984, prehensive Crime Control Act Pub.L. profits pro vides the forfeiture II, 98-473, 302, (1984), No. clarify tit. 98 Stat. 2040 activity, racketeering ceeds see Russello v. "any phrase that the in section interest” States, 22, 16, 300, 296, 464 U.S. 104 S.Ct. income, proceeds, includes the Roberts, (1983); 78 L.Ed.2d 17 United States v. profits pattern racketeering derived 404, denied, 749 F.2d 409 cert. S.Rf.p. 225, activity. See 1st Sess. — -, U.S. 84 L.Ed.2d 830 reprinted U.S.Code Cong. Ad.News & legal and thus the fees received Gins 1963(a) 3382. The amendment no effect on to section burg between 1976 and 1982. case, however, since was denied, judgment against rather than a (3d Cir.1984), defendant cert. 102, 106 -, itself, “it follows defend- U.S. Cauble, 706 F.2d (1985); part penalty as a of the and thus it ant Cir.1983), cert. de require not trace does 996, 79 -, nied, S.Ct. it, though due even the forfeiture (1984); v. Hu L.Ed.2d until after conviction.” United States Cir.1979), (2d cert. ber, Conner, F.2d 576. It therefore does denied, whether the recov- not matter is a RICO forfeiture L.Ed.2d 759 dollars that the defendant ers identical guilty defendant. imposed on a punishment received in violation all of the deprives that defendant of It long as ac- the amount the defendant he has profits known. quired statute is regardless activity, through Id. themselves those assets are of whether short, government’s while the interest with the use connection by “tainted” profits proceeds racketeering or in the (the Reed, supra, at 748 activity. illicit See activity until its does attach forfeiture is de personam scope of at time interest the of the act that vests scope crimi by the of the defendant’s fined the and constitutes section 1962 violation conduct). nal defeated, subsequently far as cannot be as Although government’s concerned, if is the de- forfeiture subject to criminal property dissipates away fendant or transfers is con attach until the defendant subject to proceeds forfeiture.2 which the forfeiture of the crime for victed right profits to or government’s forfeit F.2d at 289 imposed, McManigal, is 708 see activity racketeering under sec- proceeds of right to the (government’s n. 6 1963(a)(1)is therefore not limited follow, conviction), it does not attaches on at time unspent is left over or whatever argues, that the extent of as the defendant conviction, but instead includes the en- government’s interest is limited by de- amount that was tire pos the defendant still has his whatever fendant in violation of RICO. or at the time of conviction that session that Having .concluded proving bears the burden face, unambiguous its we clear and is the dollars obtained in violation that history legislative of RICO. now turn to earlier, many years often “ extraordinary showing ‘[Ojnly the most dollars the defendant’s bank the same legislative contrary intentions’ in account at the time of conviction. departure” justify a from will argue of criminal forfeiture characteristics that language of a statute when for against that Since RICO conclusion. unambiguous. plain is and United is sanction individual feiture subject at originally forfeiture is unavailable may possible of course be for a defendant It 197-98, reprinted by Id. practical conviction. at as a matter trans- the time of defeat forfeiture anticipation Ad.News 3380-3381. ferring away hiding Cong. & in 1984 U.S.Code his assets in by (The provision problems was added substitute asset one of the of his conviction. was 2301(b), by so Congress sought § Act 302 of the but deleted to address 1984 that II, 98-473, tit. effect. Pub.L. See never took No. to section 1963. amendments 225, 2040-41, 195-96, 2301(b), reprinted 98 Stat. 2192 §§ 1st Sess. deletion of what The reason for the last-minute Ad.News 3378-3379. U.S.Code Cong. & 1984 unclear.). 1963(d) It must attempted been Comprehensive Crime Control Act would have defeating emphasized the fact section 1963 problem of defendants alleviate the originally proved inef- removing, transferring, enacted somewhat conceal- forfeiture placing preventing by expanding defendants from prior fectual to conviction their assets govern- beyond restraining ability the reach government's to obtain their the orders, ment, preventing prac- authority voiding thus forfeiture as setting and out clear matter, preconviction does not mean improper of assets sub- tical transfers thereby forfeiture, legal authorizing interest in those assets ject ment's to criminal defeated, suggests. as defendant of substitute assets when — (7th Cir.1983)), U.S.-, Albertini, States v. Alex- (1985) (quoting ander, 86 L.Ed.2d Garc States, -, U.S. result, iaa v. support those overrule deci- 479, 482-83, (1984)). S.Ct. L.Ed.2d reject sions and the defendant’s contention. intent We believe that be argument What the defendant’s overlooks hind is not RICO’s con is the that a dissipates fact racketeer who to, trary strongly supports, in fact our profits proceeds of his 1963(a)(1). interpretation of section As vir wine, women, song tually every interpreted any court that has profited organized from crime to the same recognized, provision RICO has RICO’s put money extent as if in his legislative history clearly demonstrates Every bank account. dollar the racke- compre as a the statute was intended teer derives illicit activities and then unprecedented orga attack on hensive and spends food, on such items as entertain- nized and its economic bases. See ment, tuition, college charity, is a dol- Sedima, Co., S.P.R.L. Imrex U.S. lar that should not have been available for -, L.Ed.2d 346 spend purposes. him to for those In order (1985); States, v. United Russello truly separate the racketeer from his Congress’s at 302. de therefore, gains, dishonest purpose clared in enacting RICO was “to quires him to forfeit to the United States seek the eradication of crime in the total amount of the establishing ... new racketeering activity, regardless of wheth- penal prohibitions, by providing en specific er the dollars received from that hanced sanctions and new remedies to deal activity still in possession. are To with the unlawful of those activities en quire would seriously less undermine the gaged organized in Pub.L. crime.” intended deterrent effect RICO forfei- 91-452, 1, (1970). Congress 84 Stat. § 923 ture; a racketeer would have no incentive provisions further directed that “[t]he to discontinue his if activity liberally title shall be construed to freely proceeds could use the of that purposes.” effectuate its remedial Id. up enrich his life until the mo- 904(a), 84 Stat. 947. statute is re § conviction, ment of his eventual at which plete phrases with words and of extraordi required only time he would to forfeit breadth, nary Sedima, see 105 S.Ct. at sum, legis- whatever was left over. In 3286; Russello, 21-22, 104 464 U.S. at support lative of RICO does not 302; Haroco, at Inc. v. American Nation interpretation defendant’s Co., 384, al Bank & Trust 747 F.2d 390 requiring as U.S.-, aff'd, 105 S.Ct. racketeering activity trace the 87 L.Ed.2d 437 further evi they in order to in still dencing congressional intent to enact a existence the time at of conviction. exceedingly scope. broad The defendant’s construction goal provision of RICO’s forfeiture contrary further to the intent profit was “to remove the from provision of RICO’s forfeiture because it by separating the racketeer from his statute, practical would render the as a gains.” Russello, dishonest 464 U.S. at matter, Sedima, nullity. a virtual 105 S.Ct. at 303. The defendant Cf. (rejecting S.Ct. at reading narrow profits that if the racketeer’s are no longer 1964(c) in conviction, in of RICO that would effect existence time of then statute). they longer eliminate the section are no to the available defend- First, purpose encouraged ant defendants would be and thus remedial spend away or transfer their statute will have been served. To the forfeitable prior holdings second, prior extent that our interests McMani- (reaffirmed gal, impossible at 289 would govern F.2d be next McManigal, overcome, F.2d especially States v. 581 ment ever where CUMMINGS, Judge, concurring. Chief involved, tracing burdens money is require. position would above-quoted clarifying Because inter- reject the defendant’s We therefore provision, to RICO’s forfeiture amendment 1963(a)(1) having no as of section pretation join I in the affirmance of the district language of the section plain basis judgment. court’s contrary purposes to the being and as CUDAHY, Judge, concurring. Circuit under RICO. of forfeiture intended effect majori- I in the result and concur RICO’s Congress amended note that We ty’s analysis points but I think certain Compre part focusing helpful, precise on the would be Act of so Control hensive Crime being issue resolved here. title, right, provides it now “[a]ll in subsection described States v. (7th Cir.), vacated, U.S.-, upon the (a) in the United States vests (1983) (McMani- giving rise to forfei S.Ct. the act commission of I), for for- gal petitioned this section.” U.S.C.A. ture under feiture under two different theories. Un- 1963(c)(West and other Supp.1985). This theory, it the first claimed that der 1963, along amendments to section proceeds of an interest legal fees were changes, fur legislative intent behind acquired in and so violation of support our conclusion ther 1963(a)(1). under section were forfeitable impose govern intended to never theory, it claimed that Under the second tracing proof that ment the burdens firm’s the defendant’s share of the law by the defendant’s be necessitated receivable was an interest accounts it is true that position in this case. While enterprise, and thus forfeitable under sec- subsequent Congress form “the views of 1963(a)(2). clearly These alterna- were inferring the intent basis for a hazardous theories; support forfei- tive either would one,” Russello, 464 atU.S. of an earlier proceeds were held that ture. court (quoting at 302 1963(a)(1),and under section not an interest Price, in an must be that an interest (1960)), the L.Ed.2d 334 believe of at the time conviction existence merely confirm the al amendments 1963(a)(2). Be- under section forfeitable clearly-established legislative intent ready satisfied, neither'theory the for- was cause provision, which behind RICO’s order was'vacated. feiture aid, impede, govern the rather than was States, 464 U.S. In v. United Russello punish and deter racke ment’s efforts to the 104 S.Ct. removing profit teering activity by the a inter- Supreme Court held that forfeitable organized crime. from pro- included section est under acquired in profits of an interest ceeds and III. holding Thus our violation of section 1962. McManigal I was theory first on the conclusion, nothing we hold McManigal vacated Court overruled. legislative history of language or the plain light of Russello. I for reconsideration 1963(a)(1)imposes section pro- proving ment the burden In United States II), are still (7th Cir.1983)(McManigal ceeds time of a defendant’s able the court’s order existence reversed the district court $99,700 government can ob- forfeiting to the United States. conviction before today by proceeds under the en McManigal of those II is overruled tain a forfeiture it con opinion insofar as majority’s the district affirm banc RICO. We therefore theory, deals with first which ordering the defendant to cerns the judgment court’s However, holding in 1963(a)(1). proceeds of to the United States forfeit dealing the second theo- II with McManigal activity. illegal theory ry is not overruled. That holds that a authorized forfeiture of 1963(a)(2)an interest under section an not derived a from violation of section enterprise is not forfeitable unless it is in at the time conviction.1 Sec- existence give compar- Court’s reluctance to a Russello, at issue in was not atively interpretation restrictive sec- to a Supreme there was careful Court tion of RICO is understandable. Both distinguish it called the narrower what executive and the branches of broader section great have invested a deal of 1963(a)(1). time, money energy in dealing with a serious problem national requires which RIPPLE, Judge, whom, Circuit approach different from that used to com- FAIRCHILD, Judge, joins, Circuit Senior ordinary Indeed, bat activity. criminal dissenting. specifically has mandated Today, the a Court establishes broad Judiciary interpret as statute so Congress, medial device at least at which effectuate its purposes. broad remedial passage the time of the the statute in 91-452, 904(a), Pub.L. No. Stat. question,1 unwilling provide. While (1970) which Supreme mandate —a posing question proce- a couched in narrow Court emphasized consistently in its language, actually dural the Court answers interpretation Sedima, own of the statute. considerably question. a broader —Co., U.S.-,-, S.P.R.L. v. Imrex frames Court the issue whether the L.Ed.2d 346 forfeiture, government, obtaining before (1985); States, Russelo v. beyond a reasonable doubt the 16,-, L.Ed.2d existence, at the of the time defendant’s (1983). These im- quite considerations are the defend- portant interpreting all sections acquired in ant section 1962 of They only RICO. beginning Corrupt

the Racketeer Influenced Or- inquiry, however, not, do them- ganizations chapter Organized Crime selves, provide a sufficient framework for (RICO), Control Act of 1970 18 U.S.C. the interpretation any specific (1982). However, section. the Court an- §§ A precise analysis more question by holding swers broader text of particular legislative history and its need not establish any re- lationship necessary. between the interest ordered We therefore turn ex- for- to an judgment upon feited conviction and amination of the text of the forfeiture Consequently, vision, RICO violation. as it existed at the time Gins- Court allows the to reach the burg’s conviction, legis- and of the relevant personal defendant’s to seize history. lative any $225,000, property equivalent to wheth- or any er not the have connection I. illegal enterprise. The Court interpreta- Court holds that its broad vides the awith valuable and tion possibly required of section necessary weapon by war on However, “plain However, language” the proper crime. in- of this section. quiry is hardly not whether unambiguous. needs statute is clear or weapon Congress, this but whether when standing it words of the alone— statute — governs enacted the which congressional this do not manifest a intent theory supported 1. This second not majority have amended 18 U.S.C. 1963. Since the McManigal forfeiture in II because no accounts question did not reach the of the retroactive receivable were in existence the time of de- application of the amended statute or whether fendant’s conviction. application such retroactive ex would violate the clause, post facto decline to those address part Comprehensive 1. As Crime Control issues as well. (1984), Congress ofAct Pub.L. No. (7th prop- McManigal, 723 F.2d Cir. subject to forfeiture Alexander, of conviction or erty 1983)); at the time owned v. United States thereafter, if has no con- acquired even Cir.1984) (7th F.2d an unpub and Indeed, illegal enterprise. nection to the case, in lished order this v. States language statutory ambiguity of the Ginsburg, 753 F.2d 1079 now, has, acknowledged by com- been until panels interpreted have Court it,2 courts, critiqued mentators who have interpreta contrary section to the Court’s one, interpreted including this which have provision today. tion of the same These it,3 by a later which found and conflicting opinions offer at least some evi pervasive so as to ambiguity that its was language” “plain dence that legislation.4 require new sug is not as clear as the Court Ginsburg’s At sec- the time gests. 1963(a)provided: tion certainly courts not Other have con- any provision of sec- Whoever violates to be clear. In sidered Unit- chapter fined of this shall be Martino, (5th 681 F.2d 952 ed States $25,000 imprisoned than or not not more Circuit, Cir.1982),the not Fifth while decid- both, twenty years, or more than whether the obli- (1) any shall forfeit gation trace identify the current maintained in acquired interest he monetary form of col- before (2) any in- violation of section order, of, recognized in, against, lected on security claim terest right any kind statutory language ambigu- or contractual over, any affording a source of influence reviewing In ous. Id. at 960-61. established, op- enterprise which he has Supreme noted Court also controlled, conducted, erated, partici- clarity. not a statute was model of, pated in the in violation of conduct Russello, at 304 n. 3 Certainly, amending the statute 1963(a). The is correct 18 U.S.C. Court 1984, Congress did believe nothing explicitly clearly previous language mandated the provides that- forfeited Indeed, today. Court sult reached in existence at the time of convic be of the amended stat- However, nothing tion. it is also true that ambiguity of predecessor. ute notes the its govern suggests in that section Report that the General stated Senate may property equivalent ment seize Accounting failure of Office attributed the to the interest or maintained value (including the one at forfeiture statutes Certainly, un in violation section 1962. case) partly issue in this “the numerous today, til this Court did not consider such a ambiguities stat- limitations interpretation to dictated broad Cong., 1st utes.” words of the statute. United States Cong. Ad- Sess. 191-92 U.S.Code & (7th 708 F.2d Cir. 1983) (reaffirmed pp. v. min.News Alexander, Storey, A Cir. generally RICO Gen- States v. 2. See Forfeitures: View, Investigation Techniques 1984). eral (G. Organized Crime 296 Prosecution of 1980). Blakey ed. Report Comprehensive the Crime 4. In its 1983, Pub.L. No. 98-473 Control Act 276, McManigal, 708 F.2d 3. See United States v. Judiciary, the Committee on 1983) (reaffirmed Cir. Senate, Accounting Of- the General noted that 580, (7th Cir.1983)). McManigal, v. provisions re- the current forfeiture fice found Ginsburg, 753 F.2d 1079 See also United States (7th ambiguities. plete with limitations 1985) (The panel after Cir. in this ambigui- these was intended to address new bill wrote, "[njoth citing Alexander and 225, Cong., 1st Sess. 98th ties. No. persuades us that (1983). overruled.”); that cases these should II. employ vague language not to fashion such a far-reaching remedy. Congress If wording statute is not Since the implement remedy wanted to clear, drastic necessary legisla- it to turn to its Court, Stenson, today by formulated it knew history. tive Blum v. 886,-, 79 L.Ed.2d unequivocal how do It employed so. has (1984). legislative history with a language to achieve similar result else- provision respect to the forfeiture is not instance, 6331(a) For where. of the Congress extensive. It is evident that provides Internal Revenue Code that provision. a forfeiture wanted to fashion government may collect taxes of a de- However, some did there is evidence linquent upon taxpayer “by levy proper- all provision not intend to enact which would ty rights belonging to property ... reach all of 6331(a). person.” such 26 U.S.C. See § whether or not obtained in violation of sec- generally United Bank States National such tion 1962 or traceable to funds. The Commerce, -, Judiciary incorpo- Senate Committee (1985). Similar lan- report on provi- rated into its the forfeiture guage if could have been used here Con- Attorney sion General’s observations: gress had in intended the result which fact It this revival con- is felt that of the today. the Court reaches cept penalty, criminal of forfeiture as a 1963(a) limited itas is in Section to one’s subject The decision to to forfeiture all which is the just of the defendant’s and not subject specific of the offense involved that connected to the criminal is a here, extending any and not other very significant policy choice. It affects offender, property of the convicted is a only ability not of the Government to Congressional matter of wisdom rather organized capaci- curtail but also the power. than of constitutional ty of the convicted individual to return Rep. S. 91st 1st Sess. someday pursuit support to a lawful and to family. asking It is not too much for legislative history The lack of extensive Congress the Court to insist that the —not supports Congress intended view Judiciary expressly policy make that something all-encompassing than the other choice. by the fashioned Court. Forfei- Congress, enacting the Com- is, law, ture in American criminal a novel prehensive Crime Control Act of cer- remedy. days Ever since Ameri- tainly predecessor did believe that the Revolution, can regarded been with statute issue here contained such a deep suspicion.5 While law enforcement provision. sweeping Report, The Senate special weapons authorities need to combat instance, ambiguities for noted the might require crime and well only statute6 and also assumed expanded provision, the Court way by which the could ensure ought Congress, presume acting presence background, subject this historical approach carefully the matter and would through after conviction was the use of a punishment 5. any The Constitution limits for trea- blood or forfeiture of estate.” 18 U.S.C. son to forfeiture of the convicted individual’s Congress repealed § 3563. 18 U.S.C. Ill, life estate. § U.S.Const. art. cl. 2 § 3563 effective November 1986. Pub.L. 98- Congress vides: “The shall have Power de- (1984). Congress replaced Stat. 1987 Treason, clare Punishment of but Attain- per- section 3563 with § 18 U.S.C. 3554 which Blood, Corruption der Treason work shall RICO, mits forfeiture accordance except during or Forfeiture the Life of the Per- Drug Comprehensive U.S.C. 1963 or the Abuse son attainted.” Act, and Control U.S.C. declaring The first enacted judgment "no conviction or supra 6. See note corruption offenses aforesaid shall work effect, per- in of section 1962. the Court importantly, order.7 More restraining government to would mits the substitute assets section which formulating a new currently acquired. even later precisely what the Court owned or permitted have scope expands prop- referred The Committee Court thus seeks in this erty subject beyond law.”8 to that clear- “new to the to by Congress. Neither stat-

ly intended nor of sec- ute itself III. 1963(a) expan- supports judicial tracing that a assumes The Court We, therefore, respectfully sion. dissent. government on the place quirement vacate the forfeiture and remand We would beyond reason- prove to a obligation permit the to the district court to case in vio- that the assets obtained doubt able by a preponderance We see no 1962still exist. lation property that the seeks to evidence The continued assumption. reason for of section seize was obtained is of an interest existence property. 1962 or is to such traceable proscribed of the crime not an element the statute section 1962. govern- guidance as to

provides no how showing ought to meet the burden

ment subject to wishes to the interest acquired or maintained

forfeiture was Since establish-

violation of section 1962. proof expand the ing a burden Gary LANCASTER, C. forfeiture, scope subject to it is property Plaintiff-Appellee, view, for the Court to quite proper, our prove by a require pre- specific ponderance of the evidence NORFOLK AND WESTERN RAILWAY

property acquired to be seized was main- COMPANY, Defendant-Appellant. 1962. To tained in violation of 18 U.S.C. § No. 84-2768. tangible prosecutor tracing assist assets, presumption would a rebuttable Appeals, States Court of subject to forfei- property arise that Seventh Circuit. 1963(a) once the ture under Argued May 28, 1985. (1) ment established that: person dur- Sept. be seized Decided 1985. ing period of section the violation As Sept. 17, Amended 1985. a after the 1962 within reasonable time Rehearing and Rehearing En Banc violation; (2) likely no there was 18, 1985. Denied Nov. other than the vio- source for the lation.

CONCLUSION eliminates burden Court between to establish nexus and the violation

the interest seized Report procedure is no to allow forfeiture there The Senate indicated that: 7. satisfy the assets the defendant other exists in current law No mechanism judgment. improper transfers or conceal- tect Moreover, stage. 1st Sess. 194 assets an earlier ment of at restraining p. orders Cong. for issuance 3377. standard U.S.Code & Admin.News statutes. Should is articulated in current transferring or conceal- succeed in See id. defendant prior his forfeitable

Case Details

Case Name: United States v. Richard A. Ginsburg

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Sep 13, 1985

Citation: 773 F.2d 798

Docket Number: 84-1765

Court Abbreviation: 7th Cir.