*1 under cognizable are not contract America, na UNITED STATES more, a tortious something DTPA — Plaintiff-Appellee, DTPA claim. to state a ture, required Century v. Treating Co. Dura-Wood See v. 745, 756 Industries, Inc., 675 F.2d Forest THIER, H. Richard 865, 103 denied, 459 U.S. Oir.), (5th cert. Defendant-Appellant. (1982); Holloway 74 L.Ed.2d S.Ct. No. 85-4857. (Tex. 765, 767 Dannenmair, 581 S.W.2d Appeals, d n.r. writ ref Court of States United Civ.App. Worth - Fort Fifth Circuit. be such actions to requires e.). FTCA Accordingly, the in federal court. brought Oct. refusing not err did district court judg court of the state portion enforce ALT’S award under representing
ment
DTPA.21
III. district of the judgment
We reverse complaint of ALT’S dismissal its
court’s judg- state court portion
as to $30,000 in its ALT
ment which awarded affirm damages; we contract
actual in its dismis- court of the district
judgment portion to that complaint as
sal of awarded judgment which
the state $63,000under amount of
ALT an additional DTPA; district court remand we in the amount entry judgment
for against ALT and
$30,000 in favor of
SBA. part; REVERSED
AFFIRMED REMANDED.
part; and claim, attorney’s it follows DTPA state over only expressed foundation 21. are exclusively this statute under claimed fees the DTPA. attorney’s fees was award of court’s opinion on express no wheth- 17.50B(d)(l) We available. §Ann. Tex.Büs. and Com.Code any other under claims fees could have er ALT hold that (Vernon Supp.1986). Since we provision of jurisdiction law. subject matter court lacked *2 Sherman, Sherman, Janet Santa Victor Monica, Cal., for amicus curiae-Nat. Ass’n. Lawyers. for Criminal Defense Lombardino, Perkins, Judith A. D.H. La., Shreveport, Attys., Asst. U.S. for the U.S. *3 CLARK, RUBIN, Judge,
Before Chief GARZA, Judges. Circuit and CLARK, Judge: Chief Appellant challenges order disposition any that barred of his assets of his for violat- pending the outcome trial Continuing Enterprise ing the Criminal (CCE). The of the order Statute bases (1) grand jury’s declaration that it were were forfeitable under found the assets CCE, (2) prose- and the declaration of the guilty Thier cuting CCE, violating profited had from the viola- tions, purchased had the assets after and commenced. Because the violations court failed to follow Fed.R.Civ.P. 65(b) need for nec- to consider Thier’s and expenses and reasonable at- essary living fees, remand with directions. torneys we I 23, 1985, grand jury a federal August On charging Richard indictment returned an continuing in a participating Thier H. enterprise at various times be- criminal January May 1981 viola- 1976 and tween Title 21. The provisions tion various specified income indictment stated that Thier from his property belonging to arose enterprise or afforded participation enterprise. influence over the a source of requested August On the indict- pursuant 853(e)(1)(A) ment and U.S.C. § III, Washington, Taylor, William W. Thier includ- listed assets of would freeze Strafer, Evans, D.C., Richard F. G. John support of this ing all of his monies. Gables, Fla., H. Thier. for Richard Coral government submitted request, the verified dec- Beach, Fla., grand jury indictment and Thier, pro Miami Richard H. Lombardino, A. Assistant of Judith laration se. Attorney. United States Lombardino’s counsel; dec- the district court’s laration that she actively stated had investi- exempt failure to assets to attorneys cover gated Thier, that evidence indicated Thier fees violates his sixth amendment participated had profited from a counsel; (3) the district court’s failure to marijuana smuggling organization, and exempt assets to living cover expenses vio- that Thier accumulated the named assets lates his fifth amendment due ninety-five percent of his income be- rights. tween profits 1978 and from this trafficking.
narcotics prosecutor II also declared that Thier had attempting been to We first consider Thier’s contention that sell his home February since the district court erred in failing to afford him adversary hearing. suggests He The district court parte ex issued an post-indictment pretrial restraining order forfeiture day. that same The or- provision of CCE is prohibited sale, constitutionally der any defi- transfer disposi- *4 cient if it allows the tion of impose the listed assets court to and monies in “[a]ll an possession, the unlimited restraint on a custody or control defendant’s as- of RICH- sets adversary ARD H. without an hearing. THIER.” The court The found that government, government the hand, had on the alleged other facts asserts sufficient Congress to that likely properly prevail indicate was and trial, clearly to intend- order, and that ed to without the allow a district Thier to might issue such justice frustrate and restraints endanger upon filing the govern- the of an appropriate ment’s interest these indictment properties by plac- without further limitation. The ing beyond jurisdiction them the of contends the that the court. The required order cause was to remain in effect for the entry of the indict- until by further order supports the ment court. It was issuance restraining of a served on Thier and his counsel order August on that freezes a defendant’s assets and 29, 1985. continuation that restraint until the conclusion trial. period
In the from September 12 to filed a Thier series of motions seeking The CCE provisions forfeiture were to exempt from the restraining order attor- amended in 1984 provide to pertinent neys ordinary and fees necessary and part: liv- ing expenses. September 19, On 1985, Thi- (1) Upon application of the United er sought hearing a on several matters States, court may enter a restraining including a modification the restraining order or injunction, require the execution order in prior with his accord motions. The of a satisfactory performance bond, or hearing held on September 25, 1985, any take other preserve action to and the motions were taken under advise- availability property described in sub- ment. (a) section of this section for forfeiture 30,1985,
On
under
October
section—
this
the court denied the
motion modify.
(A)
court found
upon
filing
of an indictment or
Thier was entitled to and could be ade-
information charging a violation of this
quately represented by appointed counsel,
subchapter
subchapter
II of this
Congress
intend,
did not
under 21
chapter for which criminal forfeiture
853(e)(1)(A),
U.S.C.
exempt
§
use of
may be ordered under this section and
potentially forfeitable
assets
a de-
alleging that the property
respect
with
fendant’s attorneys
living
fees
expenses.
sought would,
which
order is
conviction,
the event of
be subject to
appeal,
On
Thier makes
arguments:
three
section;
forfeiture under this
....
the district court’s restraint of his as-
sets
affording
without
him
adversary
853(e)(1)(A).
U.S.C.
Unlike subse-
§
hearing
violated
quent
fifth
provisions
amendment due
853(e)
that deal with
§
process rights and his sixth
amendment
orders obtained before the fil-
indictment,
section under
defendant and a third
dissolve
ing of an
Thier’s assets is post-indictment pretrial restraining
restrained
order.
of such
durational limits
as to the
When the matter was
silent
considered
any notice or
merits,
and as to
orders
Ninth Circuit on the
it held that
Compare
U.S.C.
requirements.
CCE was “unconstitutional on its face be-
853(e)(1)(A)
U.S.C.
Congress
provide
cause
failed to
for a
§
hear-
853(e)(l)(BM3) (allowing the issuance of
ing
§§
on a
order before trial or
restraining or-
ninety-day pre-indictment
Finding
conviction.” Id. at 1383.
notice, hearing
appropriate
after
der
Fed.R.Civ.P. 65 controlled
court,
parte
or an ex
by the
determinations
procedural guidelines,
absence of valid
temporary
ten-day preindictment
restrain-
court vacated the order and remanded with
showings by ing order after certain
instructions to the district court to hold a
court).
by the
movant and determinations
hearing in accordance with that rule.
that Con-
legislative history
indicates
at 1384.
prior notice and a hear-
gress thought that
Rogers,
United States v.
post-indict-
for a
ing
required
not be
should
(D.Colo.1985),
the court denied a mo-
the indict-
restraining order because
ment
post-indictment pretrial
tion for a
restrain-
govern-
furnished notice of
ment itself
ing
provisions
order under the forefeiture
forfeiture, and there
to seek
ment’s intent
Corrupt
Influenced
Racketeer
quickly
strong need to
obtain
would be a
(RICO),
Organizations Act
18 U.S.C.
could be
restraining order before assets
1963(e)(1)(A).
provision
This amended
*5
225,
Cong., 2d
S.Rep. No.
98th
concealed.
21
identical
to the
amended
U.S.C.
203, reprinted in 1984 U.S.Code
Sess.
853(e)(1)(A).
relied on an as-
Rogers
§
3182,
legisla-
Cong.
3386. The
& Ad.News
sumption
Congress
of and
that
was aware
history
discuss whether there
tive
does not
law,
adopted pre-amendment case
had
restraining
after a
is a need for
analogize
pro-
the
legislative history,
on
issued.
order is
provision
the forfeiture
cedural limits on
provi
corresponding pre-amendment
The
1343-44.
65. 602
Fed.R.Civ.P.
to enter “re
sion
district courts
allowed
the statute allows
Rogers held that while
in con
straining
prohibitions, ...
orders or
parte restraining order
entry
the
of an ex
other interest
any property or
nection with
duration,
entry
any injunc-
of short
the
section,
under this
as
subject to forfeiture
hearing.
adversary
Id. at
required
tion
21
proper.”
U.S.C.A.
they shall deem
Rogers
The
court stated
1343-45.
(1981).
courts
848(d)
Numerous federal
§
hearing to
not use the
defendant could
restraining
in
orders and
have held that
indictment,
required
but
attack
pursuant
to this section
junctions issued
present additional evidence
government to
requirements
procedural
were
justify an
strength of its case to
of the
See, e.g.,
those in Fed.R.Civ.P. 65.
such as
Following these
injunction.
at 1345.
Id.
1316,
Lewis,
F.2d
v.
759
United States
exercised the discre-
guidelines, the court
—
Cir.1985)
denied,
(8th
1324-25
cert.
statute and denied
granted by
tion
406,
-,
(2) “the injunction must be necessary to that the assets are forfeitable because prevent irreparable injury;” (3) grand “the threat- jury has made a cause de ened injury plaintiffs to the outweigh must termination are, that they together with the harm the injunction might do the any de- proof offered the government, and fendants;” (4) and “entry injunc- of an the defendant’s right claim title and of attorneys pending a determina- and RICO extend to defense fees property use of meager. only that is The direct mention is in guilt underlying crime of of the tion following provision: that forfeitability. Thier asserts creates exempt assets sufficient court should Nothing in this section is intended expenses end of living his until the person’s interfere with a Sixth Amend- fees of his defense and the reasonable Committee, trial right ment The counsel. agree that of choice. We do not counsel therefore does not resolve the conflict in However, mandatory. exemption is such opinions District Court on the use living expenses defendant’s need impinge per- orders that on a are right to the of his choice son's to retain counsel in a criminal consid- that the district must factors case. deciding and to what extent er in whether 845, H.R.Rep. 1, Cong., No. Pt. 98th 2d asset-freezing injunction. grant an (1984). 19 n. 1 Sess. to assistance
While This issue involves consideration of the right to counsel of encompasses a counsel rights, defendant’s sixth amendment choice, right of choice is not absolute. that attorney’s interest in funds or assets Alabama, F.2d Gandy v. statutory payment, marked for his (5th Cir.1978). may A defendant not use knowledge potential that for- mandate with, manipulate, or right to interfere feitability at the time of transfer defeats fair, delay prompt unreasonably party’s proper- interest in third forfeitable justice. efficient administration that counsel is ty, and the fact defense potential necessarily aware of the forfeita- sep- contains forefeiture section CCE bility his client’s assets. In these re- forfei- that deal with the provisions arate congressional gards we note that another parties of assets in the hands third ture report states: parties have an interest. or in which third third Paragraph provides that a 853(c) to forfeita- provides that title Section if falls into party prevail will his claim upon assets vests the United States ble first, categories: where the one of two gave illegal act that the commission of the legal interest in the petitioner had a provides any that rise to forfeiture. It also that, of the commis- property at the time party third af- asset transferred to a such forfei- giving rise to the sion of the acts forfeitable, “unless the ter that act ture, than the vested him rather was hearing that in a ... transferee establishes superior to the interest or was defendant purchaser for value of he is a bona fide defendant; second, where purchase property at the time of such who legal interest af- acquired his petitioner reasonably cause to believe was without giving rise to the forfeiture ter the acts subject to forfei- property was that of a bona so in the context but did 853(c). Section ture....” U.S.C. fide reason to for value and had no purchase 853(n) guidelines post-convic- for a provides subject to property believe a third to determine whether tion forfeiture. That purchaser. fide party was a bona any person who provides that 98-255, Cong., section also 2d Sess. S.Rep. No. 98th Cong. an interest in forfeited asserts & reprinted in 1984 U.S.Code may interest superior explains to the defendant’s 3392. A footnote Ad.News hearing. court for a petition provision con- should be further “[t]he 853(n)(2), (6)(A). party acting A third deny parties U.S.C. relief to third strued to §§ asset, or a possesses the forfeited who have of the defendant who as nominees interest in a forfeited third whose fraudulent engaged in sham or knowingly interest, predates the defendant’s asset 3392 n. 47. Id. at transactions.” a claim to that asset. may thus assert in conflict. in the area is The case law pre- held courts have both history the Several legislative as to whether attorneys fees are ex- post-amendment powers under CCE government’s forfeiture *9 1472 empt from forfeiture under CCE and raise the issue in party petition a third
RICO, although they did not address this sentencing after and the entry of a forfei- precisely issue in the same context as that ture covering all re- previously issue is raised in Thier’s case. In the most strained monies. Counsel had not received recent, Figueroa, States v. United payment full for their services at that time. (W.D.Pa.1986), F.Supp. 453 the district Id. at 1193. The good court held that as court-appointed attorney court allowed a to providers services, faith of counsel had post-conviction proceeding in a move standing order, to contest the forfeiture Id. of a modification forfeiture order. The 1194, at and that the of forfeiture bona fide attorney court held the was within the attorneys fees under 853 would violate group persons Congress recognized of the sixth by impairing amendment the de- being judicial entitled ato determination of right to fendant’s obtain counsel of choice good their claims he was a because faith right and his to effective of assistance provider legal of attorney services. The government counsel. Id. at 1196-98. The payment though was entitled to even the de- pay was directed to defense counsel out of right fendant’s sixth amendment to choose the defendant’s forfeited assets. at Id. his counsel not was involved because 1198. attorney court-appointed. was The court Ianniello, In United States v. No. S 85 amended the forfeiture order to reimburse 115, (S.D.N.Y. Cr. slip op. Sept. 1985) for itemized costs and fees. WESTLAW, on [Available DCTU database] case, Another recent United States v. (available Aug. 4, 1986, LEXIS, on Genfed Bassett, F.Supp. (D.Md.1986), in- library, file), Dist the court found legal pretrial volved a motion CCE defend- fees to counsel of choice are necessities ants exempt attorneys fees. A letter life, of and modified an parte pretrial ex from the counsel advising de- restraining order exempt attorneys fees fense government counsel that the intend- from forfeiture under RICO. The court ed to seek forfeiture after legal trial of the found that the payment of bona fide attor- paid fees to defense prompted counsel neys fees was not sham transaction motion. Id. at 1309. The court held that Congress intended the forfeiture the defendants standing had to assert this provisions reach, the forfeiture challenge because of the risk impair- legal valid defense abridge fees would ment to their constitutional to counsel defendant’s sixth amendment to coun- choice, Id. at and examined the sel. Id. arguments defendants’ light third party provision forfeiture In of CCE. After United Badalamenti, States v. examining legislative history law, F.Supp. (S.D.N.Y.1985), case the court the court ruled “Congress granted not in- did an attorney’s quash motion to tend the encompass statute to fees to attor- subpoena trial duces tecum him requiring neys paid legitimate for the rendering of testify concerning his arrangement fee professional services,” for to do so would with the defendant. Id. at 201. The “violate Sixth Amendment principles.” Id. defendant apparently had already paid sub- at 1317. The enjoined stantial fees to attorney. at id. seeking from legitimate the forfeiture of 195. The issue was examined in terms of paid fees to defense counsel. at 1318. Id. CCE's provision. third forfeiture The holding was ultimately United based Reckmeyer, States however, on sixth (E.D.Va.1986), rights. amendment defendant court moved to stated: “the an ex modify parte problem constitutional order to exclude attorneys counsel; one choice of fees from forfei nor is it one request ture. The getting was denied lawyers because retained to work. The defendant had pleaded problem guilty is the day be unlikelihood of obtaining a fore, but the permitted lawyer at all if lawyer counsel will incur forfei-
1473
upon
strategy,
away
client’s conviction.”
would not take
his fee
too much
ture of
original).
preparations,
from defense
(emphasis
time
nor
at 197-98
would
Id.
arrangements
discourage
fee
the threat of forfeiture
holding excepted sham
defense
professional
the hands
counsel because the canons of
or seizure of funds “in
responsibility
(emphasis
origi-
require
preparation).
Id. at 198
zealous
defendant.”
nal).
recognized
The court
attorney
that if the
disqualified
testified at trial he could be
as
granted
the defend-
Rogers,
In
However,
trial counsel.
it held that
legitimate
pretrial motion to exclude
ant’s
importance
testimony
of such
to the
from forfeiture
attorneys fees and costs
outweigh
case could
the de-
consti-
protect
in order to
under RICO
right
fendant’s
to
limited
counsel of choice.
right
F.Supp.
to
602
tutional
counsel.
Id. at 852-53. The court recommended a
Although
pretrial pro-
this was a
1346-51.
event,
disqualification
limited
in that
so
ceeding,
apparently intended to
the court
that counsel could continue to assist with
already
holding
compensation
its
to
limit
reasoning
the defense.
at 853. The
Id.
(“Con-
at 1347
paid
attorneys.
to
See id.
Rogers
rejected.
Id. at 849-50 n. 14.
gress
different treatment
as-
intended
legislative history
The court
on
relied
parties and assets
transferred to third
sets
sufficiency
given by
of the notice
defendant.”), 1348
in the hands of
right
indictment to annul
attorney’s
include in
(“Congress did not intend to
such assets.
Id.
compensation
those items forfeitable
Raimondo,
legit-
In
already paid
goods
for
and services
United States v.
F.2d
(4th Cir.1983),
a convicted CCE defend-
imately provided.”)
appealed
jury’s
ant
forfeiture of his
varying
extents
The above cases relied
assets, claiming among
things,
other
forfeitability of a
arguments that
on the
attorney
interests held
his
were not
attorneys fees
or RICO defendant’s
CCE
at 477. The
to forfeiture.
Id.
ability to
restrict
the defendant’s
would
gave
that the indictment
suffi-
court ruled
counsel, and that a defense attor-
obtain
attorney that the assets
cient notice to the
knowledge
potential
forfeita-
ney’s
rejected
argu-
this
forfeitable and
were
assets should not de-
bility of his client’s
specifically
ment.
Id. at 478. The court
attorney’s
in those assets
feat the
interest
however,
noted,
disposition did not
that this
legitimate services under
payment
attorney
his
firm from
law
bar
provisions
third
forfeiture
forfeiture of the defendant’s
opposing the
those acts.
conveyed to them.
interests that had been
unfavorably on
Other courts have ruled
Id.
requests
exempt attorneys fees from
F.2d 1361
Ray,
In
v.
United States
Jury Subpoe-
In
forfeiture.
In re Grand
(9th Cir.1984),the court held that a convict-
2, 1985,
January
Tecum Dated
na Duces
defendant had not shown that an
ed CCE
(S.D.N.Y.1985),the court
pretrial order
his as-
parte
ex
quash
defendant’s motion to
denied a CCE
him
the court
sets denied
because
required his
subpoena duces tecum that
appointed
attorney
of choice as defense
grand jury
attorney
testify
before
at 1366.
also United
counsel.
Id.
concerning
arrangement.
Id. at
their fee
(8th Cir.1985)
Lewis,
F.2d at
States v.
alleged
held that the
sub-
843. The court
(restraining
not
1326-27
order did
violate
fifth and sixth amend-
stantial threat to his
of counsel
defendant’s
to choice
be-
defendant to inter-
rights
ment
entitled the
request
particu-
cause defendant did not
right.
845. The court
vene as of
Id. at
provid-
attorney
appointed
lar
counsel
testify
requiring
ruled that
representation).
competent
ed
deprive
grand jury
before the
would
Long,
Applying principals these to Thier’s keep must make to himself depen and his case, however, require does not dants competent alive and to secure coun- prove protect his innocence or his pay sel to sufficient funds to the reasonable costs rights procedural should not be considered of his necessary defense and living ex- to crime. The notion that a de- incentives penses for himself and family unless fendant would commit criminal acts ac- can show a compelling rea- cumulate monies or in order to why son this should not be done. food,
pay
necessary
clothing
and shel-
being
ter while he is
tried or in order to
“The
requirement
fundamental
of due
a reasonable fee to the
he chooses
opportunity
is the
to be heard ‘at a
sophistry.
*12
to assist
his defense is
meaningful
meaningful
time and in a
man-
”1
“meaningful”
ner.’ What constitutes a
interests,
balancing
these
hearing fulfilling
requirements
of due
court should also consider whether the de
process depends,
course, upon
the na-
possesses
fendant
assets not
to for
only property
ture of the case.2 “Where
supply living
feiture that could
and defense
rights
involved,
postponement
are
mere
expenses.
regard
appropriate
In this
it is
judicial equity
...
is not a denial of due
phrased
to observe that an order
as the one
given
if
process,
opportunity
for the
presents
problem
in this
in
issued
case
judicial
ultimate
determination
liabil-
it
freezes “all monies” under
de
Indeed,
ity
adequate.”3
govern-
when
fendant’s control until
trial. Should the
powerful
enough,
mental
interests
are
defendant convert a nonforfeitable
asset
property may
by
be withheld
the state tem-
funds,
into
a reasonable construction of the
porarily
any adversary
before
present order would freeze those converted
all.4
they
supply
monies before
could
necessities
reasonable counsel fees.
process
procedural
Due
is not a
absolute.
judge
The
Thier’s
denied
motion
required may depend
What is
weight
on the
order,
modify
part,
in
of the interests involved. The Government
expressly
the statute did not
ex-
because
certainly
assuring
has a valid
interest
empt
pay attorneys
assets to
fees and liv-
illegally
that funds
obtained are not laun
ing expenses.
The
therefore did not
dered
secreted between the time
de
attempt
to balance Thier’s interests with
fendant
is indicted and the time when his
interest. On remand the
criminality
by
is determined
actual convic
rights
district court should consider these
sufficiently important
tion. This is
and interests in the context set out in this
weigh
deciding
heavily
process
what due
opinion.
requires when the Government seeks to
judgment appealed
from is
protect
process
its
But due
interest.
must
REMANDED, with directions.
be determined on a scale whose balances
sides,
weigh
simply
both
the Govern
RUBIN,
Judge,
ALVIN B.
con-
Circuit
weigh
interest. The scale
ment’s
must also
curring.
private
interests of the affected individ
ual,
deprivation
the risk of an erroneous
Although
agree
I
with the result reached
procedures used,
interest under the
require
majority,
I would
the district
costs,
and the
value and additional
permit
access to
the defendant
319, 333,
Revenue,
Eldridge,
Phillips
1. Mathews v.
424 U.S.
96
3.
v. Commissioner
Internal
589, 596-97,
608, 611,
893, 902,
(1976),
283 U.S.
51 S.Ct.
75 L.Ed.
quoting
S.Ct.
The Government
to obtain evidence.7
the courts to freeze
has asked
assets it
are
but the Government’s.
property
not Thier’s
requires
appoint-
Due
also
Government, however,
has no
every indigent person
ment of counsel for
legal
Thier
property to
now has
crime,
appoint
of a
but courts
law-
accused
guilt
title unless it establishes both
average competence
typically
yers of
who
continuing
engaging in a
criminal enter-
experience
complex
cases.
have little
prise
fact that the
it seeks
and the
represented by
No one would wish to be
to forfeit has been derived from criminal
of this
appointed
do so remains to
counsel
a case
nature.
activity.6 Whether
can
argues
Although the Government
expected
be seen.
Preparation for trial can be
that,
persuasively
purposes of
obtain-
defendant,
This
require
of work.
months
freezing
ing a
an ac-
action,
by government
indigent
made
apparently ill-gotten
cused’s
assets until
on the list of those
dependent
should not be
trial, the
should not be re-
Government
*13
of
for
cases.8 The tool
available
routine
quired
heavy
proof
to meet the
it
burden
order,
restraining
put
thus
into the
the
trial,
ultimately face at
the balance of
will
prosecution, gives
the Govern-
hands
hardship
substantially
shifts
when
vigorous and
power
ment the
to exclude
Government seeks to freeze all
an ac-
While the ma-
specialized defense counsel.
assets, including
cused’s known
those nec-
by giving
opinion
that tool
jority’s
blunts
essary
provide
to
the accused with counsel
opportunity
an
to invoke the
the accused
family.
sustenance for himself and his
and
discretion, I
not make
court’s
would
procedural safeguards my
Even with
the sustenance of the defendant
either
colleagues properly require, the
of an
right to retain
family
his
defendant’s
person
adequate
accused
to an
defense and
dependent.
so
counsel
family depend upon
sustenance of his
judge.
discretion of the
If
trial
the district
The fact that Thier has been indicted is
fit,
merely
court sees
on the
of its
basis
guilt.
no evidence of his
Like all others in
apparently
judgment,
prose-
unfettered
nation,
presumed innocent,
this free
he is
may
person
cution
thus
from a
exact
who
charges.
whatever the Government
In the
violating
charged
has been
21 U.S.C.
exceptional circumstances,
absence of
pretrial punishment
stringent
848 a
more
may
private
Government
not even search
arrest,
person
than
for an
can at
arrested
obtaining a
without
warrant from
employ
least
counsel and is housed and fed
impartial magistrate
an
showing
on a
based
by
government.
probable
cause. The
money
If Thier has no
buy
food or to
imposes
this case
stringent
an even more
housing,
for
might
he
waive his
penalty
determination,
without such a
go
to release on
jail,
bail and
but he still
despite
statutory
declaration to the con-
employ
could not
family
counsel and his
trary,
grand jury
equiv-
indictment is not
stripped
would remain
sup-
all means of
alent to a
determination of
cause
port
option
reporting
even
—without
by
impartial judicial
officer.
Indict-
jail
though
accused of no crime. That
—
obtain,
ments
notoriously easy
are
mere fact of an
accompanied
indictment
grand juries
prosecutor
today
protection
affidavit of a
can
offer little
accom-
plish these
judicial
against
results should shock the
prosecution.
unwarranted
334-35,
Eldridge,
165, 172,
5. Mathews v.
California,
der all of accused’s America, UNITED STATES of including only specified not but also assets Plaintiff-Appellee, custody possesion, “all monies in [his] control,” presumably includes the (85-1411), Shannon N. MAHAR Inner- change and the contents of his billfold City Services, (85-1413), Medical Inc. pockets. require I would Govern- Riley (85-1466), Mahar Defendants-Ap- proof that the ment to submit accused will pellants. adequate be left to re- without means 85-1411, Nos. vigorous provide tain counsel and to 85-1413 and 85-1466. basic dependents. sustenance for himself and his United Appeals, States Court of proof In instances which such cannot be Sixth Circuit. made, confiscation of the virtual an ac- Argued April 1986. property though temporary cused’s — accompanied by timely fair notice and a Sept. Decided deprive so unconscionable as to —is process the accused substantive due accomplished procedurally. however is punishment
This is indeed before conviction
and before trial. system justice
Even our of civil rests on adversary process. a criminal trial paramount. The Govern- permitted cripple
ment should not be *14 struggle by at the
defendant outset of the
depriving him of the funds he needs to provide
retain counsel and to food for him- family.
self and his Even the war crime,
against due forbids terror- safeguard
ism. While I welcome the discretion,
judicial I set a would standard guarantee
that would the accused funda-
mental fairness in the resolution of his
dispute by assuring with the Government funds,
him minimal reasonable amount scrutiny, to the court’s to em-
ploy living counsel and to essential
expenses proved until the Government has
its claim.