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22 Ohio N.U. L. Rev. 1

Ohio Northern University Law Review1995

TRAMPLING ON THE SIXTH AMENDMENT: THE CONTINUEDTHREAT OF ATTORNEY FEE FORFEITURE

Todd Barnet Ivan Fox

Copyright (c) 1995 by the Ohio Northern University Law Review; Todd Barnet and IvanFox

I. INTRODUCTION

In May of 1989 the Supreme Court decided that attorneys fees were subject to theforfeiture provisions of the Continuing Criminal Enterprise Act (CCE) and by implicationthe Racketeering Influenced and Corrupt Organizations Act (RICO) as they wereamended in 1984. Those same cases also held that property needed to pay attorneysfees could be restrained prior to trial. Such forfeiture and restraint was held not toviolate a criminal defendant's Sixth Amendment right to choice of counsel. Together,those cases bode ill for the future of *2 the right to counsel of choice and prompted “afurious round of speculation, scheming, and soul searching” among criminal defenseattorneys as they reconciled themselves with the ramifications of the holdings andcontemplated future practice with the threat of fee forfeiture.

RICO and CCE give the American attorney extremely broad powers and apply to a widecategory of assets. Prior to United States v. Monsanto and Caplin & Drysdale, Charteredv. United States criminal defense attorneys hailed the RICO and CCE forfeitureprovisions as the “ ‘engine of destruction’ for the adversarial system” and contendedthat, among other things, the forfeiture of attorneys fees unconstitutionally impinged ondefendants' Sixth Amendment right to counsel of choice. The issue was thoroughlylitigated in federal courts throughout the nation and much was written on the subject.

*3 While Monsanto and Caplin & Drysdale settled the legal questions of forfeiture ofattorneys fees and pre­trial restraint of assets needed to pay such fees, other issuesconcerning the forfeitability of assets needed to pay attorneys fees and how such assetsare forfeited under RICO and CCE were either left unaddressed by the Court or haveemerged since those decisions. The following are among those issues: 1) whether dueprocess requires a post­indictment post­restraint adversarial hearing when assets areseized by the government prior to trial; 2) whether prosecutors may use pre­trial restraintorders to restrain substitute assets; and 3) the permissible uses of “adoptive seizures” asa means of obviating restrictions and limitations imposed by state forfeiture laws.

This article focuses on those three issues. Each concerns the government's increasedreliance on criminal forfeiture as a means of combatting drugs and organized crime, aswell as raising revenue. As they involve the attorney­client relationship and constitutionalrights, in particular the Sixth Amendment right to choice of counsel, those issues are ofparticular importance to criminal defense lawyers because any resolution of those issuesdirectly impacts the recovery of their fees and their ability to render legal services in thefirst instance. Also, each issue threatens the further erosion of the defendant's SixthAmendment right to choice of counsel beyond the limitations placed *4 on such right byMonsanto and Caplin & Drysdale. As a background to the discussion of the issues, theauthors will provide a general overview of the CCE and RICO criminal forfeitureprovisions and their application to attorneys fees in the context of the Monsanto andCaplin & Drysdale decisions.

II. CRIMINAL FORFEITURE

A. History of Criminal Forfeiture

1. The Early Years of RICO Forfeiture

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SELECTED TOPICS

Criminal Law

Favor of Defendants' Choice of Counsel

Secondary Sources

Construction and Application of SixthAmendment Right to Counsel—Supreme Court Cases

33 A.L.R. Fed. 2d 1 (Originally published in2009)

...This annotation collects and discusses all ofthe Supreme Court cases that haveconstrued and applied the Sixth Amendmentright to counsel. Cases decided solely on thebasis of the Due Process or Equal...

Right of defendant in criminal case todischarge of, or substitution of othercounsel for, attorney appointed bycourt to represent him

157 A.L.R. 1225 (Originally published in 1945)

...The right of the defendant in a criminal case,suggested by the title of this annotation, iscoextensive with the right of such a one, ifneed be, to the assistance of counsel for hisdefense, which is...

Modern status of rule as to test infederal court of effectiverepresentation by counsel

26 A.L.R. Fed. 218 (Originally published in1976)

...The purpose of this comment note is todetermine the modern status of the test infederal courts of effective representation bycounsel in a criminal prosecution. Therefore,the discussion herein is fo...

See More Secondary Sources

Briefs

Reply Brief for the United States

2006 WL 951122United States of America v. Gonzalez­LopezSupreme Court of the United States.April 11, 2006

...The court of appeals held that the denial of adefendant's first­choice counsel requiresautomatic reversal of a conviction even if thedenial had absolutely no impact on thefairness of the proceeding...

Brief for the Respondents

1953 WL 78375Burns v. LovettSupreme Court of the United States.February 04, 1953

...The memorandum opinions of the DistrictCourt are reported at 104 F. Supp. 310 and312 (R. 18­20). The majority and dissentingopinions of the Court of Appeals (R. 21­44,44­56) are not yet reported. T...

Brief for the Respondent

2006 WL 838892United States of America v. Gonzalez­LopezSupreme Court of the United States.March 28, 2006

...Respondent Cuauhtemoc Gonzalez­Lopezrespectfully requests that this Court affirm thejudgment of the United States Court ofAppeals for the Eighth Circuit. From its earliestorigins, the right to assi...

See More Briefs

Trial Court Documents

State v. Stojetz

2000 WL 35577414

TRAMPLING ON THE SIXTH AMENDMENT: THE CONTINUED THREAT OF ATTORNEY FEE FORFEITURETodd Barnet , Ivan Fox Ohio Northern University Law Review (Approx. 121 pages)

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Criminal forfeiture, which had been prohibited in the United States since 1790, wasreintroduced to American law in 1970 with the passage of the Organized Crime ControlAct and the Comprehensive Drug Abuse Prevention and Control Act whichrespectively created RICO and CCE. At the time, only RICO contained asset forfeitureprovisions. Forfeiture provisions were added to CCE by the Comprehensive ForfeitureAct of 1984. Those statutes did not create new crimes upon which forfeiture wasimposed, but rather created “federal cases”—for which forfeiture was a prescribedpunishment—whereby Federal courts were granted jurisdiction over suits involvingdefendants who allegedly engaged in a pattern of criminal behavior. However, *5 until1984 RICO's forfeiture provisions were virtually unused. Prosecutors were unsure ofRICO's application and courts had difficulty interpreting the statute.

2. Amendment of RICO and CCE

In 1981, the United States General Accounting Office (GAO) released a report detailingthe inadequacies of RICO's forfeiture provisions. The report also criticized the lack ofsimilar provisions in the CCE, and recommended that both statutes be given strongforfeiture provisions. Responding to the report's recommendations, in 1984 Congresspassed the Comprehensive Crime Control Act which included the ComprehensiveForfeiture Act (CFA). The CFA amended RICO's forfeiture provisions, and addedalmost identical forfeiture provisions to the CCE. To each statute the CFA added arelation back provision, introduced procedural mechanisms by which the governmentcould obtain pre­trial restraining orders of defendants' property, and also providedthird­party procedures to contest the forfeiture of assets under the relation backdoctrine.

*6 Two differences set CCE apart from RICO. The CCE establishes a rebuttablepresumption that any property of a person convicted of a CCE crime is subject toforfeiture if the United States establishes by a preponderance of the evidence that theproperty was acquired by the defendant during the period of the violation for which he isbeing charged or within a reasonable time after such period, and that there is no likelysource for the property other than the violation charged. RICO contains no parallelpresumption. The CCE also provides that “the provisions of this [forfeiture] section shallbe liberally construed to effectuate its remedial purpose[s],” indicating a Congressionalintent that CCE be used to its utmost potential in the war against drugs.

B. Operation of the CEE and RICO Forfeiture Provisions

1. Crimes Subject to RICO and CCE Forfeiture

Forfeiture under RICO and CCE is in personam. As such, the forfeiture charge appliesdirectly to the defendant and is considered part of the punishment rather than asubstantive element of the crime.

*7 RICO and CCE apply to different classes of federal crimes. A CCE forfeiture chargemay be brought for violation of all drug related crimes constituting a “continuing criminalenterprise” as defined in CCE. RICO forfeiture applies where any person eitherreceives income in any manner from a pattern of racketeering, invests in or owns anypart of a racketeering activity, collects unlawful debts through a racketeeringactivity, is employed or associated with any enterprise engaged in a racketeeringactivity, or conspires to do any of those prohibited activities. “Racketeering activity”is defined as a series of acts prohibited under the common law or other federalstatutes, though what constitutes a “racketeering activity” has generated endlesslitigation and scholarly speculation.

*8 Unlike the CCE forfeiture provisions, which are restricted to drug related crimes, since1984 RICO's forfeiture provisions have been used expansively and creatively against anever growing category of people and businesses many of which bear no obviousrelationship to organized crime, including: securities firms, evangelists, accountingfirms, the leader of another nation, commodities traders, anti­abortion activists,purveyors of obscene literature, unions, Ferdinand *9 and Imelda Marcos, utilitycompanies, CEO's of corporations, members of an Orthodox Jewishcongregation, the mafia, and attorneys.

2. Forfeiture Procedure and Forfeitable Property under RICO and CCE

The classes of property forfeitable under RICO and CCE are extremely broad andcourts have applied the statutes *10 accordingly. Criminal forfeitures follow establishedcriminal procedure with requisite constitutional protections. To bring a forfeiture action

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State v. StojetzCourt of Common Pleas of Ohio, MadisonCountySeptember 14, 2000

...This matter is before the Court onDefendant John C. Stojetz's petition andamended petitions for postconviction relieffrom a judgment of death entered upon averdict of guilty to aggravated murder. T...

State v. Murrell

2003 WL 25673978State v. MurrellCourt of Common Pleas of Ohio, HamiltonCountyOctober 27, 2003

...EVIDENTIARY HEARING REQUESTEDNEWLY DISCOVERED EVIDENCE NOWcomes the Defendant in the above styledcause of action, hereby respectfully movesthis court for an Order granting a new trial inthe above ...

State v. Brelo

2015 WL 1956623State v. BreloCourt of Common Pleas of Ohio, CuyahogaCountyMarch 17, 2015

...Defendant Michael Brelo is a Clevelandpolice officer accused of the on­duty voluntarymanslaughter of Timothy Russell and MalissaWilliams on November 29, 2012. Brelo's fiveco­defendants are police d...

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under either statute the government must specify in the indictment *11 or the informationthe property for which it intends to seek forfeiture. Forfeiture is legally effective onlyafter conviction and *12 a forfeiture determination is made by the jury either as part ofthe case itself or in a special post­conviction forfeiture proceeding.

3. Vesting of Title in the Government, Relation Back and Civil Forfeiture

Prior to conviction and the entry of a judgment of forfeiture, title to property remains inthe defendant or any third­party to whom the defendant transferred property. If thedefendant is convicted and the jury finds all or part of the property forfeitable then theproperty must forfeit to the government. Under a legal fiction known as the *13 relationback provision, the government's title to the property relates back to the time of thecommission of the crime for which forfeiture is being imposed. The government's titletheoretically vests at the time of the crime and voids any transfer of the property thatoccurs thereafter on the grounds that, after committing the crime, the property was neverthe defendant's to transfer.

Where the defendant is acquitted or where the jury determines that some or all of theproperty is not forfeitable, the defendant must file a civil action to gain return of theproperty. However, an acquittal or a finding of total or partial non­forfeitability does notpreclude the government from subsequently pursuing an in rem civil action against theproperty itself.

*15 4. The Innocent Owner Provision

The constitutional due process ramifications of the relation back provision, when appliedto cases where forfeited property is held by *16 third parties, prompted Congress toinclude in the CCE and RICO procedures under which third parties may contest theforfeiture of property transferred to them by the defendant in the interim between thecommission of the crime and the judgment of forfeiture. Grounds for protest are that thethird­party is a bona fide purchaser for value of the property who at the time of thepurchase was reasonably without cause to believe that the property was subject toforfeiture under either statute. That determination is made pursuant to the *17procedures set forth in CCE and RICO and only after a judgment of forfeiture isentered.

5. Pre­Trial Restraints of Property and Warrants of Seizure

The CCE and RICO also contain mechanisms whereby the government may ensure thatproperty remains available for forfeiture when, and if, a judgment of forfeiture isreturned. Both statutes permit the government to petition the court for pre­trialinjunctions, restraining orders or warrants of seizure to preserve the availability ofproperty that it seeks forfeiture of. Such restraints bind criminal defendants, those in“privity with them” and all third parties who reasonably know of the restraint. Suchinjunctions, orders and warrants may be obtained at the post­indictment/informationstage or pre­indictment/information stage, with different procedures imposed for each.

(i) Pre­Indictment Restraint

Pre­indictment/information restraining orders and injunctions are issued where, afternotice and an opportunity to be heard is given to *18 those persons “appearing” to havean interest in the property, the court determines that there is a substantial probability thatthe property will be forfeited, that the failure to grant the order will result in thedestruction, removal or unavailability of the property and the need to preserve theavailability of the property through the order outweighs the hardship on any party againstwhom the order is to be entered. Such an order is maintained for ninety days unless itis extended by the court for good cause or an indictment/information is filed within theninety day period.

A pre­indictment/information injunction or restraining order may also be issued by thecourt without notice or hearing upon the Government's showing of probable cause offorfeitability and the likelihood that notice will jeopardize the availability of the property.Such injunctions and orders last for a period of ten days, unless extended by the court ona showing of good cause or the person against whom it was entered consents to theextension. A hearing is also required at the earliest possible time after the entry of suchan order and before the expiration of the order.

At pre­indictment hearings the court may receive and consider evidence and informationthat is generally inadmissible under the Federal Rules of Evidence, such as hearsay

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evidence.

(ii) Post­Indictment Restraint: An Easier Route

A post­indictment/information injunction or restraining order may be obtained with farfewer procedural requirements. Such orders are *19 granted ex­parte and require amere allegation that the property to which the injunction or order would apply would beforfeited at trial.

(iii) Warrant of Seizure

If the government determines that an injunction or restraining order is insufficient toprotect the availability of property, it may petition the court for a warrant of seizure.Such a warrant is granted ex­parte upon a showing of probable cause that the propertyto be seized will be forfeited at trial and that a pre or post­indictment/informationinjunction or restraining order will be insufficient to assure the availability of theproperty.

6. Broadening CCE and RICO Forfeiture to Substitute Assets

Congress revisited RICO and CCE in 1986 and added substitute assets as a class offorfeitable property under both statutes. Substitute assets may be forfeited when theproperty primarily subject to forfeiture (i.e. the property connected with the crime) isunavailable at the time of the forfeiture decision. In such cases defendants' substituteassets *20 may be forfeited in amounts that are of lesser or equal value to that of theunavailable property.

C. Application of CCE and RICO to Attorneys Fees

1. Initial Uses of RICO and CCE Forfeiture Provisions

In 1984 the Justice Department created the Office of Asset Forfeiture and issuedforfeiture guidelines for use in future forfeiture cases. The impact of the 1984 forfeitureamendments is best appreciated when it is considered that since 1984 almost 25% of allfederal criminal cases involved offenses for which criminal forfeiture was apunishment. In 1985 the Justice Department netted $27 million in forfeited property.Three years later this figure rose to an astonishing $270 million with everything fromcash, cars, boats, planes, houses, and thoroughbred race horses being seized andforfeited. Given the breadth of the CCE and RICO forfeiture provisions and the extremelybroad powers that those statutes accord to American prosecutors it was simply a matterof time before assets intended to pay attorneys fees were subject to forfeiture, seizure, orrestrained prior to trial and that defendants, stripped of the use of the those assets, wereunable to pay their attorneys.

2. Forfeiture of Attorneys Fees: An Issue of Legislative Intent

While the legislative history of the CFA indicates that Congress spent appreciableamounts of time considering the many facets and ramifications of the RICO and CCEforfeiture provisions, it is silent as to whether those provisions were intended to apply toattorneys fees.

*21 Congress failed to predict the prospective impact of the CCE and RICO forfeitureprovisions on a defendant's Sixth Amendment right to counsel. However, because theright to counsel of choice is a permanent Constitutional right, many commentatorsquestioned whether congressional silence could be inferred to condone the forfeiture ofattorneys fees as the Justice Department repeatedly claimed it could. Such aninference at the time seemed plainly unconstitutional.

(i) The Lawyers' Case: The Right to Counsel of Choice

Inside and outside the courtroom defense attorneys argued that the application ofbroadly worded restraining orders and forfeiture *22 judgments to attorneys fees thatwere not sham payments constituted an arbitrary and unreasonable violation ofcriminal defendants' Sixth Amendment right to counsel of choice. Such forfeiture alsocreated *23 a conflict of interest among attorneys and their clients. Attorneys also *24claimed that fee forfeiture violated the First Amendment, bestowed *25 prosecutorswith such excessive power that it fundamentally destroyed the fairness and equality ofthe American criminal defense system, and that even though criminal defendants wereentitled to court appointed *26 counsel that remedy failed to compensate for theegregious deprivation imposed by the forfeiture provisions. Finally, it was claimed that

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due to the nature of the attorney­client relationship, attorneys would never qualify asbona fide purchasers under the third­party exception to the relation back provision.

*27 (ii) The Government's Case: The Qualified Right to Counsel

The Justice Department countered that forfeiture of attorneys fees under RICO and CCEdid not violate a defendant's Sixth Amendment right to counsel because the right isqualified upon the defendant's possession of sufficient untainted assets with which to payan attorney. With some precedent, the government maintained that *28 such right didnot attach until the filing of an indictment, therefore any pre­indictment restraint orseizure of assets did not implicate the Sixth Amendment's right to counsel.

The government also noted that in the post­indictment context the right to counsel maybe restricted through restraint or seizure of defendants' assets when a compellinggovernmental interest or the administration of justice so required. In the case ofattorney fee *29 forfeiture such interest rests in the preservation of the availability ofassets for forfeiture.

Furthermore, the government argued, neither RICO nor CCE provide for a forfeitureexemption for attorneys fees. To read an exception for attorneys fees into thestatutes would contradict their texts, legislative histories, purposes and Congress's intentthat the forfeiture provisions be construed liberally to combat crime and drugs.

*30 The error in that logic lies in the fact that congressional silence on the issue shouldhave been interpreted to limit forfeiture of attorneys fees and not bestow a free rein onprosecutors to engage in fee forfeitures.

(iii) Judicial Interpretations of Fee Forfeiture

Federal courts “[s]truggled to accommodate the Government's interest in enforcement ofthe forfeiture laws, the defendant's constitutional rights, and the public's need for avigorous criminal defense bar.” Initially, cases almost uniformly held that SixthAmendment concerns demanded that attorneys fees were outside the purview of theRICO and CCE forfeiture provisions. In that regard they were immune from forfeitureor pre­trial restraint or seizure.

Later cases also generally exempted attorneys fees and held that assets needed to paysuch fees were immune from pre­trial restraint on rationales grounded in legislativesilence on the issue and the ambiguity inherent in the legislative histories of both RICOand CCE. None of those decisions provided any measure of clear guidance *31 as tothe correct constitutional standard applicable to a fee forfeiture case. Each circuitused its own analysis, offered different procedural resolutions and implemented varyinglegal standards in resolving the issue. A minority of courts refused to read suchexemptions into the statutes.

By 1988 the division among the circuits on the issue of fee forfeiture begged SupremeCourt intervention. Given the complex *32 interplay of issues surrounding theattorney­client relationship, the right to counsel, and the government's interest inforfeiture, the issue seemed to many to be a problem without a universally acceptablesolution.

(iv) The Monsanto and Caplin & Drysdale Decisions

In 1988 Supreme Court review was petitioned for and granted for the Second andFourth Circuits' en banc fee forfeiture decisions. Those cases, both arising underCCE, were United States v. Monsanto and In re Caplin & Drysdale Chartered.

I. United States v. Monsanto

In Monsanto the Second Circuit ruled that a district court may not issue a post­indictmentrestraining order that had the effect of preventing a defendant from using otherwiseforfeitable assets to pay counsel of choice even if the government established at ahearing (not required by either RICO or CCE) that the jury would likely to find *33 that theassets were the proceeds of the defendant's illegal drug activities. In addition, wherea defendant has assets released prior to trial, the Second Circuit held that assets actuallytransferred to defendant's attorney in payment for legitimate legal services were notsubsequently forfeitable where the defendant was convicted and the jury found that suchassets were forfeitable.

The United States Supreme Court reversed, ruling attorneys' fees forfeitable under the

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Continuing Criminal Enterprise Act's forfeiture provisions. The Court also determinedthat pre­trial restraint of assets which are earmarked to pay attorneys fees isconstitutional. Finally, in a footnote the Court left open the question of whether ahearing is required by Due Process before a post­indictment pre­trial restraining ordermay be entered.

*34 II. Caplin & Drysdale, Chartered v. United States

In Caplin & Drysdale the Fourth Circuit denied a Washington, D.C. law firm post­conviction recovery of its legal fees from assets its client forfeited to the governmentunder CCE. The Supreme Court affirmed, holding that forfeiture of attorneys fees didnot violate due process or the defendant's Sixth Amendment right to counsel. TheCourt pointed out that the right to counsel of choice extends only so far as the defendantcan afford to employ his choice of counsel. Surprisingly, the Court even suggestedthat defendants enter into the equivalent of contingent fee arrangements with theirdefense counsel in order to preserve the right to counsel. The Court also dismissedthe claim that the statute was invalid under the Fifth Amendment's Due Process Clauseon the grounds that it granted the prosecutor excessive discretionary power over thedefense and the danger that such power would be abused.

*35 Monsanto and Caplin & Drysdale perhaps represent the extreme swing of thependulum. Both were decided at a time when the Court's opinions were notablyconservative. The possibility exists that at a future date, if the Court should migrate to amore centrist stance, those cases may be reversed.

(v) Reaction to Monsanto and Caplin & Drysdale

Reactions to Monsanto and Caplin & Drysdale ranged across the spectrum from a waveof criticism and cries of apocalypse, to business as usual. All agreed, however, that theultimate impact of the decisions would depend on how the Department of Justice choseto “flex its new found muscle.” In that regard, predictions ranged from sanguine todespairing.

While there were those that feared a frenzy of fee forfeitures, prosecutors in the JusticeDepartment and lawyers with the Office of Asset Forfeiture claimed that such forfeitureswould be very infrequent. Conceding that fee forfeiture has the appearance of being*36 vindictively motivated they nevertheless claimed that the Asset ForfeitureGuidelines, professional fairness and a willingness to negotiate with defenseattorneys on the issue would keep fee forfeitures to a bare minimum. The actual,gross numbers of attorney fee forfeitures per year has not been that great. Between1985 and 1989, the Justice Department initiated only 40 fee forfeiture actions againstattorneys.

Despite the settlement of the issue of attorney fee forfeiture in 1989, new issues haveemerged since then that impact on the defendant's right to choice of counsel. Amongthose issues are the right to a post­indictment, post­restraint adversarial hearing, the pre­trial restraint of substitute assets, and the use of adoptive seizures to forfeit and restrainassets.

III. POST­INDICTMENT PRE­CONVICTION PROBABLE CAUSE HEARINGS

*37 1. Division in the Circuits

The Supreme Court remanded Monsanto to the Second Circuit for further proceedingsconsistent with its opinion. The Second Circuit, in “Monsanto IV,” considered theissue left open in a footnote in Monsanto: whether the Fifth and Sixth Amendments,considered in combination, require an adversary post­restraint, pretrial hearing in orderto continue an ex parte restraint order of assets needed to retain counsel of choice.The court decided that such a *38 hearing was required. The court also determinedthat where such a hearing was required, grand jury determinations of probable causeunderlying the indictment could be reconsidered at the hearing when considering thevalidity of the restraint or seizure.

Six other circuits had previously considered the post­restraint hearing issue prior toMonsanto IV. Those courts which found a hearing necessary almost uniformly tiedthe requirement to the defendant's *39 Sixth Amendment right to counsel of choice.Beyond that, none of the courts were in harmony concerning the timing or proceduralaspects of such a hearing. The Monsanto IV court also failed to reach consensus on theissue. Such division among the circuits may force the Supreme Court to decide the

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issue at some future date. Though, the Court denied certiorari to Monsanto IV.

2. Monsanto IV

(i) Hearing Required by Federal Rule of Criminal Procedure

The Monsanto IV court adopted the Monsanto I panel's holding requiring that where apost­indictment, pretrial restraining order is entered pursuant to CCE, a pretrial adversaryhearing (Monsanto hearing) is necessary when the issue of attorneys fees isimplicated. The issue before the court involved the timing of the hearing: whether itshould be pre or post­restraint. The court settled on a post­restraint hearing.

(ii) Timing of the Hearing and “Extraordinary Situations”

Monsanto IV ruled that the entry of an ex parte order pursuant to CCE “operat [[[ed] toremove the assets from the control of the defendant on the claim of the government thatit has a higher right to [the] assets.” Even so, because the defendant retains title tothe assets until a forfeiture decision is made, (and where the assets are found to be non­forfeitable they are returned to the defendant), “the removal of the assets from his controlis, by nature, temporary and nonfinal.” The court nevertheless concluded that theremoval is a *40 “ ‘deprivation of property’ subject to the constraints of due process.”

Initially, the Monsanto IV court concluded that when the interests of the defendant andthe Government were weighed using the due process factors set forth in Mathews v.Eldridge the balance was such that it “manifestly tilts in favor of the pretrialhearing.”

(iii) Due Process Considerations Meriting a Hearing

By placing assets that are demonstrably necessary to retain chosen counsel beyond thereach of the defendant, the Monsanto IV court concluded that a pre­trial restraining ordereffects a permanent deprivation of the Sixth Amendment right to counsel of choice,regardless of the order's temporary, nonfinal nature.

*41 The Second Circuit maintained that because a restraining order permits thegovernment to “impose indigence and deprive RICO and CCE defendants of theopportunity to retain private counsel merely by obtaining an indictment,” absentspecial circumstances, the inherent risk of an erroneous deprivation of such an interestthrough ex parte procedures mandates an adversarial proceeding to ensure itsappropriate factual foundation.

(iv) Government Interests Weighing Against a Hearing

Addressing the government's interest in light of the burden that would be imposed by apost­indictment hearing, Monsanto IV noted Congressional criticism of previous courtdecisions that permitted the reconsideration of the probable cause underlyingindictments, but it nevertheless concluded that because CCE permits the admissionof evidence generally inadmissible under the Federal Rules of Evidence at thehearing, the government would not have to prematurely disclose aspects of its caseagainst the defendant at such a hearing as Congress had feared would result at such ahearing. Under those conditions *42 a restraint order would be no more difficult toobtain because it would still be obtained ex parte prior to the hearing. The hearingonly affects the continuation of the restraining order through the trial.

(v) Post Restraint Hearing Sufficient

Having established a right to a hearing, the court then acknowledged that, pursuant toRule 65, in extraordinary situations the notice and hearing requirements of due processunder the Fifth Amendment may be postponed until after the deprivation of a propertyinterest. “[B]ecause of the exigent circumstances ... [surrounding a CCE post­indictment restraining order, the court found that] a hearing need not occur before an exparte restraining order is entered.” Relying on Fuentes v. Shevin, the courtdetermined that the circumstances presented in a post­indictment restraining orderimplicate an important government interest, require prompt action, and are *43the result of governmental official action taken pursuant to a narrowly drawn statutethereby constituting an “extraordinary situation” permitting a post­seizure hearing.”

(vi) Procedures Used at the Hearing

The Monsanto IV court determined, as Monsanto I had, that procedures contained in

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*44 Rule 65 of the Federal Rules of Civil Procedure would apply to a CCE post­indictmenthearing. Rule 65 bars the issuance of a preliminary injunction without notice to theaffected party and without notice of a hearing. The rule permits the grant of atemporary restraining order (TRO) without prior notice to the adverse party, or hisattorney, but only after the government has shown, by affidavit or verified complaint, thatimmediate and irreparable *45 injury, loss, or damage will result to the governmentbefore the affected party, or his attorney, can be afforded a hearing. The filing of anindictment satisfies that showing. In addition, the government's lawyer must certify tothe court in writing the efforts, if any, taken to provide notice of the TRO to the affectedparty, and if a TRO without notice is sought, the reasons why notice should not berequired. Where the indictment describes particular forfeitable property, thosecertification and notice requirements are met.

Courts have grafted two additional requirements onto Rule 65's TRO criteria. Thegovernment bears the burden of proof. The government must also demonstrate that it islikely to convince a jury beyond a reasonable doubt that the defendant is guilty ofviolating either RICO or CCE and that the property at issue is subject to forfeiture underthe appropriate statute.

Where a TRO is granted without notice, the motion for a preliminary injunction mustbe set for hearing at the earliest possible *46 time. Depending upon the circuit inwhich the court sits, the Federal Rules of Evidence may or may not apply at that hearing.The Second Circuit held that the Federal Rules of Evidence do not apply to such ahearing because such rules do not apply to Rule 65 preliminary injunctionhearings. Also, the moving party must proceed with its application for a preliminaryinjunction, otherwise the TRO will be dissolved. Two days notice of dissolution is given tothe party moving for a preliminary injunction.

(vi) The Probable Cause Standard and Probable Cause Review of the Indictment

In addition to its decision on the issue of the post­indictment hearing, the Monsanto IVcourt also determined that probable cause underlying the indictment is the only issueopen for consideration at such a hearing. If the government established probable cause“the policies favoring forfeiture ... preclude any constitutional requirement that equities befurther weighed or balanced on the issue of making funds available to retain counsel.”

As to probable cause itself, the court permitted the hearing judge to reconsider and re­assess the probable cause underlying the indictment *47 of the defendant's RICO or CCEoffense. That necessarily involves a review of the probable cause supporting both thecriminal and forfeiture charges set forth therein. The court failed to recognize how areview of the probable cause of the forfeitability count could be made without acontemporaneous review of the probable cause underlying the criminal charge whichserves as the foundation for the forfeiture charge. The court justified such review onthe demands of the Fifth and Sixth Amendments, the statute's failure to address theissue, the ambiguity of applicable legislative history, and the fact that it does no violenceto the congressional intent.

3. The Impact of Monsanto IV

The Monsanto IV decision is consistent with the very pro­constitutional defense stancethat the Second Circuit has taken in CCE & RICO forfeiture cases. The Second Circuitafforded the defendant *48 an additional means by which to free assets from pre­trialrestraint in order to pay his attorneys' fees. It also went one step further and delivereda pre­trial chance to attack the probable cause of the criminal and forfeiture chargescontained in the indictment. The court regrettably failed to state how soon the hearingshould be held after entry of the restraining order. Unlike the Monsanto II decision,which was the basis of the appeal to the Supreme Court, Monsanto IV fails to assure theattorney that money or assets received as payment for legal fees from property releasedin a pre­trial hearing will be retained following a forfeiture determination.

Nevertheless, Monsanto IV and its predecessors set a certain tone that Sixth Amendmentrights will not be lightly brushed aside. A legislative affirmation of the principlesestablished in those cases would be infinitely preferable as only legislation canpermanently reconcile the apparent contradictions between CCE, RICO and those cases.

(i) Probable Cause Review: A Sound Ruling?

Regardless of the fact that the United States Supreme Court declined to hear MonsantoIV the breadth of the case's probable *49 cause review rests on decidedly shaky

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ground. It is the only case to permit review of the probable cause of the entireindictment. All previous cases permit only review of the probable cause supporting theforfeiture count. The CFA's legislative history states that:

This provision does not exclude, however, the authority to hold a hearingsubsequent to the initial entry of the order and the court may at that timemodify the order or vacate an order that was clearly improper ... However, itis stressed that at such a hearing the court is not to entertain challenges tothe validity of the indictment. For the purposes of issuing a restraining order,the probable cause established in the indictment or information is to bedeterminative of any issue regarding the merits of the government's case onwhich the forfeiture is to be based.

While that passage could be interpreted as prohibiting review of only the probable causeof the criminal charge, elsewhere in the passage the Senate states that when anindictment is being sought, the court must not “look behind” the indictment (i.e. review theprobable cause of any count in the indictment) or require the government to produceadditional evidence regarding the merits of the case. Read together, those passagesindicate that the Senate intended to preclude all review of the probable cause underlyingboth the criminal and forfeiture charges. While the majority of courts that have ruled onthe hearing issue have reviewed the probable cause of the forfeiture count on the basisof those passages, United States v. Moya­Gomez declined to review the probable causeof any aspect of the indictment supporting the forfeiture of assets.

(ii) Short Comings of Probable Cause Review

By operation of the CCE and RICO's relation back provisions and the Monsanto andCaplin & Drysdale decisions, monies or property released to an attorney, due to aMonsanto hearing, may be recouped by the government if a forfeiture judgment is madeconcerning *50 such assets. Unless the attorney qualifies as an innocent owner underCCE and RICO, the attorney is potentially no better off under Monsanto IV than hewas before the decision.

Furthermore, Monsanto IV's probable cause review requires the nonsensical charade ofnot looking behind the indictment when issuing the restraining order and then, in asubsequent pre­trial hearing, revisiting the very indictment and forfeiture count that itpreviously found to be supported by probable cause. What purpose such review willserve is questionable given the fact that courts are generally hesitant, except in rarecases, to reverse prior probable cause determinations.

Also, the application of those hearings is limited to a very small class of defendants. Ahearing is required only when the post­indictment order reduces the defendant to a stateof indigence from which the defendant is denied the ability to retain counsel of choice.Such an occurrence has been and will no doubt continue to be rare.

(iii) Alternatives to Post­Indictment Restraint

There are several methods of pre­trial restraint that a prosecutor may pursue to obviatea Monsanto IV hearing. Ironically, probable cause review may adversely rather thanfavorably impact attorneys and their clients. Prosecutors may favor less procedurallyburdensome alternatives to asset restraint, such as the use of civil forfeiture. Anotherimpetus to seeking an alternative to post­indictment restraint is the tendency of the courtsthat have reviewed probable cause in such hearings to find insufficient probable causeunderlying the forfeiture count to restrain assets.

(I) Pre­Indictment Restraint

As an alternative to post­indictment restraint, prosecutors could, depending on thestrength of their evidence, use pre­indictment restraint or seizure. While probable causemust be demonstrated to restrain assets under these procedures, Monsanto IV is notapplicable to a pre­indictment hearing because a hearing is statutorily provided and noindictment exists for which probable cause review can be made. Once the indictment isentered, the pre­indictment restraint, if it has not expired or was not denied, becomes apermanent restraint on the assets until a judgment of forfeiture is made.

*51 (II) Civil Forfeiture

Probable cause review may also sway prosecutors to favor civil forfeiture proceedingsover RICO and CCE forfeiture proceedings. Civil proceedings are far more streamlined

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than their criminal counterparts and generally do not implicate the same procedural andconstitutional protections, however the United States Supreme Court has lately beencurtailing prosecutors' use of civil forfeiture powers.

On a showing of probable cause, the government can obtain pretrial in rem civil restraintof a defendant's assets, then file a criminal indictment against the defendant (therebystaying the civil action), and proceed criminally against the defendant, and eitherincorporate the civil forfeiture count into the indictment or retain the civil *52 actionpending the outcome of the criminal action. The criminal and civil claims may also beconsolidated. Though, where forfeiture is not obtained in a civil forfeiture action, asubsequent criminal forfeiture may be barred by res judicata or collateral estoppel.Also, where civil forfeiture is obtained first, issues established in the civil forfeiture actionmay not then be used to collaterally estop the defendant owner of the property in a latercriminal trial.

*53 Regardless of whether the defendant is criminally convicted, where the governmentcan use civil forfeiture concurrently with a criminal suit, it will almost always attain a civilforfeiture judgment against the property. A criminal conviction is not a prerequisite for civilforfeiture. Also, an acquittal will not bar a subsequent civil forfeiture of the defendant'sproperty as principles of double jeapordy, collateral estoppel, and res judicatado not adhere.

*54 If the government incorporates the civil forfeiture count into the indictment, it seemsunlikely that probable cause review would apply because the restraint order was placedon the property prior to filing the indictment; and it was attained through a showing ofprobable cause in the same manner a pre­indictment restraint order would be obtainedunder RICO or CCE. Finally, in a majority of jurisdictions, if a civil action is not initiatedprior to a criminal action and the prosecutor believes that a probable cause hearing willbe damaging to his case against the defendant, the criminal forfeiture count may bedropped from the indictment and a separate civil forfeiture action maintained against theproperty.

A minority of courts have proscribed prosecutors from first initiating criminal forfeitureproceedings and then pursuing simultaneous administrative forfeiture proceedingsagainst a defendant's property. Those decisions are generally restricted to the situationin which assets that are needed by a criminal defendant to retain counsel are restrainedin a contemporaneous civil forfeiture suit. A small number of courts have also, ratherthan forbid the simultaneous use *55 of civil forfeiture with a criminal suit, imported the“Monsanto hearing” into the civil forfeiture context. Again, that has been done only inthe situation where the criminal defendant needs assets restrained in the civil forfeituresuit to pay for his attorney in a concurrent criminal case.

Facially, the Monsanto IV decision offers procedures by which defense attorneys may beable to release their client's assets prior to trial to pay legal fees. However, upon review,only a narrow class of defendants benefit from such a hearing; and, probable causereview may have an influence on a prosecutor's choice of how to restrain assets.Therefore, a Monsanto IV hearing and its probable cause review appear to be a hollowvictory for most criminal defendants and their attorneys.

IV. APPLICATION OF THE SUBSTITUTE ASSETS PROVISIONS TO NON­FORFEITABLE ASSETS

The substitute asset provisions of RICO and CCE authorize the government, on ashowing of certain conditions, to forfeit property not connected with the crime underlyingthe forfeiture count. These provisions were added to the statutes in 1986. When aforfeiture judgment is made and the forfeitable assets are outside of the district court'sjurisdiction, the substitute assets provisions permit the government to move against anyof defendant's assets that are of a lesser or equal value to the value of thenonretrieveable assets, regardless of whether such assets are related to the crime onwhich the forfeiture judgment is based. Substitute assets include property which thedefendant acquired prior to the commission of the crime charged or *56 assets that havebeen transferred to third parties after or prior to the crime. Such application does notviolate the ex post facto clause of the Constitution. The substitute assets provisionsconstitute a procedural alternative for collecting a forfeiture judgment and are not a formof punishment in their own right to which ex post facto would apply.

1. Pre­Trial Restraint of Substitute Assets

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Courts unanimously agree that the substitute assets provisions of RICO and CCE applyon entry of a forfeiture judgment. The government though has continued to test the outerboundaries of those provisions' application by trying to apply them in the pre­trial restraintcontext. The majority of courts refuse to extend their application to that area.

*57 To date, only the Fourth Circuit and one district court in the Southern District of Ohiohave explicitly sanctioned the use of pre­trial restraint of substitute assets. Thosecourts that have refused to apply the substitute assets provisions in the pre­trial contextbase their rulings on variety of procedural theories and reasons.

(i) The Third Circuit Approach: In re Assets of Martin

In the case of In re Assets of Martin, the Third Circuit held that the applicability of pre­trial restraints to substitute assets depended on the relationship between threesubsections of the RICO forfeiture statute, subsections: (a) defining assets related toRICO offenses that must be forfeited upon conviction, (d)(1) providing for pre­indictmentrestraints to preserve the availability of assets that may be subject to forfeiture, and (m)the substitute assets that may be forfeited if the forfeitable assets of section (a) areunavailable. Construing those sections together, the court maintained that “[t]helanguage of the statute [is] so clearly dispositive that ordinarily we would not considerlegislative history.” The court nevertheless referred to legislative history and foundthat Congress had previously considered the issue of pre­trial restraint of substituteassets and ruled against such restraint. In considering the substitute assets provision inprior proposed legislation, the Senate committee explained that:

[I]t should also be noted that the restraining order provision applies only to[subsection (a) ] property. It may not be applied with respect *58 to otherassets that may ultimately be ordered forfeited under the substitute assetsprovision.

The Martin court concluded that the legislative history unequivocally evinced aCongressional intent that pre­trial restraints not be used against substitute assets, andtailored its decision accordingly.

(ii) The Fifth Circuit Approach: United States v. Floyd

In a CCE case, the Fifth Circuit came to the same conclusion as the Third Circuit,although by a different method of analysis: strict statutory construction. In United Statesv. Floyd the court maintained that “[w]e find that the statute controlling the restraintbefore us plainly states what property may be restrained before trial ... [and] we alsocannot read § 853(e)(1)(A) any other way.” The court explained that the pre­trialrestraint provisions of CCE specifically refer to property described in that section ofthe statute listing property that is primarily subject to forfeiture, and such descriptiondoes not include substitute assets contained in the CCE's substitute assets section.

The Court explained that to permit the government to restrain substitute assets prior totrial would require an interpretation of the phrase “property described in subsection (a)”to mean property described in such section and the substitute assets section. WhileCongress may have intended the forfeiture statutes to be liberally construed, “thiscommand for a liberal construction does not authorize us to amend by interpretation.”In conclusion, the court reiterated that pre­trial restraint provisions do not apply tosubstitute assets and that the government's contention that it can proceed againstsubstitute assets under this section “hints of writs of assistance.”

*59 (iii) The Fourth Circuit Approach: Billman & Wu

a. In re Assets of Billman

In the case of In re Assets of Billman, the first case to consider the application of pre­trial restraint of substitute assets, the Fourth Circuit held, through a “liberal reading” ofthe RICO forfeiture provisions, that substitute assets were subject to pre­trialrestraint. Noting that the purpose of pre­trial restraints were to preserve theavailability of property for forfeiture after trial, the court ruled that though the RICO pre­trial restraint provisions refer only to property described in that section of RICO listingprimarily forfeitable property, “[w]e believe that when, as here, the defendant hasplaced the assets specified in subsection (a) beyond the jurisdiction of the court,subsection (d)(1)(A) must be read in conjunction with subsection (m) *60 to preserve theavailability of substitute assets pending trial. In this way the purpose of § 1963(d)(1)(A)can be attained.”

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The Billman court based its decision on the Supreme Court's Russello andMonsanto decisions. Russello prescribed that the RICO forfeiture statute “[s]hall beliberally construed to effectuate its remedial purposes.” The Billman court applied thatreasoning and construed the various subsections of RICO together “[t]o achieve thecongressional purpose of pre­trial restraint.” The court then employed the reasoningof Caplin & Dyrsdale, that assets in the hands of third persons could be forfeited in post­conviction proceedings, and extended the pre­trial restraint of substitute assetsbeyond the context of the criminal defendant to third parties to whom the defendanttransferred the property.

b. United States v. Wu

United States v. Wu extended Billman's RICO holding to CCE. The Wu court foundvery little difficulty in applying the CCE's pre­trial restraint provisions to CCE substituteassets. The court noted that

In fact, it is easier to construe section 853 of Title 21 as allowing for pre­trial restraint ofsubstitute assets than it is so to read section 1963 of Title 18. Whereas the text of 18U.S.C. § 1963 does not address the issue, 21 U.S.C. § 853(o) expressly provides that itsprovisions “shall be liberally construed to effectuate its remedial purposes.”

(iv) The Southern District of Ohio's Approach: United States v. O'Brien

In another CCE case, United States v. O'Brien, the Southern District of Ohio alsogranted the government a pre­trial restraint over defendant's substitute assets.Basing its decision on Billman and the reasoning found in Wu, the court held that

*61 the need to restrain substitute assets in this case where the Defendant has shown apropensity to hide and transfer assets is particularly acute. Given the directive of 21U.S.C. § 853(o) that the provisions of the section “shall be liberally construed toeffectuate its remedial purposes,” the court may exercise its power to take such actionsas are necessary to preserve those assets for forfeiture.

Whether the application of the court's holding will be restricted to those cases in whichthe defendant demonstrates a “predisposition” for hiding and transferring assets isunknown, but the court appeared to accord considerable significance to this fact inmaking its ruling. Therefore, the scope of O'Brien is in doubt.

2. Constitutional Implications of Pre­Trial Restraint of Substitute Assets

Under Billman, Wu, and O'Brien the government can financially paralyze a defendantbefore trial by going after substitute assets owned by either the defendant or a third partyto whom the defendant transferred assets in good faith. Defendants rendered completelyindigent because of such use of the substitute assets provisions are theoretically outsidethe scope of the Monsanto and Caplin & Drysdale decisions which apply to defendantswho wish to retain counsel using forfeitable assets connected with the crime charged, notsubstitute assets. If such use of the substitute assets provisions interfere with thedefendant's right to counsel of choice, the Supreme Court may once again have toconfront the question in the context of substitute assets. Where applicable, defendantswould presumably be entitled to a Monsanto hearing.

While a pre­indictment hearing and a Monsanto IV probable cause hearing mayconceptually remedy the constitutional right to counsel of choice problems raised by pre­trial restraint of substitute assets, these hearings would be valueless to the attorneyrepresenting a client whose substitute assets were restrained. Also, even where thesubstitute assets are not restrained, or where a judgment of forfeiture is later entered,RICO and the CCE's relation back provisions, as well as the Caplin & Drysdale, decisionwould nevertheless legitimately deprive defendants of their substitute assets.

(i) Forfeiture of Encumbered Substitute Assets

The pre­trial application of the substitute assets provisions is of concern in cases wherethe “unavailability” of the assets is due to *62 bona fide actions that the defendant mayhave taken with respect to the property prior to the commission of the crime underlyingthe forfeiture count. Such action by the defendant includes encumbering the restrainedproperty with liens or a mortgage.

If the defendant's forfeitable property is so heavily encumbered that the defendanteffectively has no equity in it, the government may use that as a premise to restrain

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substitute assets, thereby avoiding the panoply of constitutional problems associated withrestraining encumbered assets. Also of concern is the scenario raised in United States v.Reed wherein defendants transferred certain encumbered forfeitable assets to thirdparties who allowed them to fall into foreclosure. That case did not involve pre­trialrestraints and the government, to avoid a forfeiture of foreclosed property, went afterdefendants' substitute property. The court permitted the government to reach substituteassets on the theory that placing the assets in the hands of third parties who allowedsuch properties to fall into foreclosure was the equivalent of placing assets outside of thereach of the government and beyond the jurisdiction of the court.

If the government is unable to locate unencumbered substitute assets and decides toobtain a pre­trial restraint on certain substitute assets of the defendant which werepurchased and encumbered prior to the alleged commission of the crime, fundamentaldue process concerns are raised from the perspective of the defendant, whose untaintedproperty is being restrained by the government. Concerns are also raised by third partiesto whom property (whether or not encumbered) has been transferred. The securedcreditors, whose security interests could be eliminated by the government's claim to titlearising from a forfeiture judgment, could also raise concerns of due process.

Where the defendant faces RICO or CCE charges, any state property or commerciallegal protections are generally unavailing to *63 the defendant and third partycreditors. However, federal law protects mortgagees from an unjust deprivation oftheir rights and interests. A mortgagee's lien is a compensable property interest withinthe meaning of the Fifth Amendment. That protection should extend to other securedparties holding perfected security interests. Therefore, where the government gains titleto forfeited assets on which there are security interests, the Fifth Amendment DueProcess Clause requires that the government pay the secured party the fair market valueof the property, the amount it would have received had it foreclosed on the property,and any interest due until the time the property was forfeited. That rule is based onthe reasoning that *64 when the government takes title to the property, the enforceabilityof the security interest is destroyed and the liens are worthless, thereby constituting ataking under the Fifth Amendment and a change of status on the creditor's part froma secured to an unsecured creditor. Such creditors do not receive Fifth Amendmentprotection. Courts are split as to whether the government is obligated to payoutstanding interest that becomes due after it takes title to the property. Without *65that remedy, secured parties, in the absence of cross­collateralization protection in theirsecurity agreements, would be without a remedy authorizing foreclosure on adefendant's assets.

In addition, from the defendant's point of view, if a verdict of guilt is relatively certain or aguilty plea is entered, there is no initiative to satisfy debt payments owed to creditorsholding security interests in defendant's assets that qualify as substitute assets underCCE and RICO. As discussed above, secured creditors enjoy Fifth Amendmentprotection when the government forfeits their property. If the debt is unsecured andincurred after the commission of the crime for which the defendant is convicted, it is notcertain whether the debt would be valid against the government, given the fact that thegovernment is not named in the debt instrument and did not consent to its creation. Anassignment of title clause in the security instrument would be ineffective as thegovernment would vest title under the relation back provision prior to the time of theinstrument's creation. Theoretically the debt would be a nullity.

The treatment of an unsecured debt that is incurred prior to the commission of the crimewould presumably be the same as if it were incurred after the crime. In both cases, theonly remedy available to the unsecured creditor is a private contract action against thedefendant. Such an action would be pointless where the defendant is imprisoned andwhere all of his assets, including substitute assets, are forfeited or otherwise subject tothe claims of superior creditors.

(ii) Substitute Assets Transferred to Third Parties

The government's ability to restrain substitute assets transferred to or held by thedefendant jointly under state law with third parties *66 is also a troubling issue. Asstated above, where RICO and CCE forfeiture provisions apply, they prevail over statelaw protections. While pre­indictment restraint provisions of CCE and RICO speak ofa party with an “interest” in the property, under their forfeiture provisions, third parties arebarred from intervening in a criminal action to assert their property interests against thegovernment when their property is restrained prior to trial.

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Monsanto IV hearings are similarly unavailable to third parties because such hearingsare limited only to defendants rendered indigent by a post­indictment restraint order. Theinterests of third parties, when substitute assets are restrained, are merely proprietary.Their Sixth Amendment right to counsel of choice is not implicated because they are notbeing charged with a crime.

Third parties or secured creditors must wait until a forfeiture judgment is entered beforethey may file a claim to protect their *67 interests in property. At such time the thirdparty or secured creditor must bring a third party innocent owner claim pursuant to theinnocent owner provisions of the CCE and RICO. Otherwise, by concurrent operationof the substitute asset and relation back provisions, when the government attains aforfeiture judgment against the substitute assets, their interests in the property areextinguished and title to the property is vested in the government.

V. ADOPTIVE SEIZURES UNDER STATE AND FEDERAL FORFEITURE LAWS

Nearly every state has some form of criminal narcotics forfeiture statute. The vastmajority of states have also enacted civil forfeiture statutes. Such laws are based onSection 505 of the Uniform Controlled Substances Act of 1970, which in turn ismodeled after the federal civil forfeiture statute.

State forfeiture statutes differ, sometimes widely, from their federal counterparts,particularly with regard to the burdens of proof that state prosecutors must meet to forfeitproperty and to the classes of forfeitable property. The burden of proof in state civilforfeitures is often preponderance of the evidence as opposed to the probable causeburden of proof required under the Federal civil forfeiture law. In criminal forfeitures, thebeyond a reasonable doubt standard controls as opposed to the preponderance ofevidence presumption contained in civil forfeiture.

State forfeiture statutes vary widely with regard to the classes of property that theysubject to forfeiture. Though, many state forfeiture statutes, both civil and criminal, alsoexempt many types of property from forfeiture, including property intended or needed topay attorney's fees. Such exemptions are either statutory or judicially created. *68Such statutory and common law exemptions coupled with the burdens of proof that stateprosecutors must meet under state forfeiture statutes have prompted them to liberallyemploy “adoptive seizures” with the federal government.

1. The Nature and Legal Basis of Adoptive Seizures

Although not explicitly authorized by federal statutory and regulatory law, the federalpractice of adopting seizures has been judicially sanctioned for many years as a meansof combatting crime *69 and the illicit distribution and use of drugs. An “adoptiveseizure” entails the state turning property over to the federal government that the stateseized, either on its own or with federal help, which the state is unable to forfeit due tolack of evidence or a state law forfeiture exemption. The federal government does notadopt every state or local seizure presented to it, but rather selects which seizures it canand cannot pursue according to developed guidelines. The federal governmentproceeds against the property in rem under the federal civil forfeiture statute. Theproperty is usually administratively forfeited, unless a person with an interest in theproperty files a claim and cost bond within the specified period of time allowed, therebyconverting the process into a formal judicial forfeiture.

Unless the federal government actively participated in the state seizure or forfeitureaction, where state prosecutors fail to attain *70 forfeiture of assets in state trials orlack sufficient evidence to attain a forfeiture, it is not collaterally estopped or barred byres judicata or double jeopardy from proceeding against assets turned over to it bystates or localities. In fact, the federal government may forfeit the property even when thestate or local government was without authority to seize or transfer the property.However, a seizure by state or local law enforcement officials cannot violate the UnitedStates Constitution. In such instances federal forfeiture is improper.

When a judgment of forfeiture is obtained, the federal government shares the forfeitedproceeds or property with the state or local government that turned over the property.The attorney general and the commissioner of customs are authorized to “equitablytransfer” *71 to or “equitably share” with state or local law enforcement agencies forfeitedproperty or the proceeds from a forfeiture proceeding. The manner in which that splitis made is set forth in the Department of Justice Guide to Equitable Sharing. The splitis generally based on the net proceeds of the forfeiture, after federal expenses are

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deducted, and the degree of pre­seizure activity performed by the state or local agencythat led to the seizure of the asset. Therefore, the amount transferred to state or localagencies is usually proportionate to the amount of their pre­seizure activity. Federalofficials believe that adoptive seizures encourage cooperation with local law enforcementagencies while hitting criminals with all the force the two governments together canmuster. Since 1991, the Drug Enforcement Agency alone has cooperated in 168“adoptive seizures” netting a total of approximately $5.4 million of forfeited property, themajority of that forfeited property was returned to states and local law enforcementagencies.

*72 2. Application of Adoptive Seizures: How Far is Too Far?

(i) People v. Martinez: One Court's Push to the Limit

The New York case of People v. Martinez is an excellent example of the potential useof federal forfeiture laws to restrain assets prior to trial when the state court is unable toexercise jurisdiction over them. The property of defendant Martinez was subject to pre­trial restraint under New York's civil forfeiture statute CPLR Art. 13­A, section 1312.Because those proceedings were in personam, the state prosecutor was unable to attainpre­trial restraint over monies in a Puerto Rican bank account and in a New York bankaccount held in the name of defendant's wife. In that regard, property can fallphysically or legally outside a state court's forfeiture jurisdiction.

The Puerto Rican money, located outside of New York's boundaries was both physicallyand legally outside of the New York court's jurisdiction. The money in defendant's wife'sname was legally outside of the court's jurisdiction. The forfeiture statute was inpersonam and did not authorize restraint or forfeiture of a third party's assets. Federallaw would permit restraint and forfeiture of these assets.

That being the case, addressing first the problem of lack of physical jurisdiction, theMartinez court stated that:

The People cannot secure a defendant's out­of­state assets pre­convictionbecause no final order can be issued by a New York court until the New YorkState criminal proceedings are resolved. Any provisional remedy obtained bythe People to secure the defendant's property would not be a final orderwhich another state must honor under the Full Faith & Credit Clause of theUnited States Constitution.

The court noted that even where such a final judgment is obtained, it would be subject toreview by the courts of the forum in which enforcement of the judgment is sought andmay be denied any effect *73 there. To remedy the deficiency posed by state law, theMartinez court suggested that the state prosecutor employ the help of the federalgovernment. Pursuant to federal forfeiture law, which have nationwide applicability,the state could obtain a pre­trial restraint on the assets until the New York court rendersa final judgment of forfeiture on the property which would be entitled to full faith andcredit in other jurisdictions.

Turning to the issue of legal jurisdiction, the court also endorsed use of adoptive seizuresto forfeit property that is not within the purview of Article 13­A. The court maintainedthat while it was prohibited from forfeiting such property, pursuing the forfeiture of suchproperty under federal law did not violate New York law. That was so because, whilesuch property is not subject to New York's forfeiture law, New York law does notexpressly prohibit forfeiture of such property through federal means.

The Martinez court next addressed the scope of the exemption of property, under NewYork forfeiture law, needed by the defendant to pay his attorneys' fees. The courtnarrowly construed the statutory exemption to cover only those assets over which thecourt had both physical and legal jurisdiction. As to the assets, both in and outsideNew York, that were forfeited pursuant to federal law, New York's exemption did notapply.

*74 Martinez permits very liberal uses of adoptive forfeiture provisions where state lawfails to provide state prosecutors with the weapons they need to restrain and forfeitproperty connected with crimes in New York. It is doubtful that its example will befollowed by more conservative state courts. Its application is also restricted to situationsin which a state court is unable to exercise primary jurisdiction over assets that are to beforfeited.

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(ii) Judicial Invalidation of Adoptive Seizures

Several state and federal courts have invalidated adoptive seizures on the grounds thatthe state court obtained jurisdiction of the assets prior to the time that the property wasturned over to the federal government, and therefore the state court never relinquishedsuch jurisdiction. Because of such prior state jurisdiction over the properties, *75under Penn General Casualty v. Pennsylvania, the federal courts did not have properjurisdiction to forfeit the property, and the adoptive seizures were adjudged improper.In that regard they *76 are factually distinguishable, and therefore not inconsistent withMartinez as the latter case addressed an adoptive seizure over property which it neverhad jurisdiction.

How the area of adoptive seizure will evolve in the future depends primarily on severalissues. State laws, the willingness of state court's to narrowly construe such legislationand endorse state prosecutors' use of federal forfeiture provisions, and the creativity ofstate and federal prosecutors in using adoptive seizures to restrain and forfeit assets thatlie outside the jurisdiction of the state courts will all impact *77 the evolution of adoptiveseizures. In that regard, serious Sixth Amendment right to choice of counsel concernsare raised.

Following the principles of Martinez, state prosecutors may actively use adoptive seizuresto restrain and forfeit property needed by a defendant to pay an attorney even whenstate courts lack jurisdiction over that property. Also, state prosecutors can employadoptive seizures when the evidence of the case is insufficient for a forfeiture in statecourt but is sufficient to attain a forfeiture under federal law. Finally, the most daring ofstate prosecutors may try to employ adoptive seizures to pursue forfeiture of defendants'substitute assets.

(iii) Property Needed to Pay Attorneys Fees

To date, Martinez is the only case that the writers have encountered addressing the useof adoptive seizures to gain forfeiture of property physically lying outside a state court'sjurisdiction. Therefore, it remains unclear how state courts will reconcile their states'prohibitions, if any, on the forfeiture of property needed to pay legal fees via adoptiveseizure when a defendant relies on such assets to pay his attorney. State courts andlegislators have at least three choices: (1) they can follow Martinez in its entirety andpermit the forfeiture of all property, both within and without the state, that is physically orlegally outside of state boundaries and the application of the state forfeiture laws; (2)alternatively, they might opt for a modified Martinez approach and permit the forfeiture ofall property either physically or legally outside of the court's jurisdiction or application ofstate forfeiture laws; (3) finally, they may find that such use of the adoptive seizureapproach is contrary to the spirit and letter of the restrictions on forfeiture contained instate legislation, and bar state prosecutors from employing such means to obtainforfeiture of a defendant's property.

For defendants in states where the full or modified Martinez approaches are adopted,the right to retain counsel of choice is diluted on the state level. Unless state courts orlegislators expressly forbid state prosecutors from engaging in adoptive seizures ofproperty needed to retain an attorney, by virtue of the Supremacy Clause of the UnitedStates Constitution, where adoptive seizures are employed, state protections ofdefendants' right to counsel of choice must fall to the application of federal civil forfeiturelaws.

*78 (iv) Insufficient Proof for a Pre­trial Restraint Order

Adoptive seizures may also be used where the state is unable to meet the burden ofproof necessary to obtain a forfeiture under state law. If a state prosecutor were tochoose the Federal rather than state route for forfeiting property the physical location ofthe property and the exempt status of the property from forfeiture under state law couldinfluence the timing and manner in which the adoptive seizure is initiated. With carefulplanning a state prosecutor could use a federal forfeiture action to preclude a state courtfrom exercising jurisdiction over property that a defendant intended to use to pay hisattorney in reliance on a state statutory or constitutional protection of hhis right to counselof choice. In that way, state protections on the restraint or forfeiture of assets needed topay legal fees can be circumvented. Where a state prosecutor lacks sufficient evidenceto attain a state forfeiture, but has the requisite evidence to meet the federal burden ofproof for a civil forfeiture, the state prosecutor would presumably be able to seekadoptive forfeiture of property at any time before, during or possibly after a state

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forfeiture proceeding. That is possible because where the state prosecutor does not file aforfeiture action against such property in state court, that court would never havejurisdiction over the assets.

The principle set forth in Penn General Casualty Co. (which influenced the Johnson andScarabin decisions) holds that the first court, be it federal or state, to obtain jurisdictionover property is the exclusive forum for forfeiting that property. Where property to beforfeited was subject to the jurisdiction of a state court, the state prosecutor would haveto proceed via an adoptive seizure at the pre­trial warrant of seizure stage, otherwise thestate court would, by issuing a warrant of seizure, obtain jurisdiction of the property. Thatapplies regardless of whether the prosecutor has sufficient proof to attain forfeiture ofsuch property. The court would retain such jurisdiction and preclude any federal forfeitureof the property, unless the court relinquished jurisdiction of the property.

(v) Adoptive Seizure of Substitute Assets

The adoptive seizure of substitute assets is a potential, and yet unexplored, use of thefederal civil forfeiture statute. If a state's forfeiture law lacks a substitute assetsprovision, and a state forfeiture *79 action is brought against a defendant who has hiddenhis tainted assets or otherwise placed them outside the state court's jurisdiction, but thedefendant has other non­tainted assets within the state and elsewhere in the country, itwould appear that a state prosecutor could utilize federal law to reach substitute assetsnot within the state court's jurisdiction.

If the federal government files a federal forfeiture action against assets which a statecourt cannot exercise jurisdiction over, and those assets are also outside the reach of afederal court, by virtue of their being hidden, destroyed, or outside the country,the court nevertheless retains jurisdiction over such property. Upon a judgement offorfeiture the federal government would be able to go after the untainted substituteassets of the defendant that exist anywhere in the United States. Upon forfeiture of thesubstitute assets, it is questionable whether the federal government would be able toeffect an “equitable transfer” of either substitute assets or substitute proceeds to thestate government.

Through such use of the federal and state forfeiture laws, the criminal defendant may berendered indigent and unable to pay counsel. The defendant in the Fourth Circuit is evenworse off than defendants in other circuits because he may have his substitute assetsrestrained prior to trial under federal law on account of a criminal action being broughtagainst him in state court. The ramifications of that scenario are troubling, especiallywhen it is remembered that if the defendant relied on the substitute assets to paycounsel, under federal law it is open to question whether he has a right to use thoseassets to pay his attorney in a manner that affords him the ability to exercise his SixthAmendment right to counsel of choice.

V. CONCLUSION

While generally speaking forfeiture of attorneys fees and the pre­trial restraint of adefendant's assets needed to pay such fees is not a violation of a defendant's SixthAmendment right to choice of counsel, that right remains in peril. Pre­trial restraint ofsubstitute *80 assets and the use of adoptive seizures as a means of avoiding staterestrictions on forfeiture threatens to erode the right to choice of counsel on the federaland state levels. That will increase public dissatisfaction in and distrust of the Americancriminal justice system and lessen its confidence in the American Constitution.

Judicial measures taken to stop the erosion of the right to counsel of choice, such as theSecond Circuit's requirement of a post­indictment, post­restraint probable cause hearing,seem to have little effect beyond slowing down the pace at which the right is reduced.Without affirmative Supreme Court action or legislative intervention, the SixthAmendment right to choice of counsel may be reduced judicially to an empty ideal in thesame manner that the Free Exercise Clause was until Congress legislated the clauseback into the Constitution in 1993.

The most appropriate means for undoing the damage done to the right to counsel ofchoice in Monsanto and Caplin & Drysdale and securing the future vitality of the SixthAmendment right to counsel of choice is through legislation. Congressional recognition ofthe dilemma that the right to counsel had been placed came about in 1993. Two billssubmitted to the House during the 103rd Congress proposed drastic changes to the CCE& RICO forfeiture provisions as well as to those of the fderal civil forfeiture law. That it

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took Congress ten years to realize the inadequacies of its work in 1984 and to recognizethe dire constitutional ramifications such work had for criminal defendants in this countryis puzzling. What is most disappointing is the fact that both bills promised so much andneither was enacted into law.

The most important change proposed by the bills put before the House was theprohibition on forfeiture of assets received as or *81 pledged as bona fide attorneysfees. Such a measure would have legislated the Sixth Amendment right to choice ofcounsel back to its pre­1984 status. Those bills also proposed to make CCE and civilforfeitures proportional to the gain derived or loss caused by the offense, modify theclasses of property subject to forfeiture under CCE and the civil forfeiture statutes andalter the adoptive seizure regulations. Finally, those bills would have also eliminatedthe relation back doctrine and vested the Government's title in forfeited property at thetime of the forfeiture judgment. Either one of those bills, if passed, would haveundone the damage done to the Sixth Amendment right to counsel of choice since 1984.Individually they would have also guaranteed the future protection of that right againstfurther governmental encroachment.

The issues raised in this article remain open questions. The federal circuit courts aredivided on whether a post­indictment, post­restraint hearing is required. Where there isagreement that such a hearing is necessary, disagreement exists over the extent ofprobable cause review permitted at such a hearing. In addition, the class of defendantsthat benefit from such a hearing is so small that such a hearing hardly makes for arecovery of Sixth Amendment rights. Those defendants with any substantial assets at all,regardless of the amount, are denied such a hearing and remain where they stood afterMonsanto and Caplin & Drysdale: effectively without the right to counsel of choice.

The pre­trial restraint of substitute assets also splits federal courts. Of the three issuesdiscussed in this article, that issue presents the greatest threat to a defendant's SixthAmendment right to counsel. Where the Government restrains untainted assets neededto pay an attorney, or through pre­trial restraint, denies a third party the full use andenjoyment of his property on the premise that there is probable cause to believe thatother property is not available for restraint, very fundamental Due Process and SixthAmendment issues are raised. In that regard, it would seem that at some future time theSupreme Court will have to address the constitutionality of such practice.

*82 Finally, the use of adoptive seizures as a means to deprive a defendant of propertythat a state prosecutor is unable to forfeit pursuant to state law is almost as disturbing assubjecting substitute assets to pre­trial restraints. That the federal government wouldactively conspire with state prosecutors to burden a defendant's Sixth Amendment rightat the state and federal levels, without Constitutional or statutory recourse, is a shockingattack on our adversarial system of justice, and on the Sixth Amendment right to counselof choice.

The need for reform in the criminal forfeiture laws of this country, in particular in theprovisions of CCE and RICO, is unquestioned. Criminal defense attorneys, academians,government attorneys, federal legislators, and federal and state courts recognize theneed. Without such reform, the Sixth Amendment right to counsel of choice will wither onthe vine. While that occurs, legal practitioners, legislators and judges must “continue tobe enormously troubled by the Government's increasing and virtually unchecked use of... forfeiture statutes and the disregard for due process that is buried in thosestatutes.”

Footnotes

Assistant Professor of Law, Pace University. Faculty, Lubin School ofBusiness, Pace University. J.D., 1974, Brooklyn Law School; A.B., 1971,University of Southern California. Mr. Barnet also practices criminal defenselaw in New York and is an arbitrator for the American ArbitrationAssociation.

Professor of Law, Pace University. LL.M., 1963, New York University; J.D.,1957, New York Law School; B.B.A., 1954, Pace University.

Pub.L. No. 91­513, §§ 408, 413, 84 Stat. 1265 (codified as amended at 21U.S.C. § 848 et seq. (1988)).

Pub.L. No. 91­452, § 901(a), 84 Stat. 941 (codified as amended at 18

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U.S.C. § 1961 et seq (1994)).

The forfeiture provisions of the CCE and RICO are almost identical. Theseprovisions were enacted into law by the Comprehensive Forfeiture Act of1984 contained in the Comprehensive Crime Control Act of 1984, Pub.L.No. 98­473, 98 Stat. 2044, 2044­45 (as amended 1984). See Petition forCertiorari n. 2 Caplin & Drysdale, Chartered v. United States, 491 U.S. 617(1989) (No. 87­1729) [hereinafter Petition for Cert.—Caplin].

See United States v. Monsanto, 491 U.S. 600, 600 n. 1 (1989); Caplin &Drysdale, Chartered v. United States, 491 U.S. 617 (1989). See also GinaLambert, Note, United States v. Monsanto and Caplin & Drysdale,Chartered v. United States: Settling the Attorney's Fee Forfeiture Issue, 28HOUS.L.REV. 429 (1991); Gregory Merz, Note, The Criminal ForfeitureProvisions of the RICO and CCE Statutes: Their Application to Attorneys'Fees, 19 U.MICH.J.L.REF. 1199 (1986).

Monsanto, 491 U.S. at 614­15; Caplin & Drysdale, 491 U.S. at 631­32.

Monsanto, 491 U.S. at 616; Caplin & Drysdale, 491 U.S. at 632. See alsoThomas Campagna, Comment, Putting the Cart Before the Horse:Attorneys Fees are Subject to Pre­Trial Restraint and Relation­BackForfeiture Under RICO and CCE, 12 WHITTIER L.REV. 675 (1991); DawnCartwright, Comment, Constitutionality Without Wisdom: Caplin & Drysdaleand Monsanto Examined, 17 HASTINGS CONST.L.Q. 659 (1990).

Terence Moran, Forfeiture Rulings Prompt Defiance, Deftness, Despair,LEGAL TIMES, July 3, 1989, at 1. [hereinafter Moran].

See RICO CASES COMM., AMERICAN BAR ASS'N, PROTECTINGYOURSELF AND YOUR FEE: A DEFENSE LAWYER'S PRACTICE GUIDEIN A NEW AGE OF FEDERAL LAW (1991); SMITH, PROSECUTION &DEFENSE OF FORFEITURE CASES (1994); Mark C. Hansen, TakingFees: A Primer on Attorneys' Fee Forfeitures, 19 Litig. 17 (No. 2 Winter,1993).

Laura Mansnerus, For Lawyers, Crime May Not Pay, N.Y. TIMES,December 17, 1989, § 4, at 5 (“[T]argets of fee forfeiture are typically in the‘white powder bar’ handling drug cases....”) [hereinafter Mansnerus].

Frederick P. Hafetz, Lawyers Under Fire: Actions Against Defense Bar,N.Y.L.J., January 12, 1993, at 1. [hereinafter Hafetz]; see W. John Moore,Collaring White Collars, Nat'l L.J., March 11, 1989, at 572 [hereinafterMoore] (Forfeiture is the tactical nuclear weapon of criminal prosecution);Dennis Cauchon, Are Seizures ‘Legalized Theft’?, USA TODAY, May 18,1992, at 1A [hereinafter Cauchon] (“ ‘It is to the drug war what smart bombsand air power are to modern warfare’ ”) (quoting Justice Dep't forfeiturechief Cary Copeland). See also Committee on Criminal Advocacy, TheForfeiture of Attorney Fees in Criminal Cases: A Call For ImmediateRemedial Action, 41 THE REC. OF THE ASS'N OF THE BAR OF THE CITYOF N.Y. 469 (1986).

See Amicus Brief of the American Bar Association in Support of Petitioner,Caplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989) (No.87­1729) [hereinafter ABA Brief] (pagination not available); Brief ofRespondent, United States v. Monsanto, 491 U.S. 600 (1989) (No. 88­454)[[[hereinafter Respondent Brief—Monsanto] (pagination not available), Jointand Combined Amicus Brief of the National Association of Criminal DefenseLawyers, the National Network for the Right to Counsel, the American CivilLiberties Union, The New York Civil Liberties Union and The American CivilLiberties Union of Virginia in support of the Petitioner and Respondent inCaplin & Drysdale, Chartered v. United States, 491 U.S. 617 (1989) (No.87­1729), and the Respondent in United States v. Monsanto, 491 U.S. 600(1989) (No. 88­454) [hereinafter NACDL Brief] (pagination not available).

United States v. Jones, 837 F.2d 1332 (5th Cir.1988); United States v.Monsanto, 852 F.2d 1400 (2d Cir.1988) (per curiam); United States v.Moya Gomez, 860 F.2d 706 (7th Cir.1988); United States v. Nichols, 841F.2d 1485 (10th Cir.1988); In re Caplin & Drysdale, Chartered, 837 F.2d

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637 (4th Cir.1988) (en banc); United States v. Friedman, 849 F.2d 1488(D.C.Cir.1988); United States v. Harvey, 814 F.2d 905 (4th Cir.1987);United States v. Thier, 801 F.2d 1463 (5th Cir.1986), modified per curiam,809 F.2d 249 (1987); United States v. Madeoy, No. 86­0377 (D.D.C. Oct. 2,1987) (Westlaw, Allfeds Database); United States v. Truglio, 660 F.Supp.103 (N.D.W.Va.1987); United States v. Bailey, 666 F.Supp. 1275(E.D.Ark.1987); United States v. Estevez, 645 F.Supp. 869 (E.D.Wis.1986);United States v. Figueroa, 645 F.Supp. 453 (W.D.Pa.1986); United Statesv. Basset, 632 F.Supp. 1308 (D.Md.1986); United States v. Rogers, 602F.Supp. 1332 (D.Colo.1985); United States v. Badalamenti, 614 F.Supp.194 (S.D.N.Y.1985); United States v. Ianniello, 644 F.Supp. 452(S.D.N.Y.1985). See also United States v. Unit No. 7 and Unit No. 8 of Shopin Grove Condominium, 890 F.2d 82 (8th Cir.1989); United States v.$876,915.00 in United States Currency, 874 F.2d 104 (2d Cir.1989)(involving forfeiture of attorneys fees in civil forfeiture cases under 21U.S.C. § 881).

See, e.g., Berg & Androphy, The Comprehensive Crime Control Act of1984, HOUSTON LAW. 37 (March­April 1986); Morgan Cloud, ForfeitingDefense Attorneys' Fees: Applying an Institutional Role Theory to DefineIndividual Constitutional Rights, 1987 WIS.L.REV. 1; Daniel A. Guy, Jr.,Comment, Forfeiture of Attorney's Fees Under the ComprehensiveForfeiture Act of 1984: Not What Congress Ordered, 16 U.BALT.L.REV. 120(1986); Eric R. Markus, Procedural Implications of Forfeiture Under RICOand CCE, and the Comprehensive Forfeiture Act of 1984: Reforming theTrial Structure, 59 TEMP.L.Q. 1097 (1986); Richard W. Mass, Note,Forfeiture of Attorneys' Fees: Should Defendants be Allowed to Retain the“Rolls­Royce of Attorneys” with the “Fruits of the Crime”?, 39 STAN.L.REV.663 (1987); R. Hewitt Pate: Payment of Attorneys' Fees With PotentiallyForfeitable Assets, 22 CRIM.L.BULL. 326 (1986); John R. Russell,Comment, The Constitutionality of Attorney Fee Forfeiture under RICO andCCE, 22 J. MARSHALL L.REV. 155 (1988); Calvin Sterk, Note, Forfeitabilityof Attorneys Fees Traceable as Proceeds From a RICO Violation Under theComprehensive Crime Control Act of 1984, 32 WAYNE L.REV. 1499 (1986);Symposium on Forfeiture Under State and Federal Statutes: Forfeiture ofAttorney's Fees and the Question of the Interrelationship of Federal andState Law, 11 U. BRIDGEPORT L.REV. 285 (1991); Comment, Today'sRICO and Your Disappearing Legal Fee, 15 CAP.U.L.REV. 59 (1985).

Pub.L. No. 91­452, 84 Stat. 922 (as amended (1970)).

Pub.L. No. 91­513, 84 Stat. 1265 (as amended (1970)).

Prior to the enactment of these statutes, criminal forfeiture statutes werevirtually unknown. Until 1970, the government's right to take possession ofproperty was confined to civil forfeiture proceedings which, being in rem,were confined to misuse of property and forfeiture acted against theproperty itself, not the possessor. Criminal forfeiture has been prohibitedsince 1790. See Act of April 30, 1790, Ch. 9, 1 Stat. 117. An exception tothis was the Confiscation Act passed in 1862 by the Radical Republicans.That act authorized President Lincoln to forfeit property of Confederatesympathizers. The Supreme Court upheld the statute, but on the basis thatit was passed pursuant to Congress' War Powers. Wallach v. Van Reswick,92 U.S. 202 (1875). See also Calero­Toledo v. Pearson Yacht Leasing Co.,416 U.S. 663, 683 (1974); United States v. Rubin, 559 F.2d 975, 991 n. 15(5th Cir.1977), cert. denied, 444 U.S. 864 (1979); United States v.Schmalfeldt, 657 F.Supp. 385, 387 (W.D.Mich.1987); United States v. Veon,538 F.Supp. 237 (E.D.Cal.1982).

Both RICO and CCE have survived constitutional challenges. See UnitedStates v. Boylan, 620 F.2d 359, 360­361 (2d Cir.1980) (CCE); United Statesv. Long, 654 F.2d 911, 915­16 (3d Cir.1981) (RICO); United States v.Brooklier, 637 F.2d 620, 624 (9th Cir.1980) (RICO), cert. denied, 450 U.S.980 (1981). See also Susan W. Brenner, RICO, CCE, and Other ComplexCrimes: The Transformation of American Criminal Law?, 2 WM. & MARYBILL RTS.J. 239 (1993).

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Pub.L. No. 91­452, § 901(a), 84 Stat. 941 (codified as amended at 18U.S.C. § 1961 et seq. (1994)).

Pub.L. No. 98­473, §§ 302, 2301, 98 Stat. 2044, 2192­93 (1984).

See Virginia G. Maurer, The Continuing Expansion of RICO in BusinessLitigation, 33 BUSINESS HORIZONS 80 (September 1990) [hereinafterMaurer].

See Hafetz, supra note 10. In Sedima, S.P.R.L. v. Imrex Co. Inc., 473 U.S.479 (1985) the Supreme Court noted that of the 270 RICO decisionsdecided by district courts “only 3% ... were decided throughout the 1970's,2% were decided in 1980, 7% in 1981, 13% in 1982, 33% in 1983, and 43%in 1984.” Id. at 481 n. 1.

See Robert G. Morvillo, Forfeiture of Legal Fees, N.Y.L.J., April 2, 1991, at3 [hereinafter Morvillo]. See also United States v. Cauble, 706 F.2d 1322(5th Cir.1983); United States v. L'Hoste, 615 F.2d 383 (5th Cir.1980) (percuriam).

See Comptroller General, U.S. G.A.O., ASSET FORFEITURE—A SELDOMUSED TOOL IN COMBATING DRUG TRAFFICKING 1981.

Id.

Pub.L. No. 98­473, 98 Stat. 2044, 2044­45 (as amended (1984)).

Id.

21 U.S.C. § 853(c) (1988); 18 U.S.C. § 1963(c) (1994):

All right, title, and interest in property described in subsection (a) vests inthe United States upon commission of the act giving rise to forfeiture underthis section. Any such property that is subsequently transferred to a personother than the defendant may be the subject of a special verdict of forfeitureand thereafter shall be ordered forfeited to the United States, unless thetransferee establishes in a hearing pursuant to subsection (l) [subsection(n) in the CCE] that he is a bona fide purchaser for value of such propertywho at the time of purchase was reasonably without cause to believe thatthe property was subject to forfeiture under this section.

Id. This doctrine was also codified in the civil forfeiture statute 21 U.S.C. §881(h). This provision was aimed at “pre­conviction transfers ... that werenot ‘arm's length’ transactions.” S.REP. No. 225, 98th Cong., 2d Sess., 200­201 (1984), reprinted in 1984 U.S.C.C.A.N., 3182, 3383­84 [hereinafterS.REP. 225].

21 U.S.C. § 853(e) (1988); 18 U.S.C. § 1963(d) (1994). Concerning theseprovisions, the House Report stated that “[n]othing in this section isintended to interfere with a person's Sixth Amendment Right to counsel.”H.R.REP. 845, 98th Cong., 2d Sess. Pt. 1, at 19 n. 1 (1984).

21 U.S.C. § 853(c), (n) (1988); 18 U.S.C. § 1963(c), (1) (1994). Thisprovision applies to good­faith transferees and “[s]hould be construed todeny relief to third­parties who knowingly engages in sham or fraudulenttransactions.” S.Rep. 225, supra note 26, at 209 n. 47.

21 U.S.C. § 853(d) (1988). See United States v. Elgersma, 971 F.2d 690(11th Cir.1992) (Preponderance of the evidence standard, rather thebeyond a reasonable doubt standard, applied to forfeitures under CCE);United States v. Haro, 685 F.Supp. 1468 (E.D.Wis.1988), aff'd, 893 F.2d1512 (7th Cir.), cert. denied, 496 U.S. 927 (1990) (not unconstitutional onthe theory that the statute impermissibly shifted the burden of proof to thedefendant in a criminal case). See also United States v. Simone, 931 F.2d1186 (7th Cir.), cert. denied, 502 U.S. 981 (1991); United States v. Herrero,893 F.2d 1512 (7th Cir.1990); United States v. Hernandez­Escarsega, 886F.2d 1560 (9th Cir.1989), cert. denied, 497 U.S. 1003 (1990).

21 U.S.C. § 853(o) (emphasis added).

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United States v. Wu, 814 F.Supp. 491, 493 (E.D.Va1993). See also UnitedStates v. Russello, 464 U.S. 16 (1983) (for similar language applicable toRICO).

United States v. Real Property Located at 2525 Leroy Lane, 910 F.2d 343(6th Cir.1990) (criminal forfeiture provisions authorize in personam actionagainst defendant in criminal case and forfeiture in such case is imposed asa sanction upon the defendant upon his conviction.), cert. denied, 499 U.S.947 (1991); United States v. Angiulo, 897 F.2d 1169, 1210 (1st Cir.1990)(“RICO forfeiture ... is an in personam rather than an in rem action”), cert.denied, 498 U.S. 845 (1990); United States v. Alexander, 772 F.Supp. 440,441 (D.Minn.1990) (RICO forfeiture sanctions are “in personam, rather thanin rem, thereby punishing the individual rather than the property.”).

21 U.S.C. § 853(a) (1988); 18 U.S.C. § 1963(a) (1994) (“The court, inimposing sentence on such person shall order, in addition to any othersentence imposed pursuant to this section [subchapter or subchapter II ofthis chapter (CCE) ], that the person forfeit to the United States all propertydescribed in this subsection.”). See Federal Sentencing Guidelines, 18U.S.C.A.App. 4 § 5E1.4—Forfeiture (“Forfeiture is to be imposed upon aconvicted defendant as provided by statute.”). See also United States v.Boatner, 966 F.2d 1575, 1581 (11th Cir.1992) (“[S]tatutory language of853(a) indicates that forfeiture is a consequence of a defendant's drugactivity rather than a determination of culpability.”); United States v.Masters, 924 F.2d 1362 (7th Cir.1991) (joint and several liability), cert.denied, 500 U.S. 919 (1991) and cert. denied, 502 U.S. 823 (1991); UnitedStates v. Wilson, 742 F.Supp. 905 (E.D.Pa.1989), aff'd 909 F.2d 1478, cert.denied, 498 U.S. 1016 (1990); United States v. Ambrosio, 575 F.Supp. 546(E.D.N.Y.1983) (Imposed directly on the convicted person).

21 U.S.C. § 853(a) (1988) (referring to crimes enumerated in 21 U.S.C. §848(c)).

A person is engaged in a ‘continuing criminal enterprise’ if—(1) he violatesany provision of this subchapter or subchapter II of this chapter thepunishment for which is a felony, and (2) such [felony] is a part of acontinuing series of violations of this subchapter or subchapter II of thischapter—(A) which are undertaken by such person in concert with five ormore other persons with respect to whom such person occupies a positionof organizer, a supervisory position, or any other position of management,and (B) from which such person obtains substantial income or resources.

21 U.S.C. § 848(c) (1988).

18 U.S.C. § 1962(a) (1994).

Id.

Id. § 1962(b).

Id. § 1962(c).

Id. § 1962(d). See United States v. Caporale, 806 F.2d 1487 (11thCir.1986) (forfeiture can be ordered in connection with conspiracy charge).

See 18 U.S.C. § 1961(1) (1994).

Supreme Court cases addressing RICO include: National Organization ofWomen, Inc. v. Scheidler, 114 S.Ct. 798 (1994) reh'g denied, 114 S.Ct.1340 (1994); Reves v. Ernst & Young, 113 S.Ct. 1163 (1993); Holmes v.Securities Investor Protection Corp., 503 U.S. 258 (1992); Tafflin v. Levitt,493 U.S. 455 (1990), reh'g denied, 495 U.S. 915 (1990); Fort WayneBooks, Inc. v. Indiana, 489 U.S. 46 (1989); Agency Holding Corp. v. Malley­Duff & Associates, Inc., 483 U.S. 143 (1987); Shearson/American Exp., Inc.v. McMahon, 482 U.S. 220 (1987), reh'g denied, 483 U.S. 1056 (1987);Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479 (1985); Russello v. UnitedStates, 464 U.S. 16 (1983); United States v. Turkette, 452 U.S. 576 (1981).

Recent scholarly commentary includes: Thomas W. Alvey, Puncturing the

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RICO Balloon: The Judicial Imposition of the 10b­5 Purchaser­SellerRequirement, 41 WASH.U.J.URB. & CONTEMP.L. 193 (1992); Lesley S.Bonney, The Prosecution of Sophisticated Street Gangs: A ProperApplication of RICO, 42 CATH.U.L.REV. 579 (1993); Susan W. Brenner,Civil Complicity: Using the Pinkerton Doctrine to Impose Vicarious Liability inRICO Actions, 81 KY.L.J. 369 (1992­93); Christopher P. De Phillips, CanCongress Save RICO from Judicial Overkill?, 15 SETON HALL LEGIS.J.545 (1991); Robert T. Hawkes, The Conflict Over RICO's Private TrebleDamages Action, 70 CORNELL L.REV. 902 (1985); Evi Joseph, TheApplication of RICO to International Terrorism, 58 FORDHAM L.REV. 1071(1990); Julie R. Lewis, An Offer He Couldn't Refuse: Firestone v. GalbreathFinds that the Racketeer Influenced and Corrupt Organizations Act (RICO)is Unconstitutionally Vague, 23 U.TOL.L.REV. 619 (1992); David M.Ludwick, Restricting RICO: Narrowing the Scope of Enterprise, 2 CORNELLJ.L. & PUB. POL'Y 381 (1993); Gerald E. Lynch, RICO: The Crime of Beinga Criminal, Parts I & II, 87 COLUM.L.REV. 661 (1987); Virginia G. Maurer,Holmes v. SIPC: A New Direction for RICO Standing?, 5 U.FLA.J.L. & PUB.POL'Y 73 (1992); Virginia Maurer, Antitrust and RICO: Standing on theSlippery Slope, 25 GA.L.REV. 711 (1991); Kristen Neller, ExtraterritorialApplication of RICO: Protecting U.S. Markets in a Global Economy, 14MICH.J. INT'L L. 357 (1993); Curtis E. Pew, Pleading Maritime RICO, 12TUL.MAR.L.J. 69 (1987); Jane Rohrer, What Price Investor Confidence?RICO Abuse as Compensable Takings, 66 S.CAL.L.REV. 1675 (1993);Jeffrey N. Shapiro, Attorney Liability Under RICO § 1962(c) After Reves v.Ernst & Young, 61 U.CHI.L.REV. 1153 (1994); Ann B. Whitely, CollectiveInstitutional Guilt: The Emergence of International Union's RICO Liability forLocal Union Crimes, 21 AM.J.CRIM.L. 291 (1994).

See In re Drexel Burnham Lambert Group, 130 Bankr. 910 (S.D.N.Y.1991);FDIC v. Milken, 781 F.Supp. 226 (S.D.N.Y.1991). Perhaps no use of RICOso outraged the legal community as the part of the plea agreementbetween the Government and Drexel Burnham that stripped Michael Milkenof millions of dollars worth of bonuses and employee benefits. Manycontend that the company was faced with an impossible choice betweenpleading guilty or possibly going out of business via a RICO charge and thatit was coerced into settlement. See also Moore, supra note 10; BarberaBlack, Racketeer Influenced Corrupt Organization (RICO)—Securities andCommercial Fraud as Racketeering Crime after Sedima: What is a “Patternof Racketeering Activity”?, 6 PACE L.REV. 365 (1986); Michael D. DiMedio,A Deterence Theory Analysis of Corporate RICO Liability for “Fraud in theSale of Securities”, 1 GEO. MASON U.L.REV. 135 (1994).

A religious leader has never been convicted under RICO. See JonathanTurley, Laying Hands on Religious Racketeers: Applying Civil RICO toFraudulent Religious Solicitation, 29 WM. & MARY L.REV. 476 n. 164(1988). On the other hand, fraud charges have been brought againstreligious leaders. United States v. Gering, 716 F.2d 615 (9th Cir.1983); seealso Scott v. Rosenberg, 702 F.2d 1263 (9th Cir.1982), cert. denied, 465U.S. 1078 (1983).

Gates v. Ernst & Young, No. CIV. A. 93­CU­2332, 1994 WL 444709(E.D.Pa.1994); Ligon v. Deloitte, Haskins & Sells, 957 F.2d 546 (8thCir.1991). See also Right to Bring Securities Fraud and RICO ActionAgainst Auditors Upheld, J. ACCT., June 1992; Jan S. Blaising, Are theAccountants Accountable? Auditor Liability in the Savings and Loan Crisis,25 IND.L.REV. 475 (1991); Julie Faussie, Limiting Liability in PublicAccounting Suits: A Desperate Appeal From a Beleaguered Profession, 28VAL.U.L.REV. 1041 (1994); Walter G. Ricciardi, Liability of Accountants forForecasts and Projections, C905 ALI­ABA 151 (1994).

United States v. Noriega, 746 F.Supp. 1548 (S.D.Fla.1990). See alsoNathan Whatley, Criminal Procedure: United States v. Noriega: CriminalForfeiture of Attorneys Fees and Due Process Requirements, 44OKLA.L.REV. 729 (1991).

Moss v. Morgan Stanley, Inc., 719 F.2d 5 (2d Cir.1983), cert. denied subnom., Moss v. Newman, 465 U.S. 1025 (1984); Divco Constr. & Realty

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Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 575 F.Supp. 712(S.D.Fla.1983). See also Robert G. Lendino, Partaker or Prey? FuturesCommission Merchants under Civil RICO and Commodity Exchange Act, 16FORDHAM URB.L.J. 69 (1987­1988).

National Organization for Women v. Scheidler, 114 S.Ct. 798 (1994). Seealso Anne Melley, The Stretching of Civil RICO: Pro­Life Demonstrators areRacketeers?, 56 UMKC L.REV. 287 (1988); Michele R. Moretti, Using CivilRICO to Battle Anti­Abortion Violence: Is the Last Weapon in the Arsenal aSword of Damocles?, 25 NEW ENG.L.REV. 1363 (1991); Geri J. Yonover,Fighting Fire with Fire: Civil RICO and Anti­Abortion Activists, 12 WOMEN'SRTS.L.REP. 153 (1990).

United States v. Alexander, 113 S.Ct. 2766 (1993); Adult Video Ass'n v.Barr, 960 F.2d 781 (9th Cir.1992) (holding RICO's applicationunconstitutional with regard to the first amendment). See also Note, B.Alexander v. United States: Can RICO's Forfeiture Provisions SurviveAlexander's Challenge?, 20 J.CONTEMP.L. 180 (1994); Note, RICOForfeiture of Presumptively Protected Expression, 107 HARV.L.REV. 1244(1993); Justin Fineberg, The First Amendment & RICO: Limiting PriorRestraints, 45 FLA.L.REV. 543 (1993); Ana M. Marin, RICO's ForfeitureProvision: A First Amendment Restraint on Adult Bookstores, 43 U.MIAMIL.REV. 419 (1988).

Yellow Bus Lines, Inc. v. Local Union 639, 913 F.2d 948 (D.C.Cir.1990);United States v. Local Union 560, 780 F.2d 267 (3d Cir.1985), cert. denied,476 U.S. 1140 (1986); United States v. Thordarson, 646 F.2d 1323 (9thCir.1981), cert. denied, 454 U.S. 1055 (1982); MHC, Inc. v. United MineWorkers of America, 685 F.Supp. 1370 (E.D.Ky.1988); Butcher's Union,Local 498 v. SDC Investments, Inc., 631 F.Supp. 1001 (E.D.Cal.1986). Seealso Scott D. Miller, RICO's Application to Labor's Illegal Strike Conduct:Reconciling RICO with the NLRA, 11 HAMLINE J.PUB.L. & POL'Y 233(1990); Eric A. Tilles, Comment, Union Receiverships under RICO: A UnionDemocracy Perspective, 137 U.PA.L.REV. 929 (1989); Kenneth R.Wallentine, A Leash Upon Labor: RICO Trusteeships on Labor Unions, 7HOFSTRA LAB L.J. 341 (1990).

Republic of Philippines v. Marcos, 862 F.2d 1355 (9th Cir.1988).

H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229 (1989). See alsoCharles W. Coltrane, Civil RICO—In Search of a “Pattern”—H.J. Inc. v.Northwestern Bell Telephone Co., 25 WAKE FOREST L.REV. 315 (1990);Dawn T. Trabeau, Comment, H.J., Inc. v. Northwestern Bell Telephone Co:Another Contribution to RICO Confusion, 50 LA.L.REV. 1219 (1990).

See, e.g., United States v. Antar, 839 F.Supp. 293 (D.N.J.1993) (forfeiturewas used against Edie Antar, president and CEO of Crazy Eddieselectronics. This was the first time outside of the drug arena that forfeiturehad been used to seize attorneys fees.).

Congregation Beth Yitzhok v. Briskman, 566 F.Supp. 555 (E.D.N.Y.1983).

United States v. Bonnano Organized Crime Family of La Cosa Nostra, 683F.Supp. 1411 (E.D.N.Y.1988), aff'd, 879 F.2d 20 (2d Cir.1989). SeeMaurer, supra note 19. Because of its wide application it is not surprisingthat RICO has gained a colorful coalition of critics running from “Wall Streetto civil libertarians to the mob....” Kim Murphy, Law's Use Held Out ofControl? The Long Arm of RICO—Is it Reaching Too Far?, L.A. TIMES,April 17, 1989, part 1, p. 1, col. 1. [hereinafter Murphy]; Robert Blakely, aformer Senate staffer who largely drafted RICO claims that “[It was] clear itwas not [[[to apply to] mobsters only; absolutely it was not.” Murphy, at p. 1,col. 1.

See Jensen v. Snellings, 841 F.2d 600 (5th Cir.1988). See also Cooper &Rice, The Statutory Liability of Attorneys Under RICO, 53 INS. COUNSEL J.549, 551 n. 14 (1986) for a complete listing of cases involving attorneyRICO defendants; Richard L. Grubb, Attorney Liability Under the FederalRICO Statute: A Call for Awareness in the Absence of Reform, 96

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DICK.L.REV. 257 (1992).

21 U.S.C. § 853(a) provides for the forfeiture of

(1) any property constituting, or derived from, any proceeds the personobtained, directly or indirectly, as the result of such violation; (2) any of theperson's property used, or intended to be used, in any manner or part, tocommit, or to facilitate the commission of, such violation; and (3) in the caseof a person convicted of engaging in a continuing criminal enterprise inviolation of section 848 of this title, the person shall forfeit, in addition to anyproperty described in paragraph (1) or (2), any of his interest in, claimsagainst, and property or contractual rights affording a source of controlover, the continuing criminal enterprise.

18 U.S.C. § 1963(a) requires forfeiture of

(1) any interest the person has acquired or maintained in violation ofsection 1962; (2) any—(A) interest in; (B) security of; (C) claim against; or(D) property or contractual right of any kind affording a source of influenceover; any enterprise which the person has established, operated,controlled, conducted, or participated in the conduct of, in violation ofsection 1962; and (3) any property constituting, or derived from, anyproceeds which the person obtained, directly or indirectly, from racketeeringactivity or unlawful debt collection in violation of section 1962.

Id.

For purposes of both statutes, “[p]roperty subject to criminal forfeitureincludes (1) real property, including things growing on, affixed to, and foundin land; and (2) tangible and intangible personal property, including rights,privileges, interest, claims and securities.” 21 U.S.C. § 853(b) (1988); 18U.S.C. § 1963(b) (1994).

See United States v. Sarbello, 985 F.2d 716 (3d Cir.1993); United States v.Porcelli, 865 F.2d 1352 (2d Cir.1989) (“A RICO enterprise found [to be aracketeering enterprise] is indivisible and is forfeitable in its entirety.”), cert.denied, 493 U.S. 810 (1989); United States v. Littlefield, 821 F.2d 1365 (9thCir.1987) (“by specifying that property is subject to forfeiture if ... used ‘inany manner or any part’ to commit or facilitate a drug offense, [the statuteprovides] for forfeiture ... even where only a portion of [the property is] usedfor prohibited purposes ...” 821 F.2d at 1367 (Defendant's use of a portionof a 40 acre parcel of property to cultivate marijuana rendered the entireparcel of property subject to forfeiture where 853 requires forfeiture of anyproperty used, or intended to be used, in any manner or part); UnitedStates v. Robilotto, 828 F.2d 940 (2d Cir.1987), cert. denied, 484 U.S. 1011(1988); United States v. Ginsburg, 773 F.2d 798 (7th Cir.1985), cert.denied, 475 U.S. 1011 (1986); United States v. Walsh, 700 F.2d 846, 857(2d Cir.1983) (“RICO's forfeiture provision was designed to imposeforfeiture upon defendant's entire interest in the RICO enterprise, so as tosever his connection with it. Determining the degree of the enterprise'scriminal taint is not contemplated by the statute”), cert. denied, 464 U.S.825 (1983); United States v. Saccocia, 823 F.Supp. 994 (D.R.I.1993)(applying to all proceeds); United States v. Martenson, 780 F.Supp. 492(N.D.Ill.1991) (House was subject to forfeiture in connection with convictionunder RICO, despite state homestead statute prohibiting seizing home onaccount of debt); United States v. Mageean, 649 F.Supp. 820(D.Nev.1986); United States v. Bonnano Organized Crime Family of LaCosa Nostra, 683 F.Supp. 1411 (E.D.N.Y.1988), aff'd, 879 F.2d 20 (2dCir.1989). See also Kathleen F. Brickey, RICO Forfeitures as “ExcessiveFines” or “Cruel and Unusual Punishments”, 35 VILL.L.REV. 905 (1990);Craig W. Palm, RICO Forfeiture and the Eighth Amendment: When isEverything to Much?, 53 U.PITT.L.REV. 1 (1991); John L. Roberts, Note,Constitutional Law—Eighth Amendment as Applied to RICO CriminalForfeiture—United States v. Busher, 817 F.2d 1409 (9th Cir.1987), 10W.NEW ENG.L.REV. 393 (1988); William W. Taylor, The Problem ofProportionality in RICO Forfeitures, 65 NOTRE DAME L.REV. 885 (1990);Note, Forfeitability of Attorneys Fees Traceable as Proceeds from RICOViolation under the Comprehensive Crime Control Act of 1984, 32 WAYNE

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L.REV. 1499 (1986).

See Robert G. Morvillo, Forfeiture and Its Constitutional Dimensions,N.Y.L.J. June 1, 1992, at 3. Contra Steven Wisotsky, Crackdown: TheEmerging “Drug Exception” to The Bill of Rights, 38 HASTINGS L.J. 889(1987).

FED.R.CRIM.P. 7(c)(2). 21 U.S.C. § 853(j) and 18 U.S.C. § 1963(h) applythe provisions of 21 U.S.C. § 881(d) to criminal forfeiture proceedings, tothe extent that they are not inconsistent with the rules contained in the CCEand RICO forfeiture statutes.

21 U.S.C. § 881(d) adopts procedures contained in the Customs Laws at 19U.S.C. § 1602 et seq. which are made applicable to civil forfeiture under 28U.S.C. § 2461(a). The Customs laws set forth a particular scheme for thegovernment to follow in forfeiture proceedings. If the property that thegovernment seeks to forfeit is valued at less than $500,000, thegovernment may proceed via an administrative forfeiture by posting anotice of intent “to forfeit and sell or otherwise dispose” of property. 19U.S.C. § 1607(a). See Doyle v. D.E.A., No. 89­16093, slip op. at 1 (9th Cir.Aug. 28, 1991).

Any person with an interest in the seized property may file, within the twentyday period following the publication of notice to forfeit, an administrativeclaim and post a cost bond pursuant to 28 CFR 9.1­9.7 and 21 CFR1316.71­81, thereby halting the administrative process under 28 U.S.C. §1608 and requiring the government to bring a formal civil forfeiture actionagainst the property. See Onwubiko v. United States, 969 F.2d 1392, 1398(2d Cir.1992); United States v. Millan­Colon, 836 F.Supp. 994, 999­1000(S.D.N.Y.1993). Such a claim confers jurisdiction on the district court tohear the action. 28 U.S.C. § 1345(a)(1) (1988). The administrative claimgives the claimant no rights in the property, it merely insures that a judicialproceeding will occur prior to forfeiture of the property. If the claimantsatisfies the district court's procedural requirements, the claimant maycontest the forfeiture in court. See also United States v. U.S. Currency inthe amount of $2,877.00, 754 F.2d 208 (7th Cir.1985); United States v.Schmalfeldt, 657 F.Supp. 385, 392 (W.D.Mich.1987).

If no timely claim and cost bond is filed within the requisite twenty days, theproperty is administratively forfeited pursuant to 19 U.S.C. § 1609. SeeUnited States v. One Tintoretto Painting Entitled, “The Holy Family with St.Catherine and Honored Donor”, 691 F.2d 603, 608 (2d Cir.1982);Onwubiko, 969 F.2d at 1398; Millan­Colon, 836 F.Supp. at 999. If thetwenty day period expires the claimant must petition the DEA's AssetForfeiture Section, within 30 days of receiving notice, for remission of theforfeiture. 28 CFR 9.3. Beyond the twenty day period, federal district courtslack jurisdiction to review the merits of an administrative forfeiture, unlessthe proceeding was procedurally deficient. See United States v. One 1987Jeep Wrangler Automobile VIN No. 2BCCL8132HBS12835, 972 F.2d 472,480 (2d Cir.1992). Where the government forfeits the property accidentally,fraudulently or improperly, the district court retains jurisdiction to remedythe deficiency. See also Scarabin v. DEA, 919 F.2d 337, 338 (5th Cir.1990).

Because administrative forfeitures are constitutionally inconsistent with therights afforded a criminal defendant, such forfeitures may not be usedunder § 853(j) and § 1963(h). See United States v. Musson, 802 F.2d 384,387 (10th Cir.1986) (“The statute expressly requires that the indictmentreturned by the grand jury include an express allegation that the specifiedproperty would be subject to forfeiture in the event of a criminal conviction”).See also United States v. Grammatikos, 633 F.2d 1013 (2d Cir.1980) (Theprincipal objective of the rule which provides that no judgement of forfeituremay be entered in a criminal proceeding unless the indictment or theinformation alleges the extent of the interest in the property subject toforfeiture is to provide persons facing such charges with notice thatforfeiture will be sought); United States v. Payden, 613 F.Supp. 800, 809(S.D.N.Y.1985) (Rule satisfied by broad allegation regarding the items to besought); United States v. Standard Drywall Corp., 617 F.Supp. 1283

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(E.D.N.Y.1985). See also Mary M. Cheh, Constitutional Limits on Using CivilRemedies to Achieve Criminal Law Objectives: Understanding andTranscending the Criminal­Civil Law Distinction, 42 HASTINGS L.J. 1325(1991).

21 U.S.C. § 853(a) (1988) (“Any person convicted of a violation of thissubchapter or subchapter II of this chapter punishable by imprisonment formore than one year....”); 18 U.S.C. § 1963(a) (“Whoever violates anyprovision of section 1962....”). While such language does not explicitly statethat a conviction is required to forfeit property, the Supreme Court hasrepeatedly held that punishment prior to conviction is unconstitutional. SeeUnited States v. Salerno, 481 U.S. 739, 746 (1987); Bell v. Wolfish, 441U.S. 520, 536­37 (1979); United States v. Gelb, 783 F.Supp. 748(E.D.N.Y.1991) (Serves as a penalty upon conviction and RICO forfeiture is“punitive, not a restitutive measure.”) (quoting United States v. Lizza Indus.,775 F.2d 492, 498 (2d Cir.1985)) “It is not illegal money unless theprosecutor proves the defendant is guilty and then proves the money ...came from that [activity].”; United States v. Schmalfeldt, 657 F.Supp. 385,387 (W.D.Mich.1987) (“The distinguishing characteristic of criminalforfeiture is that, unlike the in rem character of civil forfeiture, the personalguilt of the defendant is at issue.”); United States v. Ambrosio, 575 F.Supp.546 (E.D.N.Y.1983) (“[P]roperty must be before the court [for] thegovernment [to] constitutionally deprive [the RICO defendant] of thatinterest ... [and,] [b] efore [his] interest in [the] enterprise can be ... forfeitedunder RICO, [the defendant] must be convicted of an offense prohibited byRICO. Guilt or innocence of the owner of the interest subject to forfeiture iscrucial....”). June Ulkoski, Seizing Lawyers' Fees, FOCUS, September 6,1989, sec. 1, at 16 (quoting Arthur Donato, President of Penn. Ass'n ofCriminal Defense Lawyers) [[[hereinafter Ulkoski]; Petition for Cert.—Caplin,supra note 3; United States v. Long, 654 F.2d 911, 915 (3d Cir.1981).

FED.R.CRIM.P. 31(e) (“If the indictment or information alleges that aninterest or property is subject to criminal forfeiture, a special verdict shall bereturned as to the extent of the interest or property subject to forfeiture, ifany.”). See Russello v. United States, 464 U.S. 16 (1983) (conviction andforfeiture judgment decided at trial); United States v. Alexander, 32 F.3d1231 (1994) (conviction and forfeiture judgment decided at trial); UnitedStates v. Strissel, 920 F.2d 1162 (1990) (per curiam) (conviction andforfeiture judgment decided at separate hearings).

See United States v. Vriner, 921 F.2d 710 (7th Cir.1991) (Mandatoryforfeiture under § 853 was not grossly disproportionate punishment inviolation of the Eighth Amendment); United States v. Busher, 817 F.2d1409, 1414 (9th Cir.1987) (Forfeiture provision of RICO affords the trialcourt no discretion and gives no authority to exclude any property that thejury determines is “acquired, maintained or operated” in violation of theracketeering statute); United States v. Kravitz, 738 F.2d 102 (3d Cir.1984)(“Shall” within the meaning of subsection (a) of this section [[[1963]providing that whoever violates this chapter by engaging in prohibitedracketeering activity “shall” forfeit illegally used interest, was mandatory.),cert. denied, 470 U.S. 1052 (1985); See also United States v. Monroe, 866F.2d 1357 (11th Cir.1989); United States v. Navarro­Ordas, 770 F.2d 959(11th Cir.1985), reh'g denied, 776 F.2d 1057 (1985), cert. denied, 475 U.S.1016 (1986); United States v. Rangonese, 607 F.Supp. 649 (S.D.Fla.1985).

Mandatory forfeiture requires that the entire interest in the forfeited propertymust vest in the government. See United States v. Trotter, 912 F.2d 964,966 (8th Cir.1990) (“We find no authority (nor has such authority beenbrought to our attention) that extends discretion to a district judge to directthe payment of a fine imposed upon a criminal defendant with monies[forfeited to the United States by the defendant.]”). Hoxworth v. BlinderRobinson & Co. Inc., 903 F.2d 186 (3d Cir.1990) (Overruling forfeitureorder that included stocks and bonds having no relationship to illegalactivity).

See 21 U.S.C. § 853(c) (1988); 18 U.S.C. § 1963(c) (1994).

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United States v. De Ortiz, 910 F.2d 376, 379­80 (7th Cir.1990) ( “[G]overnment has a property interest ... in certain assets from the time [[[the]trafficking crimes have been committed....” The Government's interest is notperfected until the defendant is convicted and the jury returns a specialverdict that the property is forfeitable according to the terms of the statute,or, if the defendant pleads guilty and agrees to forfeiture, and the courtfinds factual basis for a forfeiture plea.); United States v. Nichols, 841 F.2d1485 (10th Cir.1988) (Congress may constitutionally use relation backprovision in § 853(c) to give the government title to assets related to acriminal activity at the time of the offense, since relation back provisions areaccepted in civil forfeiture proceedings and the concept may be extended tocriminal forfeiture proceedings); United States v. Reckmeyer, 836 F.2d 200,203 (4th Cir.1987) (Purpose of the Continuing Criminal Enterprise Actprovision that the interest of the United States in forfeitable property vestsupon commission of the act giving rise to the forfeiture is to preventdefendants from escaping the impact of forfeiture by transferring assets toa third party); United States v. Delco Wire & Cable Co., Inc., 772 F.Supp.1511 (E.D.Pa.1991) (Does not violate ex­post facto as the doctrine appliedeven before the statute was amended); United States v. Figueroa, 645F.Supp. 453, 455­56 (W.D.Pa.1986) (Relation back provision of the DrugAbuse Prevention Control Act did not preclude court­appointed attorneyfrom claiming interest in any part of the forfeited money on the ground thatthe government's interest in the money vested before counsel wasappointed); Payden v. United States, 605 F.Supp. 839 (S.D.N.Y.1985) (Ifthe defendant is found guilty, title to the forfeited assets relates back to thetime of the offense. Thus, title to the assets is not resolved until conclusionof the forfeiture proceeding), rev'd, 767 F.2d 26 (2d Cir.1985). See alsoGambina v. Commissioner, 91 T.C. 826 (1988) (Despite the fact that therelation back vested title in the property in the government, for purposes offederal taxation, the property was included in defendant's income for theyear received).

21 U.S.C. § 853(c) (1988); 18 U.S.C. § 1963(c) (1984) (Any property that issubsequently transferred to a person other than the defendant may be thesubject of a special verdict of forfeiture and thereafter shall be orderedforfeited to the United States).

FED.R.CRIM. 41(e). See Onwubiko v. United States, 969 F.2d 1392, 1392(2d Cir.1992) (“Where criminal proceedings against the movant havealready been completed, a district court should treat a rule 41(e) motion[,seeking return of seized property] as a civil complaint”). See also UnitedStates v. Giovanelli, 807 F.Supp. 351 (S.D.N.Y.1992).

Civil forfeiture actions are in rem against the property. By a legal fiction theproperty and not the owner is considered the guilty party. Various Items ofPersonal Property v. United States, 282 U.S. 577, 581 (1931) (“It is theproperty which is proceeded against, and, by resort to a legal fiction, heldguilty and condemned as though it were conscious instead of inanimate andinsentient.”) See also Scarabin v. Drug Enforcement Admin., 966 F.2d 989(5th Cir.1992); United States v. $84,740 U.S. Currency, 900 F.2d 1402 (9thCir.1990); United States v. Santoro, 866 F.2d 1538 (4th Cir.1989).

The majority of federal civil forfeiture actions are brought under 21 U.S.C. §881, The Comprehensive Drug Abuse Prevention and Control Act of 1970,Pub.L. No. 91­513, § 511, 84 Stat. 1236­78, (as amended (1970)); 18U.S.C. § 981 which was enacted by The Money Laundering Control Act of1986, Pub.L. No. 99­570, 1366(a), 100 Stat. 3207­35 (as amended (1986)).Section 881 was enacted in the same year as RICO and the CCE and wasdone so for essentially the same purpose: “ ‘[T]o deal in a comprehensivefashion with the growing menace of drug abuse in the United States.’ ”United States v. Schmalfeldt, 657 F.Supp. 385, 387 (W.D.Mich.1987)(quoting 1970 U.S.C.C.A.N. 4567).

The government initiates a civil forfeiture suit by filing a complaint againstthe property under The Supplemental Rules to the Federal Rules of CivilProcedure for Certain Admiralty and Maritime Claims (28 U.S.C.App.RuleC) made applicable to civil forfeiture actions under 28 U.S.C. § 2461(b)

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(1988) and 21 U.S.C. § 881(d) (1988). This triggers the issuance of asummons and warrant issued by the Court Clerk, with no prior notice orshowing of exigent circumstances required, 28 U.S.C.App.Rule C. If anadministrative forfeiture is brought, notice of intent to forfeit is all that §881(d) requires.

The Justice Department has no figures on the number of people who looseproperty in civil forfeiture that have never been charged with a crime. A St.Louis Dispatch investigation revealed that of 300 seizures in Illinois andMissouri, 59% of the people who lost property were not convicted of acrime. Cauchon, supra note 10. See Tamara R. Piety, Note, ScorchedEarth: How the Expansion of Civil Forfeiture Doctrine Has Laid Waste toDue Process, 45 U.MIAMI L.REV. 911 (1991).

The Government may also proceed under FED.R.CRIM.P. 41 and obtain anex parte pre­trial seizure order without a warrant where there is probablecause to believe that the property is dangerous to public health and safetyor where there is probable cause to believe that the property is subject tocivil forfeiture. § 881(b)(3) & (4). Such warrants last 3 months. Probablecause is required by the Fourth Amendment to the United StatesConstitution and applied to the seizures via 21 U.S.C. § 881(d). See UnitedStates v. LaSanta, 978 F.2d 1300, 1304­05 (2d Cir.1992); United States v.Pace, 898 F.2d 1218, 1242 (7th Cir.1990), cert. denied, 497 U.S. 1030(1990); United States v. Valdes, 876 F.2d 1554, 1557 (11th Cir.1989);United States v. Bush, 647 F.2d 357, 368 (3d Cir.1981); United States v.One 1978 Mercedes Benz, 711 F.2d 1297 (5th Cir.1983). Compare UnitedStates v. Good, 114 S.Ct. 492, 500 (1993) (When a home is seized forpurposes other than preserving evidence, “government action of thisconsequence must comply with the Due Process Clauses of the Fifth andFourteenth Amendments”); United States v. All Assets of Statewide AutoParts, Inc., 971 F.2d 896, 905 (2d Cir.1992) (Ex parte seizures should onlybe approved upon a showing of exigent circumstances.) United States v.Property at 4492 S. Livonia Rd., 889 F.2d 1258 (2d Cir.1989) (Pre­trialseizure of a home without notice and prior adversarial hearing inunconstitutional absent exigent circumstances).

A criminal conviction is not a prerequisite for a civil forfeiture action. Also, anacquittal of criminal charges will not preclude a subsequent civil forfeitureaction. United States v. One Assortment of 89 Firearms, 465 U.S. 354(1984). Indeed, the owner of the property need not have even participatedin the illegal activity. Though, courts have held that criminal and civilforfeiture actions may not be maintained concurrently against the propertyand its owner if such procedure interferes with the defendant's ability toretain counsel in the criminal prosecution. United States v. Millan­Colon,836 F.Supp. 994 (S.D.N.Y.1993); United States v. Nichols, 654 F.Supp.1541 (D.Utah 1987), rev'd on other grounds, 841 F.2d 1485 (10thCir.1988). See also United States v. $876,915 United States Currency,More or Less, 874 F.2d 104 (2d Cir.1989); United States v. $39,000 inCanadian Currency, 801 F.2d 1210, 1219 n. 7 (10th Cir.1986); UnitedStates v. Dunn, 630 F.Supp. 1035 (W.D.N.Y.1986). The government may,however, commence a criminal forfeiture action after it has seized propertypursuant to the civil forfeiture statute. United States v. Bouler, 799 F.Supp.581 (W.D.N.C.1992). Courts though have not favored the bringing of a civilforfeiture action after the commencement of a criminal action. See alsoUnited States v. Millan­Colon, 836 F.Supp. 994, 1002 (S.D.N.Y.1993)(Government may not initiate criminal forfeiture proceedings against certainproperty, and then administratively forfeit the same property.). But compareUnited States v. Real Property in Township of Charlton, 764 F.Supp. 1219,1221 (E.D.Mich.1991) (“[T]he government may not initiate judicial forfeitureproceedings against property worth less than [$500,000] and then beginadministrative forfeiture proceedings against the same property.... [Butrather] [the government] must elect between one of the two proceedings.”)The dismissal of a civil forfeiture action does not bar a later criminalforfeiture action against the same property where the civil action is notdismissed with prejudice. United States v. Maull, 855 F.2d 514 (8thCir.1988). See also Mary M. Cheh, Constitutional Limits on Using Civil

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Remedies to Achieve Criminal Law Objectives: Understanding andTranscending the Criminal­Civil Law Distinction, 42 HASTINGS L.J. 1325(1991); Henry C. Darmstadter & Leslie J. MacKoff, Some Constitutional andPractical Considerations of Civil Forfeitures Under 21 U.S.C. § 881, 9WHITTER L.REV. 27 (1987); Philip S. Khinda, Undesired Results UnderHalper and Grady, Double Jeapordy Bars on Criminal RICO Actions AgainstCivilly­Sanctioned Defendants, 25 COLUM.J.L. & SOC.PROBS. 117 (1991).

The burden of proof required in a civil action is a probable cause belief thatthe assets have a substantial connection to, or a nexus with, the criminalactivity. See 21 U.S.C. § 881(b)(4) (1988) (refering to the SupplementalRules for Certain Admiralty and Martitme Claims (28 U.S.C.Appendix)). SeeUnited States v. Daccarett, 6 F.3d 37 (2d Cir.1993); United States v.$121,100 U.S. Currency, 999 F.2d 1503 (11th Cir.1993); United States v.Premises & Real Property at 250 Kreag Rd., 739 F.Supp. 120(W.D.N.Y.1990); United States v. One 1984 Cadillac, 888 F.2d 1133 (6thCir.1989); United States v. One 56 Foot Yacht Named Tahuna, 702 F.2d1276 (9th Cir.1983); United States v. Miscellaneous Jewelry, 667 F.Supp.232 (D.Md.1987). Probable cause can be based on as little as hearsayinformation from an interested informer. Miscellaneous Jewelry, 667F.Supp. at 239. When a judgement of forfeiture is obtained by thegovernment 21 U.S.C. § 881(h) applies the relation back doctrine to vesttitle in the government at the time that the illegal act was committed by theowner of the “defendant” property. United States v. $84,740 U.S. Currency,981 F.2d 1110 (9th Cir.1992); Manufacturas Intern., LTDA v. ManufacturersHanover Trust Co., 792 F.Supp. 180, 188 (E.D.N.Y.1992); See also UnitedStates v. $144,600 U.S. Currency, 757 F.Supp. 1342 (M.D.Fla.1991). Theprobable cause burden of proof is so easily met that one commentatorlabeled civil forfeiture “legalized theft.” Cauchon, supra note 10. See JohnG. Malcolm & Arthur W. Leach, Criminal Forfeiture: An Appropriate Solutionto the Civil Forfeiture Debate, 10 GA.ST.U.L.REV. 241 (1994).

Evidence derived from an illegal search that violated the FourthAmendment is inadmissible in a forfeiture proceeding. One 1958 PlymouthSedan v. Pennsylvania, 380 U.S. 693, 702 (1965); United States v. U.S.Currency $31,828, 760 F.2d 228, 230 (8th Cir.1985). The fact that theproperty is seized illegally does not mean that it is not forfeitable throughthe introduction of untainted or circumstantial evidence. See also UnitedStates v. $93,685.61 U.S. Currency, 730 F.2d 571, 572 (9th Cir.), cert.denied sub nom, Willis v. United States, 469 U.S. 831 (1984); United Statesv. $88,500, 671 F.2d 293, 297 (8th Cir.1982). The average cost ofcontesting a seizure is $25,000, often far in excess of the value of theproperty seized and the budgets of the person's whose property wassubject forfeiture. Cuachon, supra note 10.

While no post­seizure hearing is required under § 881(b), a property ownermay file for a preliminary injunction under FED.R.CRIM.P. 41(e) for thereturn of the property that has allegedly been wrongfully seized. See UnitedStates v. Elias, 921 F.2d 870 (9th Cir.1990); United States v. Hernandez,911 F.2d 981 (5th Cir.1990) (per curiam) (FED.R.CRIM.P. 41(e)inapplicable to civil forfeiture); In re Kingsley, 802 F.2d 571, 580 (1stCir.1986) (Coffin, J., concurring).

Following the Supreme Court's ruling in Calero­Toledo v. Pearson YachtLeasing Co., which suggested that forfeiture of an innocent third partyowner's property may be a violation of due process, 416 U.S. 663, 669(1974). Congress amended 21 U.S.C. § 881(a)(6) to add an innocentowner defense. Pub.L. No. 95­633, § 301(a), 92 Stat. 3777 (1978). SeeUnited States v. A Parcel of Land, Buildings et al. (92 Buena Vista Avenue),113 S.Ct. 1126, 1137 (1993) (“[The government] cannot profit from the[relation back provision] of ... § 881(h) until respondent has had the chanceto invoke and offer evidence to support the innocent owner defense under §881(a)(6).”). See also Lalit K. Loomboy, Note, The Innocent Owner Defenseto Real Property Forfeiture Under the Comprehensive Crime Control Act of1984, 58 FORDHAM L.REV. 471 (1989); Alice M. O'Briery, Note, “Caught inthe Crossfire”: Protecting the Innocent Owner of Real Property from CivilForfeiture Under 21 U.S.C. § 881(a)(7), 65 ST. JOHN'S L.REV. 521 (1991);

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Robert M. Sondak, The Mysterious Civil Forfeiture Laws, 68 FLA.B.J. 22(1994); G. Richard Strafer, Civil Forfeitures: Protecting the Innocent Owner,37 U.FLA.L.REV. 841 (1985). In order to regain the assets, under 21 U.S.C.§ 881(a)(7) and the customs laws 19 U.S.C. § 1602 et seq., a third partyowner claiming an interest in the forfeited property must prove that theyobtained the assets without their consent or knowledge of the illegal act oromission and that they did all they possibly could to ensure that theproperty was not used illegally, even prior to their obtaining it! United Statesv. 8848 South Commercial Street, 757 F.Supp. 871 (N.D.Ill.1990). See alsoUnited States v. $10,694 U.S. Currency, 828 F.2d 233 (4th Cir.1987).Courts have held that § 881 is not sufficiently criminal to bar such a burdenof proof. United States v. One 1970 Pontiac GTO, 529 F.2d 65 (9thCir.1976) (per curiam).

21 U.S.C. § 853(c) (1988); 18 U.S.C. § 1963(c) (1994). See United Statesv. Lavin, 942 F.2d 177, 182 (3d Cir.1991) (“A proceeding under [provisionsof the criminal forfeiture statute dealing with third­party interests in forfeitedproperty] is a ‘civil case’ [rather than a criminal case], for purposes of [theappellate procedure rule establishing time for appeal in civil case applies].”);United States v. Hernandez­Escarsega, 886 F.2d 1560 (9th Cir.1989) (Theforfeiture provision method by which a third party may establish his interestin the property pertains only to the interest of the third party and thus cannot be challenged by a narcotics defendant not directly affected by it.), cert.denied, 497 U.S. 1003 (1989); United States v. Campos, 859 F.2d 1233(6th Cir.1988) (Unsecured creditors of legitimate business which wasforfeited under the Comprehensive Crime Control Act by owner, due to illicittrafficking, were not “bona fide” purchasers for purposes of statutoryforfeiture challenge) (citations omitted); United States v. Reckmeyer, 836F.2d 200, 205 (4th Cir.1987) (“Legal interest encompasses all legallyprotected rights, claims, titles, or shares in real or personal property.”);United States v. BCCI Holdings, S.A., 814 F.Supp. 111 (D.D.C.1993) (Theforfeiture statute permits a third party to assert an interest in the propertysubject to forfeiture if the third party is a bona fide purchaser for value oflegal right, title or interest in the property under forfeiture, and was at thetime of purchase reasonably without cause to believe that the property wassubject to forfeiture.); United States v. Delco Wire & Cable Co., Inc., 772F.Supp. 1511, 1517 (E.D.Pa.1991) (“Absent a showing that ... funds[transferred by the criminal RICO defendant to a creditor prior to the entryof forfeiture order] were fraudulently conveyed to avoid forfeiture, [fundscould not] be seized in satisfaction of ‘judgment’ against [defendant].”);Payden v. United States, 605 F.Supp. 839 (S.D.N.Y.1985) (An attorney whoaccepts funds with knowledge that those funds are subject to forfeiturecannot be said to have entered into an arm's length transaction), rev'd, 767F.2d 26 (2d Cir.1985). See also Lalit K. Loomba, The Innocent OwnerDefense to Real Property Under the Comprehensive Crime Control Act of1984, 58 FORDHAM L.REV. 471 (1989).

21 U.S.C. § 853(n) (1988); 18 U.S.C. § 1963(1) (1994).

See 21 U.S.C. § 853(k) (1988); 18 U.S.C. § 1963(i) (1994). Theseprovisions bar any third party from intervening in a criminal proceeding orcommencing a legal or equitable action against the United States to asserttheir interest in potentially forfeitable property prior to the entry of ajudgment of forfeiture.

See 21 U.S.C. § 853(n) (1988); 18 U.S.C. § 1963(1) (1994).

21 U.S.C. § 853(e), (F) (1988); 18 U.S.C. § 1963(d), (f) (1994). See UnitedStates v. Floyd, 992 F.2d 498 (5th Cir.1993) (The court vacated a pre­trialasset restraining order based on jurisdiction under § 28 U.S.C. § 1292(a)(1)(1988)); United States v. Jenkins, 974 F.2d 32, 36 (5th Cir.1992) (“TheGovernment, when seeking a restraining order under § 1963(d)(1), needonly ‘articulate a cogent thesis or theory of its entitlement’ to potentiallyforfeitable property.”); United States v. Regan, 699 F.Supp. 36, 38(S.D.N.Y.1988). See also Bruce A. Baird & Carolyn P. Vinson, RICO PretrialRestraints and Due Process: The Lesson of Princeton/Newport, 65 NOTREDAME L.REV. 1009 (1990).

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See United States v. Jenkins, 974 F.2d 32 (5th Cir.1992). The court stated:

[A] decree of injunction not only binds the parties defendant but also thoseidentified with them in interest, in “privity” with them, represented by them,or subject to their control. In essence it is that defendants may not nullify adecree by carrying out prohibited acts through aiders and abettors althoughthey were not parties to the original proceeding

Id. at 36 (quoting Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945)).

See United States v. Regan, 858 F.2d 115, 120­21 (2d Cir.1988); UnitedStates v. Paccione, 964 F.2d 1269, 1275 (2d Cir.1992) (“[W]here restraintsagainst indicted RICO defendants are insufficient to preserve potentiallyforfeitable property—an order, pursuant to § 1963(d)(1)(A), which isdirected to unindicted third­parties, may be entered to preserve theavailability of potentially forfeitable assets after a RICO conviction.”) (citingUnited States v. Regan, 858 F.2d 115 (2d Cir.1988)). CompareFED.R.CIV.P. 65(d); Alemite & Heyman v. Kline, 444 F.2d 65 (2d Cir.1971)(A court generally may not issue an order against a non­party).

21 U.S.C. § 853(e)(1)(B), (2)(F) (1988); 18 U.S.C. § 1963(d)(1), (e) (1994).

21 U.S.C. § 853(e)(1)(B) (1988); 18 U.S.C. § 1963(d)(1)(B) (1994). SeeUnited States v. Musson, 802 F.2d 384, 386 (10th Cir.1986) (Evidentiaryhearing at which the government should be required to demonstratethrough factual submission a reasonable probability that forfeiture willultimately be obtained is “required only when the restraining order againstalienation is sought prior to the indictment.”); United States v. Thier, 801F.2d 1463, 1475 (5th Cir.1986) (In determining whether to freeze assets ofdefendant charged with violating Continuing Criminal Enterprise Statute,“the court should consider whether defendant possesses assets not subjectto forfeiture that could supply living and defense expenses.”), modified onother grounds on denial of reh'g, 809 F.2d 249 (1987); United States v.Keller, 730 F.Supp. 151 (N.D.Ill.1990) (“Where ... defendants point to nomaterial factual disputes as to the existence of probable cause, ....[[[evidentiary hearing need not be held with respect to the Government'srequest for an order].”).

21 U.S.C. § 853(e)(1) (1988); 18 U.S.C. § 1963(d)(1) (1994).

21 U.S.C. § 853(e)(2) (1988); 18 U.S.C. § 1963(d)(2) (1994).

21 U.S.C. § 853(e)(2) (1988); 18 U.S.C. § 1963(d)(2) (1994).

21 U.S.C. § 853(e)(3) (1988); 18 U.S.C. § 1963(d)(3) (1994).

21 U.S.C. § 853(e)(1)(A) (1988); 18 U.S.C. § 1963(d)(1)(A) (1994). SeeUnited States v. Moya­Gomez, 860 F.2d 706, 731 (7th Cir.1988) (“Pretrial,postindictment restraint of ... assets without affording the defendant animmediate, postrestraint, adversary hearing at which the government isrequired to prove the likelihood that ... assets are subject to forfeitureviolates the due process clause to the extent that it actually impinges ofdefendant's qualified Sixth Amendment right to counsel of choice.”); UnitedStates v. Thier, 801 F.2d 1463, 1468 (5th Cir.1986) ( “[Trial] judge mayenter ex parte restraining order under [21 U.S.C. § 853] only upon [a] filingof an appropriate indictment and compliance with Rule 65 ... of the FederalRules of Civil Procedure, because Rule 65 must be followed in connectionwith post­indictment pre­trial restraining orders....”), modified on othergrounds on denial of reh'g, 809 F.2d 249; United States v. Regan, 699F.Supp. 36 (S.D.N.Y.1988) (To secure potentially forfeitable property at theindictment, the Government was merely required to articulate a cogentthesis of its entitlement which would afford RICO defendants sufficientnotice of the government's claim to enable them to prepare a defense.);United States v. Rogers, 602 F.Supp. 1332, 1345 (D.Colo.1985) (Pre­trialinjunction would not be granted where the indictment and “government'smotion for injunction [were] devoid of any specific information suggesting[the] probability of success at trial, ...” band where the Government failed toallege “the existence of any of the prerequisites to issuing a restraining

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order or an injunction.”). See also Michele L. Jacobson, Note, RICO Post­Indictment Restraining Orders: The Process Due Defendants, 60N.Y.U.L.REV. 1162 (1985).

21 U.S.C. § 853(e)(2) (1988); 18 U.S.C. § 1963(d)(2) (1994).

21 U.S.C. § 853(f) (1988); 18 U.S.C. § 1963(e) (1994).

21 U.S.C. § 853(f) (1988); 18 U.S.C. § 1963(e) (1994).

Pub.L. No. 99­570, 100 Stat. 3207, 3207­13 (1986) (codified at 21 U.S.C. §853(p) (1988); 18 U.S.C. § 1963(m) (1994)).

Id. See United States v. Reed, 924 F.2d 1014, 1016­17 (11th Cir.1991)(Section 1963(m) does not violate the ex post facto prohibition as it is analternative manner of collecting a forfeiture judgement and is not itself apunishment.); United States v. Saccocia, 823 F.Supp. 994, 1005(D.R.I.1993) (Under substitute assets provision, “[i]f a defendant hasconcealed or disposed of ‘proceeds' of illegal activity or property ‘derivedfrom’ those proceeds, any property of the defendant having an equivalentvalue is subject to forfeiture whether or not it was acquired fromracketeering activity.”); United States v. Skiles, 715 F.Supp. 1567(N.D.Ga.1989) (Where defendant's house would be subject to forfeiture,and the house had been substantially encumbered so that the governmentwould be allowed to restrain additional assets.). See also Sontag, “TaintedMoney” to Some, Bread and Butter to Others, N.Y.L.J. April 11, 1998, at 8[hereinafter Sontag]; David T. Butsch, Comment, Forfeiture of AttorneyFees Under RICO's New Amendments, 32 ST. LOUIS U.L.J. 199 (1987).

See 21 U.S.C. § 853(p) (1988); 18 U.S.C. § 1963(m) (1994).

United States v. Nichols, 841 F.2d 1485, 1488 (10th Cir.1988) (citingWilliam J. Hughes & Edward H. O'Connell, Jr., In Personam (Criminal)Forfeiture and Federal Drug Felonies: An Expansion of a Harsh EnglishTradition Into a Modern Dilemma, 11 PEPP.L.REV. 613, 626 (1984)).

See Watson, What a Job: If He Finds It, He Takes It; Michael Zeldin, LEGALTIMES, March 20, 1989, at 56.

Shortly after attorneys fees were first forfeited under RICO and the CCE,Congress held hearings on the forfeiture of attorneys fees under bothstatutes but failed to take any action following these hearings, therebyhinting that Congress impliedly approved of the Justice Department's use ofthese statutes to forfeit attorneys fees. See Attorneys Fees Forfeiture:Hearing Before the Senate Committee on the Judiciary, 99th Cong., 2dSess. 148­213 (1986) and Forfeiture Issues: Hearing Before theSubcommittee on Crime of the House Committee on the Judiciary, 99thCong., 1st Sess., 187­242 (1985).

Both the American Bar Association and the National Association of CriminalDefense Lawyers sent representatives to testify at these hearings. See alsoStatement of James Russ on behalf of the ABA, Before the Subcommitteeon Crime, Committee on the Judiciary, United States House ofRepresentatives—Concerning Forfeiture of Attorneys Fees (Miami, Florida,November 25, 1985) & Statement of Neal R. Sonnett on behalf of theNACDL, Before the Subcommittee on Crime, Committee on the Judiciary,United States House of Representatives—Oversight Hearings Regardingthe Comprehensive Forfeiture Act of 1984 (Miami, Florida, November 25,1982).

This statement is supported by the remarks of Congressman who draftedan passed the CFA. Edward M. Chifosky, Peter Monsanto's lawyer ofchoice opined opined that the language of the CCE and RICO forfeitureprovisions and their applicability to attorneys fees is “Not a result oflegislative silence, but one of legislative inadvertence. The drafting wassloppy and haphazard.” Senator Patrick Leahy (D­Vt) a member of theSenate Judicial Committee and co­sponsor of the CFA remarked that“During the entire debate in Congress, there was never any discussion ofusing these statutes as the government is using them now [to forfeit

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attorneys' fees]. In fact, if there had been any suggestion that they be usedthat way, the bill never would have passed.” 1986 Survey of American Law341 n. 43. In hearings on forfeiture of attorneys fees held in 1985, Rep.Shaw maintained that “Admittedly, this section did not contemplate theforfeiture of attorneys fees. I cannot remember one instance when we werediscussing this law in hearings where the question even really came up so Ithink that it is fair to say that all of us in this subcommittee or even the fullJudiciary Committee are somewhat surprised by the results.” ForfeitureIssues, Hearing Before Subcommittee on Crime, H.R., 99th Cong. 1stSess., September 1, 1985, at 233 (remarks of Rep. Shaw). During otherhearings Rep. Hughes affirmed Rep. Shaw's remarks maintaining that “Youknow the forfeiture law came out of this subcommittee, and we worked on itfor about four years. It was never our intent, in fact, to trample on the 6thAmendment rights ... We'll take a look at that, because it appears that theJustice Department is fact, is interpreting it and implementing the forfeiturestatute contrary to the intent of the subcommittee.” Current Problems ofMoney Laundering, Hearings Before the Subcommittee on Crime, H.R.,99th Cong., 1st Sess., September 12, 1985, at 363 (remarks of Rep.Hughes). Though, after the Supreme Court decided Monsanto and Caplin &Drysdale, Rep. William Hughes (D­NJ) who sat on the subcommittee thatdrafted the CFA maintains that “We knew that it was a suspect area, andthe subcommittee was split about as evenly as the court” and left thesubcommittee slightly ambivalent on the issue.

At a 1985 annual meeting the American Bar Association, a generalresolution condemning prosecutorial use of the CCE and RICO forfeitureprovisions to deprive defendants of their assets to pay attorneys waspresented by the ABA's Criminal Justice Section and approved by the ABAHouse of Delegates. In 1989 the Criminal Justice Standards Committeedrafted proposed standard 3­3.12 (based on the 1985 resolution) providing:“A prosecutor should not use statutory forfeiture provisions to prevent adefendant from paying counsel of choice or paying other expenses incidentto presenting an effective defense, in the absence of reasonable grounds tobelieve that these payments constitute a sham, fraud or criminal conduct.”

Following the Supreme Court's decision in Monsanto and Caplin &Drysdale, this standard was presented to the Criminal Section Council inNovember 1989 which voted it into the ABA Prosecution FunctionStandards which, while they are nonbinding, are frequently referred to incourt opinions as persuasive. See Darden v. Wainwright, 477 U.S. 168. 191(1986) (Blackmun, J., dissenting); Robert L. Floyd v. Larry Meechum,Commissioner of Correction, State of Connecticut, 907 F.2d 347, 354 (2dCir.1990); United States v. Charles O. Dukes, 727 F.2d 34, 43 (2dCir.1984). This use of power by the ABA to effectively override legislationand Supreme Court rulings has been widely questioned and was vigorouslyopposed by the Justice Department. See also Morvillo, supra note 21;Letter, Donald B. Ayer, Attorney General, U.S. Department of Justice, to L.Stanley Chauvin, Jr., President, American Bar Association 5, (January 30,1990) (discussing ABA Standard 3­3.12).

“The ABA specifically condemns fee payments used as a sham to hide thedefendants' assets.” ABA Brief, supra note 11. In support of their position,defense attorneys pointed to the legislative history discussed supra notes26­27 and the fact that the Senate Report cited with approval United Statesv. Long, 654 F.2d 911 (3d Cir.1981) (a pre­CFA case) in which an airplanethat attorneys had been given by their client as payment for as yetunperformed legal services remained subject to forfeiture. S.Rep. 98­225,supra note 26, at 3383 n. 28. For cases setting the sham transactionstandard as the test for exempting attorneys' fees from forfeiture, seeUnited States v. Harvey, 814 F.2d. 905 (4th Cir.1985), rev'd sub nom., In reCaplin & Drysdale, Chartered, 837 F.2d 637 (4th Cir.1988); United States v.Reckmeyer, 631 F.Supp. 1191, 1196­98 (E.D.Va.1986), rev'd sub nom., Inre Caplin & Drysdale, 837 F.2d 637 (4th Cir.1988); United States v. Rogers,602 F.Supp 1332, 1349 (D.Colo.1985); United States v. Badalamenti, 614F.Supp. 194, 196 (S.D.N.Y.1985); United States v. Ianneillo, 644 F.Supp.452, 455­58 (S.D.N.Y.1985); United States v. Basset, 632 F.Supp. 1308,

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1316 (D.Md.1985), rev'd sub nom., United States v. Harvey, 814 F.2d 905(4th Cir.1985). See also Sharon R. O'Keefe, Note, Attorney's Fee ForfeitureUnder The Comprehensive Forfeiture Act of 1984: Can We Protect AgainstSham Transfers to Attorneys? 62 NOTRE DAME L.REV. 734 (1987).

U.S. CONST. amend. VI. See Wheat v. United States, 486 U.S. 153, 158(1988) (“The Sixth Amendment to the Constitution guarantees that ‘[i]n allcriminal prosecutions, the accused shall enjoy the right ... to have theAssistance of Counsel for his defence.’ ”). In its landmark decision Powell v.Alabama, affirming the right of a criminal defendant with sufficient assets toretain counsel of choice, the Supreme Court noted that the SixthAmendment was enacted as a reaction to the English practice prohibitingcounsel in felony and treason cases. 287 U.S. 45, 60 (1932). This practicewas “so outrageous and so obviously a perversion of all sense of proportionthat the rule was constantly, vigorously, and sometimes passionatelyassailed by English statesmen and lawyers.” Powell, 287 U.S. at 60. Inother holdings, the Court noted that “[t]o the credit of [England's] Americancolonies, let it be said that so oppressive a doctrine had never obtained afoothold [here].” Holden v. Hardy, 169 U.S. 366, 386 (1898). At the time ofthe adoption of the Federal Constitution, the constitutions of the respectivestates guaranteed “that a defendant is not to be denied the privilege ofrepresentation of counsel of his choice.” Betts v. Brady, 316 U.S. 455, 468(1942). The intimate involvement of James Madison and other drafters ofthe Constitution in the infamous trial of John Peter Zenger in 1835 1735 inwhich the New York court denied his right to counsel is said to haveprofoundly influenced the inclusion of the right to counsel of choice in theBill of Rights. See NACDL Brief, supra note 11.

Since Powell, qualifications have been attached to the right to counsel. SeeWheat v. United States, 486 U.S. 153, 159 (1988), reh'g denied, 487 U.S.1243 (1988) (“[T]he right to select and be represented by one's preferredcounsel is comprehended by the Sixth Amendment, the essential aim of theAmendment is to guarantee an effective advocate for each criminaldefendant rather than to ensure that a defendant will inexorably berepresented by the lawyer whom he prefers.”); Strickland v. Washington,466 U.S. 668, 689 (1984) (providing assistance of counsel is “simply toensure that criminal defendants receive a fair trial.”); United States v.Cronic, 466 U.S. 648, 657 n. 21 (1984) (“[T]he appropriate inquiry focusesin the adversarial process, not on the accused's relationship with his lawyeras such.”); Morris v. Slappy, 461 U.S. 1, 23 (1983) (Brennan, J., concurring)(“The right to counsel of choice is subject to the harsh reality that the qualityof a criminal defendant's representation frequently may turn on his ability toretain the best counsel money can buy.”); United States v. Moya­Gomez,860 F.2d 706, 723­24 (9th Cir.1988) (“The Sixth Amendment right is notsolely, or even primarily concerned with ensuring that a criminal beprovided with his counsel of choice.”); United States ex rel. Carey v. Rundle,409 F.2d 1210, 1215 (3d Cir.1969) (The constitutional right to choice ofcounsel is satisfied “so long as there is no arbitrary action prohibiting theeffective use of counsel.”). See also Faretta v. California, 422 U.S. 806(1975) (that a criminal defendant has a Sixth Amendment right to representhimself if he voluntarily elects to do so, does not encompass the right tochoose any advocate if the defendant wishes to be represented bycounsel); Wilson v. Mintzes, 761 F.2d 275, 280 (6th Cir.1985) (“[W]hen anaccused is financially able to retain an attorney, the choice of his counsel toassist rests ultimately in his hands ...”); Birt v. Montgomery, 725 F.2d 587,593 (11th Cir.), cert denied, 469 U.S. 874 (1984); Gandy v. Alabama, 569F.2d 1318, 1323 (5th Cir.1978); United States v. Inman, 483 F.2d 738, 740(4th Cir.1973) (per curiam) (Purely private predicaments may leave adefendant without counsel of his choice).

Defense attorneys argued that the question raised by the forfeiture statuteswas not whether the exercise of the right to counsel can be limited, becauseit can and has been, but rather whether the right may be completelydestroyed by government action that pauperizes the defendant before anyadjudication of guilt or innocence or any verdict of forfeiture concerning hisassets thereby making him unable to choose any private counsel and laying

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the presumption of innocence on its head. See Respondent Brief ­Monsanto, supra note 11. The denial of the right to private counsel wasargued to “[s]ubvert many important values underlying the SixthAmendment: diminishing the potential for trust and confidence that areessential to a meaningful attorney­client relationship, depreciating respectfor individual choice and autonomy that serve as a basic premise of theright, undermining the defendant's sense of participation in theproceedings, thereby lessening its appearance of fairness and his ability toaccept its outcome, and ultimately jeopardizing public confidence in theadministration of justice.” Bruce J. Winick, Forfeiture of Attorneys' FeesUnder RICO and CCE and the Right to Counsel of Choice: TheConstitutional Dilemma and How To Avoid It, 43 U.MIAMI L.REV. 765, 811­12 (1989) [[[hereinafter Winick]. See Reply Brief of Respondent in UnitedStates v. Monsanto, 491 U.S. 600 (1989) (No. 88­454) (pagination notavailable) [[[hereinafter Respondent's Reply Brief]. See also United Statesv. Nichols, 841 F.2d 1485, 1501­05 (10th Cir.1988) (No Sixth Amendmentviolation); United States v. Monsanto, 836 F.2d 74, 82­84 (2d Cir.1987);United States v. Panzardi Alvarez, 816 F.2d 813, 817 (1st Cir.1987); UnitedStates v. Thier, 801 F.2d 1463, 1466­75 (5th Cir.1986), modified, 809 F.2d249 (1987); United States v. Rankin, 779 F.2d 956, 958 (3d Cir.1986);United States v. Lewis, 759 F.2d 1316, 1326 (8th Cir.1985); United Statesv. Laura, 607 F.2d 52, 56 (3d Cir.1979); United States v. Badalamenti, 614F.Supp. 194, 198 (S.D.N.Y.1985) (“The right to counsel belongs to [the]guilty defendants as well as [the] innocent ones.”). See also Pamela S.Karlan, Discrete and Relational Criminal Representation: The ChangingVision of the Right to Counsel, 105 HARV.L.REV. 670 (1992); Eugene L.Shapiro, The Sixth Amendment Right to Counsel of Choice: An Exercise inthe Weighing of Unarticulated Values, 43 S.C.L.REV. 345 (1992).

It is instructive to compare the legislative history of The Omnibus DiplomaticSecurity and Antiterrorism Act of 1986, Pub.L. No. 99­399, 100 Stat. 853(1986), passed two years after the CCE and RICO amendments, with thatof the CFA. In passing that act the House Foreign Affairs committee statedthat “Nothing in these provisions is intended to interfere with a person'sSixth Amendment Right to counsel of choice or to the effective assistance ofcounsel.” H.R.REP. No. 494, 99th Cong.2d Sess. 90 (Foreign AffairsCommittee), reprinted in 1986 U.S.C.C.A.N. 1963. This indicates thatCongress may have learned a thing or two from the controversysurrounding its statements pertaining to the CFA.

Defense attorneys urged that they would be placed in direct conflict withtheir clients because an attorney, fearing that his fee would be forfeited ifthe prosecution included a forfeiture count in the indictment, could betempted to strike a deal with the prosecutor and pressure his client intopleading guilty so that his fee would be preserved. It was also maintainedthat the potential forfeiture of fees created a contingent fee arrangementprohibited under almost every states' lawyer ethics rules. See ABA ModelRules of Professional Conduct, Rules 1.7(b), 1.8(j); ABA Model Code ofProfessional Responsibility, DR 5­103(A), 5­105(A) (prohibiting attorneysfrom entering an attorney­client relationship where there is an actualpersonal conflict of interest with the client regardless of whether it isabused). See also Rule 1.5(d)(2); DR 2­106(c) (forbidding contingent feesin criminal cases); Peter Lushing, The Fall & Rise of the Criminal ContingentFee, 82 J.CRIM.L. & CRIMINOLOGY 498 (1991).

The Supreme Court has ruled that actual conflicts of interest between anattorney and a client violate the Sixth Amendment guarantee of effectiveassistance of counsel, with no requirement that the defendant showprejudice from the conflict. See Cuyler v. Sullivan, 446 U.S. 335, 349­50(1980); Holloway v. Arkansas, 435 U.S. 475 (1978); Glasser v. UnitedStates, 315 U.S. 60, 76 (1942). The case United States v. Marquez, 909F.2d. 738 (2d Cir.1990), is instructive in this regard. In Marquez, theprosecutor made the release of a check from defendant's seized assets topay attorneys fees contingent on the attorney agreeing to a firm trial date ata date that afforded too little time for the attorney to make adequatepreparation. Id. at 741. The court set a trial date independent of the date

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demanded by the government and close to the date sought by the attorney.Id. Meanwhile, the defendant plead guilty to the charges against him. Id. Onlearning of the government's demand of his attorney the defendant movedpro se to have his guilty plea withdrawn citing ineffective assistance ofcounsel. Id. The court declined to find ineffective assistance of counsel butnoted that the government came perilously close to creating a conflict ofinterest situation by attempting to extract as concession from defendant'sattorney concerning a trial date as a condition of its compliance with theorder to turn over funds. Id. The court noted that “Now that the SupremeCourt has upheld the lawfulness of pre­trial seizure of forfeitable money,without an exception for reasonable expenses such as legal fees, trialcourts must scrutinize with utmost care any effort by the Government to useits control of seized funds in negotiating with counsel.” Id. Regarding theorder to pay the attorney's fee, see United States v. $876,915 United StatesCurrency, 874 F.2d 104 (2d Cir.1989) in which the second circuit applied itsen banc Monsanto ruling in the civil context of 21 U.S.C. § 881. See alsoFlanagan v. United States, 465 U.S. 259, 268 (1984); Elizabeth Neuffer,Lawyers Fear U.S. Striking Criminals Through Them, BOSTON GLOBE,May 29, 1989, at 1 (“ ‘There is a strong deep concern that there is a trendtoward getting at the criminals through the lawyer ... They are using theattorney­client relationship as a means of punishing the criminal.’ ”) (quotingScott Wallace, acting executive director of the National Ass'n of CriminalDefense Lawyers); Warren, Possley & Tybor, Greylord Cloud Over Bar,CHI.TRIB., March 17, 1987, Business, Zone C, at p. 1 (“When thegovernment pits the attorneys' interest in being compensated ... against thedefendant's interest in defending criminal accusations, it creates a potentialfor an actual conflict of interest, since the attorneys' advice could be coloredby his interest in getting paid.”); NACDL Brief, supra note 11 (Although it isassumed few attorneys would act explicitly in their own self­interest, neitherattorneys nor their clients could ever be sure what mix of motives informedan attorney's advice in the context of potential fee forfeiture); MorganCloud, Government Intrusions into the Attorney­Client Relationship: TheImpact of Fee Forfeitures on the Balance of Power in the Adversary Systemof Criminal Justice, 36 EMORY L.J. 817 (1987) (Fee forfeiture and thecloud of prosecution may force the withdrawal of defense counsel becauseof the chilling effect inherent in the prospect of financial ruin and the risk ofviolating ethical rules). See also United States v. Basset, 632 F.Supp. 1308,1316 n. 5 (D.Md.1986), rev'd sub nom. en banc, In re Caplin & Drysdale,837 F.2d 637 (4th Cir.1988); United States v. Ianniello, 644 F.Supp. 452,457 (S.D.N.Y.1985); United States v. Badalamenti, 614 F.Supp. 194, 196­197 (S.D.Y.1985); United States v. Rogers, 602 F.Supp. 1332, 1348­49(D.Colo.1985).

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