JUSTICE WHITE delivered the opinion of the Court.
We are called on to determine whether the federal drug forfeiture statute includes an exemption for assets that a defendant wishes to use to pay an attorney who conducted his defense in the criminal case where forfeiture was sought. Because we determine that no such exemption exists, we must decide whether that statute, so interpreted, is consistent with the Fifth and Sixth Amendments. We hold that it is.
I
In January 1985, Christopher Reckmeyer was charged in a multicount indictment with running a massive drug importation and distribution scheme. The scheme was alleged to be a continuing criminal enterprise (CCE), in violation of 84 Stat. 1265, as amended, 21 U. S. C. § 848 (1982 ed., Supp. V). Relying on a portion of the CCE statute that authorizes forfeiture to the Government of "property constituting, or derived from . . . proceeds . . . obtained" from drug-law
Sometime earlier, Reckmeyer had retained petitioner, a law firm, to represent him in the ongoing grand jury investigation which resulted in the January 1985 indictments. Notwithstanding the restraining order, Reckmeyer paid the firm $25,000 for preindictment legal services a few days after the indictment was handed down; this sum was placed by petitioner in an escrow account. Petitioner continued to represent Reckmeyer following the indictment.
After this order was entered, petitioner filed a petition under § 853(n), which permits third parties with an interest in forfeited property to ask the sentencing court for an adjudication of their rights to that property; specifically, § 853(n) (6)(B) gives a third party who entered into a bona fide transaction with a defendant a right to make claims against forfeited property, if that third party was "at the time of [the transaction] reasonably without cause to believe that the [defendant's assets were] subject to forfeiture." See also § 853 (c). Petitioner claimed an interest in $170,000 of Reckmeyer's assets, for services it had provided Reckmeyer in conducting his defense; petitioner also sought the $25,000 being held in the escrow account, as payment for preindictment legal services. Petitioner argued alternatively that assets used to pay an attorney were exempt from forfeiture under § 853, and if not, the failure of the statute to provide such an exemption rendered it unconstitutional. The District Court granted petitioner's claim for a share of the forfeited assets.
Petitioner sought review of the statutory and constitutional issues raised by the Court of Appeals' holding. We granted certiorari, 488 U.S. 940 (1988), and now affirm.
II
Petitioner's first submission is that the statutory provision that authorizes pretrial restraining orders on potentially forfeitable assets in a defendant's possession, 21 U. S. C. § 853 (e) (1982 ed., Supp. V), grants district courts equitable discretion to determine when such orders should be imposed. This discretion should be exercised under "traditional equitable standards," petitioner urges, including a "weigh[ing] of the equities and competing hardships on the parties"; under this approach, a court "must invariably strike the balance so as to allow a defendant [to pay] . . . for bona fide attorneys fees," petitioner argues. Brief for Petitioner 8. Petitioner further submits that once a district court so exercises its discretion, and fails to freeze assets that a defendant then uses to pay an attorney, the statute's provision for recapture of
Petitioner's argument, as it acknowledges, is based on the view of the statute expounded by Judge Winter of the Second Circuit in his concurring opinion in that Court of Appeals' en banc decision, United States v. Monsanto, 852 F.2d 1400, 1405-1411 (1988). We reject this interpretation of the statute today in our decision in United States v. Monsanto, ante, p. 600, which reverses the Second Circuit's holding in that case. As we explain in our Monsanto decision, ante, at 611-614, whatever discretion § 853(e) provides district court judges to refuse to enter pretrial restraining orders, it does not extend as far as petitioner urges — nor does the exercise of that discretion "immunize" nonrestrained assets from subsequent forfeiture under § 853(c), if they are transferred to an attorney to pay legal fees. Thus, for the reasons provided in our opinion in Monsanto, we reject petitioner's statutory claim.
III
We therefore address petitioner's constitutional challenges to the forfeiture law.
A
Petitioner's first claim is that the forfeiture law makes impossible, or at least impermissibly burdens, a defendant's right "to select and be represented by one's preferred attorney." Wheat v. United States, 486 U.S. 153, 159 (1988). Petitioner does not, nor could it defensibly do so, assert that impecunious defendants have a Sixth Amendment right to choose their counsel. The Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts. "[A] defendant may not insist on representation by an attorney he cannot afford." Wheat, supra, at 159. Petitioner does not dispute these propositions. Nor does the Government deny that the Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without
Even in this sense, of course, the burden the forfeiture law imposes on a criminal defendant is limited. The forfeiture statute does not prevent a defendant who has nonforfeitable assets from retaining any attorney of his choosing. Nor is it necessarily the case that a defendant who possesses nothing but assets the Government seeks to have forfeited will be prevented from retaining counsel of choice. Defendants like Reckmeyer may be able to find lawyers willing to represent them, hoping that their fees will be paid in the event of acquittal, or via some other means that a defendant might come by in the future. The burden placed on defendants by the forfeiture law is therefore a limited one.
Nonetheless, there will be cases where a defendant will be unable to retain the attorney of his choice, when that defendant would have been able to hire that lawyer if he had access to forfeitable assets, and if there was no risk that fees paid by the defendant to his counsel would later be recouped under § 853(c).
Petitioner seeks to distinguish such cases for Sixth Amendment purposes by arguing that the bank's claim to robbery proceeds rests on "pre-existing property rights," while the Government's claim to forfeitable assets rests on a "penal statute" which embodies the "fictive property-law concept of. . . relation-back" and is merely "a mechanism for preventing fraudulent conveyances of the defendant's assets, not . . . a device for determining true title to property." Brief for Petitioner 40-41. In light of this, petitioner contends, the burden placed on defendant's Sixth Amendment rights by the forfeiture statute outweighs the Government's interest in forfeiture. Ibid.
In sum, § 853(c) reflects the application of the long-recognized and lawful practice of vesting title to any forfeitable assets, in the United States, at the time of the criminal act giving rise to forfeiture. Concluding that Reckmeyer cannot give good title to such property to petitioner because he did not hold good title is neither extraordinary or novel. Nor does petitioner claim, as a general proposition that the relation-back provision is unconstitutional, or that Congress cannot, as a general matter, vest title to assets derived from the crime in
There is no constitutional principle that gives one person the right to give another's property to a third party, even where the person seeking to complete the exchange wishes to do so in order to exercise a constitutionally protected right. While petitioner and its supporting amici attempt to distinguish between the expenditure of forfeitable assets to exercise one's Sixth Amendment rights, and expenditures in the pursuit of other constitutionally protected freedoms, see, e. g., Brief for American Bar Association as Amicus Curiae 6, there is no such distinction between, or hierarchy among, constitutional rights. If defendants have a right to spend forfeitable assets on attorney's fees, why not on exercises of the right to speak, practice one's religion, or travel? The full exercise of these rights, too, depends in part on one's financial wherewithal; and forfeiture, or even the threat of forfeiture, may similarly prevent a defendant from enjoying these rights as fully as he might otherwise. Nonetheless, we are not about to recognize an antiforfeiture exception for the exercise of each such right; nor does one exist for the exercise of Sixth Amendment rights.
First, the Government has a pecuniary interest in forfeiture that goes beyond merely separating a criminal from his ill-gotten gains; that legitimate interest extends to recovering all forfeitable assets, for such assets are deposited in a Fund that supports law-enforcement efforts in a variety of important and useful ways. See 28 U. S. C. § 524(c), which establishes the Department of Justice Assets Forfeiture Fund. The sums of money that can be raised for law-enforcement activities this way are substantial,
Second, the statute permits "rightful owners" of forfeited assets to make claims for forfeited assets before they are retained by the Government. See 21 U. S. C. § 853(n)(6)(A). The Government's interest in winning undiminished forfeiture thus includes the objective of returning property, in full, to those wrongfully deprived or defrauded of it. Where the Government pursues this restitutionary end, the Government's interest in forfeiture is virtually indistinguishable from its interest in returning to a bank the proceeds of a bank robbery; and a forfeiture-defendant's claim of right to use
Finally, as we have recognized previously, a major purpose motivating congressional adoption and continued refinement of the racketeer influenced and corrupt organizations (RICO) and CCE forfeiture provisions has been the desire to lessen the economic power of organized crime and drug enterprises. See Russello v. United States, 464 U.S. 16, 27-28 (1983). This includes the use of such economic power to retain private counsel. As the Court of Appeals put it: "Congress has already underscored the compelling public interest in stripping criminals such as Reckmeyer of their undeserved economic power, and part of that undeserved power may be the ability to command high-priced legal talent." 837 F. 2d, at 649. The notion that the Government has a legitimate interest in depriving criminals of economic power, even insofar as that power is used to retain counsel of choice, may be somewhat unsettling. See, e. g., Tr. of Oral Arg. 50-52. But when a defendant claims that he has suffered some substantial impairment of his Sixth Amendment rights by virtue of the seizure or forfeiture of assets in his possession, such a complaint is no more than the reflection of "the harsh reality that the quality of a criminal defendant's representation frequently may turn on his ability to retain the best counsel money can buy." Morris v. Slappy, 461 U.S. 1, 23 (1983) (BRENNAN, J., concurring in result). Again, the Court of Appeals put it aptly: "The modern day Jean Valjean must be satisfied with appointed counsel. Yet the drug merchant claims that his possession of huge sums of money . . . entitles him to something more. We reject this contention, and any notion of a constitutional right to use the proceeds of crime to finance an expensive defense." 837 F. 2d, at 649.
We therefore reject petitioner's claim of a Sixth Amendment right of criminal defendants to use assets that are the Government's — assets adjudged forfeitable, as Reckmeyer's were — to pay attorney's fees, merely because those assets are in their possession.
B
Petitioner's second constitutional claim is that the forfeiture statute is invalid under the Due Process Clause of the Fifth Amendment because it permits the Government to upset the "balance of forces between the accused and his accuser." Wardius v. Oregon, 412 U.S. 470, 474 (1973). We are not sure that this contention adds anything to petitioner's Sixth Amendment claim, because, while "[t]he Constitution guarantees a fair trial through the Due Process Clauses . . . it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment," Strickland v. Washington, 466 U.S. 668, 684-685 (1984). We have concluded above that the Sixth Amendment is not offended by the forfeiture provisions at issue here. Even if, however, the Fifth Amendment provides some added protection not encompassed in the Sixth Amendment's more specific provisions, we find petitioner's claim based on the Fifth Amendment unavailing.
We rejected a claim similar to petitioner's last Term, in Wheat v. United States, 486 U.S. 153 (1988). In Wheat, the petitioner argued that permitting a court to disqualify a defendant's chosen counsel because of conflicts of interest — over that defendant's objection to the disqualification — would encourage the Government to "manufacture" such conflicts to deprive a defendant of his chosen attorney. Id., at 163. While acknowledging that this was possible, we declined to fashion the per se constitutional rule petitioner sought in Wheat, instead observing that "trial courts are undoubtedly aware of [the] possibility" of abuse, and would have to "take it into consideration," when dealing with disqualification motions.
A similar approach should be taken here. The Constitution does not forbid the imposition of an otherwise permissible criminal sanction, such as forfeiture, merely because in some cases prosecutors may abuse the processes available to them, e. g., by attempting to impose them on persons who should not be subjected to that punishment. Cf. Brady v.
IV
For the reasons given above, we find that petitioner's statutory and constitutional challenges to the forfeiture imposed here are without merit. The judgment of the Court of Appeals is therefore
Affirmed.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting.
Those jurists who have held forth against the result the majority reaches in these cases have been guided by one core insight: that it is unseemly and unjust for the Government to beggar those it prosecutes in order to disable their defense at trial. The majority trivializes "the burden the forfeiture law imposes on a criminal defendant." Caplin & Drysdale, Chartered v. United States, ante, at 625. Instead, it should heed the warnings of our District Court judges, whose day-to-day exposure to the criminal-trial process enables them to understand, perhaps far better than we, the devastating consequences of attorney's fee forfeiture for the integrity of our adversarial system of justice.
I
The majority acknowledges, as it must, that no language in the Comprehensive Forfeiture Act of 1984 (Act), ch. 3, 98 Stat. 2040, as amended, codified in relevant part at 21 U. S. C. § 853 et seq. (1982 ed., Supp. V), expressly provides for the forfeiture of attorney's fees, and that the legislative history contains no substantive discussion of the question. United States v. Monsanto, ante, at 608-609, and n. 8.
The majority succeeds in portraying the Act as "unambiguous" by making light of its most relevant provisions. As Judge Winter observed, the broad mandatory language of § 853(a) applies by its terms only to " `any person convicted' of the referenced crimes." United States v. Monsanto, 852 F.2d 1400, 1410 (CA2 1988). Because third parties to whom assets have been transferred in return for services rendered are not "person[s] convicted," however, forfeiture of property in their possession is controlled by § 853(c) rather than by § 853(a). Section 853(c) provides: "Any such property that is subsequently transferred to a person other than the defendant may be the subject of a special verdict of forfeiture and thereafter shall be ordered forfeited to the United States" (emphasis added) if the third party fails to satisfy certain
There is also considerable room for discretion in the language of § 853(e)(1), which controls the Government's use of postindictment protective orders to prevent the preconviction transfer of potentially forfeitable assets to third parties. That section provides:
The Senate Report makes clear that a district court may hold a hearing to "consider factors bearing on the reasonableness of the order sought." S. Rep. No. 98-225, p. 202 (1983). Even if the court chooses to enter an order ex parte at the Government's request, it may "modify the order" if it later proves to be unreasonable. Id., at 203. In the course of this process, the court may also consider the circumstances of any third party whose interests are implicated by the restraining order. Id., at 206, n. 42. Thus, the Government does not have an absolute right to an order preserving the availability of property by barring its transfer to third parties. Preconviction injunctive relief is available, but at the discretion of the district court.
The majority does not deny that §§ 853(c) and 853(e)(1) contain discretionary language. It argues, however, that the exercise of discretion must be "cabined by the purposes" of the Act. Monsanto, ante, at 613. That proposition, of course, is unassailable: I agree that discretion created by the Act cannot be used to defeat the purposes of the Act. The majority errs, however, in taking an overly broad view of the Act's purposes.
Under the majority's view, the Act aims to preserve the availability of all potentially forfeitable property during the preconviction period, and to achieve the forfeiture of all such property upon conviction. Ibid. This view of the Act's purposes effectively writes all discretion out of §§ 853(c) and 853(e)(1), because any exercise of discretion will diminish the Government's postconviction "take." But a review of the legislative history of the Act demonstrates that
Congress' most systematic goal for criminal forfeiture was to prevent the profits of criminal activity from being poured into future such activity, for "it is through economic power that [criminal activity] is sustained and grows." Senate Report, at 191. "Congress recognized in its enactment of statutes specifically addressing organized crime and illegal drugs that the conviction of individual racketeers and drug dealers would be of only limited effectiveness if the economic power bases of criminal organizations or enterprises were left intact, and so included forfeiture authority designed to strip these offenders and organizations of their economic power." Ibid.; see also H. R. Rep. No. 98-845, pt. 1, p. 6 (1984) (criminal forfeiture statutes are "a bold attempt to attack the economic base of the criminal activity").
Finally, Congress was acutely aware that defendants, if unhindered, routinely would defeat the purposes of the Act by sheltering their assets in order to preserve them for their own future use and for the continued use of their criminal organizations. The purpose of § 853(c) is to "to permit the voiding of certain pre-conviction transfers and so close a potential loophole in current law whereby the criminal forfeiture sanction could be avoided by transfers that were not `arms' length' transactions." Senate Report, at 200-201.
With these purposes in mind, it becomes clear that a district court acts within the bounds of its statutory discretion
The majority has decided otherwise, however, and for that reason is compelled to reach the constitutional issue it could have avoided. But the majority pauses hardly long enough to acknowledge "the Sixth Amendment's protection of one's right to retain counsel of his choosing," let alone to explore its "full extent." Caplin & Drysdale, ante, at 626. Instead, ante, at 624, it moves rapidly from the observation that " `[a] defendant may not insist on representation by an attorney he cannot afford,' " quoting Wheat v. United States, 486 U.S. 153, 159 (1988), to the conclusion that the Government is free to deem the defendant indigent by declaring his assets "tainted" by criminal activity the Government has yet to prove. That the majority implicitly finds the Sixth Amendment right to counsel of choice so insubstantial that it can be outweighed by a legal fiction demonstrates, still once again, its " `apparent unawareness of the function of the independent lawyer as a guardian of our freedom.' " See id., at 172 (STEVENS, J., dissenting), quoting Walters v. National Assn. of Radiation Survivors, 473 U.S. 305, 371 (1985) (STEVENS, J., dissenting).
A
Over 50 years ago, this Court observed: "It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice." Powell v. Alabama, 287 U.S. 45, 53 (1932). For years, that proposition was settled; the controversial question was whether the defendant's right to use his own funds to retain his chosen counsel was the outer limit of the right protected by the Sixth Amendment. See, e. g., Chandler v. Fretag, 348 U.S. 3, 9 (1954). The Court's subsequent decisions have made clear that an indigent defendant has the right to appointed counsel, see, e. g., Gideon v.
The right to retain private counsel serves to foster the trust between attorney and client that is necessary for the attorney to be a truly effective advocate. See ABA Standards for Criminal Justice 4-3.1, p. 4-29 (commentary) (2d ed. 1980). Not only are decisions crucial to the defendant's liberty placed in counsel's hands, see Faretta v. California, 422 U.S. 806 (1975), but the defendant's perception of the fairness of the process, and his willingness to acquiesce in its results, depend upon his confidence in his counsel's dedication, loyalty, and ability. Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 171-172 (1951) (Frankfurter, J., concurring). When the Government insists upon the right to choose the defendant's counsel for him, that relationship of trust is undermined: counsel is too readily perceived as the Government's agent rather than his own. Indeed, when the Court in Faretta held that the Sixth Amendment prohibits a court from imposing appointed counsel on a defendant who prefers to represent himself, its decision was predicated on the insight that "[t]o force a lawyer
The right to retain private counsel also serves to assure some modicum of equality between the Government and those it chooses to prosecute. The Government can be expected to "spend vast sums of money . . . to try defendants accused of crime," Gideon v. Wainwright, 372 U. S., at 344, and of course will devote greater resources to complex cases in which the punitive stakes are high. Precisely for this reason, "there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses." Ibid. But when the Government provides for appointed counsel, there is no guarantee that levels of compensation and staffing will be even average.
The right to privately chosen and compensated counsel also serves broader institutional interests. The "virtual socialization of criminal defense work in this country" that would be the result of a widespread abandonment of the right to retain chosen counsel, Brief for Committees on Criminal Advocacy and Criminal Law of the Association of the Bar of the City of New York et al. as Amici Curiae in No. 88-454, p. 9, too readily would standardize the provision of criminal-defense services and diminish defense counsel's independence. There is a place in our system of criminal justice for the maverick and the risk taker and for approaches that might not fit into the structured environment of a public defender's office, or that might displease a judge whose preference for nonconfrontational styles of advocacy might influence the judge's appointment decisions. See Bazelon, The Defective Assistance of Counsel, 42 U. Cin. L. Rev. 1, 6-7 (1973); S. Kadish, S. Schulhofer, & M. Paulsen, Criminal Law and its Processes 32 (4th ed. 1983); cf. Sacher v. United States, 343 U.S. 1, 8-9 (1952) ("The nature of the proceedings presupposes, or at least stimulates, zeal in the opposing lawyers"). There is also a place for the employment of "specialized defense counsel" for technical and complex cases, see United States v. Thier, 801 F.2d 1463, 1476 (CA5 1986) (concurring opinion), modification not relevant here, 809 F.2d 249 (1987). The choice of counsel is the primary means for the defendant to establish the kind of defense he will put forward. See
In sum, our chosen system of criminal justice is built upon a truly equal and adversarial presentation of the case, and upon the trust that can exist only when counsel is independent of the Government. Without the right, reasonably exercised, to counsel of choice, the effectiveness of that system is imperiled.
B
Had it been Congress' express aim to undermine the adversary system as we know it, it could hardly have found a better engine of destruction than attorney's-fee forfeiture. The main effect of forfeitures under the Act, of course, will be to deny the defendant the right to retain counsel, and therefore the right to have his defense designed and presented by an attorney he has chosen and trusts.
The resulting relationship between the defendant and his court-appointed counsel will likely begin in distrust, and be exacerbated to the extent that the defendant perceives his new-found "indigency" as a form of punishment imposed by the Government in order to weaken his defense. If the defendant had been represented by private counsel earlier in the proceedings, the defendant's sense that the Government has stripped him of his defenses will be sharpened by the concreteness of his loss. Appointed counsel may be inexperienced and undercompensated and, for that reason, may not have adequate opportunity or resources to deal with the special problems presented by what is likely to be a complex trial. The already scarce resources of a public defender's office will be stretched to the limit. Facing a lengthy trial against a better armed adversary, the temptation to recommend a guilty plea will be great. The result, if the defendant is convicted, will be a sense, often well grounded, that justice was not done.
Even if the defendant finds a private attorney who is "so foolish, ignorant, beholden or idealistic as to take the business," ibid., the attorney-client relationship will be undermined by the forfeiture statute. Perhaps the attorney will be willing to violate ethical norms by working on a contingent-fee basis in a criminal case. See Caplin & Drysdale, ante, at 633, n. 10. But if he is not — and we should question the integrity of any criminal-defense attorney who would violate the ethical norms of the profession by doing so — the attorney's own interests will dictate that he remain ignorant of the source of the assets from which he is paid. Under § 853(c), a
Perhaps most troubling is the fact that forfeiture statutes place the Government in the position to exercise an intolerable degree of power over any private attorney who takes on the task of representing a defendant in a forfeiture case. The decision whether to seek a restraining order rests with the prosecution, as does the decision whether to waive forfeiture upon a plea of guilty or a conviction at trial. The Government will be ever tempted to use the forfeiture weapon against a defense attorney who is particularly talented or aggressive on the client's behalf — the attorney who is better than what, in the Government's view, the defendant deserves. The specter of the Government's selectively excluding only the most talented defense counsel is a serious threat to the equality of forces necessary for the adversarial system to perform at its best. See United States v. Monsanto, 852 F. 2d, at 1404 (concurring opinion); United States v. Rogers, 602 F. Supp., at 1347, 1350; Cloud, 36 Emory L. J., at 829. An attorney whose fees are potentially
The long-term effects of the fee-forfeiture practice will be to decimate the private criminal-defense bar. As the use of the forfeiture mechanism expands to new categories of federal crimes and spreads to the States, only one class of defendants will be free routinely to retain private counsel: the affluent defendant accused of a crime that generates no economic gain. As the number of private clients diminishes, only the most idealistic and the least skilled of young lawyers will be attracted to the field, while the remainder seek greener pastures elsewhere. See Winick, 43 U. Miami L. Rev., at 781-782.
In short, attorney's-fee forfeiture substantially undermines every interest served by the Sixth Amendment right to chosen counsel, on the individual and institutional levels, over the short term and the long haul.
C
We have recognized that although there is a "presumption in favor of [the defendant's] counsel of choice," Wheat v. United States, 486 U. S., at 158, 160, the right to counsel of choice is not absolute. Some substantial and legitimate governmental interests may require the courts to disturb the defendant's choice of counsel, as "[w]hen a defendant's selection of counsel, under the particular facts and circumstances of a case, gravely imperils the prospect of a fair trial," id., at 166 (MARSHALL, J., dissenting), or threatens to undermine the orderly disposition of the case, see Ungar v. Sarafite, 376 U.S. 575, 589 (1964). But never before today has the Court suggested that the Government's naked desire to deprive a defendant of " `the best counsel money can buy,' " Caplin & Drysdale, ante, at 630, quoting Morris v. Slappy, 461 U.S. 1, 23 (1983) (BRENNAN, J., opinion concurring in result), is itself a legitimate Government interest that can justify the
The Government claims a property interest in forfeitable assets, predicated on the relation-back provision, § 853(c), which employs a legal fiction to grant the Government title in all forfeitable property as of the date of the crime. The majority states: "Permitting a defendant to use assets for his private purposes that, under this provision, will become the property of the United States if conviction occurs, cannot be sanctioned." Monsanto, ante, at 613. But the Government's insistence that it has a paramount interest in the defendant's resources "simply begs the constitutional question rather than answering it. Indeed, the ultimate constitutional issue might well be framed precisely as whether Congress may use this wholly fictive device of property law to cut off this fundamental right of the accused in a criminal case. If the right must yield here to countervailing governmental interests, the relation-back device undoubtedly could be used to implement the governmental interests, but surely it cannot serve as a substitute for them." In re Forfeiture Hearing as to Caplin & Drysdale, Chartered, 837 F. 2d, at 652 (dissenting opinion).
Furthermore, the relation-back fiction gives the Government no property interest whatsoever in the defendant's assets before the defendant is convicted. In most instances, the assets the Government attempts to reach by using the forfeiture provisions of the Act are derivative proceeds of crime, property that was not itself acquired illegally, but was purchased with the profits of criminal activity. Prior to conviction,
The majority contends, of course, that assets are only restrained upon a finding of probable cause to believe that the property ultimately will be proved forfeitable, and that because "the Government may restrain persons where there is a finding of probable cause that the accused has committed a serious offense," the Government necessarily has the right to
Although obtaining a restraining order requires a showing of probable cause, the practical effects of the threat of forfeiture are felt long before the indictment stage. Any attorney who is asked to represent the target of a drug or racketeering investigation — or even a routine tax investigation, as the facts of Caplin & Drysdale demonstrate — must think ahead to the possibility that the defendant's assets will turn out to be forfeitable. While the defendant is not formally restrained from using his assets to pay counsel during this period, the reluctance of any attorney to represent the defendant in the face of the forfeiture threat effectively strips the defendant of the right to retain counsel. The threat of forfeiture does its damage long before the Government must come forward with a showing of probable cause.
But even if the majority were correct that no defendant is ever deprived of the right to retain counsel without a showing of probable cause, the majority's analogy to permissible pretrial restraints would fail. The Act gives the Government the right to seek a restraining order solely on the basis of the indictment, which signifies that there has been a finding of probable cause to believe that the assets are tainted. When a defendant otherwise is incarcerated before trial, in contrast, the restraint cannot be justified by the fact of the indictment alone. In addition, there must be a showing that other alternatives will not "reasonably assure the appearance of the person [for trial] and the safety of any other person and the community." 18 U. S. C. § 3142(e) (1982 ed., Supp. V). No equivalent individualized showing that the defendant will likely dissipate his assets or fraudulently transfer them to third parties is necessary under the majority's reading of § 853(e)(1). Furthermore, the potential danger resulting
Finally, even if the Government's asserted interests were entitled to some weight, the manner in which the Government has chosen to protect them undercuts its position. Under § 853(c), a third-party transferee may keep assets if he was "reasonably without cause to believe that the property was subject to forfeiture." Most legitimate providers of services will meet the requirements for this statutory exemption. The exception is the defendant's attorney, who cannot do his job (or at least cannot do his job well) without asking questions that will reveal the source of the defendant's assets. It is difficult to put great weight on the Government's interest in increasing the amount of property available for forfeiture when the means chosen are so starkly underinclusive, and the burdens fall almost exclusively upon the exercise of a constitutional right.
Interests as ephemeral as these should not be permitted to defeat the defendant's right to the assistance of his chosen counsel.
III
In my view, the Act as interpreted by the majority is inconsistent with the intent of Congress, and seriously undermines
I dissent.
FootNotes
Briefs of amici curiae urging affirmance were filed for the State of California by John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, John A. Gordnier, Senior Assistant Attorney General, and Gary W. Schons, Deputy Attorney General; and for Eugene R. Anderson, pro se.
Briefs of amici curiae were filed for the American Bar Association by Robert D. Raven, Charles G. Cole, Antonia B. Ianniello, and Terrance G. Reed; and for the Appellate Committee of the California District Attorneys Association by Ira Reiner, Harry B. Sondheim, and Arnold T. Guminski.
"shall forfeit to the United States, irrespective of any provision of State law —
"(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;
.....
"The court, in imposing sentence on such person, shall order, in addition to any other sentence imposed . . . , that the person forfeit to the United States all property described in this subsection." 21 U. S. C. § 853(a) (1982 ed., Supp. V).
There is no question here that the offenses Reckmeyer was accused of in the indictment fell within the class of crimes triggering this forfeiture provision.
"[u]pon application of the United States, the court may enter a restraining order or injunction . . . or take any other action to preserve the availability of property described in subsection (a) of [§ 853] for forfeiture under this section —
"(A) upon the filing of an indictment or information charging a violation. . . for which criminal forfeiture may be ordered under [§ 853] and alleging that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this section." § 853(e)(1).
When a person or entity seeks standing to advance the constitutional rights of others, we ask two questions: first, has the litigant suffered some injury-in-fact, adequate to satisfy Article III's case-or-controversy requirement; and second, do prudential considerations which we have identified in our prior cases point to permitting the litigant to advance the claim? See Singleton v. Wulff, 428 U.S. 106, 112 (1976). As to the first inquiry, there can be little doubt that petitioner's stake in $170,000 of the forfeited assets — which it would almost certainly receive if the Sixth Amendment claim it advances here were vindicated — is adequate injury-in-fact to meet the constitutional minimum of Article III standing.
The second inquiry — the prudential one — is more difficult. To answer this question, our cases have looked at three factors: the relationship of the litigant to the person whose rights are being asserted; the ability of the person to advance his own rights; and the impact of the litigation on third-party interests. See, e. g., Craig v. Boren, 429 U.S. 190, 196 (1976); Singleton v. Wulff, supra, at 113-118; Eisenstadt v. Baird, 405 U.S. 438, 443-446 (1972). The second of these three factors counsels against review here: as Monsanto, ante, p. 600, illustrates, a criminal defendant suffers none of the obstacles discussed in Wulff, supra, at 116-117, to advancing his own constitutional claim. We think that the first and third factors, however, clearly weigh in petitioner's favor. The attorney-client relationship between petitioner and Reckmeyer, like the doctor-patient relationship in Baird, is one of special consequence; and like Baird, it is credibly alleged that the statute at issue here may "materially impair the ability of" third persons in Reckmeyer's position to exercise their constitutional rights. See Baird, supra, at 445. Petitioner therefore satisfies our requirements for jus tertii standing.
"All right, title, and interest in property described in [§ 853] vests in the United States upon the commission of the act giving rise to forfeiture under this section. Any such property that is subsequently transferred to a person other than the defendant may be the subject of a special verdict of forfeiture and thereafter shall be forfeited to the United States, unless the transferee establishes" his entitlement to such property pursuant to § 853(n), discussed supra. 21 U. S. C. § 853(c) (1982 ed., Supp. V).
If appointed counsel is ineffective in a particular case, a defendant has resort to the remedies discussed in Strickland v. Washington, 466 U.S. 668 (1984). But we cannot say that the Sixth Amendment's guarantee of effective assistance of counsel is a guarantee of a privately retained counsel in every complex case, irrespective of a defendant's ability to pay.
Petitioner first notes the statute's exemption from forfeiture of property transferred to a bona fide purchaser who was "reasonably without cause to believe that the property was subject to forfeiture." 21 U. S. C. § 853(n)(6)(B). This provision, it is said, might give an attorney an incentive not to investigate a defendant's case as fully as possible, so that the lawyer can invoke it to protect from forfeiture any fees he has received. Yet given the requirement that any assets which the Government wishes to have forfeited must be specified in the indictment, see Fed. Rule Crim. Proc. 7(c)(2), the only way a lawyer could be a beneficiary of § 853(n)(6)(B) would be to fail to read the indictment of his client. In this light, the prospect that a lawyer might find himself in conflict with his client, by seeking to take advantage of § 853(n)(6)(B), amounts to very little. Petitioner itself concedes that such a conflict will, as a practical matter, never arise: a defendant's "lawyer . . . could not demonstrate that he was `reasonably without cause to believe that the property was subject to forfeiture,' " petitioner concludes at one point. Brief for Petitioner 31.
The second possible conflict arises in plea bargaining: petitioner posits that a lawyer may advise a client to accept an agreement entailing a more harsh prison sentence but no forfeiture — even where contrary to the client's interests — in an effort to preserve the lawyer's fee. Following such a strategy, however, would surely constitute ineffective assistance of counsel. We see no reason why our cases such as Strickland v. Washington, 466 U.S. 668 (1984), are inadequate to deal with any such ineffectiveness where it arises. In any event, there is no claim that such conduct occurred here, nor could there be, as Reckmeyer's plea agreement included forfeiture of virtually every asset in his possession. Moreover, we rejected a claim similar to this one in Evans v. Jeff D., 475 U.S. 717, 727-728 (1986).
Finally, petitioner argues that the forfeiture statute, in operation, will create a system akin to "contingency fees" for defense lawyers: only a defense lawyer who wins acquittal for his client will be able to collect his fees, and contingent fees in criminal cases are generally considered unethical. See ABA Model Rule of Professional Conduct 1.5(d)(2) (1983); ABA Model Code of Professional Responsibility DR 2-106(C) (1979). But there is no indication here that petitioner, or any other firm, has actually sought to charge a defendant on a contingency basis; rather the claim is that a law firm's prospect of collecting its fee may turn on the outcome at trial. This, however, may often be the case in criminal defense work. Nor is it clear why permitting contingent fees in criminal cases — if that is what the forfeiture statute does — violates a criminal defendant's Sixth Amendment rights. The fact that a federal statutory scheme authorizing contingency fees — again, if that is what Congress has created in § 853 (a premise we doubt) — is at odds with model disciplinary rules or state disciplinary codes hardly renders the federal statute invalid.
"(i) satisfy a money judgment rendered in any court in favor of a victim of any offense for which such defendant has been convicted, or a legal representative of such victim; and
"(ii) pay for legal representation of the defendant in matters arising from the offense for which such defendant has been convicted, but no more than 20 percent of the total proceeds may be so used." Pub. L. 98-473, § 1406(c)(1)(B), 98 Stat. 2175, codified as 18 U. S. C. § 3681(c)(1)(B) (1982 ed., Supp. V) (emphasis added).
When this provision is read in context, it is clear that it concerns payment of attorney's fees related to postconviction civil suits brought against convicted defendants by their victims. It does not, therefore, constitute the "precise exemption" sought in these cases. Indeed, the provision cuts against the result the majority reaches. In light of Congress' decision to permit a convicted criminal to use wealth he has obtained by publicizing his crime to hire counsel to resist his victim's damages claims, it would be bizarre to think that Congress intended to be more punitive when it comes to a defendant's need for counsel prior to conviction, when the defendant's own liberty is at stake.
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