Caplin & Drysdale, Chartered v. United States/Dissent Blackmun

by Harry Blackmun

Justice BLACKMUN, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, dissenting. #fn-s ^[1]

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, 491 U.S. 617, 625, 109 S.Ct. 2646, 2652, 105 L.Ed.2d 528. 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. ^[2]

The criminal-forfeiture statute we consider today could have been interpreted to avoid depriving defendants of the ability to retain private counsel-and should have been so interpreted, given the grave "constitutional and ethical problems" raised by the forfeiture of funds used to pay legitimate counsel fees. United States v. Badalamenti, 614 F.Supp. 194, 196 (SDNY 1985). But even if Congress in fact required this substantial incursion on the defendant's choice of counsel, the Court should have recognized that the Framers stripped Congress of the power to do so when they added the Sixth Amendment to our Constitution.

* 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, 491 U.S. 600, 608-609, and n. 8, 109 S.Ct. 2657, 2662-2663, and n. 8, 105 L.Ed.2d 512. ^[3] The fact that "the legislative history and congressional debates are similarly silent on the use of forfeitable assets to pay stockbroker's fees, laundry bills, or country club memberships," id., at 608-609, 109 S.Ct., at 2663, means nothing, for one cannot believe that Congress was unaware that interference with the payment of attorney's fees, unlike interference with these other expenditures, would raise Sixth Amendment concerns. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988).

Despite the absence of any indication that Congress intended to use the forfeiture weapon against legitimate attorney's fees, the majority-all the while purporting to "respect" the established practice of construing a statute to avoid constitutional problems, Monsanto, 491 U.S., at 611, 109 S.Ct., at 2664 contends that it is constrained to conclude that the Act reaches attorney's fees. The Court cannot follow its usual practice here, we are told, because this is not a "close cas[e]" in which "statutory language is ambiguous." Ibid. The majority finds unambiguous language in 21 U.S.C. § 853(a), which provides that when a defendant is convicted of certain crimes, the defendant "shall forfeit to the United States" any property derived from proceeds of the crime or used to facilitate the crime. I agree that § 853(a) is broad in language and is cast in mandatory terms. ^[4] But I do not agree with the majority's conclusion that the lack of an express exemption for attorney's fees in § 853(a) makes the Act as a whole unambiguous.

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 requirements for exemption. Thus, § 853(c) does not, like § 853(a), provide that all property defined as forfeitable under § 853 "must" or "shall" be forfeited: ^[5] forfeitable property held by a third party presumptively "shall be orde ed forfeited" only if it is included in the special verdict, and its inclusion in the verdict is discretionary. ^[6]

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:

"Upon 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 . . . for forfeiture under this section . . . upon the filing of an indictment or information charging a violation . . . for which criminal forfeiture may be ordered . . . 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" (emphasis added).

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), 1984 U.S.Code Cong. & Admin.News pp. 3182, 3385. 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, 1984 U.S.Code Cong. & Admin.News at 3386. 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, 1984 U.S.Code Cong. & Admin.News at 3389, 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, 491 U.S., at 613, 109 S.Ct., at 2665. That proposition, of course, is unassailable: I agree that discre ion 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 the Act does not seek forfeiture of property for its own sake merely to maximize the amount of money the Government collects. ^[7] The central purposes of the Act, properly understood, are fully served by an approach to forfeiture that leaves ample room for the exercise of statutory discretion.

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"). ^[8]

Congress also had a more traditional punitive goal in mind: to strip convicted criminals of all assets purchased with the proceeds of their criminal activities. Particularly in the area of drug trafficking, Congress concluded that crime had become too lucrative for criminals to be deterred by conventional punishments. "Drug dealers have been able to accumulate huge fortunes as a result of their illegal activities. The sad truth is that the financial penalties for drug dealing are frequently only seen by dealers as a cost of doing business." House Report, at 2. The image of convicted drug dealers returning home from their prison terms to all the comforts their criminal activity can buy is one Congress could not abide. ^[9]

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, 1984 U.S.Code Cong. & Admin.News at 3383-3384.

With these purposes in mind, it becomes clear that a district court acts within the bounds of its statutory discretion when it exempts from preconviction restraint and postconviction forfeiture those assets a defendant needs to retain private counsel for his criminal trial. Assets used to retain counsel by definition will be unavailable to the defendant or his criminal organization after trial, even if the defendant is eventually acquitted. See Cloud, Government Intrusions Into the Attorney-Client Relationship: The Impact of Fee Forfeitures on the Balance of Power in the Adversary System of Criminal Justice, 36 Emory L.J. 817, 832 (1987). Thus, no important and legitimate purpose is served by employing § 853(c) to require postconviction forfeiture of funds used for legitimate attorney's fees, or by employing § 853(e)(1) to bar preconviction payment of fees. The Government's interests are adequately protected so long as the district court supervises transfers to the attorney to make sure they are made in good faith. ^[10] See Comment, 61 N.Y.U.L.Rev. 124, 138-139 (1986). All that is lost is the Government's power to punish the defendant before he is convicted. That power is not one the Act intended to grant. ^[11]

A careful analysis of the language of the Act and its legislative history thus proves that "a construction of the statute is fairly possible by which the [constitutional] question may be avoided." Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 297, 76 L.Ed. 598 (1932). ^[12] Indeed, the prudentially preferable construction is also the only one that gives full effect to the discretionary language in §§ 853(c) and 853(e)(1). Thus, "if anything remains of the canon that statutes capable of differing interpretations should be construed to avoid constitutional issues . . . it surely applies here." United States v. Monsanto, 852 F.2d, at 1409.

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, 491 U.S., at 626, 109 S.Ct., at 2652. Instead, id., at 624, 109 S.Ct., at 2652, 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, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (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 f eedom.' " See id., at 172, 108 S.Ct., at 1704 (STEVENS, J., dissenting), quoting Walters v. National Assn. of Radiation Survivors, 473 U.S. 305, 371, 105 S.Ct. 3180, 3215, 87 L.Ed.2d 220 (1985) (STEVENS, J., dissenting).

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, 53 S.Ct. 55, 58, 77 L.Ed. 158 (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, 75 S.Ct. 1, 4, 99 L.Ed. 4 (1954). The Court's subsequent decisions have made clear that an indigent defendant has the right to appointed counsel, see, e.g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and that the Sixth Amendment guarantees at least minimally effective assistance of counsel, see, e.g., Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). But while court appointment of effective counsel plays a crucial role in safeguarding the fairness of criminal trials, it has never defined the outer limits of the Sixth Amendment's demands. The majority's decision in Caplin & Drysdale reveals that it has lost track of the distinct role of the right to counsel of choice in protecting the integrity of the judicial process, a role that makes "the right to be represented by privately retained counsel . . . the primary, preferred component of the basic right" protected by the Sixth Amendment. United States v. Harvey, 814 F.2d 905, 923 (CA4 1987), rev'd sub nom. in rE forfeituRE hearing as tO caplin & drysdale, chartered, 837 F.2d 637 (Ca4 1988) (en banc).

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, 95 S.Ct. 2525, 45 L.Ed.2d 562 (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, 71 S.Ct. 624, 648-649, 95 L.Ed. 817 (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 on a defendant can only lead him to believe that the law contrives against him." 422 U.S., at 834, 95 S.Ct., at 2540.

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, 83 S.Ct., at 796, 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. ^[13] Where cases are complex trials long, and stakes high, that problem is exacerbated. "Despite the legal profession's commitment to pro bono work," United States v. Bassett, 632 F.Supp. 1308, 1316 (Md.1986), aff'd on other grounds sub nom. United States v. Harvey, 814 F.2d 905 (CA4 1987), even the best intentioned of attorneys may have no choice but to decline the task of representing defendants in cases for which they will not receive adequate compensation. See, e.g., United States v. Rogers, 602 F.Supp. 1332, 1349 (Colo.1985). Over the long haul, the result of lowered compensation levels will be that talented attorneys will "decline to enter criminal practice. . . . This exodus of talented attorneys could devastate the criminal defense bar." Winick, Forfeiture of Attorneys' Fees under RICO and CCE and the Right to Counsel of Choice: The Constitutional Dilemma and How to Avoid It, 43 U. Miami L.Rev. 765, 781 (1989). Without the defendant's right to retain private counsel, the Government too readily could defeat its adversaries simply by outspending them. ^[14]

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, 72 S.Ct. 451, 455, 96 L.Ed. 717 (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 (CA5 1987). The choice of counsel is the primary means for the defendant to establish the kind of defense he will put forward. See United States v. Laura, 607 F.2d 52, 56 (CA3 1979). Only a healthy, independent defense bar can be expected to meet the demands of the varied circumstances faced by criminal defendants, and assure that the interests of the individual defendant are not unduly "subordinat[ed] . . . to the needs of the system." Bazelon, 42 U.C n.L.Rev., at 7.

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.

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. ^[15] If the Government restrains the defendant's assets before trial, private counsel will be unwilling to continue, or to take on, the defense. Even if no restraining order is entered, the possibility of forfeiture after conviction will itself substantially diminish the likelihood that private counsel will agree to take the case. The "message [to private counsel] is 'Do not represent this defendant or you will lose your fee.' That being the kind of message lawyers are likely to take seriously, the defendant will find it difficult or impossible to secure representation." United States v. Badalamenti, 614 F.Supp., at 196.

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, 491 U.S., at 633, n. 10, 109 S.Ct., at 2656, 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 hich he is paid. Under § 853(c), a third-party transferee may keep assets if "the transferee establishes . . . that he is a bona fide purchaser for value of such property who at the time of purchase was reasonably without cause to believe that the property was subject to forfeiture under this section." The less an attorney knows, the greater the likelihood that he can claim to have been an "innocent" third party. The attorney's interest in knowing nothing is directly adverse to his client's interest in full disclosure. The result of the conflict may be a less vigorous investigation of the defendant's circumstances, leading in turn to a failure to recognize or pursue avenues of inquiry necessary to the defense. Other conflicts of interest are also likely to develop. The attorney who fears for his fee will be tempted to make the Government's waiver of fee forfeiture the sine qua non for any plea agreement, a position which conflicts with his client's best interests. See United States v. Badalamenti, 614 F.Supp., at 196-197; United States v. Bassett, 632 F.Supp., at 1316, n. 5.

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 subject to forfeiture will be forced to operate in an environment in which the Government is not only the defendant's adversary, but also his own.

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.

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, 108 S.Ct., at 1696, 1697-1698, 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, 108 S.Ct., at 1700-1701 (MARSHALL, J., dissenting), or threatens to undermine the orderly disposition of the case, see Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (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, 491 U.S., at 630, 109 S.Ct., at 2655, quoting Morris v. Slappy, 461 U.S. 1, 23, 103 S.Ct. 1610, 1622, 75 L.Ed.2d 610 (1983) (BRENNAN, J., opinion concurring in result), is itself a legitimate Government interest that can justify the Government's interference with the defendant's right to chosen counsel-and for good reason. "[W]eakening the ability of an accused to defend himself at trial is an advantage for the government. But it is not a legitimate government interest that can be used to justify invasion of a constitutional right." United States v. Monsanto, 852 F.2d, at 1403 (Feinberg, C.J., concurring). And the legitimate interests the Government asserts are extremely weak, far too weak to justify the Act's substantial erosion of the defendant's Sixth Amendment rights.

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, 491 U.S., at 613, 109 S.Ct., at 2665. 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, sole title to such assets-not merely possession, as is the case in the majority's bank robbery example, Caplin & Drysdale, 491 U.S., at 626, 109 S.Ct., at 2652-2653 rests in the defendant; no other party has any present legal claim to them. ^[16] Yet it is in the preconviction period that the forfeiture threat (or the force of a § 853(e)(1) restraining order) deprives the defendant of use of the assets to retain counsel. The Government's interest in the assets at the time of their restraint is no more than an interest in safeguarding fictive property rights, one which hardly weighs at all against the defendant's formidable Sixth Amendment right to retain counsel for his defense.

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 restrain property the defendant seeks to use to retain counsel on a showing of probable cause as well. Monsanto, 491 U.S., at 615-616, 109 S.Ct., at 2666, citing United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Neither the majority's premise nor its conclusion is well founded.

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 from the failure to restrain assets differs in kind and severity from the danger faced by the public when a defendant who is believed to be violent remains at large before trial.

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) withou 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. ^[17]

Interests as ephemeral as these should not be permitted to defeat the defendant's right to the assistance of his chosen counsel.

In my view, the Act as interpreted by the majority is inconsistent with the intent of Congress, and seriously undermines the basic fairness of our criminal-justice system. That a majority of this Court has upheld the constitutionality of the Act as so interpreted will not deter Congress, I hope, from amending the Act to make clear that Congress did not intend this result. This Court has the power to declare the Act constitutional, but it cannot thereby make it wise.

I dissent.

Notes

1. *
2. See, e.g., United States v. Rogers, 602 F.Supp. 1332 (Colo.1985); United States v. Badalamenti, 614 F.Supp. 194 (SDNY 1985); United States v. Reckmeyer, 631 F.Supp. 1191, 1197 (ED Va.1986), aff'd on other grounds sub nom. United States v. Harvey, 814 F.2d 905 (CA4 1987), rev'd sub nom. In re Forfeiture Hearing as to Caplin & Drysdale, Chartered, 837 F.2d 637 (CA4 1988) (en banc); United States v. Bassett, 632 F.Supp. 1308, 1317 (Md.1986), aff'd on other grounds sub nom. United States v. Harvey, 814 F.2d 905 (CA4 1987); United States v. Ianniello, 644 F.Supp. 452 (SDNY 1985); United States v. Estevez, 645 F.Supp. 869 (ED Wis.1986), app. dism'd for untimeliness, 852 F.2d 239 (CA7 1988).
3. Indeed, the strongest statement on the question is the comment in the House Report: "Nothing in this section is intended to interfere with a person's Sixth Amendment right to counsel." H.R.Rep. No. 98-845, pt. 1, p. 19, n. 1 (1984). Even if the majority were correct that this statement is "nothing more than an exhortation for the courts to tread carefully in this delicate area," United States v. Monsanto, 491 U.S., at 609, n. 8, 109 S.Ct., at 2662, n. 8, the majority does not explain why it proceeds to ignore Congress' exhortation to construe the statute to avoid implicating Sixth Amendment concerns.
4. As the majority acknowledges, so did Judge Winter, whose interpretation of the Act Caplin & Drysdale and Monsanto adopt in their briefs to this Court. See Monsanto, 491 U.S., at 607, 109 S.Ct., at 2662; United States v. Monsanto, 852 F.2d 1400, 1409-1410 (CA2 1988) (en banc) (Winter, J., concurring).
5. This language differs from the language in Federal Rule of Criminal Procedure 31(e), which was promulgated in 1972 to provide procedural rules for Congress' earlier forays into criminal forfeiture. The Rule provides: "If the indictment or the information alleges that an interest or property is subject to criminal forfeiture, a special verdict shall be returned as to the extent of the interest or property subject to forfeiture, if any." (Emphasis added.) Congress' decision to depart from mandatory language in § 853(c), where it fashioned a special verdict provision for assets transferred to third parties, is significant.
6. That the Act is mandatory in its treatment of forfeiture of property in the defendant's hands, but not in its treatment of property transferred to third parties, is consistent with the distinction between civil forfeiture and criminal forfeiture. The theory (or, more properly, the fiction) underlying civil forfeiture is that the property subject to forfeiture is itself tainted by having been used in an unlawful manner. The right of the Government to take possession does not depend on the Government's ultimately convicting the person who used the property in an unlawful way, nor is it diminished by the innocence or bona fides of the party into whose hands the property falls. See United States v. Stowell, 133 U.S. 1, 10 S.Ct. 244, 33 L.Ed. 555 (1890). Criminal forfeiture, in contrast, is penal in nature: it is predicated on the adjudicated guilt of the defendant, and has punishment of the defendant as its express purpose. See generally Cloud, Forfeiting Defense Attorneys' Fees: Applying an Institutional Role Theory to Define Individual Constitutional Rights, 1987 Wis.L.Rev. 1, 18-19. Where the purpose of forfeiture is to punish the defendant, the Government's penal interests are weakest when the punishment also burdens third parties.
7. In adopting this view of the Act, the majority ignores the Government's concession at oral argument before the en banc Court of Appeals for the Second Circuit that the Act was not enacted as a revenue-raising measure. See United States v. Monsanto, 852 F.2d, at 1407, and n. 1 (Winter, J., concurring). Thus, although the Government's interest in "using the profits of crime to fund [law-enforcement] activities" should perhaps not be "discounted," Caplin & Drysdale, ante, 491 U.S., at 629, 109 S.Ct., at 2654, it is not dispositive. Nor does Congress' willingness to return forfeited funds to victims of crime instead of using them for law-enforcement purposes indicate that restitution is a primary goal of the Act. See ibid. Restitution, in any event, is not a likely result in the typical case for which the Act was designed: one in which the property forfeited consists of derivative proceeds of illegal activity, rather than of stolen property that is readily traceable to a particular victim. See Cloud, 1987 Wis.L.Rev., at 20.
8. The majority contends that "the desire to lessen the economic power of organized crime and drug enterprises . . . includes the use of such economic power to retain private counsel." Caplin & Drysdale, 491 U.S., at 630, 109 S.Ct., at 2654-2655. "The notion that the Government has a legitimate interest in depriving criminals"-before they are convicted-"of economic power, even insofar as that power is used to retain counsel of choice" is more than just "somewhat unsettling," as the majority suggests. Ibid. That notion is constitutionally suspect, and-equally important for present purposes-completely foreign to Congress' stated goals. The purpose of the relation-back provision is to assure that assets proved at trial to be the product of criminal activity cannot be channeled into further criminal activity-not to strip defendants of their assets on no more than a showing of probable cause that they are "tainted." See United States v. Bassett, 632 F.Supp., at 1316; Comment, 61 N.Y.U.L.Rev. 124, 139 (1986). For its contrary view, the majority relies on nothing more than the rhetoric of the en banc Court of Appeals' majority opinion in Caplin & Drysdale.
9. Congress' desire to maximize punishment, however, cannot be viewed as a blanket authorization of Government action that punishes the defendant before he is proved guilty.
10. Judge Winter noted that the same logic suggests that the forfeiture of assets the defendant uses to support himself and his family is unduly harsh and is not necessary to achieve the goals of the Act. United States v. Monsanto, 852 F.2d, at 1405. The majority chides Judge Winter for suggesting that, once it is established that there is discretion to exclude assets used to pay attorney's fees and normal living expenses from forfeiture, the necessary result is that such assets must be excluded. Monsanto, 491 U.S., at 612-613, 109 S.Ct., at 2664-2665. I find it exceedingly unlikely that a district court, instructed that it had the discretion to permit a defendant to retain counsel, would ever choose not to do so. Normal equitable considerations, combined with a proper regard for Sixth Amendment interests, would weigh so strongly in favor of that result that any "slippage" from permissive to mandatory language on Judge Winter's part seems to me entirely accurate as a predictive matter.
11. The majority states in Monsanto, 491 U.S., at 610-611, 109 S.Ct., at 2664, that another forfeiture statute contemporaneous with the Act contains "the precise exemption from forfeiture which respondent asks us to imply into § 853," and suggests that this is evidenc that "Congress understood what it was doing in omitting such an exemption" from the Act. This argument is makeweight. The express exemption to which the majority refers involves the use of proceeds from publications and other accounts of a crime to:
12. For this reason, I need not rely on NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500, 99 S.Ct. 1313, 1318, 59 L.Ed.2d 533 (1979), in which the Court held that even the broadest statutory language may be interpreted as excluding cases that would raise serious constitutional questions, absent a clear expression of an affirmative intention of Congress to include those cases. See also Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988). Under the Catholic Bishop approach, however, there could be no doubt that "the required 'clearest indication in the legislative history' " or statutory language is absent here. 485 U.S., at 578, 108 S.Ct., at 1399.
13. "Even in the federal courts under the Criminal Justice Act of 1964, 18 U.S.C. § 3006A, which provides one of the most generous compensation plans, the rates for appointed counsel . . . are low by American standards. Consequently, the majority of persons willing to accept appointments are the young and inexperienced." Argersinger v. Hamlin, 407 U.S. 25, 57, n. 21, 92 S.Ct. 2006, 2022, n. 21, 32 L.Ed.2d 530 (1972) (Powell, J., concurring in result). Indeed, there is evidence that "Congress did not design [the Criminal Justice Act] to be compensatory, but merely to reduce financial burdens on assigned counsel." See Winick, Forfeiture of Attorneys' Fees under RICO and CCE and the Right to Counsel of Choice: The Constitutional Dilemma and How to Avoid It, 43 U. Miami L.Rev. 765, 773, and n. 40 (1989).
14. That the Government has this power when the defendant is indigent is unfortunate, but "[i]t is an irrelevancy once recognized." United States v. Harvey, 814 F.2d, at 923.
15. There is reason to fear that, in addition to depriving a defendant of counsel of choice, there will be circumstances in which the threat of forfeiture will deprive the defendant of any counsel. If the Government chooses not to restrain transfers by employing § 853(e)(1), it is likely that the defendant will not qualify as "indigent" under the Criminal Justice Act. Potential private counsel will be aware of the threat of forfeiture, and, as a result, will likely refuse to take the case. Although it is to be hoped that a solution will be developed for a defendant who "falls between the cracks" in this manner, there is no guarantee that accommodation will be made in an orderly fashion, and that trial preparation will not be substantially delayed because of the difficulties in securing counsel. For discussions of this problem, see United States v. Ianniello, 644 F.Supp., at 456-457; United States v. Badalamenti, 614 F.Supp., at 197.
16. Other analogies the majority and the Government have drawn are also inapt. We do not deal with contraband, which the Government is free to seize because the law recognizes no right to possess it. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965). Nor do we deal with instrumentalities of crime, which may have evidentiary value, and may also traditionally be seized by the Government and retained even if the defendant is not proved guilty, unless a party with a rightful claim to the property comes forward to refute the Government's contention that the property was put to an unlawful use. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679, 94 S.Ct. 2080, 2089, 40 L.Ed.2d 452 (1974); Comment, 48 U.Chi.L.Rev. 960, 963-964 (1981). As to the analogy to "jeopardy assessments" under the In ernal Revenue Code, the Internal Revenue Service in that situation has a legal claim to the sums at issue at the time of the assessment, based upon substantive provisions of the Code. Here, in contrast, the Government's claim will not arise until after conviction. In addition, even if a jeopardy assessment were to deprive a taxpayer of the funds necessary to file a challenge to the assessment in the Tax Court, the proceeding in that court is civil, and the Sixth Amendment therefore does not apply. I agree with Judge Phillips when he observes that the constitutionality of a jeopardy assessment that deprived the defendant of the funds necessary to hire counsel to ward off a criminal challenge is not to be assumed. See United States v. Harvey, 814 F.2d, at 926.
17. Certainly criminal defendants "are not exempted from federal, state, and local taxation simply because these financial levies may deprive them of resources that could be used to hire an attorney." Caplin & Drysdale, 491 U.S., at 631-632, 109 S.Ct., at 2655-2656. The Government's interest in raising revenue need not stand aside merely because the individual being taxed would rather spend the money by participating in a constitutionally protected activity. But I doubt that we would hesitate to reject as an undue burden on the exercise of a constitutional right a system that generally exempted personal-service transactions from taxation, but taxed payments to criminal-defense attorneys. In such circumstances, a clear-headed analysis of the Government's action would likely reveal that burdening the exercise of the defendant's Sixth Amendment right was not the unfortunate consequence of the Government's action, but its very purpose.