UNITED STATES OF AMERICA, PETITIONER V. PETER MONSANTO

   No. 88-454

   In the Supreme Court of the United States

   October Term, 1988

   On Writ of Certiorari to the United States Court of Appeals for the
Second Circuit

   Brief for the United States

            TABLE OF CONTENTS
   Questions Presented
   Opinions below
   Jurisdiction
   Constitutional and statutory provisions involved
   Statement
   Summary of argument
   Argument:
      I. Section 853 does not exempt from forfeiture
         the property a defendant wishes to use to pay
         his attorney's fee
         A. The language and structure of Section
            853 do not permit an exception to the
            general rule of forfeiture for property a
            defendant wishes to use to pay his
            attorney
         B. The legislative history of Section 853
            does not support recognition of an
            exemption from forfeiture
     II. The Constitution does not require an
         exemption from post-trial forfeiture or pretrial
         restraint for those assets that the defendant
         wants to use to pay his attorney
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the en banc court of appeals (Pet. App. 1a-47a) is
reported at 852 F.2d 1400.  The opinion of the panel of the court of
appeals (Pet. App. 48a-76a) is reported at 836 F.2d 74.  The
restraining order issued by the district court on July 9, 1987 (Pet.
App. 77a-78a);  the district court's August 28, 1987, order denying
respondent's motion to vacate the restraining order (Pet. App. 79a);
and the district court's January 15, 1988, oral ruling again declining
to vacate the restraining order (Pet. App. 80a-88a) are unreported.

                             JURISDICTION

   The judgment of the court of appeals on rehearing en banc was
entered on July 1, 1988.  By order dated August 24, 1988, Justice
Marshall extended the time within which to file a petition for a writ
of certiorari to and including September 14, 1988.  The petition was
filed on that date and was granted on November 7, 1988.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

           CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

   1. The Due Process Clause of the Fifth Amendment of the United
States Constitution provides:

         No person shall * * * be deprived of life, liberty, or
      property, without due process of law;  * * *

   2. The Sixth Amendment of the United States Constitution provides
in relevant part:

         In all criminal prosecutions, the accused shall enjoy the
      right * * * to have the Assistance of Counsel for his defence.

   3. Section 853 of Title 21 of the United States Code (Supp. IV
1986), which provides for the criminal forfeiture of property that
represents the proceeds of violations of the federal drug laws, is
reproduced at App., infra, 1a-9a.

                          QUESTIONS PRESENTED

   1. Whether assets that are otherwise subject to criminal forfeiture
under the drug forfeiture statute, 21 U.S.C. 853 (Supp. IV 1986), are
exempt from forfeiture if the defendant wishes to use them to pay
counsel to represent him in the criminal prosecution.

   2. Whether, if such assets are not altogether exempt from
forfeiture, Section 853(e)(1)(A) authorizes a court to enter a
pretrial restraining order that applies to assets that the defendant
wishes to use to pay the attorney.

   3. Whether, if Sections 853(a) and 853(e)(1)(A) authorize the
forfeiture and pretrial restraint of such assets, those provisions are
unconstitutional under the Assistance of Counsel Clause of the Sixth
Amendment or the Due Process Clause of the Fifth Amendment if the
attorney's resulting uncertainty about whether he will be paid his fee
causes him to decline to represent the defendant.

                               STATEMENT

   1. An indictment naming respondent and 18 other defendants was
unsealed in the Southern District of New York on July 8, 1987 (C.A. En
Banc App. 5-38).  The indictment alleged that from 1981 to 1987,
respondent directed an enterprise that distributed massive amounts of
heroin, received substantial illicit profits from heroin sales by his
lower-tier employees, and used intimidation and violence to promote
and protect the enterprise's activities (id. at 6-7, 10-27).  /1/ The
first two counts of the indictment charged respondent with conducting
and participating in the affairs of a racketeering enterprise through
a pattern of racketeering activity, and conspiring to commit that
offense, in violation of the Racketeer Influenced and Corrupt
Organizations (RICO) statute, 18 U.S.C. 1962(c) and (d) (C.A. En Banc
App. 6-25).  Counts 3 and 4 charged respondent with conspiring to
distribute narcotics and engaging in a continuing criminal enterprise
(CCE), in violation of 21 U.S.C. 846 and 848 (1982 & Supp. IV 1986)
(C.A. En Banc App. 26-34).  Other counts charged respondent with
illegal possession of firearms, in violation of 18 U.S.C. App. II 1202
(1982 ed.), and with income tax evasion for the years 1982 to 1985.
The indictment also alleged that respondent had accumulated three
specified assets as the proceeds of his narcotics trafficking:  a
house in Mount Vernon, New York, valued at approximately $335,000;  a
cooperative apartment in the Bronx, valued at approximately $30,000;
and $35,000 in cash.  The last three counts of the indictment sought
forfeiture of those assets pursuant to 21 U.S.C. 853 (Supp. IV 1986),
which mandates the forfeiture of assets that constitute or are derived
from the proceeds of certain violations of the federal drug laws.
Pet. App. 49a-50a.

   On the day that the indictment was unsealed, the district court,
pursuant to 21 U.S.C. 853(e)(1)(A) (Supp. IV 1986), granted the
government's ex parte motion for an order restraining respondent from
selling or transferring the residence in Mount Vernon and the
apartment in the Bronx (Pet. App. 50a, 77a-78a).  /2/ Section
853(e)(1)(A) authorizes the court, upon application of the United
States, to "enter a restraining order or injunction, require the
execution of a satisfactory performance bond, or take any other action
to preserve the availability of property," where the indictment
alleges that "the property with respect to which the (restraining)
order is sought would, in the event of conviction, be subject to
forfeiture under (Section 853)."

   On August 21, 1987, respondent filed a motion to vacated or modify
the restraining order, to permit him to use the restrained assets to
retain private counsel to represent him in the prosecution.  The
motion furthr sought to exempt any assets that might be transferred to
an attorney in payment of legal fees from subsequent forfeiture, even
if respondent was convicted and the jury found that the assets that
were used to pay the attorney were the proceeds of respondent's
illegal drug activities.  /3/ Respondent contended that the forfeiture
and postindictment restraining order provisions of Section 853 violate
the Sixth Amendment because, by preventing a defendant from using
covered assets to pay an attorney, they impermissibly interfere with
the defendant's right to retain counsel of his choice.  By order dated
August 28, 1987, the district court denied respondent's motion to
vacate or modify the restraining order.  Pet. App. 79a.  /4/

   2. A divided panel of the court of appeals reversed and remanded
for further proceedings.  Pet. App. 48a-76a.  The panel first held
that Section 853 does not exempt assets from forfeiture merely because
the defendant wishes to use them to pay an attorney (Pet. App.
55a-60a).  The panel reasoned that "the plain language of the statute
is categorical and contains no exception for attorney's fees:  'Any
person convicted of a violation . . . shall forfeit to the United
States . . . (1) any property constituting, or derived from, any
proceeds the person obtained, directly or indirectly, as a result of
such violation.'" Id. at 56a, quoting 21 U.S.C. 853(a) (Supp. IV
1986).

   The panel rejected respondent's contention that Section 853 permits
the forfeiture of property that the defendant transfers to a third
party (such as an attorney) only if the transfer was a sham or a
fraudulent transaction.  The panel noted that Section 853 contains
just one exception to forfeiture for property transferred to a third
person, and that exception applies only where the transferee
establishes at a postconviction hearing that "he is a bona fide
purchaser for value of such property who at the time of the purchase
was reasonably without cause to believe that the property was subject
to forfeiture." 21 U.S.C. 853(c) (Supp. IV 1986);  see also 21 U.S.C.
853(n)(6)(B) (Supp. IV 1986).  The panel concluded that this language
extends relief only to bona fide purchasers without notice, not to all
third-party transferees except those who obtained the property in a
sham or fraudulent transaction.  The panel reasoned that an attorney
may have notice that the property is subject to forfeiture "even
though his receipt of such property in exchange for legitimate and
necessary legal defense services is not fraudulent or less than an
arm's length transaction" (Pet. App. 56a-57a).

   The panel also rejected respondent's contention that Section 853
violates the Sixth Amendment right to counsel to the extent that it
authorizes forfeiture and pretrial restraint of assets that a
defendant wishes to use to pay his attorney's fee.  Even where a
defendant has the necessary financial resources, the panel noted, he
has only a qualified right under the Sixth Amendment to retain the
counsel of his choice, and his interest in doing so may be outweighed
by countervailing governmental interests.  Id. at 60a.  In the present
context, the panel found a substantial countervailing interest,
articulated by Congress when it enacted the Comprehensive Forfeiture
Act of 1984, Pub. L. No. 98-473, 98 Stat. 2040, in stripping drug
offenders of the economic power that they derive from their
drug-related activities.  In the panel's view, that interest applies
equally when the drug offender seeks to use his illegally obtained
economic power to pay "very considerable amounts of money" to
attorneys to represent him in a RICO or CCE prosecution.  Id. at
61a-62a.  By the same token, the panel believed that respondent's
position "overvalue(s) the legitimacy of a defendant's interest in
using possible tainted assets" to retain counsel of his choice, since
the forfeiture statute provides that "'(a)ll right, title and interest
in (forfeitable) property * * * vests in the United States upon the
commission of the act giving rise to forfeiture.'" Id. at 62a-63a,
quoting 21 U.S.C. 853(c) (Supp. IV 1986).

   While holding that there is no statutory or constitutional bar to a
pretrial restraining order that has the effect of preventing a
defendant from retaining private counsel of his choice, the panel held
that the filing of an indictment seeking forfeiture of assets is not
sufficient in itself to support such an order.  Accordingly, the panel
held that a district court should permit the payment of the fee
charged by counsel unless the government establishes at an adversarial
hearing that there is a likelihood that the jury will convict the
defendant and find the property in question to be forfeitable.  Pet.
App. 64a-72a.  The panel further ruled that if the government does not
meet its burden at such a hearing, any funds that the defendant
transfers to his attorney to pay a legitimate attorney's fee will
thereafter be exempt from forfeiture even if the defendant is later
convicted and the jury concludes that the assets transferred to the
attorney in fact were the proceeds of the defendant's drug
trafficking.  Id. at 69a.  Conversely, the panel stressed, if the
government carries its burden at the hearing, the defendant does not
have a Sixth Amendment right to use the restrained assets to pay his
attorney.  That is so, the panel explained, because there is "no
constitutional principle requiring that a defendant whose ability to
pay private counsel results solely from the possession of property
which he has acquired by criminal activity, which property Congress
has declared to be forfeitable, must be placed in a position
preferable to that of an indigent defendant who does not have such
property at his disposal." Id. at 70a.  The panel therefore remanded
the case to the district court to conduct an adversarial hearing on
the continuation of the restraining order.  Id. at 71a-72a.

   Judge Oakes dissented (Pet. App. 72a-76a).  He agreed with the
majority that Section 853 applies to assets that the defendant wishes
to use to pay his attorney (id. at 72a).  In his view, to read the
"bona fide purchaser" exception in Section 853(c) to cover an attorney
who had reasonable cause to believe that the fees he received might be
derived from property subject to forfeiture would "improperly
contort() the plain language of the statute," because "'(n)o one is
more on notice of likelihood that the money may come from . . .
prohibited activity than the lawyer who is asked to represent the
defendant in the trial of the indictment'" (ibid., quoting United
States v. Badalamenti, 614 F. Supp. 194, 196 (S.D.N.Y. 1985)).  In
contrast to the majority, however, Judge Oakes concluded that Section
853 violates the Sixth Amendment to the extent it permits the
government to recapture assets that were used to pay the attorney's
fees prior to the defendant's conviction (Pet. App. 72a-76a).

   3. Pursuant to the panel's mandate, the district court on remand
conducted a four-day hearing on whether to continue the order
restraining respondent from transferring the two parcels of real
property.  The hearing consisted primarily of the testimony of the
government's case agent, supported by numerous exhibits, including
lists of weapons, narcotics and narcotics paraphernalia, drug ledgers,
transcripts of conversations recorded pursuant to court orders for
electronic surveillance, and real estate records.  Respondent did not
put on any evidence to rebut the government's showing.  At the
conclusion of the hearing on January 15, 1988, the district court once
again denied respondent's motion to vacate the restraining order,
finding that the government had "overwhelmingly established a
likelihood of conviction under Sections 848 and 846, and that the
restrained properties were obtained with the proceeds of narcotics
related activities." Pet. App. 86a.  /5/

   Respondent's trial commenced on February 16, 1988.  Respondent was
represented at trial by an attorney appointed under the CJA.  Pet.
App. 3a.  The trial lasted five months.

   4. Shortly before the beginning of the trial, the court of appeals
granted en banc review of the panel's decision.  In its decision on
rehearing en banc (Pet. App. 1a-47a), the court of appeals ordered
that the preconviction restraining order be modified to allow
respondent access to the restrained assets to the extent necessary to
pay what the court referred to as "legitimate (that is, non-sham)
attorney's fees" in connection with the criminal charges against him
(id. at 4a).  The court further held that any fees actually paid to
counsel would thereafter be exempt from forfeiture under Section
853(c).  Pet. App. 4a.  The en banc court's disposition was set forth
in a brief per curiam opinion, Pet. App. 1a-4a, which was followed by
eight separate opinions concurring in or dissenting from that
disposition, Pet. App. 4a-47a.

   Although the en banc court voted 8-4 to vacate the restraining
order, the majority was splintered in its rationale, and no more than
three judges joined any of the three opinions concurring in that
result.

   Chief Judge Feinberg, in a brief opinion joined by Judge Oakes and
Judge Kearse, did not dispute that the forfeiture provisions in
Section 853 apply to assets that the defendant wishes to use to pay an
attorney, but he concluded that those statutory provisions are
unconstitutional under the Sixth Amendment to the extent that they do
so.  Pet. App. 4a-8a.  Chief Judge Feinberg believed that the
defendant's right to counsel of his choice cannot be infringed unless
a "compelling" governmental interest outweighs that right.  And the
government's interests at stake in this setting, he concluded, "are
not all that compelling." Id. at 5a.  As to the interest in preventing
a defendant from dissipating the assets prior to conviction, Chief
Judge Feinberg found it significant that the government's claim to the
disputed assets is only "conditional," since the government's claim of
ownership is not finally determined until the prosecution is
completed.  Ibid.  As to the interest in preventing a defendant from
benefiting from the economic power that he acquired through his
illegal drug activities, Chief Judge Feinberg acknowledged that the
"defendant's assets generally are a fair target for the government"
and that the government does have an interest in preventing criminals
from using illegally acquired economic power even to pay an attorney;
but he stated that in his view, that interest does not outweigh an
accused's constitutional right to the assistance of counsel of his
choice.  Id. at 6a.  Chief Judge Feinberg therefore concluded that the
restraining order must be vacated to the extent necessary to give
respondent access to sufficient funds to retain counsel of his choice,
and that the government must be prohibited from later seeking
forfeiture of the funds paid to respondent's counsel of choice, "since
practical considerations will keep an attorney from accepting fees
based upon the contingency of success at the criminal trial." Pet.
App. 7a.  /6/

   Judge Winter, in an opinion joined by Judge Meskill and Judge
Newman, did not reach the Sixth Amendment issue because he believed
the restraining order was improper on statutory grounds.  He concluded
that Section 853(e)(1)(A) does not permit the preconviction restraint
of funds needed by a defendant to make "ordinary lawful expenditures"
(including the payment of attorneys' fees) during the period from
indictment to conviction, and that assets transferred by the defendant
for such purposes with the authorization of the court are not subject
to postconviction forfeiture.  Pet. App. 10a-24a.

   Judge Winter did not dispute that the broad language of Section
853(a), which provides for the forfeiture of "any property" that
constitutes or is derived from the proceeds of drug activities,
encompasses property that the defendant wishes to use to pay an
attorney.  Nor did he dispute that an attorney who has notice that the
property used to pay his fees might be subject to forfeiture does not
have the status of a "bona fide purchaser" under the exception for
third-party transferees in Sections 853(c) and 853(n).  Instead, Judge
Winter reasoned that the language in Section 853(e) providing that a
court "may" issue a restraining order vests the court with the power
to weigh competing interests, Pet. App. 11a-14a, and he concluded that
the court must invariably strike that balance so as to allow a
defendant to make ordinary lawful expenditures, including those for
private legal counsel, id. at 14a-20a.  In his view, district courts
may issue restraining orders only to bar "unusual lavish expenditures
to accelerate consumption in the pretrial period, transfers to friends
or relatives as a desirable alternative to forfeiture, or transfers
for purposes of concealment." Id. at 16a-17a.

   Judge Winter concluded that any assets that a court permits to be
transferred prior to conviction are not subject to postconviction
forfeiture.  In reaching that conclusion, he relied on the language in
Section 853(c) stating that assets transferred to a third party "may"
be the subject of a special verdict of forfeiture.  In Judge Winter's
view, the word "may" should again be construed to vest the district
court with equitable discretion;  and he reasoned that in order for
the district court to vindicate its power under Section 853(e)(1) to
authorize pretrial payments to third parties, the court must exercise
its discretion by declining to order the post-trial forfeiture of
property it previously had authorized to be transferred to an attorney
or other third party.

   Judge Miner, in a brief concurring opinion joined by Judge Altimari
(Pet. App. 24a-26a), did not take issue with the proposition that
Section 853 authorizes the forfeiture of assets that the defendant
wishes to use to pay his attorney;  and, unlike Chief Judge Feinberg,
he believed that the Sixth Amendment would permit a court to issue a
restraining order barring such payments if the court held a hearing of
the sort ordered by the panel.  Id. at 24a.  However, Judge Miner
concluded that the restraining order must be vacated because, in his
view, Section 853 does not permit a district court to hold such a
hearing on a post-indictment restraining order.  Id. at 24a-25a.  /7/

   Judge Mahoney dissented in an opinion that was joined by Judge
Cardamone and Judge Pierce in all but one respect.  Pet. App. 26a-41a.
 He concluded that Section 853 authorizes the preconviction restraint
and postconviction forfeiture of otherwise forfeitable assets that the
defendant wishes to use to pay an attorney.  Id. at 27a-33a.  In
addition, he concluded that the statute is constitutional if there is
a hearing on the restraining order, id. at 33a-36a, and that the
statute permits the court to hold such a hearing, id. at 36a-39a.
Judge Mahoney added, however, that assets that are the subject of a
preconviction hearing at which the government fails to make the
requisite showing, and are then paid to an attorney, would not be
subject to forfeiture under Section 853(c) even if the defendant were
later convicted.  Pet. App. 39a-41a.  Judge Cardamone and Judge Pierce
took a somewhat different view on the last point.  They filed separate
opinions concluding that any assets that are actually transferred to
an attorney in payment of his fee are automatically exempt from
forfeiture, whether or not the court held a hearing prior to the
payment.  Id. at 41a-42a (Pierce, J.);  id. at 42a-44a (Cardamone,
J.).  Judge Pratt also filed a dissenting opinion.  He agreed with
Judge Mahoney on the first three issues, Pet. App. 44a-47a, but found
questions concerning the postconviction forfeiture of assets not to be
ripe for resolution, id. at 46a-47a.

   5. On July 25, 1988, the jury returned a verdict finding respondent
guilty on all counts.  On the same date, the jury also returned a
special verdict finding beyond a reasonable doubt that the residence
in Mount Vernon, the apartment in the Bronx, and the $35,000 in cash
are the proceeds of respondent's illegal drug activities and therefore
are forfeited to the United States.  On October 26, 1988, the district
court entered the judgment of conviction, declaring the three
properties forfeited to the United States and sentencing respondent to
a term of life imprisonment without possibiity of parole on Count 4
and lesser terms on the remaining counts.  /8/

                          SUMMARY OF ARGUMENT

   I. The drug forfeiture statute, 21 U.S.C. 853 (Supp. IV 1986),
provides for the mandatory forfeiture of all assets that constitute
the fruits of a narcotics trafficker's drug-related activities.  The
statute does not contain an express exception for funds that the
defendant in a narcotics prosecution wishes to use to pay for an
attorney to represent him in that case.  Nor is there any basis for
finding an implied exception in the statute for such purposes.

   Section 853(c) of the statute, which governs the disposition of
property in the hands of third parties that is subject to forfeiture,
does not provide a general right to the payment of attorneys' fees.
That subsection requires the mandatory forfeiture of all property that
is subject to forfeiture, even if the property is in the hands of
third parties, except in two narrow circumstances:  where the third
party had a superior interest in the property prior to the time the
defendant committed the act that gave rise to the forfeiture, and
where the third party can show that he was a bona fide purchaser for
value who at the time he obtained the property was "reasonably without
cause to believe that the property was subject to forfeiture." Neither
exception is even remotely applicable in a case such as this one,
where the third party (the prospective attorney) is not in possession
of the property, and where, because of the notice of forfeiture
provided by the indictment, the attorney would not be a bona fide
purchaser without notice that the property is subject to forfeiture.
More fundamentally, respondent's argument misconceives the basic
nature of the provisions for third-party relief in Section 853(c):
that subsection does not render transfers of forfeitable property to
third parties lawful;  rather, it protects innocent third parties from
unlawful transfers of forfeited property by the defendant.

   The legislative history of the drug forfeiture statute supports
this interpretation.  The background of the Comprehensive Forfeiture
Act of 1984, which enacted Section 853, makes it clear that Congress
was attempting to strengthen the current drug forfeiture provisions,
and in particular to prevent the dissipation of forfeited assets prior
to the entry of a final judgment of forfeiture.  The way Congress
chose to achieve that goal was to provide that property would be
deemed forfeited to the United States as of the time of the commission
of the unlawful act that gave rise to the forfeiture.  For that
reason, any subsequent effort on the part of the defendant to transfer
the property would be unavailing, unless the transfer satisfied the
narrow exception designed to protect innocent third parties who lacked
notice of the forfeiture.

   Although the legislative history refers at several points to the
purposes of the 1984 Act as being to prevent "sham" transactions, and
"fraudulent" or "improper" transfers of assets subject to forfeiture,
those references do not support respondent's contention that transfers
for "legitimate" services are not subject to forfeiture.  A
defendant's transfer of tainted assets is always "improper" inasmuch
as it tends to defeat the government's right of forfeiture.  And even
if Congress was especially concerned with "sham" transactions in the
colloquial sense of that term, that does not mean that it did not
intend to reach other transactions as well, if they fit within the
clear statutory language, as does the proposed transaction that is at
issue in this case.  In any event, if the statute were limited to
reach only "sham" transactions, the entire statutory scheme for
adjudicating the rights of third parties would be upset:  third
parties who had obtained tainted property in any kind of "legitimate"
business transaction, even with notice of the forfeitability of the
property, would be protected under the statute, even though the plain
language of Sections 853(c) and 853(n)(6)(B) extends such protection
only to third parties without notice of the forfeitability of the
property.

   II. There is likewise no constitutional defect in the procedures
employed to restrain the alienation of the property at issue in this
case.  The probable cause established by the indictment was sufficient
to justify the initial restraint on the alienation of the property.
Following the remand from the court of appeals, the district court
held a four-day adversarial hearing, at which the government
established the high likelihood that the property would be forfeited
after trial.  That proceeding, and the finding that resulted from it,
were amply sufficient to justify the restraint on the disposition of
the property during the pendency of the trial.  Indeed, the showing
that was made at the hearing was even more compelling than the showing
that is sufficient to support a final judgment of forfeiture in a
civil forfeiture proceeding.

                               ARGUMENT

   I. SECTION 853 DOES NOT EXEMPT FROM FORFEITURE THE PROPERTY A
DEFENDANT WISHES TO USE TO PAY HIS ATTORNEY'S FEE

   Respondent first argues (Br. 12-30) that assets that the defendant
wants to use to pay the fee charged by an attorney representing him in
the criminal prosecution are excluded from the "property" that is
subject to forfeiture under Section 853.  This argument was
unanimously rejected by the panel below (see Pet. App. 55a-60a;  id.
at 72a (Oakes, J., dissenting)), and it was not endorsed by any member
of the Second Circuit on rehearing en banc.  This argument also has
been unanimously rejected by the en banc Fourth Circuit, the Seventh
Circuit, and the Tenth Circuit.  See United States v. Harvey, 814 F.2d
905, 913-918 (4th Cir. 1987), on rehearing en banc, In re Forfeiture
Hearing as to Caplin & Drysdale, 837 F.2d 637, 641-642 (4th Cir.
1988);  id. at 651 (Phillips, J. dissenting), cert. granted, No.
87-1729 (Nov. 7, 1988);  United States v. Moya-Gomez, 860 F.2d 706,
722-723 (7th Cir. 1988);  United States v. Nichols, 841 F.2d 1485,
1491-1496 (10th Cir. 1988);  id. at 1509 (Logan, J. dissenting)).  /9/
Those courts were clearly right to reject the statutory claim that
respondent advances.

   A. The Language And Structure Of Section 853 Do Not Permit An
Exception To The General Rule Of Forfeiture For Property A Defendant
Wishes To Use To Pay His Attorney

   The federal drug forfeiture statute, 21 U.S.C. 853 (Supp. IV 1986),
is broad and unambiguous.  It provides in subsection (a) that a person
convicted of particular federal drug offenses "shall forfeit" certain
property to the United States.  The property to be forfeited includes
"any property constituting, or derived from, any proceeds the person
obtained, directly or indirectly, as a result of such violation," and
"any of the person's property" that was used or intended to be used to
commit or facilitate the commission of the offense.  /10/ The breadth
of the forfeiture sanction is underscored by the statutory definition
of the term "property" in subsection (b), which comprehensively
encompasses "real property, including things growing on, affixed to,
and found in land," as well as "tangible and intangible personal
property, including rights, privileges, interests, claims, and
securities." In the words of the panel below, this language "is
categorical and contains no exception for attorney's fees" (Pet. App.
56a).  As another court put the same point,

         (t)he only limitations on what property can be forfeited
      relate to the nexus with the illegal activity.  How a defendant
      intends to use property that would otherwise be forfeited is
      irrelevant.  Property is not exempted because a defendant wants
      to use it to pay an attorney any more than property is exempted
      because a defendant wants to purchase a house or employ a
      financial advisor.

   Nichols, 841 F.2d at 1492;  see also Moya-Gomez, 860 F.2d at 722.
/11/

   The two parcels of real estate that are at issue in this case are
subject to forfeiture because they constitute or are derived from the
proceeds of respondent's narcotics trafficking.  Nothing in Section
853(a) suggests that respondent may retain those proceeds in order to
transfer them to a third party, such as an attorney.  To the contrary,
paragraph (1) of Section 853(a) requires the defendant to forfeit
"any" such property and the concluding paragraph states that the
court, when imposing sentence, "shall order" that the person forfeit
to the United States "all property described in this subsection." /12/

   Subsection (c) of Section 853 provides that all rights in the
property that is subject to forfeiture vest in the United States "upon
the commission of the act giving rise to forfeiture." As respondent
acknowledges, that provision "is a codification of the common law
'taint' doctrine used in in rem forfeiture proceedings where, in
theory, the property itself is the defendant and is deemed forfeited
as of the commission of the illegal act" (Br. 12).  Therefore, where a
defendant has already committed an act that triggers a forfeiture
under Section 853(a), he may not use the forfeited assets for any
purpose:  to discharge a debt;  to purchase goods or services;  or to
pay an attorney.  At that point, "(a)ll right, title and interest" the
defendant once might have had in the proceeds of his narcotics
trafficking have already vested in the United States.  21 U.S.C.
853(c) (Supp. IV 1986).

   If the defendant treats the forfeited property as his own by
attempting to transfer it to a third party, Section 853(c) provides
that the property remains subject to an order of forfeiture even in
the hands of the third party and "shall be ordered forfeited to the
United States" except when the third party qualifies under an exacting
statutory test as a bona fide purchaser for value.  Thus, a third
party in possession of the property can avoid the effect of the
forfeiture order only if he "establishes in a hearing pursuant to
(Section 853(n)) 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." The fact that
the forfeiture order reaches property even after its transfer (unless
the property is in the hands of a bona fide purchaser) reflects an
intention on the part of Congress to deter third parties from
accepting tainted assets from the defendant for any purpose, even as
part of a transaction that is otherwise lawful, and to deprive the
defendant of any benefit from forfeited property from the moment that
title vests in the United States.  /13/

   The bona fide purchaser exemption is narrowly circumscribed.  It
can be raised only by a bona fide purchaser of goods and services who
is reasonably without cause to believe that the property in question
was subject to forfeiture at the time of the transfer.  21 U.S.C.
853(n)(6)(B) (Supp. IV 1986).  The exemption thus does not create a
general right for third parties to accept tainted property at any time
until the United States gains possession of it;  and it certainly does
not create a general right in the defendant to use assets that are
subject to forfeiture for whatever purposes he chooses as long as he
has those assets under his control.  /14/

   2. Respondent and amici concede (Resp. Br. 22;  NACDL Br. 65) that
Congress described the property subject to forfeiture under Section
853 in "very broad terms." See also ABA Br. 6 (the forfeiture
provisions, on their face, "broadly cover all property derived from
alleged criminal activity and contain no specific exemption for
property used to pay bona fide attorneys' fees").  Respondent claims,
nonetheless, that the statute does not bar him from paying his
attorney's fees out of assets that are otherwise subject to
forfeiture.

   Respondent contends (Br. 14, 16, 18, 22, 24) that because Section
853 does not expressly refer to "attorneys' fees" as among the kinds
of property that are forfeited, the Court may "carve out" an exception
for property of that sort from the reach of the statute.  That
argument is based on a misconception of what it is that is forfeited
under Section 853.  The property that Section 853 declares forfeited
is not the funds that the defendant intends to use for a particular
transaction -- such as the payment of attorneys' fees -- but instead
all the defendant's property that has been used in, or constitutes the
proceeds of, his narcotics transactions.  It is therefore not
surprising that the statute makes no mention of attorneys' fees, just
as it makes no mention of dentists' bills or car payments.  The
statute forfeits the defendant's drug-tainted property without regard
to the uses the defendant wishes to make of that property.  See Caplin
& Drysdale, 814 F.2d at 914;  87-1729 Pet. App. 44a.  Thus, the fact
that attorneys' fees are not mentioned in the statute "does not mean
that the language is ambiguous;  rather, it suggests that attorneys'
fees were not meant to be treated differently than any other assets."
Nichols, 841 F.2d at 1492-1493.

   There is likewise no basis for respondent to contend that he should
benefit from the provisions of Section 853(n)(6)(B), the statutory
exemption from forfeiture for "bona fide purchasers for value." In the
first place, only a third party, not the convicted defendant, can
press a post-conviction claim to relief from a forfeiture under that
exemption.  Section 853(n)(6)(B) does not permit the defendant to free
up forfeited propety for his own use under any circumstances;  that
subsection instead establishes a procedure by which third parties may
file a petition for relief after the defendant has been convicted and
after all his interests in the property have already been formally
declared forfeited to the United States.  /15/ In this case, there is
no attorney before the Court claiming that he acquired the house in
Mount Vernon or the apartment in the Bronx from respondent as payment
for legal services and that he satisfies the special bona fide
purchaser standard.  /16/ And respondent of course does not claim that
he ever transferred an interest in either of the forfeited properties
to an attorney;  he argues only that he was prevented from doing so by
the restraining order.  Subsection (n)(6)(B), however, affords
protection only where the property was actually transferred.

   Second, even if respondent had purported to transfer the house in
Mount Vernon and the apartment in the Bronx to an attorney in payment
of legal fees, the attorney could not have established that he was a
bona fide purchaser for value who at the time of the transfer was
reasonably without cause to believe that the property was subject to
forfeiture:  the forfeiture counts in the indictment and the
restraining order would have given him reasn to believe that the
property was subject to forfeiture.  See Pet. App. 72a (Oakes, J.
dissenting) ("Reading the 'bona fide' purchaser provision * * * to
cover attorneys who have reasonable cause to believe their fees might
be payable out of property subject to forfeiture improperly contorts
the plain language of the statute.").  /17/ Compare E.D. Systems Corp.
v. Southwestern Bell Tel., 674 F.2d 453, 460 (5th Cir. 1982).  In
fact, the petitioner law firm in Caplin & Drysdale, which did file a
third-party claim under subsection (n) after its client pleaded guilty
and consented to forfeiture, concedes (Br. 31) that lawyers generally
could not satisfy this prerequisite to relief and that the law firm
could not do so in that case.  See also N.Y. City Bar Ass'n Br. 4.
/18/

   Third, Section 853(n)(6)(B) does not support respondent's claim
that the statute authorizes the payment of attorneys' fees from
forfeitable assets, because subsection (n)(6)(B) does not authorize
the defendant to make a preconviction transfer of tainted assets to
anyone.  /19/ That subsection merely furnishes special protection to
an innocent third party despite the defendant's unlawful transfer of
tainted assets;  it does not retroactively render the transfer lawful
from the defendant's perspective.  Subsection (n)(6)(B) therefore
provides no support for respondent's contention that the district
court should have vacated the pretrial restraining order so that he
could convey the house in Mount Vernon and the apartment in the Bronx
to an attorney.  /20/

   In sum, as the en banc Fourth Circuit concluded in Caplin &
Drysdale, the language of Section 853 "is unmistakably clear, and so
plainly reaches property used or intended to be used for attorneys'
fees that the inquiry should end without resort to legislative
history" (837 F.2d at 641;  87-1729 Pet. App. 5a).  In the next
section, however, we show that the legislative history confirms the
broad scope of the statute and further undermines respondent's
argument in favor of a special statutory exemption for assets that are
used to pay attorneys' fees.

   B. The Legislative History Of Section 853 Does Not Support
Recognition Of An Exemption From Forfeiture

   The unambiguous and all-encompassing language of the criminal
forfeiture provisions must control "in the absence of a 'clearly
expressed legislative intent to the contrary.'" Russello v. United
States, 464 U.S. 16, 20 (1983).  In this case, far from expressing a
clear congressional intent to the contrary, the legislative history
supports our reading of the statutory text.

   Congress enacted the Comprehensive Forfeiture Act of 1984, of which
Section 853 is a central feature, to strengthen the prior criminal
forfeiture provisions that had been enacted as part of the CCE and
RICO statutes.  /21/ See S. Rep. No. 225, supra, at 191.  This Court
in Russello gave the predecessor RICO forfeiture statute a broad
reading and declined to recognize an implied exception from forfeiture
for certain property interests.  See 464 U.S. at 20-29.  When Congress
passed the Comprehensive Forfeiture Act of 1984, it was aware of the
broad reading given to the definition of forfeitable property in
Russello and it ratified the specific holding in that case.  See H.R.
Rep. No. 845 (Pt. 1), at 6;  18 U.S.C. 1963(a)(3) (Supp. IV 1986);
see also 21 U.S.C. 853(a)(1) (Supp. IV 1986).

   1. The legislative history demonstrates that Congress intended the
1984 Act to make the criminal forfeiture provisions more effective by
closing specific loopholes.  Of particular relevance here, Congress
acknowledged that "the criminal forfeiture provisions * * * (had)
fail(ed) adequately to address the phenomenon of defendants defeating
forfeiture by removing, transferring, or concealing their assets prior
to conviction" (S. Rep. No. 225, supra, at 195).  Congress therefore
found it necessary to "address the serious problem of a defendant's
pretrial disposition of his assets," stressing that "(c)hanges (were)
necessary both to preserve the availability of a defendant's assets
for criminal forfeiture, and, in those cases in which he does transfer
* * * his property, to assure that he cannot as a result avoid the
economic impact of forfeiture" (id. at 196).  See also H.R. Rep. No.
845 (Pt. 1), supra, at 7 (expressing concern about "dissipation of the
assets either before or after indictment");  id. at 18, 19.  Congress
addressed the problem of preconviction transfers in two ways, and the
background of each further undermines respondent's claim that he could
avoid forfeiture under Section 853 by transferring assets to an
attorney.

   Congress responded first by enacting Section 853(c), the provision
that effects the transfer of property rights in the forfeited property
at the time of the commission of the act that gives rise to the
forfeiture.  The Senate Report explained that subsection (c) "is a
codification of the 'taint' theory which has long been recognized in
forfeiture cases," and it cited as a model this Court's decision in
United States v. Stowell, 133 U.S. 1 (1890), and the Ninth Circuit's
decision in Simons v. United States, 541 F.2d 1351, 1352 (9th Cir.
1976).  See S. Rep. No. 225, supra, at 200 & n.27.

   In Stowell, the Court explained that under the "taint" principle,
the forfeiture took effect as soon as the unlawful act occurred, and
it "operated from that time as a statutory conveyance to the United
States of all rights, title and interest then remaining" in the owner.
 133 U.S. at 19.  The effect of that "statutory conveyance" was that
the "right so vested in the United States could not be defeated or
impaired by any subsequent dealings" of the owner with a third party.
Ibid.  The Simons case made the same point even more explicitly.  It
explained that the forfeiture "relates back (to the moment the illegal
act is committed) and avoids all intermediate sales and alienations,
even as to purchasers in good faith." 541 F.2d at 1352.

   The legislative history shows that Congress had transfers to
attorneys specifically in mind when it enacted subsection (c).  Thus,
the Senate Report stated that "(a)bsent application of this (Stowell)
principle a defendant could attempt to avoid criminal forfeiture by
transferring his property to another person prior to conviction" (S.
Rep. No. 225, supra, at 200);  and it then noted with approval (id. at
200 n.28) that "(t)his result was not permitted in United States v.
Long, 654 F.2d 911 (3d Cir. 1981), in which it was held that property
derived from a violation of 21 U.S.C. 848 remained subject to criminal
forfeiture although transferred to the defendant's attorneys more than
six months prior to conviction, and that an order restraining the
attorneys from transferring or selling the property was properly
entered." That passage is sufficient in itself to refute respondent's
assertion (Br. 14) that property paid or to be paid to attorneys
should be excluded from the property subject to forfeiture under
Section 853, on the ground that Congress never adverted to the problem
of payments to attorneys.  /22/

   Congress also responded to the problem of preconviction transfers
by enacting Section 853(e), which was intended to augment the
authority of the courts to issue both preindictment and postindictment
restraining orders preventing the defendant from selling or otherwise
transferring his property.  Subsection (e) itself states that such
orders are intended "to preserve the availability of property * * *
for forfeiture," and the Senate Report underscored that such orders
are "essential" devices "to preserve the status quo, i.e., to assure
the availability of the property pending disposition of the criminal
case" (S. Rep. No. 225, supra, at 204).  The House Report also broadly
described the restraining-order provision as enabling courts "to
protect the availability of property that may be subject to criminal
forfeiture" (H.R. Rep. No. 845 (Pt. 1), supra, at 19).  In light of
the intense congressional concern with avoiding the dissipation of
forfeited assets prior to conviction, and the absence of any
exception, express or implied, to the prohibition against a
defendant's transfer of tainted assets to third parties, there is no
force to respondent's suggestion that Congress must have intended to
permit defendants to use "tainted" assets to purchase legal services.

   2. The petitioner in Caplin & Drysdale relies (87-1729 Br. 3, 22)
on a passage in the portion of the House Report discussing the
restraining order provision, which states that "(n)othing in this
section is intended to interfere with a person's Sixth Amendment right
to counsel" (H.R. Rep. No. 845 (Pt. 1), supra, at 19 n.1).  See also
Resp. Br. 14 n.8;  NACDL Br. 77-79.  That sentence, however, does
nothing more than state the Committee's intention that the new statute
not be applied in a manner that would violate the Constitution.  As we
discuss below and at greater length in our brief in the Caplin &
Drysdale case, a prohibition against using tainted assets to pay an
attorney does not violate the Sixth Amendment as long as the defendant
obtains or is provided with competent counsel to represent him.  If
that is so, the House Committee's concern is satisfied, and there is
no need to worry that applying Section 853 as it is written will
result in Sixth Amendment violations.  At minimum, the House
Committee's suggestion that the constitutional validity of pretrial
restraining orders in particular cases should be left to the courts
(see H.R. Rep. No. 845 (Pt. 1), supra, at 19 n.1), "belies any
intention to establish a statutory rule concerning forfeiture of
attorney's fees" (Pet. App. 58a).  Accord Moya-Gomez, 860 F.2d at 722;
 Nichols, 841 F.2d at 1495-1496.  /23/

   3. Respondent quotes (Resp. Br. 13-14, 17, 22) several passages in
the Senate Report on the 1984 Act stating that the purpose of
subsections (c) and (n) of Section 853 was to ensure that pretrial
transfers that were "improper," "fraudulent," "sham" or not "arms'
length" would be voided.  See S. Rep. No. 225, supra, at 194-196,
200-201, 209 & n.47.  Relying on these passages, respondent contends
that Section 853 should not be read to bar the payment of "legitimate"
attorneys' fees for "bona fide" legal services out of forfeited
property.  See also 87-1729 Pet. Br. 26, 29;  NACDL Br. 80-81.  This
argument is without merit for several reasons.

   In the first place, respondent and the petitioner in Caplin &
Drysdale focus on the wrong issue when they claim that the references
to "improper" and "fraudulent" transfers cannot apply to the payment
of legitimate attorneys' fees.  As we have noted, the forfeiture
statute focuses on the tainted nature of the property that is used by
the defendant, and the United States' superior claim to that property.
 It does not focus on the "legitimacy" of the services that the
defendant has purchased with the tainted funds.  Section 853 bars the
defendant from using assets that are subject to forfeiture to
discharge a debt or make a purchase even if the underylying
transaction and the amount charged to the defendant are entirely
"legitimate." Accordingly, a transfer of forfeited property can fairly
be said to be "improper" or "fraudulent," regardless of the legitimacy
of the underlying transaction, if the defendant knows and the
transferee knows or has reason to believe that the property is the
fruit of a drug transaction and that the transfer would therefore be
in derogation of the government's paramount right to the property.
/24/

   Moreover, contrary to respondent's contention, the concern
expressed in the Senate Report about preconviction transfers that are
not "arm's length" has considerable force in this setting as well,
since a defendant whose assets are probably going to be declared
forfeited to the United States in any event may have little incentive
to bargain with an attorney for the payment of only a "reasonable" fee
out of the forfeited assets.  In this case, for example, respondent
apparently was prepared to convey his house in Mount Vernon and his
apartment in the Bronx, which he maintained were virtually his only
assets, as payment for legal representation.  It seems most unlikely
that a defendant would so readily and completely divest himself of his
holdings -- or that an attorney would charge a fee of that magnitude
and insist that the defendant convey or sell virtually all his assets
to pay it -- in the absence of forfeiture counts in the indictment.
/25/

   In any event, as the Fourth Circuit panel observed in Caplin &
Drysdale, the passages cited by respondent do not suggest that
Congress intended that only "sham," "fraudulent" or non-"arm's length"
transfers to third parties -- in the narrow sense in which respondent
uses those terms -- would be voided (814 F.2d at 916-917;  87-1729
Pet. App. 49a-50a).  While transfers of that kind may have been of
special concern to the Senate Committee, there is nothing in the
Report to support the inference that transfers not sharing each of
those characteristics fall outside the statute.  Compare Jefferson
County Pharmaceutical Ass'n v. Abbott Laboratories, 460 U.S. 150, 159
n.18 (1983);  CPSC v. GTE Sylvania, Inc., 447 U.S. 102, 110-111
(1980).  /26/ To the contrary, the Senate Report establishes only that
bona fide purchasers who have no notice of the taint on the property
will be exempt from the forfeiture penalty.  Indeed, other passages in
the Senate Report rebut the inference respondent seeks to draw from
the references to "sham" transfers.  For example, the Report stated
that a defendant should not be shielded from forfeiture "simply by
transferring an asset to a third party." It also explained that the
1984 amendments were necessary "to preserve the availability of a
defendant's assets for criminal forfeiture, and, in those cases in
which he does transfer, deplete, or conceal his property, to assure
that he cannot as a result avoid the economic impact of forfeiture."
S. Rep. No. 225, supra, at 196.  Those characterizations of the
purposes of the 1984 amendments reflect "a clear congressional intent
to make voidable a wider range of asset transfers than just sham or
fraudulent ones." Caplin & Drysdale, 814 F.2d at 917;  87-1729 Pet.
App. 50a;  accord Nichols, 841 F.2d at 1494-1495.

   It also is significant that respondent's argument based on these
passages in the Senate Report is not logically limited to assets that
the defendant proposes to use to pay attorneys' fees;  that argument
would exempt all transfers to third parties, except where the
government could establish fraud on the part of the transferee.  That
interpretation would "read the bona fide purchaser requirement right
out of the statute" (Caplin & Drysdale, 837 F.2d at 642;  87-1729 Pet.
App. 6a), since subsections (c) and (n)(6)(B) both explicitly limit
relief to those transferees who not only are bona fide purchasers for
value, but also were reasonably without cause to believe that the
property was subject to forfeiture.  See also Nichols, 841 F.2d at
1494.  In light of the great care that Congress took in the statute to
draft the bona fide purchaser exemption very narrowly, the references
to "sham" transfers in the Senate Report cannot fairly be taken as
marking the limits of the forfeiture sanction as applied to funds the
defendant seeks to transfer to third parties.

   4. Respondent's claim to an exemption is further undermined by the
fact that although the defense bar has repeatedly urged Congress since
the Comprehensive Forfeiture Act of 1984 was passed to exclude from
forfeiture those assets that the defendant wants to use to pay an
attorney, Congress has declined to do so.  For example, in a hearing
before the House Judiciary Committee in 1985, representatives of amici
American Bar Association and NACDL urged Congress to enact such an
amendment to the Comprehensive Forfeiture Act of 1984.  /27/ The
Senate Judiciary Committee conducted a hearing on the same subject in
May 1986, receiving submissions from those groups, the Department of
Justice, and others both favoring and opposing such an amendment.
/28/ Yet while Congress amended Section 853 and the parallel RICO
forfeiture provision in another respect later in 1986, /29/ Congress
did not enact the requested exemption for attorneys' fees.

   The background of the Money Laundering Control Act of 1986, which
was enacted as part of the same public law in which Congress amended
Section 853, /30/ indicates that Congress's decision not to enact such
an exemption in Section 853 was deliberate.  The Money Laundering Act
makes it a criminal offense for any person knowingly to engage in
certain transactions in property that was derived from specified
criminal activities, including CCE and RICO offenses.  18 U.S.C.
1975(a) (Supp. IV 1986).  The House version of the 1986 bill contained
a proviso stating that this prohibition "does not apply to financial
transactions involving the bona fide fees an attorney accepts for
representing a client in a criminal investigation or any proceeding
arising therefrom." See H.R. Rep. No. 855 (Pt. 1), 99th Cong., 2d
Sess. 14 (1986).  That proviso, however, was deleted from the bill as
finally enacted.

   Moreover, the legislative history of the Money Laundering Control
Act makes clear that the omitted proviso was included in the House
bill only for the purpose of relieving attorneys of the risk of
criminal prosecution if they deposited their fees in a financial
institution.  The proviso did not reflect a congressional judgment
that assets in the possession of the defendant should be exempt from
forfeiture whenever the defendant wants to use them to pay his
attorney.  To the contrary, during the mark-up session at which the
proviso was adopted, Representative Lungren, who supported the
exemption from criminal liability, made clear that funds used (or to
be used) to pay an attorney would remain subject to forfeiture under
applicable law:

         We are in the proverbial rock and hard place situation, and I
      think it is better to keep section 1 and make this one specific
      exception for attorneys because of the unique situation they
      find themselves in.  On the other hand, we have got the Defense
      Bar complaining now about the forfeiture provision, and I am not
      sympathetic to them on that.  They would still be subject to the
      forfeiture proceedings.

         They could find themselves out because the money would not be
      available to them because the attorney would discover at some
      point in time the government has the right to get those funds,
      but that is different than telling an attorney he might have to
      draw a curtain between himself and his client for fear of
      criminal activities.

   Markup Session on H.R. 5077 by the Subcomm. on Crime of the House
Comm. on the Judiciary, 99th Cong., 2d Sess. 16-17 (July 16, 1986).
Other Members opposed a special exemption for attorneys even from the
criminal sanctions, id. at 15 (Rep. Mazzoli);  id. at 22 (Rep. Shaw),
and several Members who supported that narrow exemption nevertheless
expressed misgivings about affording lawyers preferred treatment, id.
at 10, 33 (Rep. Hughes);  id. at 12-13 (Rep. McCollum).  The House
Report also explained that the proposed proviso would have furnished
an exemption from criminal liability, but there is no suggestion in
the Report that the proviso was intended to provide an exemption from
statutory forfeiture provisions.  See H.R. Rep. No. 855, supra, at 14.
 /31/ There is no reason for this Court to fashion an attorneys' fee
exception to Section 853 that Congress declined to enact when it
revisited the subject in 1986.  /32/

   II. THE CONSTITUTION DOES NOT REQUIRE AN EXEMPTION FROM POST-TRIAL
FORFEITURE OR PRETRIAL RESTRAINT FOR THOSE ASSETS THAT THE DEFENDANT
WANTS TO USE TO PAY HIS ATTORNEY

   Respondent argues (Br. 30-50) that if Section 853 is not construed
to exempt from forfeiture any assets identified in the indictment that
the defendant wants to use to pay his attorney, it unconstitutionally
interferes with his qualified Sixth Amendment right to the assistance
of counsel of his choice and violates the Due Process Clause of the
Fifth Amendment.  We demonstrate in our brief in Caplin & Drysdale (at
32-46), however, that the Constitution does not require Congress to
permit a defendant to use the illicit proceeds of his narcotics
trafficking to pay legal fees.  There is no need to repeat that
discussion here.  /33/ We shall limit our discussion here to
respondent's contention that it was wrong for the court to prevent him
from disposing of the house in Mount Vernon and the apartment in the
Bronx before he was actually convicted of the offenses charged in the
indictment, and that the procedures employed by the district court
were inadequate.

   Respondent's attack on the fairness of the proceedings below is
unfounded.  In the first place, the pretrial restraining order was not
an arbitrarily imposed limitation on respondent's enjoyment of his
assets.  It was issued pursuant to Section 853(e)(1)(A) on the basis
of the indictment, which formally charged petitioner with engaging in
a continuing criminal enterprise and alleged that the specific
properties at issue constituted the proceeds of that enterprise's
narcotics trafficking.  The indictment therefore represented a
determination of probable cause to believe that respondent had
committed the crimes with which he was charged and that the properties
were subject to forfeiture as the proceeds of those offenses.  See
Nichols, 841 F.2d at 1491 n.4.  /34/ This Court has made it clear that
an indictment that is fair on its face and is returned by a properly
constituted grand jury "conclusively determines the existence of
probable cause" and is a sufficient predicate for subjecting the
defendant to restraints on his liberty pending trial.  See Gerstein v.
Pugh, 420 U.S. 103, 117 n.19 (1975).  An analogous probable cause
determination therefore should be a constitutionally adequate basis
for the much less intrusive step of imposing restraints on the
alienation of certain property pending trial.  FDIC v. Mallen, 108
S.Ct. at 1788;  see S. Rep. No. 225, supra, at 202 ("the probable
cause established in the indictment or information is, in itself, * *
* a sufficient basis for issuance of a restraining order");  see
generally id. at 202-204.  But see United States v. Crozier, 777 F.2d
1376, 1383-1384 (9th Cir. 1985).

   This arrangement compares favorably to the circumstances considered
by the Court in United States v. $8,850, 461 U.S. 555 (1983).  There
the property was seized on the basis of probable cause and then
retained by the government pending the institution of civil forfeiture
proceedings.  Here, by contrast, the restraining order that was issued
under Section 853(e)(1)(A) did not deprive respondent of the use of
his house and apartment pending the outcome of the criminal trial;  it
only barred him from disposing of them and thereby rendering them
unavailable for forfeiture if he was convicted.  /35/ Moreover, in
deciding in $8,850 whether the filing of the civil forfeiture
proceeding 18 months later afforded the claimant a postdeprivation
hearing within a reasonable time, the Court applied by analogy the
four-part test of Barker v. Wingo, 407 U.S. 514 (1972), for
determining whether delay in criminal cases violates the Speedy Trial
Clause, and it found no violation.  461 U.S. at 565-569.  In a case of
criminal forfeiture, by contrast, the Speedy Trial Clause and the more
stringent deadlines of the Speedy Trial Act (18 U.S.C. 3161) apply of
their own force to require a prompt disposition of the charges.  Cf.
Baker v. McCollan, 443 U.S. 137, 145-146 (1979).  In this case, the
trial commenced a little more than seven months after the indictment
was returned.  /36/

   The panel in this case was not prepared to regard the indictment as
a sufficient basis on which to maintain a pretrial restraining order
in effect under subsection (e)(1)(A) where the defendant seeks to use
the property to hire a lawyer to defend him against the criminal
charges and has no other assets to use for that purpose.  In those
circumstances, the panel concluded, the restraining order may be kept
in effect only if the government demonstrates at an adversarial
hearing, by evidence independent of the indictment, a probability of
convincing the jury beyond a reasonable doubt both that the defendant
has violated the statute and that the assets are subject to
forfeiture.  Pet. App. 67a-68a.

   On remand from the panel's decision, the district court conducted a
four-day hearing at which the government made a detailed presentation
of its case, through the testimony of its case agent and numerous
exhibits, including real estate records and evidence found at the
house and apartment.  Respondent did not put on any evidence to rebut
the government's showing.  At the conclusion of the hearing, the court
continued the restraining order, finding that the government had
"overwhelmingly established a likelihood of conviction under sections
848 and 846, and that the restrained properties were obtained with the
proceeds of narcotics related activities" (Pet. App. 86a).  The
necessary effect of that decision was to establish the likelihood not
only that the house and property were tainted assets in which
respondent could have no legitimate ownership interest or expectation
of use for any purpose (compare Calero-Toledo v. Pearson Yacht Leasing
Co., 416 U.S. 663, 680-687 (1974)), but also that all right, title and
interest in the property had already vested in the United States under
Section 853(c) as of the time respondent committed the acts that gave
rise to the forfeiture.  In light of the showing by the government and
finding by the district court, respondent cannot plausibly maintain
that it was fundamentally unfair, or an impermissible interference
with his qualified right to the assistance of counsel of his choice,
for the court to keep the restraining order in effect pending
completion of the trial, in order to "preserve the availability of
(the) property * * * for forfeiture * * * in the event of conviction."
21 U.S.C. 853(e)(1) (Supp. IV 1986).  Bell v. Wolfish, 441 U.S. 520,
534 (1979).  A restraining order based on such a strong pretrial
showing that the property is tainted and in fact belongs to someone
other than the defendant does not "arbitrarily" interfere with the
defendant's interest in using the assets to hire a lawyer or deny him
a "fair opportunity" to seek the assistance of counsel of his choice.
Powell v. Alabama, 287 U.S. at 53, 69.

   Respondent nevertheless contends (Br. 38 & n.21, 41) that a court
cannot interfere with the use of the "defendant's assets" by the
invoking what he terms the "legal fiction" of the relation-back
doctrine, under which legal title to forfeited assets vests in the
United States as of the time the defendant committed the acts that
gave rise to the forfeiture.  In respondent's view (Br. 38), no
restriction can "deprive the defendant of his common law property
rights" and his asserted Sixth Amendment entitlement to utilize those
rights to hire a lawyer, until the defendant has been convicted.
Respondent ignores the fact that the allegations in the indictment and
the pretrial hearing in this case established a strong likelihood,
which was subsequently confirmed by the jury's verdict, that the
property did not rightfully belong to him and that, as the proceeds of
transactions in contraband, it constituted property in which Congress
could constitutionally abrogate private interests.

   Perhaps more significantly, respondent's argument overlooks the
direct parallel between the nature of the hearing that was held by the
district court on remand from the panel's decision in this case and
the nature of the judicial proceedings that are ordinarily conducted
to establish the civil forfeiture of property.  Under long-settled
principles of in rem forfeiture law, if the government establishes
probable cause for the seizure of the property, the burden then shifts
to the claimant to prove by a preponderance of the evidence that he
has a lawful interest in the property and that it is not subject to
forfeiture.  The government can satisfy its threshold showing of
probable cause in such a proceeding through the use of affidavits and
other evidence not strictly limited by the Rules of Evidence.  See,
e.g., United States v. 26.075 Acres, No. 88-6036 (4th Cir. Jan. 31,
1989), slip op. 13;  United States v. Premises Known as 526 Liscum
Drive, No. 87-3699 (6th Cir. Jan. 25, 1989), slip op. 5-6 & n.3;
United States v. $250,000 in United States Currency, 808 F.2d 895,
897-900 (1st Cir. 1987);  United States v. A Single Family Residence,
803 F.2d 625, 628 (11th Cir. 1986);  United States v. One 56-Foot
Motor Yacht Named Tahuna, 702 F.2d 1276, 1281-1283 (9th Cir. 1983).
/37/ Respondent's house and apartment were subject to civil forfeiture
under these standards.  21 U.S.C. 881(b)(6) and (d);  19 U.S.C. 1615.
The government effectively established its title to the property under
these standards at the hearing ordered by the panel, because it
"overwhelmingly" showed probable cause to believe that the property
was subject to forfeiture, and respondent did not rebut that showing.
Especially in these circumstances, it was entirely appropriate to
retain the restraining order in effect pending the completion of the
trial.

   There is no occasion here for the Court to consider the correctness
of the panel's decision insofar as it held that an adversarial hearing
is required in order to maintain a restraining order that has the
effect of preventing the defendant from using the restrained assets to
hire a lawyer, since the government satisfied the standards prescribed
by the panel at such a hearing in any event.  /38/ Even if some
judicial inquiry into the evidence supporting the government's case is
appropriate, however, we have serious doubts that the Constitution
requires an adversarial hearing.  A judicial determination of probable
cause, based on the government's showing, should be sufficient to
restrain the assets, just as it is for a seizure, which more
drastically interferes with the defendant's rights.  Cf. Baker v.
McCollan, 443 U.S. at 143.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   SARA CRISCITELLI

      Attorney

   FEBRUARY 1989

   /1/ The other named defendants were charged with participating as
respondent's lieutenants, subordinates, and associates in the
narcotics enterprise (C.A. En Banc App. 8-10).

   /2/ The government had no occasion to seek a restraining order
barring respondent from disposing of the $35,000 in cash, because the
cash had been seized by the government (from the apartment in the
Bronx) and was in the government's possession.

   /3/ Assets of the defendant that are subject to forfeiture under
Section 853 remain subject to forfeiture if they have been transferred
to a third party, unless the third party establishes at a
postconviction hearing under Section 853(n) 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." 21 U.S.C. 853(c) (Supp IV 1986).

   /4/ The district court indicated at a hearing on August 6, 1987,
that it would permit respondent to invade the restrained assets to the
extent necessary to permit him to pay counsel of his choice at a rate
equal to that permitted under the Criminal Justice Act (CJA), 18
U.S.C. 3006A (1982 & Supp. IV 1986).  C.A. En Banc App. 55-57;  Pet.
App. 50a-51a;  see also id. at 70a-71a.  James Merberg, an attorney
who had engaged in discussions concerning possible representation of
respondent if the government agreed not to seek forfeiture of his
fees, apparently was unwilling to accept payment limited by CJA
standards.  In addition, the attorney who was representing respondent
for purposes of the challenge to the restraining order informed the
district court that several other attorneys whom he had contacted were
unwilling to represent respondent at CJA-level rates.  Pet. App.
50a-51a.  Respondent was represented at trial by counsel who was
appointed directly under the CJA.

   Contrary to the district court's suggestion, forfeited property
cannot be used to pay attorneys' ees even at CJA rates.  Congress has
addressed in considerable detail the disposition of forfeited property
(see 21 U.S.C. 881(i) (Supp. IV 1986);  21 U.S.C. 881(e) (Supp. IV
1986);  and 28 U.S.C. 524(c) (Supp. IV 1986)), and it has not provided
for the use of those assets to pay attorneys' fees.  By contrast, the
CJA provides a mechanism for the appointment and payment of counsel,
and it authorizes the appropriation of funds for that purpose.  See 18
U.S.C. 3006A(i) (Supp. IV 1986).  In view of Congress's express
constitutional authority over appropriations (Art. I, Section 9, Cl.
7), the courts must respect the statutory procedure by which Congress
has chosen to fund the furnishing of defense services.  Accordingly,
if a defendant is entitled to the appointment of counsel because the
forfeiture counts in the indictment render the defendant unable to
retain counsel, an attorney should be appointed directly under the
CJA.

   /5/ The district court declined to decide whether the government
was required to make its showing on the basis of a preponderance of
the evidence or by clear and convincing evidence, because it concluded
that the government had sustained its burden "above and beyond the
standard of clear and convincing evidence" (Pet. App. 86a).

   /6/ In addition to concurring in Chief Judge Feinberg's opinion,
Judge Oakes, in a separate opinion that was not joined by any other
member of the en banc court, expressed the view that the Sixth
Amendment is implicated not only on the individual level of the
particular defendant's right to retain counsel of his choice, but also
on an institutional level, as a result of the necessary reliance in
complex RICO and CCE cases on representation by public defenders and
appointed counsel (Pet. App. 8a-9a).  Judge Oakes also suggested that
Section 853 might be unconstitutional under the Due Process Clause of
the Fifth Amendment, because, in his view, it vests the prosecutor
with power to decide who will not be defense counsel, creates
conflicts of interest for defense counsel, and resembles a "sentence
first, verdict afterward" mode of justice (Pet. App. 9a-10a).

   /7/ Judge Miner declined to join in the declaration in the per
curiam opinion that any fees paid to an attorney are exempt from
forfeiture under Section 853(c).  Pet. App. 26a.

   /8/ The judgment of conviction and forfeiture does not moot either
the question of the validity of the restraining order or the instant
proceedings on the appeal of the district court's first order refusing
to vacate the restraining order.  The statute makes clear that the
purpose of a restraining order is "to preserve the availability of
property * * * for forfeiture." 21 U.S.C. 853(e)(1) (Supp. IV 1986).
Accordingly, a restraining order may properly remain in effect, even
after conviction, for as long as necessary to assure that the
defendant and others do not interfere with the availability of the
property for forfeiture.  See also 21 U.S.C. 853(g) (Supp. IV 1986)
(authorizing the court to issue restraining orders to protect the
property after an order of forfeiture has been entered).  Consistent
with this understanding, the restraining order in this case did not by
its terms expire upon the entry of an order of forfeiture or the
judgment of conviction or upon completion of proceedings in the
district court on any third-party claims.  See Pet. App. 77a-78a.  It
therefore will continue in effect during the pendency of respondent's
appeal of his conviction, which is now scheduled for argument during
the week of June 19, 1989.  If respondent's conviction is reversed on
appeal for reasons unrelated to the issuance of the restraining order,
that order then would remain in effect during any retrial.  Cf. FDIC
v. Mallen, 108 S. Ct. 1781, 1785-1786 n.7 (1988).

   /9/ See also United States v. Long, 654 F.2d 911 (3d Cir. 1981)
(unanimously sustaining application of predecessor CCE forfeiture
provision to property transferred to attorney in payment of attorneys'
fees);  United States v. Raimondo, 721 F.2d 476, 478 (4th Cir. 1983)
(same).

   The Fifth Circuit expressed the view in United States v. Thier, 801
F.2d 1463, 1474 (1986), as modified, 809 F.2d 249 (5th Cir. 1987),
that Section 853 would not necessarily bar an attorney from receiving
payment of his fees out of forfeited property if he filed a
postconviction petition for relief under Section 853(n)(6)(B).  The en
banc Fifth Circuit, however, recently granted en banc review in United
States v. Jones, 837 F.2d 1332 (5th Cir. 1988), to reconsider the
decision in Thier.  844 F.2d 215 (1988).  Accordingly, respondent's
argument that assets paid to an attorney are not part of the property
subject to forfeiture under Section 853 can no longer claim
precedential support even in the rather tentative views of the Fifth
Circuit panel in Thier.

   /10/ In addition, a person convicted of engaging in a continuing
criminal enterprise, in violation of 21 U.S.C. 848, shall forfeit "any
of his interest in," "claims against," and "property or contractual
rights affording a source of control over, the continuing criminal
enterprise." 21 U.S.C. 853(a)(3) (Supp. IV 1986).

   /11/ See also Caplin & Drysdale, 814 F.2d 914;  87-1729 Pet. App.
44a (the "provisions define forfeitable property without regard to its
intended or actual use, whether for payment to attorneys or for other
uses").  The Caplin & Drysdale panel considered consolidated cases
arising under the forfeiture provisions of both the RICO and the drug
laws, which are virtually identical, and it chose to discuss the legal
issues by referring to the text of the RICO provisions (814 F.2d at
909 n.1;  87-1729 Pet. App. 33a n.1).  The en banc court in Caplin &
Drysdale specifically endorsed the panel's opinion on the statutory
issue (837 F.2d at 641;  87-1729 Pet. App. 5a).

   /12/ That Section 853(a) must be read broadly is underscored by
Section 853(o), which explicitly directs that "(t)he provisions of
(Section 853) shall be liberally construed to effectuate its remedial
purposes." See Russello v. United States, 464 U.S. 16, 27 (1983);
Nichols, 841 F.2d at 1492.

   /13/ Even with respect to cases in which the third party is able to
show that he falls within the narrow exemption for bona fide
purchasers, Congress made clear its determination to prevent the
defendant from deriving any benefit from the tainted assets;  in such
cases, Section 853(p)(2) directs the court to order the forfeiture of
substitute assets of the defendant to take the place of the assets
that are not reachable in the hands of the bona fide purchaser.

   /14/ Section 853(n) contains one other exception:  it provides that
a court shall amend the order of forfeiture if a third-party
petitioner establishes by a preponderance of the evidence that the
order of forfeiture is invalid because he had a legal right, title, or
interest in the property that was superior to that of the defendant at
the time the defendant committed the act that gave rise to the
forfeiture, i.e., that the property did not even belong to the
defendant when he committed the offense.  21 U.S.C. 853(n)(6)(A).
That exception, which protects secured creditors, is of no aid to
general creditors and certainly does not protect persons who become
creditors after the commission of the acts that give rise to the
forfeiture.

   /15/ After entry of an order of forfeiture, the United States must
publish notice of the order and of its intent to dispose of the
property in such manner as the Attorney General may direct, and must
furnish written notice to any person who is known to have alleged an
interest in the property.  21 U.S.C. 853(n)(1) (Supp. IV 1986).  Any
person asserting a legal interest in the property must file a petition
within 30 days requesting the court to adjudicate his interest.  21
U.S.C. 853(n)(2) (Supp. IV 1986).  A hearing must be held within 30
days, to the extent practicable, 21 U.S.C. 853(n)(4) (Supp. IV 1986),
and the court at the hearing may consider evidence presented by both
the petitioner and the United States, as well as relevant portions of
the record in the criminal case that resulted in the order of
forfeiture, 21 U.S.C. 853(n)(5) (Supp. IV 1986).

   /16/ We will assume for present purposes that an attorney who
accepts title to property as payment of his fee would be a "purchaser"
within the meaning of the bona fide purchaser exception.

   /17/ But cf. United States v. Thier, 801 F.2d 1474, as amended 809
F.2d 249 (5th Cir. 1987) ("a defense lawyer's knowledge of the charges
against the client does not ipso facto disqualify the attorney's claim
to be a bona fide purchaser under the RICO and CCE forfeiture
provisions").

   /18/ Amici NACDL et al. argue (Br. 67-73) that the presence of the
word "reasonably" in the phrase "reasonably without cause to believe
that the property was subject to forfeiture" indicates that Congress
intended subsection (n)(6)(B) to grant a court the authority to exempt
property from forfeiture whenever it believes it would be "reasonable"
to do so.  Amici then contend that it would always be unreasonable to
subject property needed to pay "legitimate" attorney's fees to
forfeiture.  This semantic argument is unconvincing.

   Amici point to no indication in the text or legislative history of
Section 853 even remotely suggesting that the phrase "reasonably
without cause to believe that the property was subject to forfeiture"
was intended to confer some sort of general dispensing power on the
courts.  That phrase merely serves to define the degree of suspicion
about the tainted nature of the property that is sufficient to
disqualify a third-party petitioner from relief.  The natural reading
of the quoted phrase is that a third-party petitioner not only must
have actually been without cause to believe that the property was
subject to forfeiture -- i.e., must have been subjectively unaware of
circumstances that would create suspicion -- but also that his
unawareness of those circumstances must have been objectively
reasonable, rather than the product of willful or idiosyncratic
ignorance.  See United States v. $10,694.00 U.S. Currency, 828 F.2d
233, 235 n.3 (4th Cir. 1987).  That interpretation is supported by the
Senate Report, which explains that the bona fide purchaser exemption
applies where the petitioner "had no reason to believe that the
property was subject to forfeiture" (S. Rep. No. 225, 98th Cong., 1st
Sess. 209 (1983)).  The House Report explains the quoted language in
similar terms.  See H.R. Rep. No. 845 (Pt. 1), 98th Cong., 2d Sess. 18
(1984) ("the petitioner did not know or have reason to know of the
offense or any restraining order in the transfer of the property");
see id. at 38-39.  At least after the indictment was returned, an
attorney representing respondent could not have satisfied this
standard.

   /19/ Amici NACDL et al. concede as much.  They state (Br. 88 n.*
(emphasis in original)):  "We doubt also that the bfp exemption was
actually designed to protect against forfeiture of attorneys' fees,
although it may have this effect.  This provision purports to operate
only after the trial is over."

   /20/ If respondent had actually retained a lawyer and transferred
some of the forfeited property to the attorney to pay the attorney's
fee, that property would remain subject to forfeiture by virtue of
Section 853(c) unless the attorney satisfied the special bona fide
purchaser test under subsection (n)(6)(B).  The absence of a specific
mention of "attorneys' fees" in subsection (c) or (n)(6)(B) would be
irrelevant in that situation as well, because the forfeiture sanction
would attach not to the "fees" charged by the attorney, but to the
tainted property that the client attempted to use to pay those fees.

   /21/ See 18 U.S.C. 1963(c) (1982), enacted as Section 901(a) of the
Organized Crime Control Act of 1970, Pub. L. No. 91-452, 84 Stat. 943;
 and 21 U.S.C. 848(a)(2), enacted as Section 408(a)(2) of the
Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L.
No. 91-513, 84 Stat. 1265-1266.

   /22/ See also Forfeiture in Drug Cases:  Hearings Before the
Subcomm. on Crime of the House Comm. on the Judiciary, 97th Cong., 1st
& 2d Sess. 167 (1981 & 1982) (statement by Justice Department witness
discussing Long).  Even if the legislative history were to the
contrary and indicated that Congress did not specifically consider the
application of the statute to assets used or to be used to pay
attorneys' fees, that would not furnish a basis for a court to exempt
such assets from forfeiture.  "(T)he 'fact that (a law) has been
applied in situations not expressly anticipated by Congress does not
demonstrate ambiguity.  It demonstrates breadth.'" Nichols, 841 F.2d
at 1493, quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499
(1985).

   /23/ The conclusion that Congress did not intend to fashion a
statutory exclusion for all assets used or to be used to pay
attorneys' fees also is supported by the House Judiciary Committee's
criticism elsewhere in its Report of the result of the government's
forfeiture efforts in United States v. Meinster, No. 79-105-CR-JKL
(S.D. Fla.), which was frequently discussed as an example of how
forfeiture efforts had been frustrated.  See, e.g., Forfeiture of
Narcotics Proceeds:  Hearings Before the Subcomm. on Criminal Justice
of the Senate Comm. on the Judiciary, 96th Cong., 2d Sess. 19, 51-55,
92 (1980);  Pet. App. 31a-32a (Mahoney, J., dissenting).  In the
Meinster case the government obtained only about $16,000 out of seized
assets valued at approximately $750,000, and the seized assets
themselves were only a small part of an estimated gross return to the
drug enterprise of $300 million.  The $750,000 was depleted in
substantial part by the court-directed sale of assets to pay $559,000
in attorneys' fees.  The House Report was critical of the net result
in the case.  H.R. Rep. No. 845 (Pt. 1), supra, at 3;  see also id. at
19 n.1.

   Concern about the use of the proceeds of organized crime activities
to pay large fees to attorneys also was reflected in the legislative
history of the Organized Crime Control Act of 1970, in which the
original RICO forfeiture provision was enacted.  In his Message on
Organized Crime that urged the passage of sweeping new legislation,
President Nixon noted that illegal gambling enterprises "provide() the
bulk of the revenues that eventually go into * * * bribes of police
and local officials * * * and * * * pay for the large stables of
lawyers and accountants and assorted professional men who are in the
hire of organized crime" (H.R. Doc. No. 105, 91st Cong., 1st Sess. 6
(1969)).  See also 116 Cong. Rec. 591 (1970) (remarks of Sen.
McClellan) (same);  id. at 35,313 (remarks of Rep. Leggett) (noting
that gamblers and other members of organized crime derive enormous
illegal profits out of which it paid certain operating expenses,
including "batteries of high-priced legal talent").

   /24/ See 11 U.S.C. 548 ("Fraudulent transfers and obligations.");
G. Glenn, The Law of Fraudulent Conveyances 1 (1931) ("The fraudulent
conveyance, as known in our law, may be roughly defined as an
infringement of the creditor's right to realize upon the available
assets of his debtor.").

   /25/ Other cases that have arisen in this area raise the same
concern.  For example, in United States v. Henderson, 844 F.2d 685,
687 (9th Cir. 1988), the district court had determined that
"reasonable, bona fide attorneys fees of $500,000 for pretrial work
would be exempted from defendants' assets, and that an additional
$17,500 would be exempted for each week of trial." Similarly, the
defendant in United States v. Unit No. 7 & Unit No. 8, 853 F.2d 1445
(8th Cir. 1988), urged the district court that $500,000 "would be a
reasonable fee in this case." Id. at 1447 n.2.  Compare United States
v. Hand, 863 F.2d 1100 (3d Cir. 1988) (restitution ordered to the
government in the amount of $46,850, representing the costs to the
government of prosecuting a seven-week trial, after two weeks of trial
preparation;  the costs included the salaries of two prosecutors and
two federal drug agents, travel costs for the prosecutors and agents,
and witnesses' fees and travel expenses).

   /26/ This Court enunciated that same principle in its first
decision interpreting the RICO statute, where the defendant argued
that the legislative history discussed only the government's efforts
to prevent the infiltration of legitimate enterprises.  Rejecting that
narrow interpretation, the Court noted that "none of these statements
requires the negative inference that (the statute) did not reach the
activities of enterprises organized and existing for criminal
purposes." United States v. Turkette, 452 U.S. 576, 591 (1981);  see
also United States v. Naftalin, 441 U.S. 768, 774-775 (1979).

   /27/ See Forfeiture Issues:  Hearing Before the Subcomm. on Crime
of the House Comm. on the Judiciary, 99th Cong., 1st Sess. 187-245
(1985).  Respondent quotes (Br. 16 n.9) a statement by Representative
Shaw during the 1985 Hearing (at 233) stating that Section 853 did not
contemplate the forfeiture of attorneys' fees.  Respondent fails to
point out, however, that Representative Shaw expressed concern about
addressing that issue by making a "special case" for lawyers and
setting attorneys' fees as "something that is special above all
others" (1985 Hearing at 233-234).

   /28/ See generally Attorneys' Fees Forfeiture:  Hearing before the
Senate Comm. on the Judiciary, 99th Cong., 2d Sess. (1986).

   /29/ See Pub. L. No. 99-570, Sections 1153(b), 1864, 100 Stat.
3207-13, 3207-54, adding the substitute asset provisions now codified
at 21 U.S.C. 853(p) (Supp. IV 1986) and 18 U.S.C. 1963(n) (Supp. IV
1986).

   /30/ See Pub. L. No. 99-570, Section 1352(a), 100 Stat. 3207-18 to
3207-21, codified at 18 U.S.C. 1956 and 1957 (Supp. IV 1986).

   /31/ Explanatory statements inserted into the extension-of-remarks
section of the Congressional Record likewise refer only to a possible
exemption from the new criminal sanctions, with no suggestion of an
intent to exempt attorneys' fees from forfeiture.  132 Cong. Rec.
E3822 (daily ed. Nov. 6, 1986) (remarks of Rep. McCollum);  see also
id. at E3827 (remarks of Rep. Hughes.)

   In 1988, Congress did amend 18 U.S.C. 1957(f)(1) (Supp. IV 1986) to
provide that the term "monetary transaction" does not "include any
transaction necessary to preserve a person's right to representation
as guaranteed by the sixth amendment to the Constitution." Anti-Drug
Abuse Amendment Act, Pub. L. No. 100-690, Section 6182, 102 Stat.
4354.  Once again, however, in spite of continuing pressure from the
defense bar, see Forfeiture Portions of the Comprehensive Crime Bill
and the Anti-Drug Abuse Act of 1986:  Hearing before the Subcomm. on
Crime of the House Comm. on the Judiciary, 100th Cong., 1st Sess.
85-231 (1987);  Field Hearing on Federal Drug Forfeiture Activity
before the Subcomm. on Crime of the House Judiciary Comm., 100th
Cong., 2d Sess. 169-178 (1988), Congress did not go so far as to enact
a statutory exemption from forfeiture that would permit a defendant to
use forfeited assets to pay attorneys' fees.

   /32/ Citing N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490
(1979), respondent contends (Br. 20-23) that the Court should avoid
the question of the constitutionality of Section 853 by construing it
not to require the forfeiture of the proceeds of narcotics trafficking
that the defendant wishes to pay to his attorney.  This Court has made
clear, however, that although "'(s)tatutes should be construed to
avoid constitutional questions, * * * this interpretative canon is not
a license for the judiciary to rewrite language enacted by the
legislature.'" Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 493 n.11
(1985), quoting United States v. Albertini, 472 U.S. 675, 680 (1985).
Where, as here, the statutory language admits of only one
interpretation and the legislative history supports that reading, the
statutory language must be respected even if constitutional issues are
presented as a result.  Cf. Sedima, 473 U.S. at 495-496 n.13.

   /33/ Respondent, unlike the petitioner in Caplin & Drysdale, argues
(Br. 31-36) that the incidental effect of Section 853 on the ability
of a defendant to retain private counsel can be sustained only by a
"compelling" governmental interest.  However, none of the decisions of
this Court or of the courts of appeals upon which respondent relies
(Br. 31-32) supports that proposition.

   In Wheat v. United States, 108 S.Ct. 1692, 1697 (1988), the Court
stated that the right to select and be represented by one's preferred
counsel is "comprehended" by the Sixth Amendment, but emphasized that
the primary purpose of the Sixth Amendment is to ensure that the
defendant receives a fair trial and that the right to counsel of
choice is qualified in important respects.  Similarly, in Powell v.
Alabama, 287 U.S. 45, 53, 69 (1932), the Court held only that the
defendant is entitled to a "fair opportunity" to retain counsel, which
cannot be "arbitrarily" interfered with.  Accord Chandler v. Fretag,
348 U.S. 3, 9-10 (1954);  Glasser v. United States, 315 U.S. 60, 70
(1942).  All of the court of appeals decisions cited by respondent use
similar formulations, stressing that the defendant's rights may not be
"arbitrarily" interfered with.  See United States v. Rankin, 779 F.2d
956, 958, 960 (3d Cir. 1986);  Wilson v. Mintzes, 761 F.2d 275, 281
(6th Cir. 1985);  United States v. Phillips, 699 F.2d 798, 802 (6th
Cir. 1983);  Linton v. Perini, 656 F.2d 207, 208, 211 (6th Cir. 1981);
 United States v. Laura, 607 F.2d 52, 56, 57 (3d Cir. 1979).  As we
explain in our brief in Caplin & Drysdale, there is nothing arbitrary
about applying the same uniform and mandatory rules to assets used to
pay legal fees as to assets that are used for other purposes.
Finally, contrary to respondent's contention (Br. 34 n.16), the First
Amendment does not require any justification for Section 853 beyond
that required by the Sixth Amendment.  See Walters v. National Ass'n
of Radiation Survivors, 473 U.S. 305, 334-335 (1985).

   /34/ The Second Circuit has stated that although Fed. R. Crim. P.
7(c)(2) requires the indictment to identify any property for which
criminal forfeiture is sought, the proposed forfeiture of assets need
not be presented to the grand jury because it is not an element of the
offense, but rather an additional penalty for a violation.  United
States v. Grammatikos, 633 F.2d 1013, 1025 (2d Cir. 1980).  However,
we have been informed by the Office of the United States Attorney for
the Southern District of New York that the forfeiture allegations in
the indictment were presented to the grand jury in this case and that
it is that Office's usual practice to do so.

   /35/ Subsection (f) authorizes a court to issue a warrant for the
seizure of property if it determines that there is probable cause to
believe the property would be subject to forfeiture in the event of
conviction and that a restraining order or other action taken under
subsection (e) would be inadequate to assure the availability of the
property for forfeiture.  Thus, the statute provides for a judicial
determination of probable cause where the defendant would be
dispossessed of the property.

   /36/ Respondent's concerns (Br. 48-49) about the length of time a
restraining order will remain in effect therefore are without
constitutional foundation.

   /37/ These principles date to the earliest years of the Nation.
See Wood v. United States, 41 U.S. (16 Pet.) 342, 366 (1842);  Taylor
v. United States, 44 U.S. (3 How.) 197, 211 (1845);  Act of July 31,
1789, Section 27 1 Stat. 29, 43-44.

   /38/ Other courts have required such a hearing where the defendant
seeks access to the assets in order to retain counsel to represent him
in the criminal prosecution.  See, e.g., Moya-Gomez, 860 F.2d at
726-730;  United States v. Unit No. 7 & Unit No. 8 of Shop in the
Grove Condominium, 853 F.2d 1445 (8th Cir. 1988).  Congress did not
intend to foreclose a court from holding a hearing, if necessary, on
the question of vacating a restraining order after it has been issued.
 See S. Rep. 225, supra, at 203;  cf. Pet. App. 36a-39a (Mahoney, J.
dissenting).

   APPENDIX