SUPREME COURT OF THE UNITED STATES

No. 94–7427

JOSEPH LIBRETTI, PETITIONER v.

UNITED STATES

on writ of certiorari to the united states court of appeals for the tenth circuit

[November 7, 1995]

Justice Stevens, dissenting.

While I agree with the Court's conclusions (1) that Federal Rule of Criminal Procedure 11(f) does not create a duty to determine that there is a factual basis for a forfeiture of assets pursuant to 21 U. S. C. §853 and (2) that the record in this case does establish a factual basis for forfeiting the assets described in Count 6 of the indictment, I believe it important to emphasize the underlying proposition that the law—rather than any agreement between the parties—defines the limits on the district court's authority to forfeit a defendant's property. Moreover, entirely apart from Rule 11(f), the district court has a legal obligation to determine that there is a factual basis for the judgment entered upon a guilty plea. For that reason, the Court of Appeals was plainly wrong in holding that simply because the defendant unequivocally agreed to "`forfeit all property,'" the law authorized the forfeiture of all of his assets. 38 F. 3d 523, 526 (CA10 1994).

The facts of this case well illustrate the particular need for the district court to determine independently that a factual basis supports forfeiture judgments that it enters pursuant to plea agreements. As the Court correctly notes, this defendant received a favorable plea agreement. The record demonstrates that the facts would have supported a much longer term of imprisonment than was actually imposed. In such circumstance, it is not unthinkable that a wealthy defendant might bargain for a light sentence by voluntarily "forfeiting" property to which the government had no statutory entitlement. This, of course, is not the law. No matter what a defendant may be willing to pay for a favorable sentence, the law defines the outer boundaries of a permissible forfeiture. A court is not free to exceed those boundaries solely because a defendant has agreed to permit it to do so. As Judge Cudahy aptly put it, "[t]he mere fact that the defendant has agreed that an item is forfeitable, in a plea agreement, does not make it so." United States v. Roberts, 749 F. 2d 404, 409 (CA7 1984).

The proposition that the law alone defines the limits of a court's power to enter a judgment can be traced to this Court's early precedents. In Bigelow v. Forrest, the Court explained that a court "transcend[s] its jurisdiction" when it orders the forfeiture of property beyond that authorized by statute. 9 Wall. 339, 351 (1870). In a similar vein, Ex parte Lange concluded that a judgment imposing punishment in excess of statutory authorization is not merely voidable, but "void." 18 Wall. 163, 178 (1874). Precisely because extrastatutory punishments implicate the very power of a court to act, the district court must, entirely apart from the specific procedure mandated by Rule 11(f), satisfy itself that there is a factual basis for any judgment entered pursuant to a guilty plea that threatens to exceed statutory bounds. Were a court to do otherwise, it would permit the parties to define the limits of its power.

In sum, Rule 11(f) does not create a substantive right. Instead, it prescribes a procedure that is intended to protect every defendant's pre-existing right not to receive any sentence beyond statutorily prescribed limits. Rule 11(f) states that if there is no factual basis for the guilty plea, the court has no power to "enter a judgment upon such plea . . . ." In so stating, the Rule does not impliedly authorize courts to impose sentences upon a plea of guilty greater than the maximum prescribed for the admitted offense. The pre-existing substantive limits on the court's power to impose a judgment upon a plea of guilty, which apply to the forfeiture aspect of the judgment as well as to the finding of guilt, preclude such a result. Nothing in the Rule suggests otherwise.

Because the foregoing thoughts are implicit in this Court's independent examination of the record to assure itself that there is indeed a factual basis for the forfeiture of the property described in Count 6, and for the further conclusion that the forfeiture order does not extend beyond the line that the law has drawn, I endorse almost all of the Court's opinion. Nevertheless, I do not agree with the Court's disposition of the case because I believe the opinion of the Court of Appeals can fairly be read to approve of the forfeiture of all petitioner's property, rather than just the assets described in Count 6.

Although the majority marshals ample support for much of the forfeiture authorized here, the record simply does not provide a factual basis for the whole of it. For example, nothing in the Court's opinion provides a basis for concluding that the small bank account that petitioner opened while a young boy, and which had not been augmented since 1975, should be subject to forfeiture. Nor can all of his assets necessarily be deemed subject to forfeiture as "substitute assets." As the Court recognizes, the District Court determined that only one check was subject to forfeiture on that basis. Ante, at 18.

The sole basis for the wholesale forfeiture affirmed here stems from one paragraph in the defendant's plea agreement which states his willingness to "transfer his right, title, and interest in all of his assets to the Division of Criminal Investigation of the Wyoming Attorney General." App. 81. As I have explained, however, a defendant's bare stipulation does not determine what property a court may forfeit. The district court must independently make that determination. Here, the record reveals that the District Court had not determined that a factual basis existed for the sweeping forfeiture it ordered. Indeed, the District Court subsequently sought to hold a hearing for the very purpose of determining whether a factual basis existed. The District Court was precluded from undertaking that necessary inquiry only because this pro se petitioner filed an early notice of appeal that divested the court of jurisdiction. However, that jurisdictional bar did not, and could not, relieve the District Court of its prior duty to find a factual basis for its forfeiture judgment.

Because the District Court had not assured itself that its judgment fell within the bounds established by law, and because the record does not support the conclusion that it did, I would vacate and remand for further proceedings consistent with this opinion.