CAPLIN & DRYSDALE, CHARTERED, PETITIONER V. UNITED STATES OF
AMERICA

   No. 87-1729

   In The Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Fourth Circuit

   Brief for the United States in Opposition

                           TABLE OF CONTENTS

   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
      1. The statutory issue
      2. The constitutional issue
   Conclusion

                            OPINIONS BELOW

   The opinion of the court of appeals en banc (Pet. App. 1a-29a) is
reported at 837 F.2d 637. The opinion of the panel of the court of
appeals (Pet. App. 30a-80a) is reported at 814 F.2d 905. The opinion
of the district court (Pet. App. 81a-92a) is reported at 631 F. Supp.
1191.

                             JURISDICTION

   The judgment of the en banc court of appeals was entered on January
11, 1988. On February 26, 1988, the Chief Justice extended the time
within which to file a petition for a writ of certiorari to and
including April 11, 1988 (a Monday), and the petition was filed on
that date. The jurisdiction of the Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   1. Whether assets that are otherwise subject to forfeiture under 21
U.S.C. (Supp. IV) 853 because they are the proceeds of or are
connected to the defendant's participation in a continuing criminal
enterprise under the federal drug laws are exempt from forfeiture
where the defendant wishes to use the assets to pay defense counsel.

   2. Whether, if such assets are not exempt from forfeiture, the
statutory provisions requiring the forfeiture of the assets are
unconstitutional under the Sixth Amendment because they may have the
effect of rendering the defendant unable to retain counsel of his
choice.

                               STATEMENT

   1. On January 15, 1985, Christopher F. Reckmeyer, II, was charged
in an indictment in the Eastern District of Virginia with heading a
massive drug operation. One count of the indictment charged Reckmeyer
with engaging in a continuing criminal enterprise (CCE), in violation
of 21 U.S.C. (Supp. IV) 848. The indictment also sought forfeiture
under 21 U.S.C. (Supp. IV) 853 of certain specified assets and any
other assets in which Reckmeyer had an interest arising from his
participation in the criminal enterprise. Pet. App. 4a, 31a. Section
853(a) provides that a person who is convicted of violating the CCE
statute shall forfeit to the United States any property consisting of
proceeds of the violation, any property used in the commission of the
offense, and any interest in, claims against, or property or
contractual rights affording him a source of influence over the
criminal enterprise. 21 U.S.C. (Supp. IV) 853(a). Any right in
forfeited property "vests in the United States upon the commission of
the act giving rise to forfeiture" (21 U.S.C. (Supp. IV) 853(c)). If
the district court enters an order of forfeiture under these
provisions, a third party may petition the court to amend the order to
exclude particular property if he establishes:  (A) that he had an
interest in the property that was superior to the interest of the
defendant at the time the defendant committed the act giving rise to
forfeiture, or (B) that he was a bona fide purchaser for value and was
reasonably without cause to believe that the property was subject to
forfeiture (21 U.S.C. (Supp. IV) 853(n)(6)).

   On January 14, 1985, the day before the indictment was returned,
the United States obtained an ex parte order restraining the transfer
of assets by Reckmeyer. On March 7, 1985, Reckmeyer moved to modify
the restraining order to exclude assets that he wished to use to pay
his attorneys, who were affiliated with petitioner, the law firm of
Caplin & Drysdale. On March 14, 1985, before the district court ruled
on the motion, Reckmeyer pleaded guilty to the CCE count and two tax
evasion counts. Pet. App. 82a. Reckmeyer's plea agreement stated that
his organization was responsible for the distribution of more than 169
tons of marijuana and ten tons of hashish over the course of 50
ventures.  Reckmeyer admitted that he realized millions of dollars
from drug transactions, which were his only significant source of
income (id. at 4a;  see also United States v. Reckmeyer, 786 F.2d 1216
(4th Cir. 1986), cert. denied, No. 86-82 (Oct. 6, 1986)). The plea
agreement required Reckmeyer to forfeit 41 assets specifically listed
in the indictment, as well as any proceeds from those assets and all
other assets that were the proceeds of his drug activities or were
directly or indirectly related to those activities (id. at 1217).

   On March 15, 1985, the district court denied Reckmeyer's motion to
modify the restraining order so that he could use some of the assets
to pay attorney's fees to petitioner. The court denied the motion on
the ground that Reckmeyer had already pleaded guilty to the CCE count
that gave rise to forfeiture. The court entered an order of forfeiture
on May 17, 1985, and included in the order virtually all assets
possessed by Reckmeyer, including real estate, gems, and $200,000 in
currency (Pet. App. 39a, 82a-83a). /l/

   Petitioner then filed a petition under 21 U.S.C. (Supp. IV) 853(n)
to amend the order of forfeiture to exclude sufficient property to pay
$170,512.99 in expenses incurred in the representation of petitioner.
In an opinion dated March 27, 1986, the district court held, as a
matter of statutory construction, that attorney's fees are exempt from
forfeiture under Section 853 (Pet. App. 81a-92a). /2/ The court
acknowledged that a literal reading of the statute encompasses assets
that might be used to pay legal fees, because it provides for the
defendant to forfeit "any property" that is derived from or was used
to facilitate the violation and "any of his interest in" the CCE
enterprise (21 U.S.C. (Supp. IV) 853(a) (emphasis added)). Pet. App.
87a. But the court concluded that such a construction would violate a
defendant's Sixth Amendment right to retain counsel of his choice and
would give rise to a conflict of interest because the attorney would
have a pecuniary interest in the outcome of the case. Pet. App.
88a-92a. The court therefore ordered the government to pay $170,512.99
to petitioner out of the assets that Reckmeyer had forfeited to the
United States (id. at 92a).

   2. A panel of the court of appeals affirmed the district court's
order excluding the $170,512.99 from forfeiture (Pet. App. 30a-80a).
The panel first held, contrary to the district court's view, that
Section 853 does reach assets marked for or paid to the defendant's
attorney (Pet. App. 41a-52a). /3/ In the panel's view, the language of
the relevant forfeiture provisions "is so clear and so plainly reaches
property legitimately contracted to be paid or paid as attorneys fees
as not to permit judicial resort to legislative history" (id. at 42a;
see id. at 32a-36a, 43a-44a). The panel further concluded that "even
if resort to legislative history were made, examination of that
history would reveal no such clear intent to exclude property marked
for or paid as attorney fees as would be required to compel such an
interpretation, and indeed would tend rather to confirm the contrary
intention reflected in the plain statutory language" (id. at 42a;  see
id. at 45a-52a). In particular, the panel held that passing references
in the legislative history to Congress's insistence that defendants
not avoid forfeiture by entering into "sham" or "fraudulent"
transactions did not confine the broad statutory language to those
narrow circumstances. In the panel's view, that interpretation would
ignore the carefully drawn exceptions to forfeiture, which are limited
to claims by third parties who had an interest in specific property
that was superior to that of the defendant or were bona fide
purchasers of property without reasonable cause to believe that the
property was subject to forfeiture (21 U.S.C. (Supp. IV) 853(n)(6)).
Pet. App.  46a-50a.

   The panel held, however, that the statutory forfeiture provisions
are unconstitutional to the extent that they apply to assets that the
defendant used or proposes to use to pay what the court termed
"legitimate" attorney's fees (Pet. App. 53a-73a). In the panel's view,
the prospect that assets might be subject to a restraining order prior
to trial, and to a judgment of forfeiture after conviction, would
deter counsel from accepting the case and thereby impermissibly
interfere with the defendant's Sixth Amendment right to retain counsel
of his choice (id. at 62a-72a). /4/

   3. The full court of appeals granted the government's petition for
rehearing en banc and reversed the district court's order excluding
from forfeiture the $170,512.99 that petitioner sought to recover for
its representation of Reckmeyer (Pet. App. 1a-29a). As a threshold
matter, the en banc court unanimously agreed with the panel that 21 U.
 S.C. (Supp. IV) 853 does not exempt attorney's fees from forfeiture
(Pet. App. 5a-7a;  id. at 26a (Phillips, J., dissenting)). In the en
banc court's view, the statutory language is "unmistakably clear" and
"plainly reaches property used or intended to be used for attorneys'
fees" (id. at 5a). The court noted that the statute makes no mention
of attorney's fees in the definition of property that is subject to
forfeiture (21 U.S.C. (Supp. IV) 853(a) and (b)) or in the exceptions
for certain third-party claims (21 U.S.C. (Supp. IV) 853(n)), but
rather "exempts only those third parties who have prior claims or are
bona fide purchasers, without regard to whether they are attorneys"
(Pet. App. 6a). The en banc court also agreed with the panel that "the
legislative history provides no basis for concluding that attorneys'
fees are not subject to forfeiture" (id. at 5a), because the
disapproval of "sham" transactions in the legislative history "cannot
* * * legitimately be used to restrict statutory language that is
unambiguously more broad" and because "limiting forfeiture to assets
tranferred in sham transactions would read the bona fide purchaser
requirement right out of the statute" (id. at 6a).

   In contrast to the panel, however, the majority of the en banc
court held that application of the forfeiture provisions to assets the
defendant wishes to transfer to his attorney does not violate a
defendant's Sixth Amendment right to counsel (Pet. App. 8a-22a). The
court stressed that the forfeiture requirement "poses no threat
whatsoever to the absolute right to be represented by counsel" (id. at
8a), because, if necessary, "the defendant's right to representation
will be protected by the appointment of counsel" (id. at 9a;  see id.
at 8a-10a).

   The court also concluded that the forfeiture provisions do not
impermissibly interfere with a defendant's right to counsel of his
choice (Pet. App. 11a-16a), which is necessarily "limited by the
government's interest in the orderly administration of justice" (id.
at 11a). It observed that prior decisions concerning the right to
counsel of choice had involved situations in which the defendant
sought to retain counsel by spending his own assets;  under the CCE
forfeiture provisions, by contrast, the assets are "an integral part
of the very crime with which the defendant is charged" and therefore
constitute property "in which the law recognizes no ownership rights
of the defendant" (id. at 12a). The court also pointed out that there
are "multitudinous circumstances" that might leave a defendant without
the attorney he would most prefer:  the attorney might not want to
represent the defendant or might be concerned that the defendant will
not be able to pay, perhaps because a creditor has obtained liens
against his property;  or the court's schedule or rules requiring the
hiring of local counsel might not allow for representation by a
particular lawyer (id. at 13a). In the court's view, the operation of
the forfeiture provisions to deprive the defendant of any interest in
property associated with the continuing criminal enterprise is another
event that may have the effect of preventing a defendant from choosing
a particular lawyer, without constituting a deprivation of the
qualified Sixth Amendment right to counsel of choice. The court thus
"decline(d) to expand the qualified right to counsel of choice to an
absolute right to retain counsel with illegally acquired assets" (id.
at 15a). /5/

                               ARGUMENT

   Petitioner argues that the court of appeals' decision is wrong on
both statutory and constitutional grounds. There is, however, no
conflict among the circuits on either issue. The ruling by the Fourth
Circuit on the constitutional issue is consistent with the decisions
of the Second and Tenth Circuits, the only other courts of appeals
that appeals that have addressed that issue. United States v.
Monsanto, 836 F.2d 74 (1987), petition for reh'g en banc granted, No.
87-1397 (2d Cir. Jan. 29 1988) (argued en banc Mar. 30, 1988);  /6/
United States v.  Nichols, 841 F.2d 1485 (10th Cir. 1988). Although a
panel of the Fifth Circuit held earlier this year, albeit as a matter
of statutory construction, that an attorney has a right to recover his
fees out of property the defendant forfeited to the United States, the
Fifth Circuit has granted rehearing en banc to reconsider that
position.  United States v. Jones, 837 F.2d 1332 (1988), petition for
reh'g granted, No. 87-5556 (Apr. 27, 1988). /7/ Even on the statutory
issue, then, there is no conflict among the circuits and thus no need
for review by this Court. Moreover, this case is not a suitable
vehicle for considerating the validity of the forfeiture provisions
where they have the effect of depriving a defendant of counsel of his
choice, because Christopher Reckmeyer in fact was represented by
counsel of his choice -- attorneys in the petitioner law firm of
Caplin & Drysdale -- throughout the proceedings. The petition for a
writ of certiorari therefore should be denied.

   On the merits, the decision of the court of appeals was correct,
for the reasons we set forth in some detail below.

   1. The Statutory Issue. As explained by the court of appeals, the
CCE forfeiture provisions are broad, because they were designed to
deprive the defendant of all the fruits of his criminal activities.
Pet. App. 19a-20a (quoting S. Rep. 98-225, 98th Cong., 1st Sess. 191
(1983):

         In the Comprehensive Forfeiture Act of 1984, /8/ Congress
      recognized that the illegal drug trade poses a grave threat to
      every part of our society. The trade has spawned violent crime,
      threatened the integrity of local law enforcement, and condemned
      countless thousands of young lives to the service of a chemical
      compulsion. "Profit is the motivation for this criminal
      activity, and it is through economic power that it is sustained
      and grows." * * * The Comprehensive Forfeiture Act represents,
      above all, Congress' attempt to "strip these offenders and
      organizations of their economic power," and the recognition that
      "forfeiture is the mechanism through which such an attack can be
      made."

See also Nichols, 841 F.2d at 1487-1488;  compare Russello v. United
States, 464 U.S. 16, 27-28 (1983). The court of appeals was clearly
correct in its holding -- concurred in by all judges on the en banc
court -- that assets that are otherwise subject to forfeiture under
the CCE statute are not rendered immune from forfeiture merely because
the defendant wishes to use those assets to pay his attorney. Pet.
App.  5a-7a, 41a-53a.

   a. The statutory text forecloses petitioner's claim of exemption.
The CCE statute broadly provides that if a person is convicted of a
CCE offense, he shall forfeit to the United States "any property"
constituting the proceeds of his violation of the drug laws, "any of
the person's property" used in the commission of the violation, and
property or contractual rights affording a source of control over, the
continuing criminal enterprise." 21 U.S.C. (Supp. IV) 853(a)(1), (2)
and (3) (emphasis added). There is no exception in this sweeping
language for property that might be used to pay an attorney. Moreover,
the statute explicitly provides that "(a)ll right, title, and interest
in property described in subsection (a) * * * vests in the United
States upon the commission of the act giving rise to forfeiture" (21
U.  S.C. (Supp. IV) 853(c) (emphasis added)). Accordingly, where, as
here, the defendant has already committed such an act, his desire to
use some of the property to discharge a debt to this attorney (or
anyone else) comes too late:  by that time, what previously had been
the defendant's interest in the property has already vested in the
United States, and the defendant therefore has no right to treat the
property as his own and to use it, inter alia, to purchase a house, an
automobile, a vacation, or, as here, the services of a lawyer.

   If there could be any doubt on this point, it is dispelled by the
consequences that the CCE statute prescribes where the defendant does
treat forfeited property as his own by transferring it to a third
party after he commits the act giving rise to forfeiture. In those
circumstances, the property remains subject to forfeiture even in the
hands of the third party, "unless the transferee 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"
(21 U.S.C. (Supp. IV) 853(c)). If the transferee makes such a showing,
the defendant is not thereby relieved of liability, since that result
would enable him to benefit from his illegal drug activities by using
the proceeds to discharge his debts. Accordingly, the CCE statute
provides that if property subject to forfeiture has been transferred
to a third party, the court shall order the forfeiture of substitute
property of the defendant up to the value of the transferred property.
 21 U.S.C. (Supp. IV) 853(p)(2). In short, the forfeiture provisions
on their face leave no room for the defendant to use illicit assets
that are subject to forfeiture for any purpose, including to pay an
attorney.

   This conclusion is further reinforced by the fact that the CCE
statute contains carefully drawn provisions that exempt certain assets
from the operation of the forfeiture sanction, but do not provide for
exemption of assets that the defendant wishes to pay to his attorney.
In fact, there is no statutory exemption at all for the defendant's
interests in property that is subject to forfeiture, and there is
therefore no mechanism by which he can free up forfeited assets to
discharge his debts. Rather, the two statutory exemptions in 21 U.S.C.
 (Supp. IV) 853(n)(6) protect only the interests of certain third
parties. Neither of those exemptions permits petitioner to recover the
funds it seeks from Reckmeyer's illicit assets, since neither
exemption accords special treatment to a third-party claimant simply
because he happens to be an attorney.

   Petitioner for the most part seeks to receive fees not out of funds
that Reckmeyer had already disbursed, but out of forfeited assets that
remained in Reckmeyer's possession until they were seized by the
United States. Section 853(n)(6)(A) permits amendment of the
forfeiture order as regards such assets only where the third-party
claimant establishes that the order of forfeiture is invalid because
he had an interest in the property that was superior to that of the
defendant at the time the defendant committed the act giving rise to
forfeiture -- i.e., that the property did not belong to the defendant,
and therefore could not be forfeited to the United States. That
exemption, which protects mortgagees, other secured creditors, and the
like, obviously has no application here. Petitioner does not assert
that it had a security or other legally protected interest in specific
property that was superior to the interest of Christopher Reckmeyer at
the time Reckmeyer committed the acts that gave rise to the
forfeiture. Petitioner's claim for attorney's fees arose later, after
petitioner rendered legal services, and even now petitioner does not
assert any protected interest in specific property that Reckmeyer
forfeited to the United States. Petitioner therefore is merely a
general creditor who seeks to draw on property of the United States to
recover on a debt owed to it by a drug trafficker. Section
853(n)(6)(A) does not furnish petitioner or any other general creditor
with a right to have Reckmeyer discharge his debt out of assets that
have been forfeited to the United States -- especially where, as here,
Reckmeyer lost his property interest in the assets before the debt
arose.

   The other statutory exemption applies where the defendant
transferred specific property to a bona fide purchaser for value after
the defendant committed the act giving rise to forfeiture. 21 U.S.C.
(Supp. IV) 853(n)(6)(B). This provision, too, is plainly inapplicable
here. Insofar as petitioner seeks payment out of assets that Reckmeyer
never transferred to it, petitioner is not a "purchaser" of the assets
at all, much less a bona fide purchaser for value. But see United
States v. Reckmeyer, 836 F.2d 200, 205-208 (4th Cir. 1987). Reckmeyer
did transfer $25,480 in cash to petitioner on January 25, 1985, and
petitioner placed that cash in an escrow account (Pet. App. 82a). But
even assuming that petitioner would otherwise be regarded as a bona
find "purchaser" of that cash by accepting it as payment for past
legal services, petitioner cannot claim to have been "reasonably
without cause to believe" that the $25,480 was subject to forfeiture
under the CCE statute. The indictment seeking forfeiture of virtually
all of Reckmeyer's assets had been returned ten days earlier, and the
order restraining the transfer of Reckmeyer's assets had been entered
11 days earlier.

   b. The court of appeals also correctly rejected petitioner's
contention that the legislative history of the forfeiture statute
furnishes a basis for an exemption that the statutory text forcloses.
Petitioner relies (Pet. 21) on passages in the Senate Report stating
that the provision permitting relief for bona fide purchasers "should
be construed to deny relief to third parties acting as nominees of the
defendant or who have knowingly engaged in sham or fraudulent
transactions" (S. Rep. 98-225, 98th Cong., 1st Sess. 209 n.47 (1983))
and that the purpose of that provision "is to * * * close a potential
loophole in current law whereby the criminal forfeiture sanction could
be avoided by transfers that were not 'arms' length' transactions"
(id.  at 200-201). As the court below held (Pet. App. 49a), however,
those passages do not suggest that Congress intended that only sham or
fraudulent transfers to third parties would be voided. See also
Monsanto, 836 F.2d at 79-80 (the Senate Report "establishes with
clarity only that 'bona fide purchasers' in the normal sense, i.e.,
those who have no notice of the property's taint, will not be subject
to the forfeiture penalty. There is certainly no clear expression of
an intention to exempt from forfeiture fees paid to attorneys who are
on notice, solely because those payments constitute legitimate fees
for actual services rendered.");  Nichols, 841 F.2d at 1494. 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). /9/

   Petitoner's argument based on the Senate Report is not logically
limited to assets the defendant proposes to use to pay attorney's
fees;  his argument would exempt all transfers to third parties,
except where the government could establish fraud on the part of the
transferee.  That interpretation would effectively read out of the
statute the language in Section 853(n)(6)(B) that explicitly limits
relief to those transferees who are bona fide purchasers for value who
were reasonably without cause to believe that the property was subject
to forfeiture.  See Pet. App. 6a-7a, 47a-48a;  Nichols, 841 F.2d at
1494.

   Petitioner also relies (Pet. 21) on a footnote in the House Report
that discusses pre trial restraining orders, which states that "(n)
othing in this section is intended to interfere with a person's Sixth
Amendment right to counsel." H.R. Rep. 98-845, 98th Cong., 2d Sess.
Pt.  1, at 19 n.1 (1984). However, that cryptic remark does not
suggest that Congress intended to fashion a statutory exception for
assets that might be used to pay an attorney. To the contrary, the
next sentence in the footnote states:  "The Committee, therefore, does
not resolve the conflict in District Court opinions on the use of
restraining orders that impinge on a person's right to retain counsel
in a criminal case" (ibid.). That sentence "belies any intention to
establish a statutory rule concerning forfeiture of attorney's fees'
(Monsanto, 836 F.2d at 79). The only remaining question, then, is
whether the Sixth Amendment requires special treatment for attorneys
that Congress declined to fashion. As we shall now show, it does not.

   2. The Constitutional Issue. Petitioner urges the Court to hold the
statutory forfeiture provisons unconstitutional insofar as they do not
allow a law firm to recover its fees for representing a defendant
convicted of violating the federal drug laws out of the illicit
proceeds of the defendant's violation. The en banc court of appeals
correctly rejected that constitutional challenge to the statute.

   a. As the court of appeals observed, the forfeiture provisions
"pose() no threat whatsoever to the absolute right to be represented
by counsel" (Pet. App. 8a), the core guarantee of the Sixth Amendment.
If either a pretrial restraining order or the possibility of a post
conviction forfeiture order should deter attorneys from accepting a
particular case on a fee basis because of uncertainty about whether
they would collect a fee the defendant's right to representation would
be protected by the appointment of counsel (id. at 9a).

   b. Thus, petitioner's argument is reduced to the claim that the
forfeiture provisons violate the Sixth Amendment because they may
interfere with the defendant's ability to hire counsel of his choice.
This claim must be placed in its proper context. Section 853(a) does
not provide for the forfeiture of "attorney's fees" as such. It
provides for the forfeiture of all of the defendant's property that
represents the illicit proceeds of his drug activities or his
participation in the CCE enterprise, and it therefore mandates
forfeiture based on the origins of the property, not the purposes to
which the defendant might wish to devote it. Accordingly, Section 853
does not single out attorneys or their fees for adverse treatment:
the defendant is equally barred from spending forfeited assets to
purchase an automobile, groceries, or the assistance of an accountant.
Nor do the CCE forfeiture provisions impose an affirmative
governmental bar to representation of the defendant by a particular
attorney;  any inability of the defendant to receive the services of a
particular attorney results from that attorney's private decision to
refuse to accept the employment in light of the defendant's financial
circumstances -- circumstances that in turn are attributable to the
defendant's commission (or alleged commission) of acts that give rise
to forfeiture. The operation of Section 853 therefore is quite unlike
the disqualification order in Wheat v. United States, No. 87-4 (May
23, 1988), which constituted a direct governmental prohibition against
the defendant's selection of a particular lawyer to represent him, but
which nevertheless was sustained by the Court.

   Petitioner's contention is undermined by the very decision upon
which it chiefly relies (Pet. 13) in support of a defendant's right to
be represented by counsel of his choice. Powell v. Alabama, 287 U.S.
45 (1932). The Court there made clear that the right is not absolute.
The Court stated only that a court would violate "due process in the
constitutional sense" if it "were arbitrarily to refuse to hear a
party by counsel, employed by and appearing for him" (id. at 69). The
CCE forfeiture provisions have no such effect. They do not authorize a
court to "refuse" to allow a defendant to be represented by an
attorney whom he has employed. Nor do they "arbitrarily" prevent a
defendant from employing an attorney. Any impact the CCE forfeiture
provisions may have on a particular defendant's ability to be
represented by a particular attorney is merely the incidental
consequence of a statute of general applicability that is directed to
other goals and that petitioner essentially concedes is valid as
applied to all third-party claimants except lawyers. See Nichols, 841
F.2d at 1504-1505.

   c. The Court's most recent decision discussing the right to counsel
of choice, Wheat v. United States, supra, likewise refutes
petitioner's contention. The Court stressed in Wheat the "while the
right to select and be represented by one's preferred attorney is
comprehended by the Sixth Amendment, the essential aim of the
Amendment is to guarantee an effective advocate for each criminal
defendant rather than to ensure that a defendant will inexorably be
represented by the lawyer whom he prefers" (slip op. 6). Accordingly,
"(t)he Sixth Amendment right to choose one's own counsel is
circumscribed in several important respects" (ibid.). For example, the
defendant has no right to be represented by a person who is not a
member of the bar (Leis v. Flynt, 439 U.S. 438 (1979)), by a person
who is burdened by a conflict of interest (Wheat v. United States,
supra), or by a person whose schedule cannot be adjusted to the
requirements of the court's docket (Morris v.  Slappy, 461 U.S. 1,
11-12 (1983)).

   In addition, and of special relevance to this case, the Court made
clear in Wheat that "a defendant may not insist on representation by
an attorney he cannot afford or who for other reasons declines to
represent the defendant" (slip op. 6). Under the CCE provisions, title
to the defendant's interests in assets that are subject to forfeiture
vests in the United States immediately upon his commission of the acts
giving rise to forfeiture. From that moment on, the defendant no
longer owns the assets, and he therefore has no right to spend them to
hire a lawyer. If the defendant has no other assets, he may be unable
to afford to hire the attorney he prefers. As the Wheat case makes
clear, however, the defendant's inability to afford a particular
lawyer does not constitute a deprivation by the government of the
defendant's qualified Sixth Amendment right to counsel of his choice.

   If Christopher Reckmeyer had robbed a bank and been found with
$100,000 of the proceeds in his possession, he plainly would not have
had a Sixth Amendment right to spend the $100,000 to hire an attorney.
 As the en banc court below observed (Pet. App. 14a), the result
should be no different here, where the assets involved are the illicit
proceeds of Reckmeyer's drug activities. Indeed, if Reckmeyer had been
found in the possession of several million dollars' worth of
marijuana, it could not seriously be maintained that he would have had
a Sixth Amendment right to have the government sell a portion of the
marijuana and give the proceeds to him so that he could pay petitioner
for legal representation. The result should be no different simply
because Reckmeyer's criminal enterprise managed to sell the illegal
drugs, so that Reckmeyer had the proceeds, rather than drugs, in his
possession.  The Constitution requires only that a court afford a
defendant a "fair opportunity to secure counsel of his own choice"
(Powell v. Alabama, 287 U.S. at 53), using whatever assets he has at
his lawful disposal. A defendant is not denied that "fair opportunity"
when he is barred from spending assets that he illegally acquired and
are no longer his own.  See Walters v. National Ass'n of Radiation
Survivors, 473 U.S. 305, 370 (1985) (Stevens, J., dissenting) (in a
criminal case, the Sixth Amendment protects "the individual's right to
spend his own money to obtain the advice and assistance of independent
counsel"). For these reasons, the en banc court of appeals correctly
"decline(d) to expand the qualified right to counsel of choice to an
absolute right to retain counsel with illegally acquired assets" (Pet.
App. 15a).

   d. Petitioner seeks to denigrate the compelling governmental
interest in obtaining the forfeiture of all of the defendant's assets
that derive from his illicit drug activities by arguing that that
interest would not be substantially undermined by exempting assets
that the defendant wishes to use to pay his attorney. See Pet. 16-19.
But the same argument could be made in favor of exempting assets to
enable the defendant to pay other expenses out of the assets he has
forfeited to the United States. In any such situation, the effect
would be to allow the defendant to profit from his illegal activities
by enabling him to use the proceeds to discharge his contractual and
other obligations to third parties. Congress chose not to fashion an
exception for any such payments, and the Sixth Amendment does not
invalidate that decision merely because the particular contractual
obligation concerns the payment of attorney's fees. As the en banc
court of appeals observed, "Congress has already underscored the
compelling public interest in stripping criminals such as Reckmeyer of
their undeserved economic power, and part of that undeserved power may
be the ability to command high-priced legal talent" (Pet. App. 21a).
Furthermore, the public has a compelling interest in deterrence, and a
"drug kingpin's certain knowledge that he may have at his beck and
call lawyers whose fees run into hundreds of thousands of dollars may
take him less apprehensive about continuing in his business" (ibid.).
Accord Nichols, 841 F.2d at 1505. Finally, "(p)ublic confidence in the
administration of justice might be a casualty of exempting attorneys'
fees from forfeiture," because "(p)ublic cynicism and distrust of the
legal system might grow as citizens watched huge sums of cash being
seized in drug raids and then flowing straight into the pockets of
lawyers under a claim of constitutional special privilege" (Pet. App.
21a-22a).

   e. Where the indictment in a CCE case contains a count seeking an
order of forfeiture of the proceeds of the defendant's drug activities
and his participation in the CCE enterprise, it is only after the
verdict that it will be finally determined whether the United States'
asserted interest in the property is valid. If the defendant has no
substantial assets other than those the government alleges to be the
illicit proceeds of his criminal activities, the uncertainty about
whether the defendant will have sufficient assets at the close of the
trial to pay an attorney may lead the defendant's preferred attorney
to decline to accept the case. But uncertainty about whether he will
be paid is merely one of many reasons that might legitimately lead an
attorney to decline to handle a case. As the court of appeals
concluded (Pet. App. 13a), the situation is the same for purposes of
constitutional analysis as when a defendant's assets are subject to a
claim or lien by another creditor, which likewise can cause
prospective defense counsel to decline the representation because of
uncertainty about whether he will be paid. In neither case does the
attorney's uncertainty result in a violation of the Sixth Amendment.

   In any event, whatever may be the distinct Sixth Amendment issues
that are presented in the pretrial context by a forfeiture count in
the indictment (or a pretrial restraining order), no such issues are
presented in this case. Petitioner did not withdraw from its
representation of Reckmeyer after the restraining order was issued and
the indictment was returned. As a result, Reckmeyer received the
"Assistance of Counsel" of his choice throughout the proceedings, and
Reckmeyer's guilty plea has now conclusively determined that the
assets in question were properly forfeited to the United States. By
staying in the case, petitioner assumed the risk that it might not be
able to recover its fees, either from Reckmeyer directly or by filing
a third-party claim for relief from forfeiture. The incidental effect
of the forfeiture provisions on petitioner's private contractual claim
against Reckmeyer does not rise to the level of a violation of
Reckmeyer's Sixth Amendment right to counsel. This case is therefore
not an appropriate one in which to consider the constitutionality of
the forfeiture statute when it affects a defendant's interest in being
represented by counsel of his choice, since Christopher Reckmeyer
enjoyed the representation of counsel of his choice throughout the
proceedings against him. /10/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   Charles Fried

      Solicitor General

   Edward S.G. Dennis, Jr.

      Acting Assistant Attorney General

   Edwin S. Kneedler

      Assistant to the Solicitor General

   JUNE 1988

   #FN1

   /1/ The court also sentenced Reckmeyer to a term of 17 years'
imprisonment (United States v. Reckmeyer, 786 F.2d at 12117 n.1).

   /2/ The district court characterized petitioner as "a good faith
provider of services for value" and observed that petitioner "ha(d)
not been paid for these charges because of the restraining and
forfeiture orders which encompassed all of Christopher Reckmeyer's
assets" (Pet.  App. 83a).

   /3/ For convenience, the panel addressed the issue of statutory
construction by analyzing the parallel forfeiture provisions under the
Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C.
(Supp. IV) 1963, which was involved in another appeal that had been
consolidated with this case. As the panel observed, the RICO
forfeiture provisions are "virtually identical" to those at issue
here, and the panel's reasoning therefore applied equally to both
statutory schemes (Pet. App. 33a n.1).

   /4/ The panel concluded that the forfeiture provisions are not
unconstitutional as applied in this setting merely because of the
possibility that in some circumstances the potential for forfeiture of
assets might give rise to a conflict of interest on the part of the
attorney or otherwise affect his relationship with the defendant. The
panel reasoned that such claims of ineffective assistance of counsel
would have to be decided on the basis of the facts in an individual
case, if the defendant was convicted. Pet. App. 59a-61a.

   /5/ Judges Widener and Murnaghan concurred in the majority's
opinion but also filed brief concurring opinions (Pet. App. 22a-23a,
23a-26a).  Judges Phillips, Winter, Sprouse and Ervin dissented from
the majority's Sixth Amendment ruling, largely for the reasons stated
in Judge Phillips' opinion for the panel (id. at 26a-29a).

   /6/ Contrary to petitioner's contention (Pet. 12), the Second
Circuit in Monsanto did not suggest that the forfeiture provisions
must be applied in a manner that permits an attorney to recover his
fees. In the portion of its opinion upon which petitioner relies, the
Second Circuit considered the issues that are raised in the context of
a restraining order issued prior to trial, when it has not been
definitively determined that the assets are subject to forfeiture. 836
F.2d at 83-84. The issue in this case, by contrast, arises in the
post-conviction context, and Reckmeyer's guilty plea, for which he
received petitioner's assistance, conclusively establishes that the
assets out of which petitioner now seeks to recover its fees are the
proceeds of Reckmeyer's illegal drug activities and therefore were
subject to forfeiture.

   /7/ The Fifth Circuit did not consider the question of statutory
construction at any length in Jones, because it believed, contrary to
the government's contention, that this result was required by its
prior decision in United States v. Thier, 801 F.2d 1463 (1986),
modified, 809 F.2d 249 (1987) (837 F.2d at 1335, citing 801 F.2d at
1474). Indeed, in a special concurring opinion, Judge Davis stated
that he concurred in the majority's opinion because he believed that
Thier required that result, but that, if free to do so, he would
follow the reasoning of the Fourth Circuit in the instant case (837
F.2d at 1336).

   /8/ Pub. L. No. 98-473, 98 Stat. 2040.

   /9/ Moreover, the Senate Report elsewhere states that a defendant
should not be shielded from forfeiture "simply by transferring an
asset to a third party" and that the 1984 amendments were necessary
"to preserve the availabilty 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. 98-225, supra, at 196). As the
court of appeals observed, "(t)his passage reflects a clear
congressional intent to make voidable a wider range of asset transfers
than just sham or fraudulent ones" (Pet. App. 50a). Accord Nichols,
841 F.2d at 1494-1495.

   /10/ We note as well that the Department of Justice has promulgated
internal guidelines to assure that the forfeiture provisions are
invoked with caution where they may have an effect on fees paid to
attorneys. See 38 Crim. L. Rep. (BNA) 3001 (1985);  Pet. App. 56a-57a
& n.8. Those guidelines greatly undermine petitioner's extravagant
assertions (Pet. 24-26) about the possible adverse consequences of the
court of appeals' holding that attorney's fees are not altogether
exempt from forfeiture. Similarly, as even the panel below concluded
(Pet. App. 60a-61a), any contention that the forfeiture provisions may
lead to ineffective assistance of counsel in a particular case because
of the attorney's financial interest in the outcome must be considered
in the factual context of a concrete claim to that effect. Petitioner
does not suggest that there was any such defect in its representation
of Reckmeyer.