US SUPREME COURT DECISIONS

Respondent, who allegedly directed a large-scale heroin distribution enterprise, was indicted for alleged violations of racketeering laws, creation of a continuing criminal enterprise, and tax and firearm offenses. The indictment also alleged that respondent had accumulated three specified assets as a result of his narcotics trafficking, which were subject to forfeiture under the Comprehensive Forfeiture Act of 1984, 21 U.S.C. § 853. After the indictment was unsealed, the District Court granted the Government's ex parte motion under § 853(e)(1)(A) for a restraining order freezing the assets pending trial. Respondent, raising various statutory arguments and claiming that the order interfered with his Sixth Amendment right to counsel of his choice, moved to vacate the order to permit him to use frozen assets to retain an attorney. He also sought a declaration that if the assets were used to pay attorney's fees, § 853(c)'s third-party transfer provision would not be used to reclaim such payments if respondent was convicted and his assets forfeited. The District Court denied the motion. However, the Court of Appeals ultimately ordered that the restraining order be modified to permit the restrained assets to be used to pay attorney's fees.

Held:

1. There is no exemption from § 853's forfeiture or pretrial restraining order provisions for assets that a defendant wishes to use to retain an attorney. Pp. 491 U. S. 606-614.

(a) Section 853's language is plain and unambiguous. Congress could not have chosen stronger words to express its intent that forfeiture be mandatory than § 853(a)'s language that upon conviction a person "shall forfeit . . . any property" and that the sentencing court "shall order" a forfeiture. Likewise, the statute provides a broad definition of property which does not even hint at the idea that assets used for attorney's fees are not included. Every Court of Appeals that has finally passed on this argument has agreed with this view. Neither the Act's legislative history nor legislators' post-enactment statements support respondent's argument that an exception should be created because the statute does not expressly include property to be used for attorney's fees, or because Congress simply did not consider the prospect that forfeiture chanrobles.com-red

Page 491 U. S. 601

would reach such property. To the contrary, in the Victims of Crime Act -- which requires forfeiture of a convicted defendant's collateral profits derived from his crimes and which was enacted simultaneously with the statute in question -- Congress adopted expressly the precise exemption from forfeiture which respondent is seeking to have implied in § 853. Moreover, respondent's admonition that courts should construe statutes to avoid decision as to their constitutionality is not license for the judiciary to rewrite statutory language. Pp. 491 U. S. 606-611.

(b) Respondent's reading of § 853(e)(1)(A) -- which provides that a district court "may enter a restraining order or injunction . . . or take any other action to preserve the availability of property . . . for forfeiture" -- misapprehends the nature of § 853 by giving a district court equitable discretion to determine whether to exempt assets from pretrial restraint and by concluding that, if such assets are used for attorney's fees, they may not subsequently be seized for forfeiture to the Government under § 853(c). Section 853(e)(1)(A) plainly is aimed at implementing § 853(a)'s commands, and cannot sensibly be construed to give the district court discretion to permit the dissipation of the very property it requires be forfeited upon conviction, since this would nullify § 853(a)'s strong language, as well as § 853(c)'s powerful "relation-back" provision. Pp. 491 U. S. 611-614.

2. The restraining order did not violate respondent's right to counsel of choice as protected by the Sixth Amendment or the Due Process Clause of the Fifth Amendment. For the reasons stated in Caplin & Drysdale, Chartered v. United States, post p. 491 U. S. 617, neither the Fifth nor the Sixth Amendment requires Congress to permit a defendant to use assets adjudged to be forfeitable to pay the defendant's legal fees. Moreover, a defendant's assets may be frozen before conviction based on a finding of probable cause to believe the assets are forfeitable. See, e.g., United States v. $8,850, 461 U. S. 555; Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663. Indeed, concluding that the Government could not restrain such property would be odd considering that, under appropriate circumstances, the Government may restrain persons accused of a serious offense on a probable cause finding. See United States v. Salerno, 481 U. S. 739. Pp. 491 U. S. 614-616.

852 F.2d 1400, reversed and remanded.

WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J.,and O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 491 U. S. 635. chanrobles.com-red

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