OCTOBER TERM, 1995
LIBRETTI v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 94-7427. Argued October 3, 1995-Decided November 7,1995
During petitioner Libretti's trial on federal drug and related charges, he entered into a plea agreement with the Government, whereby, among other things, he pleaded guilty to engaging in a continuing criminal enterprise under 21 U. S. C. § 848; agreed to surrender numerous items of his property to the Government under § 853, which provides for criminal forfeiture of drug-tainted property; and waived his constitutional right to a jury trial. At the colloquy on the plea agreement, the trial judge explained the consequences of Libretti's waiver of the latter right, but did not expressly advise him as to the existence and scope of his right under Federal Rule of Criminal Procedure 31(e) to a jury determination of forfeitability. Mter sentencing Libretti to imprisonment and other penalties, the judge entered a forfeiture order as to the property in question despite Libretti's objection to what he saw as a failure to find any factual basis for the entire forfeiture. The Court of Appeals rejected both of Libretti's challenges to the forfeiture order, ruling that Federal Rule of Criminal Procedure 11(f) does not require a district court to ascertain a factual basis for a stipulated forfeiture of assets and that Libretti had waived his Rule 31(e) right to a jury determination of forfeitability.
1. Rule l1(f)-which forbids a court to enter judgment upon "a plea of guilty" without assuring that there is "a factual basis" for the plea-does not require a district court to inquire into the factual basis for a stipulated forfeiture of assets embodied in a plea agreement. Pp.37-48.
(a) The Rule's plain language precludes its application to a forfeiture provision contained in a plea agreement. The Rule applies only to "a plea of guilty," which refers to a defendant's admission of guilt of a substantive criminal offense as charged in an indictment and his waiver of the right to a jury determination on that charge. See, e. g., United States v. Broce, 488 U. S. 563, 570. In contrast, forfeiture is an element of the sentence imposed following a plea of guilty, and thus falls outside Rule l1(f)'s scope. That forfeiture operates as punishment for criminal conduct, not as a separate substantive offense, is demonstrated by the
text of the relevant statutory provisions, see, e. g., §§ 848(a) and 853(a), by legislative history, and by this Court's precedents, see, e. g., Alexander v. United States, 509 U. S. 544, 558. Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 628, n. 5, distinguished. In light of such weighty authority, the Court is not persuaded by Libretti's insistence that the forfeiture for which § 853 provides is, in essence, a hybrid that shares elements of both a substantive charge and a criminal punishment. Pp. 38-41.
(b) Libretti's policy arguments for construing Rule 11(f) to reach asset forfeiture provisions of plea agreements-that the Rule's factual basis inquiry (1) is essential to ensuring that a forfeiture agreement is knowing and voluntary, (2) will protect against government overreaching, and (3) is necessary to ensure that the rights of third-party claimants are fully protected-are rejected. Pp. 41-44.
(c) The District Court did not rest its forfeiture order solely on the stipulation contained in the plea agreement. There is ample evidence that the District Judge both understood the statutory requisites for criminal forfeiture and concluded that they were satisfied on the facts at the time the sentence was imposed. Pp. 44-48.
2. On the facts of this case, Libretti's waiver of a jury determination as to the forfeitability of his property under Rule 31(e)-which provides that, "[i]f the indictment ... alleges that ... property is subject to criminal forfeiture, a special verdict shall be returned as to the extent of the ... property"-was plainly adequate. That waiver was accomplished by the plea agreement, in which Libretti agreed to forfeiture and waived his right to a jury trial, together with the plea colloquy, which made it abundantly clear that the plea agreement would end any proceedings before the jury and would lead directly to sentencing by the court. Accordingly, Libretti cannot now complain that he did not receive the Rule 31(e) special verdict. The Court rejects his argument that the Rule 31(e) right to a jury determination of forfeitability has both a constitutional and a statutory foundation, and cannot be waived absent specific advice from the district court as to the existence and scope of this right and an express, written waiver. Given that the right, as an aspect of sentencing, does not fall within the Sixth Amendment right to a jury determination of guilt or innocence, see, e. g., McMillan v. Pennsylvania, 477 U. S. 79, 93, but is merely statutory in origin, the plea agreement need not make specific reference to Rule 31(e). Nor must the district court specifically advise a defendant that a guilty plea will result in waiver of the Rule 31(e) right, since that right is not among the information that must be communicated to a