U.S. v. Bracewell, 425

• Decision Date: 27 January 1978
• Docket Number: No. 425,D,425
• Citation: 569 F.2d 1194
• Parties: UNITED STATES of America, Appellee, v. Clark BRACEWELL, Defendant-Appellant. ocket 77-1379.
• Court: U.S. Court of Appeals — Second Circuit

Page 1194

569 F.2d 1194

UNITED STATES of America, Appellee, v. Clark BRACEWELL, Defendant-Appellant.

No. 425, Docket 77-1379.

United States Court of Appeals Second Circuit.

Submitted Nov. 29, 1977.

Decided Jan. 27, 1978.

Robert B. Fiske, Jr., U. S. Atty., for the Southern District of New York City, Nathaniel H. Akerman, Richard Weinberg, Asst. U. S. Attys., New York City, of counsel, on the brief, for appellee.

Mark E. Arroll, New York City, on the brief, for defendant-appellant.

Before WATERMAN, MOORE and GURFEIN, Circuit Judges.

MOORE, Circuit Judge:

Defendant, Clark Bracewell, whose criminal conviction on narcotics charges was earlier affirmed by this court in an unpublished opinion (No. 77-1074, May 4, 1977), appeals from an order granting the motion of the United States to have the money seized from him at the time of his arrest deposited in the United States Treasury pursuant to 18 U.S.C. § 3006A(f) for reimbursement of the court-appointed defense attorney who represented Bracewell on his trial and appeal. We reverse and remand for further findings.

Defendant Bracewell is an English national who was convicted on three counts of narcotics violations. At the time of his arrest, $1,950 was found on his person: a $1,000 Western Union money order payable to the order of John Clark, ¹ an admitted alias of the defendant, and $950 in cash. After trial, on the date set for sentencing (February 4, 1977), Bracewell moved for the return of the money. The Government responded orally to the motion:

"The Government will return the money once it has been determined that there will be no further appeal, and further, that the English authorities are not interested in prosecuting Mr. Bracewell, since this money would clearly be evidence if there was a new trial or if the English authorities were interested in prosecuting Bracewell, or indeed, if the Internal Revenue Service of Great Britain were interested in attaching that money since I believe Mr. Bracewell did not pay taxes on the sale of that hash oil in England." Transcript of proceedings in United States v. Bracewell, 76 Cr. 863, at 364.

Since the Government's position was that there should be no return of the money until a decision on the appeal from defendant's conviction was reached, Judge Tenney, the trial judge, did not rule on the motion for return of the money, but found that the Government was entitled to keep the money in its possession until the appeal was exhausted. Transcript at 396, No. 76 Cr. 863. Six days later, on February 10, 1977, the Government supplemented its sentencing statement by sending Judge Tenney a letter requesting that the money be ordered payable to the United States Treasury pursuant to 18 U.S.C. § 3006A(f), which provides:

"Whenever the . . . court finds that funds are available for payment from or on behalf of a person furnished representation, it may authorize or direct that such funds be paid to the appointed attorney . . . or to the court for deposit in the Treasury as a reimbursement to the appropriation, current at the time of payment, to carry out the provisions of this section."

Judge Tenney did not act on the Government's letter.

On the appeal of his conviction, Bracewell asked this court to direct the return to him of his money. In its brief, the Government opposed the request, stating that it intended to make a formal motion under 18 U.S.C. § 3006A(f) at the conclusion of the appeal. On May 4, 1977, the appeal was submitted to a panel of this court, and the conviction was affirmed by oral opinion. Judge Gurfein, the presiding judge on that panel, stated for the court:

"Appellant also argued that a Western Union money order and cash seized from him at the time of his arrest should not have been admitted. There was no objection made . . . . In any event, the money was admissible . . . because it was relevant to support the testimony of Mr. Mogul (co-conspirator Helen Brown's attorney) that appellant had tried to get Miss Brown released on bail, indicating a connection between them.

The statement in summation by the United States Attorney that the money order and cash found on Bracewell were the product of drug sales was, we agree, not sufficiently supported by evidence, but we believe that . . . it was harmless error. . . .

* * * We also agree with the government that it's entitled to hold the $1,950 involved, to be applied to the reimbursement of Bracewell's assigned counsel." United States v. Bracewell, No. 77-1074, unpublished opinion (2d Cir., May 4, 1977), Record on Appeal, Document No. 15, Exhibit "A".

The Government did make its formal motion on June 23, 1977; it was granted by Judge Tenney on August 11, 1977. Bracewell's court-appointed attorney received payment for his services on trial and on appeal. It is from the order granting the motion that Bracewell appeals.

We agree with appellant that the issue of the propriety of the seizure for reimbursement purposes, although addressed in passing on the prior appeal, was never properly reviewed by this court. The statement made in the oral opinion was in direct response to appellant's argument that he was entitled to the money now. The emphasis was on the right of the Government to hold the money. There was no intention to hold that its right to claim the application of the money in reimbursement of Bracewell's assigned counsel could not be contested, for no order had yet been entered. Indeed, in the Government's brief in the prior appeal, it stated that it intended to make a formal motion under 18 U.S.C. § 3006A(f), and that "(i)f Judge Tenney should grant the Government's motion, the defendant could then properly raise an appeal with this Court". Brief for Appellee, United States of America, at 34, United States v. Clark Bracewell (No. 77-1074). Since the Government previously argued only that Bracewell was not "presently" entitled to a return of the money, and that the Government was entitled to it pending decision of the formal motion only, we are not now foreclosed from considering the propriety of forever depriving Bracewell of his funds under the reimbursement provision. See Jhirad v. Ferrandina, 536 F.2d 478, 483 (2d Cir. 1976). We therefore proceed to consider the arguments in this case.

To begin, we reject the notion that the Government seizure of Bracewell's funds constituted an illegal "forfeiture", as appellant would have us hold. Clearly, the reimbursement statute, which was duly enacted to carry out salutary policies and which provides for notice of the intended order of recoupment, creates a constitutionally proper ground for depriving a financially able defendant of available funds which, in fairness, should be remitted to the public coffers. See Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974), in which the Supreme Court upheld an Oregon recoupment provision in the face of a constitutional challenge. Nor do we think that the Government's "promise" to return the funds precludes its otherwise lawful claim thereto. Appellant was aware, during this period, that adverse claims to the funds would be considered; we do not think that bad faith prompted the Government to press its claim at the time it did. Indeed, the reimbursement provision permits an order directing recoupment "whenever" funds are found to be available for payment. ²

We are concerned, however, that the statute may have been misconstrued in this case. The question, in our view, is whether the funds appropriated by the Government were, in fact, "available for payment" within the meaning of the statute. This, of course, is a statutory condition which must be met before an order of reimbursement is properly granted. The Government would have us hold, in essence, that, whenever a defendant in possession of funds is given notice of a proposed order of reimbursement and is permitted the opportunity to oppose the motion, the statute, unrestricted by its own terms, is satisfied, and that no further inquiry is required. We do not agree. We think that in a case such as this, the district court is obliged to conduct an inquiry into the defendant's personal and familial financial status, and to make a finding on the record that the funds being appropriated to repay counsel costs are "available" for that purpose. It may well be that such is the case here, but, because of the fact that the record is barren of any such finding, we are not prepared to so hold. ³

We have been cited to, and have found, little in the way of authority construing the federal reimbursement statute we are here asked to consider. While the legislative history of the Criminal Justice Act of 1964, P.L. 88-455, 88th Cong., 2d Sess., of which the subject provision is but a small part, is replete with comment about the underlying purpose of the Act (i. e., to assure the effective assistance of counsel) and about the contemplated operation of many of its provisions, the recoupment provision is not discussed. We thus construe subsection (f), quoted above, guided not by legislative history but by authority relating to analogous provisions of law.

Two recent Supreme Court cases have involved a review of State reimbursement provisions which are, in some ways, similar to the federal provision. In James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972), the Court struck down a Kansas law under which an indigent defendant, provided with counsel by the State, automatically became obligated to the State for the expenditures made on his behalf. Noting the wide variety of State reimbursement statutes extant in the United States and the disparate means by which they provide for recoupment, the Court refused to make "any broadside pronouncement on their (the various statutes') general validity". Id. at 133, 92 S.Ct. at 2030. Nonetheless, the Kansas statute was found to be infirm under the Equal Protection Clause because, under its terms, the indigent debtor, subjected to an automatic judgment of...