U.S. v. Monsanto, No. 436

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore FEINBERG, Chief Judge, OAKES, MESKILL, NEWMAN, KEARSE, CARDAMONE, PIERCE, WINTER, PRATT, MINER, ALTIMARI and MAHONEY; PER CURIAM; FEINBERG, Chief Judge, with whom OAKES and KEARSE; OAKES; WINTER; MINER, Circuit Judge, with whom ALTIMARI; MAHON
Citation852 F.2d 1400
PartiesUNITED STATES of America, Appellee, v. Peter MONSANTO, Defendant-Appellant. ocket 87-1397.
Docket NumberD,No. 436
Decision Date01 July 1988

Page 1400

852 F.2d 1400
57 USLW 2030
UNITED STATES of America, Appellee,
v.
Peter MONSANTO, Defendant-Appellant.
No. 436, Docket 87-1397.
United States Court of Appeals,
Second Circuit.
Argued March 30, 1988.
Decided July 1, 1988.

Edward M. Chikofsky, New York City, for defendant-appellant.

John F. Savarese, New York City, Asst. U.S. Atty. S.D. New York (Rudolph W. Giuliani, U.S. Atty. S.D. New York, Aaron R. Marcu, Mark C. Hansen, Deborah E. Landis, Asst. U.S. Attys., of counsel), for appellee.

Arthur Liman, New York City (Gustave H. Newman, Ronald E. DePetris, New York Counsel of Defense Lawyers, New York State Ass'n of Criminal Defense Lawyers, New York Criminal Bar Ass'n, Association of the Bar of the City of New York, Committee on Criminal Advocacy and Committee on Criminal Law, of counsel), as amicus curiae.

Edward J. Kuriansky, New York City, Deputy Atty. Gen. for Medicaid Fraud Control (Arthur A. Munisteri, Elizabeth T. Bogren, Sp. Asst. Attys. Gen., of counsel), as amicus curiae.

Page 1401

Neal R. Sonnett, Miami, Fla. (Benedict P. Kuehne, Sonnett, Sale & Kuehne, P.A., Nancy Hollander, Albuquerque, N.M., for National Ass'n of Criminal Defense Lawyers), as amicus curiae.

Joseph Beeler, Miami, Fla. and Bruce J. Winick, Coral Gables, Fla. (Joseph Beeler, P.A., Bruce J. Winick, for National Network for the Right to Counsel and New York Civil Liberties Union), as amicus curiae.

Before FEINBERG, Chief Judge, OAKES, MESKILL, NEWMAN, KEARSE, CARDAMONE, PIERCE, WINTER, PRATT, MINER, ALTIMARI and MAHONEY, Circuit Judges.

PER CURIAM:

This is an appeal from an order of the United States District Court for the Southern District of New York, Robert J. Ward, J., denying a motion to vacate or modify an ex parte post-indictment restraining order entered pursuant to a provision of the Comprehensive Forfeiture Act of 1984 (CFA), 21 U.S.C. Sec. 853(e)(1)(A) and for a declaration that fees paid to appellant's defense counsel would be exempt from post-conviction forfeiture pursuant to the "relation back" provision of the CFA, 21 U.S.C. Sec. 853(c). The appeal was originally heard by a panel of the court, 836 F.2d 74 (2d Cir.1987), and has been reheard in banc.

The relevant facts of this case, which are described in greater detail in the panel opinion, are as follows. In an indictment unsealed in July 1987, Peter Monsanto was indicted on various RICO, narcotics, continuing criminal enterprise and firearms charges. The indictment specified two parcels of residential real property, valued at $335,000 and $30,000, as well as $35,000 in cash, as "constituting and derived from the proceeds" of violations of Title III of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. Sec. 801 et seq., and thus subject to forfeiture pursuant to 21 U.S.C. Sec. 853(a). The district court entered an ex parte restraining order pursuant to 21 U.S.C. Sec. 853(e)(1)(A) prohibiting Monsanto from transferring or encumbering the residential properties.

In August 1987, Monsanto moved to vacate or modify the restraining order, seeking use of the restrained assets to retain private trial counsel and a declaration that fees paid to such counsel would be exempt from post-trial forfeiture. He argued that Congress did not intend the CFA to apply to property needed to pay legitimate attorney's fees and that if the statute did apply to such property it would violate his sixth amendment right to counsel of choice. He challenged not only the post-indictment restraint provision, 21 U.S.C. Sec. 853(e)(1)(A), but also the post-conviction "relation back" provision, 21 U.S.C. Sec. 853(c), which allows the government to seek post-conviction forfeiture of property transferred to third persons, unless such persons establish that they were bona fide purchasers for value who at the time of the purchase were reasonably without cause to believe that the property was subject to forfeiture.

The district court refused to vacate the restraining order, although it acknowledged that the effect of the order was to render Monsanto indigent. The court ruled that it was not prepared to find the forfeiture provisions of the CFA unconstitutional as applied to attorney's fees and that Congress did not intend to exempt such fees from application of the statute. It also denied Monsanto's request for a declaration that fees paid to defense counsel would be exempt from post-conviction forfeiture. The court indicated, however, that it would allow invasion of the forfeitable assets to pay Monsanto's counsel of choice to the extent of the rates established by the Criminal Justice Act, 18 U.S.C. Sec. 3006A (CJA).

Monsanto brought an expedited appeal and a panel of this court issued an opinion in December 1987, with one judge dissenting. 836 F.2d 74 (2d Cir.1987). The panel concluded that the post-indictment restraint and post-conviction forfeiture provisions of the CFA can apply to funds needed to pay legitimate attorney's fees. The panel held, however, that notice and a pre-trial hearing--at which the government has the burden of demonstrating the likelihood that the assets the government seeks to restrain

Page 1402

are forfeitable--are constitutionally required for the government to restrain assets needed to pay a defendant's counsel of choice. The panel held that where the government fails to meet such a burden any funds used to pay legitimate attorney's fees would be exempt from post-trial forfeiture. 836 F.2d at 84.

The case was remanded and the district court held a hearing as required by the panel opinion. Following the hearing, the district court ruled that the government had met its burden of demonstrating the likelihood that the restrained assets were forfeitable and that the restraining order therefore need not be lifted. Monsanto's trial commenced in February 1988 and is still in progress in the district court. We are told that at trial Monsanto is represented by counsel appointed under the CJA.

In January 1988, this court voted to rehear the appeal in banc, and we heard oral argument on March 30, 1988. As is indicated by the separate concurring opinions, a majority of the members of the in banc court, albeit for varying reasons, agree that the order of the district court denying Monsanto's motion should be vacated and the case remanded with instructions to modify the restraining order to permit Monsanto access to restrained assets to the extent necessary to pay legitimate (that is, non-sham) attorney's fees in connection with the criminal charges against him. A majority of the members of the court also agree that any such fees paid to Monsanto's defense counsel are exempt from subsequent forfeiture pursuant to 21 U.S.C. Sec. 853(c).

The order of the district court is vacated and the matter is remanded to the district court for further proceedings consistent with this opinion.

FEINBERG, Chief Judge, with whom OAKES and KEARSE, Circuit Judges, join, concurring:

I concur in the holding of the court because I believe that the post-indictment restraint and post-conviction "relation back" provisions of the CFA conflict with the right of criminal defendants to select their own counsel. To the extent these provisions prevent an indicted defendant who would otherwise be able to retain counsel of choice from doing so, they are unconstitutional. I do not believe that the hearing envisioned in the panel opinion, 836 F.2d 74, is sufficient to overcome the constitutional infirmities.

The sixth amendment right to counsel of choice is a fundamental right that serves to protect other constitutional rights. It is a key element in our system of criminal justice and distinguishes that system from others that do not allow individuals the chance to resist in a meaningful way the imposition of government power upon them. Therefore, the right to counsel of choice cannot be infringed unless a compelling governmental purpose outweighs it. Many of the cases that allow limitations on the right to counsel of choice deal only with partial limitations or infringements, such as preventing a defendant from substituting counsel once the trial has begun, see, e.g., United States v. Paone, 782 F.2d 386, 392 (2d Cir.), cert. denied, 479 U.S. 882, 107 S.Ct. 269, 93 L.Ed.2d 246 (1986), or disqualifying a particular lawyer, see, e.g., United States v. DiTommaso, 817 F.2d 201, 219-20 (2d Cir.1987). In contrast, the right in this case is destroyed almost completely by depriving the defendant of the means to retain counsel of choice prior to the commencement of trial. Therefore, one would suppose that the governmental justification for such drastic action is overwhelmingly persuasive.

The fact is just to the contrary. The suggested governmental interests that are served by restraining, and permitting the ultimate forfeiture of, assets that are needed to pay attorney's fees are not all that compelling. The government's interests are that assets it seeks to obtain not be dissipated in the relatively brief period from indictment to possible conviction and that an alleged criminal not be able to use his economic power obtained from illegal activities. As to the former, the government's claim to the disputed assets at the time of restraint is only conditional, since under the CFA the government's ownership

Page 1403

interest in the assets is not determined until the outcome of the criminal prosecution. This is not to say that the government has no claim to these assets at all, but only that the claim is not sufficiently strong to prevent those assets from being spent on an accused's defense when the accused has no other funds available. Moreover, it must be remembered that in this sixth amendment context, the government is not prevented from freezing an indicted defendant's other assets--those not necessary for payment of counsel--so that there will be no dissipation or concealment of those.

To the extent that the government seeks to strip an accused of the economic...

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36 practice notes
  • United States v. Watts, Docket No. 13–911–cr.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 4, 2015
    ...in order to continue restraining that property pretrial. See United States v. Monsanto, 836 F.2d 74, 83–84 (2d Cir.1987), on reh'g, 852 F.2d 1400 (2d Cir.1988), rev'd, 491 U.S. 600, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989), vacated, 924 F.2d 1186 (2d Cir.1991). Where the government failed to ......
  • U.S. v. E-Gold, Ltd., No. 07-3074.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 11, 2008
    ...under § 1292(a)(1)); United States v. Monsanto, 836 F.2d 74, 77 (2nd Cir.1987) (same), vacated on rehearing en banc on other grounds, 852 F.2d 1400 (2nd Cir.1988) (per curiam), and rev'd on other grounds, 491 U.S. 600, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989) (reviewing merits without address......
  • U.S. v. Kirschenbaum, Nos. 98-1591
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 23, 1998
    ...under § 1292(a)(1)); United States v. Monsanto, 836 F.2d 74, 77 (2d Cir.1987) (same), vacated on rehearing en banc on other grounds, 852 F.2d 1400 (2d Cir.1988) (per curiam), and rev'd on other grounds, 491 U.S. 600, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989) (reviewing merits without addressin......
  • U.S. v. Monsanto, No. 436
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 22, 1989
    ...(with one judge dissenting) in Monsanto I; (2) the in banc Page 1189 decision of this court in United States v. Monsanto ("Monsanto II"), 852 F.2d 1400 (2d Cir.1988) (in banc) (per curiam); and (3) the decision of the Supreme Court of the United States in United States v. Monsanto ("Monsant......
  • Request a trial to view additional results
36 cases
  • United States v. Watts, Docket No. 13–911–cr.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 4, 2015
    ...in order to continue restraining that property pretrial. See United States v. Monsanto, 836 F.2d 74, 83–84 (2d Cir.1987), on reh'g, 852 F.2d 1400 (2d Cir.1988), rev'd, 491 U.S. 600, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989), vacated, 924 F.2d 1186 (2d Cir.1991). Where the government failed to ......
  • U.S. v. E-Gold, Ltd., No. 07-3074.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 11, 2008
    ...under § 1292(a)(1)); United States v. Monsanto, 836 F.2d 74, 77 (2nd Cir.1987) (same), vacated on rehearing en banc on other grounds, 852 F.2d 1400 (2nd Cir.1988) (per curiam), and rev'd on other grounds, 491 U.S. 600, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989) (reviewing merits without address......
  • U.S. v. Kirschenbaum, Nos. 98-1591
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 23, 1998
    ...under § 1292(a)(1)); United States v. Monsanto, 836 F.2d 74, 77 (2d Cir.1987) (same), vacated on rehearing en banc on other grounds, 852 F.2d 1400 (2d Cir.1988) (per curiam), and rev'd on other grounds, 491 U.S. 600, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989) (reviewing merits without addressin......
  • U.S. v. Monsanto, No. 436
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 22, 1989
    ...(with one judge dissenting) in Monsanto I; (2) the in banc Page 1189 decision of this court in United States v. Monsanto ("Monsanto II"), 852 F.2d 1400 (2d Cir.1988) (in banc) (per curiam); and (3) the decision of the Supreme Court of the United States in United States v. Monsanto ("Monsant......
  • Request a trial to view additional results

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