United States v. Estevez, 86-CR-79.

• Citation: 645 F. Supp. 869
• Decision Date: 20 October 1986
• Docket Number: No. 86-CR-79.,86-CR-79.
• Parties: UNITED STATES of America, Plaintiff, v. Menelao Orlando ESTEVEZ a/k/a "Andre Fonte-Ferro"; Celestino Orlando Estevez; Omar Estevez; Amado Raphael Leon a/k/a "Anton Leon"; Rigoberto Moya-Gomez a/k/a "Tony The Cuban"; Adalberto Herrera a/k/a Arroldo Herrera; Rolando H. Llerena; Modesto Fontanez; Emelio E. Morales; Calvin Searcy; Manuel Guerra, Jr., Jose Cartagena, Jr., a/k/a "Pancho"; Jose Cartagena, Sr., a/k/a "Joe"; Henry W. Conner, Jr.; Lawrence W. Jackman; Flana Gonzalez; Felix Cordero; Oscar Perez-Perez; Angel Alvarez; and Lesmas Rivera, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

645 F. Supp. 869

UNITED STATES of America, Plaintiff, v. Menelao Orlando ESTEVEZ a/k/a "Andre Fonte-Ferro"; Celestino Orlando Estevez; Omar Estevez; Amado Raphael Leon a/k/a "Anton Leon"; Rigoberto Moya-Gomez a/k/a "Tony The Cuban"; Adalberto Herrera a/k/a Arroldo Herrera; Rolando H. Llerena; Modesto Fontanez; Emelio E. Morales; Calvin Searcy; Manuel Guerra, Jr., Jose Cartagena, Jr., a/k/a "Pancho"; Jose Cartagena, Sr., a/k/a "Joe"; Henry W. Conner, Jr.; Lawrence W. Jackman; Flana Gonzalez; Felix Cordero; Oscar Perez-Perez; Angel Alvarez; and Lesmas Rivera, Defendants.

No. 86-CR-79.

United States District Court, E.D. Wisconsin.

October 20, 1986.

R. Jeffrey Wagner, Eric Klumb, Asst. U.S. Attys., Milwaukee, Wis., for plaintiff.

William P. Cagney, III, Miami, Fla., for defendant Menelao Orlando Estevez.

DECISION AND ORDER

TERENCE T. EVANS, District Judge.

On August 26, 1986, the grand jury in this district returned a 21-count superseding indictment charging 20 defendants with various drug-related offenses. The superseding indictment contained a forfeiture provision. On September 9, 1986, the same defendants were named in a second superseding indictment identical to the superseding indictment, except that several additional assets were specifically described in the forfeiture provision. On September 12, 1986, upon the ex parte application of the government pursuant to 21 U.S.C. § 853(e)(1)(A), a restraining order was entered. The order prohibited the defendants, including Menelao Orlando Estevez, from transferring or disposing of the property described in the second superseding indictment. Arguably, the order also prohibits the disposal of assets which, if there is a conviction, will be found to have been obtained from violating the law.

Menelao Orlando Estevez has filed a motion to modify the restraining order entered on September 12, 1986 to permit him "to expend his own funds to retain counsel of his choice" and to pay the living expenses for his family. He also seeks an immediate hearing as to the propriety of the restraining order. The motion is said to be filed pro se, although no attempt is made to conceal the fact that it was prepared by Attorney William P. Cagney, III, whom Estevez wishes to retain. Cagney and his law firm, however, the motion states, "will not enter unconditional appearances as his counsel in this case unless and until the issues and questions concerning the forfeiture of attorneys fees is determined by this Court."

Estevez argues that the restraining order pursuant to the forfeiture provisions of the indictment and 21 U.S.C. § 853(e)(1)(A), violates his sixth amendment right to counsel and counsel of his choice; that it violates his fifth amendment rights because it deprives him of all of his property including ordinary and necessary living expenses; and that it violates both his sixth amendment rights and his fifth amendment right to due process because he has never been afforded a prompt, adversary, evidentiary hearing as to the forfeitability of the assets.

The government opposes the motion for several reasons. It states its belief that the defendant has misconstrued the scope of the restraining order, which the government claims is applicable only to the property specifically described in the forfeiture provisions of the second superseding indictment. Involved in this argument is the contention that Estevez can pay his lawyer with assets not mentioned in the forfeiture provision. Second, because the restraining order does not prohibit the defendant from paying fees to an attorney of his choice, issues relating to the constitutionality of federal forfeiture statutes are not ripe for consideration at this time. Third, neither the sixth amendment nor the forfeiture statutes exempt attorney fees from forfeiture. Fourth, the defendant lacks standing to request a hearing on the propriety of the restraining order. Finally, although the defendant might be entitled, in certain circumstances, to a hearing on the propriety of the order, the government contends that he is not entitled to raise issues regarding the merits of the government's case.

I will not spend time on the standing and ripeness issues except to say that it seems clear that a defendant has standing to raise the issues Estevez raises here. See United States v. Bassett, 632 F.Supp. 1308 (D.C. Md.1986).

The forfeiture provisions at issue are found at 21 U.S.C. § 853. They provide that persons convicted of certain crimes forfeit property or proceeds obtained as a result of the violations, used in connection with the illegal activity, and for persons charged under 21 U.S.C. § 848, property affording a source of control over a continuing criminal enterprise. In addition, the statute speaks to third party transfers:

(c) Third party transfers. All 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 under this section. Any such property that is subsequently transferred to a person other than the defendant may be the subject of a special verdict of forfeiture and thereafter shall be ordered forfeited to the United States, unless the transferee establishes in a hearing pursuant to subsection (o) 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 under this section.

Fees paid to lawyers are not expressly exempted from the coverage of the statute. Thus it can and has been argued that fees paid to an attorney are subject to forfeiture unless counsel was "reasonably without cause to believe" the fees were subject to forfeiture, a claim that presumably can be made only by an attorney who was not doing his job very well in that he knew nothing of his client's activities, or an attorney representing a person without criminal involvement who was unjustly accused.

Interpreting the forfeiture provisions of the Act to include attorney fees raises serious constitutional questions. See, e.g. United States v. Bassett, supra, and United States v. Reckmeyer, 631 F.Supp. 1191 (E.D.Va.1986). The constitutional question is of sufficient magnitude to require resort to certain principles of statutory construction: that courts ascertain whether a construction of a statute is fairly possible by which the constitutional question may be avoided Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932) and that ambiguous criminal statutes must be narrowly construed Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980).

The forfeiture provision, if applied to attorney fees, raises a serious issue involving the denial of a defendant's right to counsel and of his more limited right to be represented by counsel of his choice. In my view, the most serious of the many effects of the forfeiture of...