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January 18, 1990


John S. Rhoades, United States District Judge.

The opinion of the court was delivered by: RHOADES


 Claimants Eduardo M. Otero and Elizabeth R. Otero bring this motion to exclude from civil forfeiture a sum of money as attorney's fees from proceeds of a court controlled sale of seized property. The property at issue, the claimants' house, was seized by federal authorities under 21 U.S.C. § 881. Claimants seek an order excluding $ 250,000.00 from the sale of the property so that their son may retain counsel of choice in a related criminal case. *fn1" They contend that the Sixth Amendment of the U.S. Constitution mandates the exclusion of funds to pay reasonable attorney fees.

 The motion for exclusion was heard by this court on January 16, 1990. After considering the moving and opposing papers, oral arguments, and the applicable law, this court denied claimants' motion in a brief order. This opinion is to explain the court's reasoning.


 On or about April 20, 1989, the November, 1987 Grand Jury for the United States District Court for the Southern District of California handed down a three count indictment charging claimant's son, Edward Randolph Otero, with violations of 21 U.S.C. §§ 952, 960, and 963, conspiracy to import marijuana; 21 U.S.C. §§ 841(a)(1) and 846, conspiracy to possess marijuana with intent to distribute; and 18 U.S.C. § 924(c), use and carrying a firearm during a drug trafficking crime. The indictment alleges that the claimants' son performed one or more overt acts at the Rimini Road residence.

 On July 10, 1989, the Government filed a civil complaint for forfeiture against the defendant property, and alleged that the property was used to facilitate the importation of marijuana. The house has an estimated worth of $ 900,000.00. Claimant's son contends that he has no other source of funds to retain his counsel of choice other than funds whose source would be the proceeds of the sale of claimants' residence.


 The Supreme Court has already decided that the forfeiture of illicit proceeds or other assets utilized to facilitate criminal activity which would otherwise be used to pay attorney fees does not violate a criminal defendant's Sixth Amendment qualified right to counsel of choice. Caplin & Drysdale v. United States, 491 U.S. 617, 105 L. Ed. 2d 528, 109 S. Ct. 2646, 2651 N. 3 (1989); United States v. Monsanto, 491 U.S. 600, 109 S. Ct. 2657, 105 L. Ed. 2d 512 (1989). However, these cases were decided under the criminal forfeiture statute, 21 U.S.C. § 853, while the present case involves a seizure under the civil forfeiture statute, 21 U.S.C. § 881.

 Claimants contend that the Supreme Court's opinions in Caplin & Drysdale and Monsanto should not be applied to the present case because the Court only addressed a defendant's right to counsel of choice in the context of criminal forfeiture statutes Claimants instead direct this court's attention to United States v. $ 70,476.00 in U.S. Currency, which holds that attorney's fees may be exempt from assets seized under the civil forfeiture law. 677 F. Supp. 639 (N.D. Cal. 1987). While claimants assert that a critical distinction must be made between a civil and a criminal forfeiture proceeding, they offer little support for their contention that the distinction is relevant to the issue of whether seized assets may be used for attorney's fees.


 In determining the scope of a statute, a court must first look to its language. Monsanto, 109 S. Ct. at 2662, quoting United States v. Turkette, 452 U.S. 576, 580, 69 L. Ed. 2d 246, 101 S. Ct. 2524 (1981). In Monsanto, the Court found that the language of § 853, the criminal forfeiture statute, is "plain and unambiguous: all assets falling within its scope are to be forfeited upon conviction, with no exception existing for the assets used to pay attorney's fees -- or anything else for that matter." 109 S. Ct. at 2662. In reaching this conclusion, the Court specifically noted that the statute provides that a person convicted of the offenses charged in the indictment "shall forfeit . . . any property" that was derived from the commission of these offenses. Id. The Court added that "property" was broadly defined by the statute. Id.

 Having concluded that there is no exemption from § 881's forfeiture provisions for assets which a defendant seeks to use to retain an attorney, this court must reach the question whether this provision violates the defendant's right to counsel of choice as protected by ...

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