The defendant in Monsanto also argued that freezing the assets before he was convicted -- and before they are finally adjudged to be forfeitable -- raised distinct constitutional questions. Id. The Court rejected this argument and found that the assets may be frozen before conviction based on a finding of probable cause to believe the assets are forfeitable. Id.
Claimants urge this court not to adopt the constitutional analysis applied in Caplin & Drysdale and Monsanto. However, this court is not persuaded that the civil nature of this forfeiture proceeding changes the nature of the constitutional question.
First, claimants contend that the different burdens of proof in civil and criminal forfeiture cases distinguishes the present case from Caplin & Drysdale and Monsanto. In a civil forfeiture case, the United States must establish probable cause to believe that a substantial connection exists between the property to be forfeited and the illegal exchange of a controlled substance. See 21 U.S.C. § 881(d); 19 U.S.C. § 1615. Probable cause means reasonable grounds for belief of guilt, supported by less than prima facie proof but more than mere suspicion. United States v. $ 93,685.61 in U.S. Currency, 730 F.2d 571, 572 (9th Cir. 1984). If the government succeeds in showing probable cause to institute forfeiture, the burden shifts to the claimant to prove by a preponderance of the evidence that the item is not subject to seizure. Id.
Pursuant to 21 U.S.C. § 853, the criminal forfeiture statute, a temporary restraining order may be entered if the United States demonstrates that there is probable cause to believe that the property is subject to forfeiture. The Government may secure a protective order in one of two ways. First, such an order may issue upon the filing of an indictment or information charging a violation of Subchapter I of Chapter 13. Alternatively, an order may issue if the court determines, after an opportunity for a hearing, that there is a substantial probability that the Government will prevail on the issue of forfeiture and that failure to enter the order will result in the property being made unavailable for forfeiture and that the need to preserve the availability of the property through the entry of the requested order outweighs the hardship on any party against whom the order is to be entered. 21 U.S.C. § 853(e)(1). At trial, there is a rebuttable presumption that the property of a person convicted under the chapter is subject to forfeiture if the United States proves that the property is subject to forfeiture by a preponderance of the evidence. 21 U.S.C. § 853(d).
Thus, neither statute allows the seizure of assets absent a minimum finding of probable cause. The Supreme Court has made it clear that assets in a criminal defendant's possession may be restricted based on a finding of probable cause to believe that the property will ultimately be proven forfeitable. Monsanto, 109 S. Ct. at 2666. This court is not persuaded by claimants' argument that the respective burdens of proof alter the constitutional analysis in the present matter.
Second, the case relied on by claimants to distinguish the present matter from criminal forfeiture cases explicitly states that the opinion "includes discussion of section 853, since it is similar to section 881 and much of the relevant case law has developed under section 853." $ 70,476.00 in U.S. Currency, 677 F. Supp. at 642. Further, the continuing validity of that case is highly suspect.
Third, claimants' assertion that a sentence in the Monsanto decision explicitly limits the decision to criminal forfeiture cases is incorrect. In explaining its grant of certiorari, the Court states that there is a conflict among the Courts of Appeals over the statutory and constitutional questions presented and cites several cases in the footnote. 491 U.S. 600, 109 S. Ct. at 2661 n. 6, 105 L. Ed. 2d 512. Claimants contend that each of the cases cited in the footnote concerns only the criminal forfeiture proceedings under 21 U.S.C. § 853. While United States v. Moya-Gomez, 860 F.2d 706 (7th Cir. 1988), addressed only criminal forfeitures, two other cases were not so limited in their reach. In United States v. Nichols, the Tenth Circuit expressly stated that "this holding applies equally to criminal and civil forfeiture." 841 F.2d 1485, (1988). In addition, United States v. Jones involved the Racketeering Influenced and Corrupt Organizations Act ("RICO") forfeiture statute, 18 U.S.C. § 1963. 837 F.2d 1332, reh'g granted, 844 F.2d 215 (5th Cir. 1988). Thus, this footnote provides additional support for this court's conclusion that the decision and rationale in Caplin & Drysdale and Monsanto are transferable to cases such as the present one involving seizures under the civil forfeiture laws.
This court recognizes that civil and criminal forfeiture proceedings are not themselves interchangeable. A civil forfeiture proceeding is an in rem action against the property that the government seeks to obtain. The guilt or innocence of the property owner is irrelevant in a civil action because the theory is that the property itself has committed the wrong. See generally Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-86, 40 L. Ed. 2d 452, 94 S. Ct. 2080 (1974). Moreover, because the property is considered tainted upon commission of the wrongful act, the interest of the government vests at the time of the act.
Conversely, criminal forfeiture is in personam. It operates against a convicted criminal defendant. Before Congress amended the criminal forfeiture provisions in 1984, property did not vest with the United States upon commission of the wrongful act. By amendment, Congress included a "relation back" provision, which "essentially borrows the concept of taint from civil forfeiture." Nichols, 841 F.2d at 1489. "Thus, the government's interest in the property to be forfeited vests at the time the crime is committed, rather than upon conviction, as had previously been the case . . . ." Id.
Thus, the differences between civil and criminal forfeiture proceedings do not suggest that the Caplin & Drysdale and Monsanto decisions are not applicable to civil forfeiture cases. In fact, because property subject to civil forfeiture has always been considered to be tainted upon commission of the wrongful act, thereby immediately vesting the government's interest, an even stronger argument can be made that "[a] defendant has no Sixth Amendment right to spend another person's money for services rendered by an attorney, even if those funds are the only way that defendant will be able to retain the attorney of his choice." Caplin & Drysdale, 109 S. Ct. at 2652.
This court holds that neither of the Fifth or the Sixth Amendments to the Constitution requires Congress to permit defendant to use assets adjudged to be civilly forfeitable to pay defendant's legal fees. This court relies on the conclusions in the cases of Caplin & Drysdale v. United States and United States v. Monsanto in reaching this result.
Claimants' motion to exclude from the civil forfeiture a sum of money as attorney's fees is DENIED.
IT IS SO ORDERED.