Respondent, who allegedly directed a large-scale heroin distribution enterprise, was indicted for alleged violations of racketeering laws, creation of a continuing criminal enterprise, and tax and firearm offenses. The indictment also alleged that respondent had accumulated three specified assets as a result of his narcotics trafficking, which were subject to forfeiture under the Comprehensive Forfeiture Act of 1984, 21 U.S.C. 853. After the indictment was unsealed, the District Court granted the Government's ex parte motion under 853(e)(1)(A) for a restraining order freezing the assets pending trial. Respondent, raising various statutory arguments and claiming that the order interfered with his Sixth Amendment right to counsel of his choice, moved to vacate the order to permit him to use frozen assets to retain an attorney. He also sought a declaration that if the assets were used to pay attorney's fees, 853(c)'s third-party transfer provision would not be used to reclaim such payments if respondent was convicted and his assets forfeited. The District Court denied the motion. However, the Court of Appeals ultimately ordered that the restraining order be modified to permit the restrained assets to be used to pay attorney's fees.
Held:
WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 635. [491 U.S. 600, 602]
Acting Solicitor General Bryson argued the cause for the United States. With him on the briefs were Assistant Attorney General Dennis, Edwin S. Kneedler, and Sara Criscitelli.
Edward M. Chikofsky argued the cause and filed a brief for respondent.*
[Footnote *] Briefs of amici curiae urging reversal were filed for the State of California by John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, John A. Gordnier, Senior Assistant Attorney General, and Gary W. Schons, Deputy Attorney General; and for Eugene R. Anderson, pro se.
Briefs of amici curiae urging affirmance were filed for the Committees on Criminal Advocacy and Criminal Law of the Association of the Bar of the City of New York et al. by Arthur L. Liman; and for the National Association of Criminal Defense Lawyers et al. by Joseph Beeler and Bruce J. Winick.
Briefs of amici curiae were filed for the American Bar Association by Robert D. Raven, Charles G. Cole, Antonia B. Ianniello, and Terrance G. Reed; and for the Appellate Committee of the California District Attorneys Association by Ira Reiner, Harry B. Sondheim, and Arnold T. Guminski.
JUSTICE WHITE delivered the opinion of the Court.
The questions presented here are whether the federal drug forfeiture statute authorizes a district court to enter a pretrial order freezing assets in a defendant's possession, even where the defendant seeks to use those assets to pay an attorney; if so, we must decide whether such an order is permissible under the Constitution. We answer both of these questions in the affirmative.
On the same day that the indictment was unsealed, the District Court granted the Government's ex parte motion, pursuant to 853(e)(1)(A),2 for a restraining order freezing [491 U.S. 600, 604] the above-mentioned assets pending trial. Shortly thereafter, respondent moved to vacate this restraining order, to permit him to use the frozen assets to retain an attorney. Respondent's motion further sought a declaration that if these assets were used to pay an attorney's fees, 853(c)'s third-party transfers provision would not subsequently be used to reclaim such payments if respondent was convicted and his assets forfeited.3 Respondent raised various statutory challenges to the restraining order, and claimed that it interfered with his Sixth Amendment right to counsel of choice. The District Court denied the motion to vacate. [491 U.S. 600, 605]
On appeal, the Second Circuit concluded that respondent's statutory and Sixth Amendment challenges were lacking, but remanded the case to the District Court for an adversarial hearing "at which the government ha[d] the burden to demonstrate the likelihood that the assets are forfeitable"; if the Government failed its burden at such a hearing, the Court of Appeals held, any fees paid to an attorney would be exempt from forfeiture irrespective of the final outcome at respondent's trial. 836 F.2d 74, 84 (1987). Pursuant to this mandate, on remand, the District Court held a 4-day hearing on whether continuing the restraining order was proper. At the end of the hearing, the District Court ruled that it would continue the restraining order because the Government had "overwhelmingly established a likelihood" that the property in question would be forfeited at the end of trial. App. to Pet. for Cert. 86a. Ultimately, respondent's criminal case proceeded to trial, where he was represented by a Criminal Justice Act-appointed attorney.4
In the meantime, the Second Circuit vacated its earlier opinion and heard respondent's appeal en banc.5 The en [491 U.S. 600, 606] banc court, by an 8-to-4 vote, ordered that the District Court's restraining order be modified to permit the restrained assets to be used to pay attorney's fees. 852 F.2d 1400 (1988). The Court was sharply divided as to its rationale. Three of the judges found that the order violated the Sixth Amendment, while three others questioned it on statutory grounds; two judges found 853 suspect under the Due Process Clause for its failure to include a statutory provision requiring the sort of hearing that the panel had ordered in the first place. The four dissenting judges would have upheld the restraining order.
We granted certiorari, 488 U.S. 941 (1988), because the Second Circuit's decision created a conflict
among the Courts of Appeals over the statutory and constitutional questions
presented.6 We now reverse.
Nor are we alone in concluding that the statute is unambiguous
in failing to exclude assets that could be used to pay an attorney from
its definition of forfeitable property. This argument, advanced by respondent
here, see Brief for Respondent 12-19, has been unanimously rejected by
every Court of Appeals that has finally passed on it,7
as it was by the Second Circuit panel below, see 836 F.2d, at 78-80; id.,
at 85-86 (Oakes, J., dissenting); even the judges who concurred on statutory
grounds in the en banc decision did not accept this position, see 852 F.2d,
at 1405-1410 (Winter, J., concurring). We note also that the Brief for
American Bar [491 U.S. 600, 608]
Association as Amicus Curiae frankly admits that the statute "on [its]
face, broadly cover[s] all property derived from alleged criminal activity
and contain[s] no specific exemption for property used to pay bona fide
attorneys' fees."
Respondent urges us, nonetheless, to interpret the statute to
exclude such property for several reasons. Principally, respondent contends
that we should create such an exemption because the statute does not expressly
include property to be used for attorneys' fees, and/or because Congress
simply did not consider the prospect that forfeiture would reach assets
that could be used to pay for an attorney. In support, respondent observes
that the legislative history is "silent" on this question, and that the
House and Senate debates fail to discuss this prospect.8
But this proves nothing: the legislative [491
U.S. 600, 609] history and congressional debates are similarly
silent on the use of forfeitable assets to pay stockbroker's fees, laundry
bills, or country club memberships; no one could credibly argue that, as
a result, assets to be used for these purposes are similarly exempt from
the statute's definition of forfeitable property. The fact that the forfeiture
provision reaches assets that could be used to pay attorney's fees, even
though it contains no express provisions to this effect, "`does not demonstrate
ambiguity'" in the statute: "`It demonstrates breadth.'" Sedima, S. P.
R. L. v. Imrex Co., 473 U.S. 479, 499 (1985) (quoting Haroco, Inc. v. American
Nat. Bank & Trust Co. of Chicago, 747 F.2d 384, 398 (CA7 1984)). The
statutory provision at issue here is broad and unambiguous, and Congress'
failure to supplement 853(a)'s comprehensive phrase - "any property" -
with an exclamatory "and we even mean assets to be used to pay an attorney"
does not lessen the force of the statute's plain language. [491
U.S. 600, 610]
We also find unavailing respondent's reliance on the comments
of several legislators - made following enactment - to the effect that
Congress did not anticipate the use of the forfeiture law to seize assets
that would be used to pay attorneys. See Brief for Respondent 15-16, and
n. 9 (citing comments of Sen. Leahy and Reps. Hughes and Shaw). As we have
noted before, such postenactment views "form a hazardous basis for inferring
the intent" behind a statute, United States v. Price, 361 U.S. 304, 313
(1960); instead, Congress' intent is "best determined by [looking to] the
statutory language that it chooses," Sedima, S. P. R. L., supra, at 495,
n. 13. Moreover, we observe that these comments are further subject to
question because Congress has refused to act on repeated suggestions by
the defense bar for the sort of exemption respondent urges here,9
even though it has amended 853 in other respects since these entreaties
were first heard. See Pub. L. 99-570, 1153(b), 1864, 100 Stat. 3207-13,
3207-54.
In addition, we observe that in the very same law by which Congress
adopted the CFA - Pub. L. 98-473, 98 Stat. 1837 - Congress also adopted
a provision for the special forfeiture of collateral profits (e. g., profits
from books, movies, etc.) that a convicted defendant derives from his crimes.
See Victims of Crime Act of 1984, 98 Stat. 2175-2176 (now codified at 18
U.S.C. 3681-3682 (1982 ed., Supp. V)). That forfeiture provision expressly
exempts "pay[ments] for legal representation of the defendant in matters
arising from the offense for which such defendant has been convicted, but
no more than 20 percent of the total [forfeited collateral profits] may
be so used." 3681(c)(1)(B)(ii). Thus, Congress adopted expressly - in a
statute enacted simultaneously with the one under review in this case -
the precise exemption from forfeiture [491
U.S. 600, 611] which respondent asks us to imply into 853.
The express exemption from forfeiture of assets that could be used to pay
attorney's fees in Chapter XIV of Pub. L. 98-473 indicates to us that Congress
understood what it was doing in omitting such an exemption from Chapter
III of that enactment.
Finally, respondent urges us, see Brief for Respondent 20-29,
to invoke a variety of general canons of statutory construction, as well
as several prudential doctrines of this Court, to create the statutory
exemption he advances; among these doctrines is our admonition that courts
should construe statutes to avoid decision as to their constitutionality.
See, e. g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building &
Constr. Trades Council, 485 U.S. 568, 575 (1988); NLRB. v. Catholic Bishop
of Chicago, 440 U.S. 490, 500 (1979). We respect these canons, and they
are quite often useful in close cases, or when statutory language is ambiguous.
But we have observed before that such "interpretative canon[s are] not
a license for the judiciary to rewrite language enacted by the legislature."
United States v. Albertini, 472 U.S. 675, 680 (1985). Here, the language
is clear and the statute comprehensive: 853 does not exempt assets to be
used for attorney's fees from its forfeiture provisions.
In sum, whatever force there might be to respondent's claim for
an exemption from forfeiture under 853(a) of assets necessary to pay attorney's
fees - based on his theories about the statute's purpose, or the implications
of interpretative canons, or the understandings of individual Members of
Congress about the statute's scope - "[t]he short answer is that Congress
did not write the statute that way." United States v. Naftalin, 441 U.S.
768, 773 (1979).
The restraining order subsection provides that, on the Government's
application, a district court "may enter a restraining order or injunction
. . . or take any other action to preserve the availability of property
. . . for forfeiture under this section." 21 U.S.C. 853(e)(1) (1982 ed.,
Supp. V). Judge Winter read the permissive quality of the subsection (i.
e., "may enter") to authorize a district court to employ "traditional principles
of equity" before restraining a defendant's use of forfeitable assets;
a balancing of hardships, he concluded, generally weighed against restraining
a defendant's use of forfeitable assets to pay for an attorney. 852 F.2d,
at 1406. Judge Winter further concluded that assets not subjected to pretrial
restraint under 853(e), if used to pay an attorney, may not be subsequently
seized for forfeiture to the Government, notwithstanding the authorization
found in 853(c) for recoupment of forfeitable assets transferred to third
parties.
This reading seriously misapprehends the nature of the provisions
in question. As we have said, 853(a) is categorical: it contains no reference
at all to 853(e) or 853(c), let alone any reference indicating that its
reach is limited by those sections. Perhaps some limit could be implied
if these provisions were necessarily inconsistent with 853(a). But that
is not the case. Under 853(e)(1), the trial court "may" enter a restraining
order if the United States requests it, but not otherwise, and it is not
required to enter such an order if a bond or some other means to "preserve
the availability of property described in subsection (a) of this section
for forfeiture" is employed. Thus, 853(e)(1)(A) is plainly aimed at implementing
the commands of 853(a) and cannot sensibly be construed to give the district
court discretion to permit [491 U.S.
600, 613] the dissipation of the very property that 853(a)
requires be forfeited upon conviction.
We note that the "equitable discretion" that is given to the judge
under 853(e)(1)(A) turns out to be no discretion at all as far as the issue
before us here is concerned: Judge Winter concludes that assets necessary
to pay attorney's fees must be excluded from any restraining order. See
852 F.2d, at 1407-1409. For that purpose, the word "may" becomes "may not."
The discretion found in 853(e) becomes a command to use that subsection
(and 853(c)) to frustrate the attainment of 853(a)'s ends. This construction
is improvident. Whatever discretion Congress gave the district courts in
853(e) and 853(c), that discretion must be cabined by the purposes for
which Congress created it: "to preserve the availability of property .
. . for forfeiture." We cannot believe that Congress intended to permit
the effectiveness of the powerful "relation-back" provision of 853(c),
and the comprehensive "any property . . . any proceeds" language of 853(a),
to be nullified by any other construction of the statute.
This result may seem harsh, but we have little doubt that it is
the one that the statute mandates. Section 853(c) states that "[a]ll right,
title, and interest in [forfeitable] property . . . vests in the United
States upon the commission of the act giving rise to forfeiture." Permitting
a defendant to use assets for his private purposes that, under this provision,
will become the property of the United States if a conviction occurs cannot
be sanctioned. Moreover, this view is supported by the relevant legislative
history, which states that "[t]he sole purpose of [ 853's] restraining
order provision . . . is to preserve the status quo, i. e., to assure the
availability of the property pending disposition of the criminal case."
S. Rep. No. 98-225, p. 204 (1983). If, instead, the statutory interpretation
adopted by Judge Winter's concurrence were applied, this purpose would
not be achieved. [491 U.S. 600, 614]
We conclude that there is no exemption from 853's forfeiture or
pretrial restraining order provisions for assets which a defendant wishes
to use to retain an attorney. In enacting 853, Congress decided to give
force to the old adage that "crime does not pay." We find no evidence that
Congress intended to modify that nostrum to read, "crime does not pay,
except for attorney's fees." If, as respondent and supporting amici so
vigorously assert, we are mistaken as to Congress' intent, that body can
amend this statute to otherwise provide. But the statute, as presently
written, cannot be read any other way.
In another decision we announce today, Caplin & Drysdale,
Chartered v. United States, post, p. 617, we hold that neither the Fifth
nor the Sixth Amendment to the Constitution requires Congress to permit
a defendant to use assets adjudged to be forfeitable to pay that defendant's
legal fees. We rely on our conclusion in that case to dispose of the similar
constitutional claims raised by respondent here. [491
U.S. 600, 615]
II
A
"In determining the scope of a statute, we look first to its language."
United States v. Turkette, 452 U.S. 576, 580 (1981). In the case before
us, the language of 853 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. [491 U.S. 600, 607]
As observed above, 853(a) provides that a person convicted of the offenses
charged in respondent's indictment "shall forfeit . . . any property" that
was derived from the commission of these offenses. After setting out this
rule, 853(a) repeats later in its text that upon conviction a sentencing
court "shall order" forfeiture of all property described in 853(a). Congress
could not have chosen stronger words to express its intent that forfeiture
be mandatory in cases where the statute applied, or broader words to define
the scope of what was to be forfeited. Likewise, the statute provides a
broad definition of "property" when describing what types of assets are
within the section's scope: "real property . . . tangible and intangible
personal property, including rights, privileges, interests, claims, and
securities." 21 U.S.C. 853(b) (1982 ed., Supp. V). Nothing in this all-inclusive
listing even hints at the idea that assets to be used to pay an attorney
are not "property" within the statute's meaning.
B
III
A
B
We have previously permitted the Government to seize property based on a finding of probable cause to believe that the property will ultimately be proved forfeitable. See, e. g., United States v. $8,850, 461 U.S. 555 (1983); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974). Here, where respondent was not ousted from his property, but merely restrained from disposing of it, the governmental intrusion was even less severe than those permitted by our prior decisions.
Indeed, it would be odd to conclude that the Government may not restrain property, such as the home and apartment in respondent's possession, based on a finding of probable cause, when we have held that (under appropriate circumstances), the Government may restrain persons where there [491 U.S. 600, 616] is a finding of probable cause to believe that the accused has committed a serious offense. See United States v. Salerno, 481 U.S. 739 (1987). Given the gravity of the offenses charged in the indictment, respondent himself could have been subjected to pretrial restraint if deemed necessary to "reasonably assure [his] appearance [at trial] and the safety of . . . the community," 18 U.S.C. 3142(e) (1982 ed., Supp. V); we find no constitutional infirmity in 853(e)'s authorization of a similar restraint on respondent's property to protect its "appearance" at trial and protect the community's interest in full recovery of any ill-gotten gains.
Respondent contends that both the nature of the Government's property right in forfeitable assets, and the nature of the use to which he would have put these assets (i. e., retaining an attorney), require some departure from our established rule of permitting pretrial restraint of assets based on probable cause. We disagree. In Caplin & Drysdale, we conclude that a weighing of these very interests suggests that the Government may - without offending the Fifth or Sixth Amendment - obtain forfeiture of property that a defendant might have wished to use to pay his attorney. Post, p. 617. Given this holding, we find that a pretrial restraining order does not "arbitrarily" interfere with a defendant's "fair opportunity" to retain counsel. Cf. Powell v. Alabama, 287 U.S. 45, 69, 53 (1932). Put another way: if the Government may, post-trial, forbid the use of forfeited assets to pay an attorney, then surely no constitutional violation occurs when, after probable cause is adequately established, the Government obtains an order barring a defendant from frustrating that end by dissipating his assets prior to trial.
[Footnote 4] At the end of the trial, respondent was convicted of the charges against him, and the jury returned a special verdict finding the assets in question to be forfeitable beyond a reasonable doubt. Accordingly, the District Court entered a judgment of conviction and declared the assets forfeited.
We do not believe that these subsequent proceedings render the dispute over the pretrial restraining order moot. The restraining order remains in effect pending the appeal of respondent's conviction, see App. to Pet. for Cert. 77a-78a, which has not yet been decided. Consequently, the dispute before us concerning the District Court's order remains a live one.
[Footnote 5] Respondent's trial had commenced on February 16, 1988, after the Court of Appeals had agreed to hear the case en banc, but before it rendered its ruling. Consequently, respondent's assets remained frozen, and respondent was defended by appointed counsel.
In the midst of respondent's trial - on July 1, 1988 - the en banc Court of Appeals rendered its decision for respondent. At a hearing held four days later, the District Court offered to permit respondent to use the frozen assets to hire private counsel. Respondent rejected this offer, coming as [491 U.S. 600, 606] summations were about to get underway at the end of a 4 1/2-month trial, and instead continued with his appointed attorney. Three weeks later, on July 25, 1988, the jury returned a guilty verdict.
[Footnote 6] See, e. g., United States v. Moya-Gomez, 860 F.2d 706 (CA7 1988); United States v. Nichols, 841 F.2d 1485 (CA10 1988); United States v. Jones, 837 F.2d 1332 (CA5), rehearing granted, 844 F.2d 215 (1988); In re Forfeiture Hearing as to Caplin & Drysdale, Chartered, 837 F.2d 637 (CA4 1988) (en banc), aff'd sub nom. Caplin & Drysdale, Chartered v. United States, post, p. 617.
[Footnote 7] See United States v. Bissell, 866 F.2d 1343, 1348-1350 (CA11 1989); United States v. Moya-Gomez, supra, at 722-723; United States v. Nichols, 841 F.2d, at 1491-1496; id., at 1509 (Logan, J., dissenting); In re Forfeiture Hearing as to Caplin & Drysdale, Chartered, 837 F.2d, at 641-642 (en banc); id., at 651 (Phillips, J., dissenting). Only one Court of Appeals - the Fifth Circuit - has issued any decisions providing support for this reading of the statute, see, e. g., United States v. Jones, supra, but this ruling is currently being reconsidered en banc, 844 F.2d 215 (1988).
[Footnote 8] Respondent is correct that, by and large, the relevant House and Senate Reports make no mention of the attorney's fees question. However, in discussing the background motivating the adoption of the CFA, the House Judiciary Committee discussed the failure of previous, more lax forfeiture statutes:
Respondent claims support from only one piece of preenactment legislative history: a footnote in the same House Report quoted above, which [491 U.S. 600, 609] discussed the newly proposed provision for pretrial restraint on forfeitable assets. The footnote stated that:
This ambiguous passage however, can be read for the opposite proposition as well, as the Report expressly refrained from disapproving of cases where pretrial restraining orders similar to the one issued here were imposed. See H. R. Rep. No. 98-845, supra, at 19, n. 1 (citing United States v. Bello, 470 F. Supp. 723, 724-725 (SD Cal. 1979)). Moreover, the Committee's statement that the statute should not be applied in a manner contrary to the Sixth Amendment appears to be nothing more than an exhortation for the courts to tread carefully in this delicate area.
[Footnote 9] See, e. g., Attorneys' Fees Forfeiture: Hearing before the Senate Committee on the Judiciary, 99th Cong., 2d Sess., 148-213 (1986); Forfeiture Issues: Hearing before the Subcommittee on Crime of the House Committee on the Judiciary, 99th Cong., 1st Sess., 187-242 (1985).
[Footnote 10] We do not consider today, however, whether the Due Process Clause requires a hearing before a pretrial restraining order can be imposed. As noted above, in its initial consideration of this case, a panel of the Second Circuit ordered that such a hearing be held before permitting the entry of a restraining order; on remand, the District Court held an extensive, 4-day hearing on the question of probable cause.
Though the United States petitioned for review of the Second Circuit's holding that such a hearing was required, see Pet. for Cert. I, given that the Government prevailed in the District Court notwithstanding the hearing, it would be pointless for us now to consider whether a hearing was required by the Due Process Clause. Furthermore, because the Court of Appeals, in its en banc decision, did not address the procedural due process issue, we also do not inquire whether the hearing - if a hearing was required at all - was an adequate one. [491 U.S. 600, 617]