Byron White

“ We are called on to determine whether the federal drug forfeiture statute includes an exemption for assets that a defendant wishes to use to pay an attorney who conducted his defense in the criminal case where forfeiture was sought. Because we determine that no such exemption exists, we must decide whether that statute, so interpreted, is consistent with the Fifth and Sixth Amendments. We hold that it is. ”

“ The Constitution does not forbid the imposition of an otherwise permissible criminal sanction, such as forfeiture, merely because in some cases prosecutors may abuse the processes available to them, e.g., by attempting to impose them on persons who should not be subjected to that punishment. ”

“ We have concluded above that the Sixth Amendment is not offended by the forfeiture provisions at issue here. Even if, however, the Fifth Amendment provides some added protection not encompassed in the Sixth Amendment's more specific provisions, we find petitioner's claim based on the Fifth Amendment unavailing.
Forfeiture provisions are powerful weapons in the war on crime; like any such weapons, their impact can be devastating when used unjustly. ”

“ The forfeiture statute does not prevent a defendant who has nonforfeitable assets from retaining any attorney of his choosing. Nor is it necessarily the case that a defendant who possesses nothing but assets the Government seeks to have forfeited will be prevented from retaining counsel of choice. Defendants like Reckmeyer may be able to find lawyers willing to represent them, hoping that their fees will be paid in the event of acquittal, or via some other means that a defendant might come by in the future. ”

“ Finally, petitioner argues that the forfeiture statute, in operation, will create a system akin to "contingency fees" for defense lawyers: only a defense lawyer who wins acquittal for his client will be able to collect his fees, and contingent fees in criminal cases are generally considered unethical. See ABA Model Rule of Professional Conduct 1.5 (d) (2) (1983) ; ABA Model Code of Professional Responsibility DR 2-106 (C) (1979) . But there is no indication here that petitioner, or any other firm, has actually sought to charge a defendant on a contingency basis ”

“ First, the Government has a pecuniary interest in forfeiture that goes beyond merely separating a criminal from his ill-gotten gains; that legitimate interest extends to recovering all forfeitable assets, for such assets are deposited in a Fund that supports law-enforcement efforts in a variety of important and useful ways. ”

“ There is no constitutional principle that gives one person the right to give another's property to a third party, even where the person seeking to complete the exchange wishes to do so in order to exercise a constitutionally protected right. ”

“ Petitioner's claim is that whatever part of the assets that is necessary to pay attorney's fees cannot be subjected to forfeiture. But given the Government's title to Reckmeyer's assets upon conviction, to hold that the Sixth Amendment creates some right in Reckmeyer to alienate such assets, or creates a right on petitioner's part to receive these assets, would be peculiar. ”

“ Brief for Petitioner 31.
The second possible conflict arises in plea bargaining: petitioner posits that a lawyer may advise a client to accept an agreement entailing a more harsh prison sentence but no forfeiture even where contrary to the client's interests-in an effort to preserve the lawyer's fee. Following such a strategy, however, would surely constitute ineffective assistance of counsel. We see no reason why our cases such as Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) , are inadequate to deal with any such ineffectiveness where it arises. ”

“ Petitioner's claim-that the power available to prosecutors under the statute could be abused-proves too much, for many tools available to prosecutors can be misused in a way that violates the rights of innocent persons. ”

“ Whatever the full extent of the Sixth Amendment's protection of one's right to retain counsel of his choosing, that protection does not go beyond "the individual's right to spend his own money to obtain the advice and assistance of . ”

“ The privilege to practice law is not a license to steal." Laska v. United States, 82 F.2d 672, 677 (CA10 1936) . Petitioner appears to concede as much, see Brief for Petitioner 40, n. 25, as respondent in Monsanto clearly does, see Brief for Respondent in No. 88-454, pp. 36-37.
Petitioner seeks to distinguish such cases for Sixth Amendment purposes by arguing that the bank's claim to robbery proceeds rests on "pre-existing property rights," while the Government's claim to forfeitable assets rests on a "penal statute" which embodies the "fictive property-law concept of . ”

“ V) . Relying on a portion of the CCE statute that authorizes forfeiture to the Government of "property constituting, or der ved from . . . proceeds . . . obtained" from drug-law violations, § 853 (a) , [1] the indictment sought forfeiture of specified assets in Reckmeyer's possession. App. 33-40. At this time, the District Court, acting pursuant to § 853 (e) (1) (A) , [2] entered a restraining order forbidding Reckmeyer to transfer any of the listed assets that were potentially forfeitable. ”