United States v. Hill ( 2003 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 01-2160
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    STEPHEN A. SACCOCCIA, ET AL.,
    Defendants, Appellants.
    No. 01-2170
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    STEPHEN A. SACCOCCIA, ET AL.,
    Defendants, Appellants.
    No. 01-2393
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    STEPHEN A. SACCOCCIA, ET AL.,
    Defendants, Appellants.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF RHODE ISLAND
    [Hon. Ernest C. Torres, U.S. District Judge]
    Before
    Howard, Circuit Judge,
    Campbell and Cyr, Senior Circuit Judges,
    Lauren E. Jones, with whom Mark L. LaBollita and Jones
    Associates were on brief for appellants Hill and O'Donnell.
    Stephen J. Finta, with whom Law Offices of Stephen J. Finta,
    P.A. was on brief for appellant Finta.
    Michael P. Iannotti, Assistant United States Attorney, with
    whom Margaret E. Curran, United States Attorney, and Michael E.
    Davitt, Deputy Chief, United States Department of Justice, were on
    brief for appellee.
    December 22, 2003
    2
    CYR,    Senior     Circuit       Judge.      Three     attorneys       who
    represented Stephen A. Saccoccia — a convicted drug dealer and
    money launderer — appeal from a district court order directing that
    they forfeit some of their attorney fees to the government.
    I
    BACKGROUND
    The grand jury returned an indictment against Stephen A.
    Saccoccia    in     November    1991,   charging       him   with    one    count    of
    conspiracy     under      the     Racketeering         Influenced     and    Corrupt
    Organizations Act, 
    18 U.S.C. § 1963
    (d) (RICO), as well as several
    counts of laundering proceeds from an illegal drug trafficking
    operation.    See United States v. Saccoccia, 
    58 F.3d 754
     (1st Cir.
    1995).      The government also sought the forfeiture of all the
    business and personal property directly or indirectly derived from
    Saccoccia's racketeering activities, explicitly including almost
    $137,000,000 in currency, and, in the alternative, sought the
    surrender of all non-tainted property of equivalent value (if any)
    should Saccoccia's tainted property have become unavailable.                        See
    
    18 U.S.C. §§ 1963
    (a), (m).            The district court promptly enjoined
    the   transfer      of   the    forfeitable     property     designated      in     the
    indictment.       See 
    id.
     § 1963(d)(1)(A).
    Saccoccia      retained     Jack     Hill,    Esquire,    and    Kenneth
    O'Donnell, Esquire, to defend him in the RICO prosecution; he
    retained Stephen Finta, Esquire, to defend him against money
    3
    laundering charges pending in California.                  We turn now to a more
    detailed description of the district court proceedings below.
    Beginning        in   March     1992,      under   rather     suspicious
    circumstances, Saccoccia caused $504,985 to be delivered to Hill,
    $410,000 to O'Donnell, and $469,200 to Finta, all for legal fees.
    Approximately one year later, Saccoccia was convicted and ordered
    to    forfeit    the    $137,000,000         in    currency     specified    in   the
    indictment.     We subsequently affirmed both the conviction and the
    forfeiture.     Saccoccia, 
    58 F.3d at 754
    ; see also United States v.
    Hurley, 
    63 F.3d 1
     (1st Cir. 1995).                Once the government discovered
    that Saccoccia had paid large legal fees to Hill, O'Donnell, and
    Finta, it submitted a motion to compel them to turn over the fees
    as property subject to forfeiture.
    The district court granted the motion to compel, United
    States v. Saccoccia, 
    165 F. Supp. 2d 103
     (D.R.I. 2001), holding
    that (i) the government established that the legal fees paid to the
    appellants      must    have       derived       from   Saccoccia’s      racketeering
    activity, given that Saccoccia had no legitimate sources of income,
    and   the    legal     fees    were    paid       “under   especially     suspicious
    circumstances” (viz., by “covert deliveries of large quantities of
    cash, made by anonymous intermediaries”), 
    id. at 111-12
    ; (ii)
    appellants met their burden of proving that they had no reasonable
    cause to believe that the monies Saccoccia used to pay their fees,
    prior to Saccoccia’s conviction, were subject to forfeiture, given
    4
    that   an    Assistant      United     States       Attorney’s       pre-conviction
    assurances to appellants — that the government would not seek
    forfeiture     of   their    legal     fees     —    implied     some     government
    uncertainty regarding whether Saccoccia might possess sufficient
    non-tainted assets with which to pay his attorneys, 
    id.
     at 112
    (citing 
    18 U.S.C. § 1963
    (c)); (iii) following the trial at which
    Saccoccia     was   convicted,       appellants      could     not    have   held   a
    reasonable belief that Saccoccia's assets were not subject to
    forfeiture,    given   that    the     trial    record    made       it   clear   that
    virtually all of Saccoccia’s assets had been derived through
    illegitimate means, 
    id. at 112-13
    ; (iv) appellants were ordered to
    turn over only the portion of their legal fees received following
    Saccoccia’s conviction, 
    id. at 113
    ; and (v) the government could
    not reach their pre-conviction legal fees by means of the district
    court's contempt power due to the fact that the government had
    initiated no such proceeding and the district court had already
    determined that appellants lacked reasonable cause to believe that
    the pre-conviction legal fees were subject to forfeiture, hence
    appellants could not have violated the post-indictment injunction
    willfully, 
    id. at 113-14
    .
    Appellants now challenge the district court order which
    determined that their post-conviction legal fees are subject to
    5
    forfeiture.1
    II
    DISCUSSION
    Appellants Hill and O’Donnell contend, as they did in
    opposing   the   government’s    motion   to   compel   below,     that    the
    forfeiture statute does not permit the government to reach the
    legal fees they received from Saccoccia, due to the fact that those
    fees have been expended.      We subject statutory interpretations to
    plenary review.    See Bryson v. Shumway, 
    308 F.3d 79
    , 84 (1st Cir.
    2002).2
    The    operative   statutory   language      requires    that    a
    defendant forfeit “tainted” property, viz., property (i) acquired
    by committing the offense, and (ii) “constituting, or derived from,
    any proceeds . . . obtained, directly or indirectly” from its
    commission.      
    18 U.S.C. § 1963
    (a)(1),(3).3        Once an indictment
    1
    For its part, the government has not cross-appealed from the
    district court ruling that the legal fees appellants received prior
    to the Saccoccia conviction are not subject to forfeiture.
    2
    As the forfeiture provisions prescribed by RICO are
    substantially similar to the criminal forfeiture provisions in 21
    U.S.C § 853, we cite cases interpreting § 853 as persuasive
    analogous authority. See United States v. Hooper, 
    229 F.3d 818
    ,
    821 n.7 (1st Cir. 2000).
    3
    For instance, the profits Saccoccia derived from the                drug
    conspiracy would be subject to forfeiture under subsection                (1).
    Were Saccoccia to use some of the drug profits to purchase a              boat
    for $50,000, the boat would be forfeitable, under subsection              (3),
    as property “derived from” tainted proceeds, even though                   not
    utilized in the conspiracy.
    6
    issues, the district court may enjoin the transfer of all property
    “subject to forfeiture under [section 1963].”                    
    Id.
     § 1963(d)(1).
    In the event that tainted property is unavailable for forfeiture
    (as when it has been transferred to a third party),4 the government
    may    recover        “substitute”     property,       viz.,     defendant’s    other
    untainted property of equivalent value.                 See id. § 1963(m); United
    States      v.    Lester,     
    85 F.3d 1409
    ,    1411   n.3    (9th   Cir.   1996)
    (“‘[S]ubstitute property,’ . . . by its very nature is ‘not
    connected to the underlying crime.’”) (citation omitted).5
    The operative statute enables the government to recover
    from       the   defendant    “tainted”      or    “substitute”     property     in   a
    defendant’s possession, or “tainted” property held by a third party
    by virtue of a voidable fraudulent transfer.                     
    Id.
     § 1963(c).6      A
    third party may petition the court for a hearing to determine the
    validity         of   its   legal   interest      in   tainted    property,     id.   §
    1963(l)(2), and may defeat a forfeiture petition by establishing,
    4
    Tainted property may be unreachable if it “(1) cannot be
    located upon the exercise of due diligence; (2) has been
    transferred or sold to, or deposited with, a third party; (3) has
    been placed beyond the jurisdiction of the court;(4) has been
    substantially diminished in value; or (5) has been commingled with
    other property which cannot be divided without difficulty.” 
    18 U.S.C. § 1963
    (m).
    5
    The original district court forfeiture order against
    Saccoccia was amended to include his substitute assets based on
    evidence that Saccoccia was in the process of transferring tainted
    assets. See Saccoccia, 
    58 F.3d at 783
    .
    6
    Subsection 1963(k) accords the government extraordinary
    discovery rights in identifying and locating forfeitable property.
    7
    inter alia, that it is a bona fide purchaser for value, “reasonably
    without   cause   to   believe”   that   the   property   was   subject   to
    forfeiture at the time it was purchased, 
    id.
     § 1963(l)(6)(B).
    Nonetheless,    the    “substitute   property”   provision     is
    exclusively applicable to “any other property of the defendant.”
    Id. § 1963(m) (emphasis added).          The statutory language plainly
    does not afford an avenue through which the government may reach a
    third party’s untainted assets as a substitute for tainted assets
    which the third party had already transferred prior to the date of
    forfeiture.   See Bryson, 308 F.3d at 84 (“If the meaning of a
    statute is clear, we enforce that meaning.”); United States v.
    Meade, 
    175 F.3d 215
    , 219 (1st Cir. 1999) (noting that when “the
    plain language of a statute unambiguously reveals its meaning, and
    the revealed meaning is not eccentric, courts need not consult
    other aids to statutory construction.”); see also Lohnes v. Level
    3 Communications, Inc., 
    272 F.3d 49
    , 61 (1st Cir. 2001) (“[T]he
    maxim expressio unius est exclusio alterius instructs that, ‘when
    parties list specific items in a document, any item not so listed
    is typically thought to be excluded.’") (citation omitted).7
    7
    The government’s contrary argument relies primarily upon one
    unpublished decision as “persuasive authority.” United States v.
    McCorkle, No. 6:98-CR-52-ORL-19C, 
    2000 WL 133759
     (M.D. Fla. Jan.
    14, 2000) (holding that government could recoup attorney's other
    property where he had already dissipated the tainted legal fees);
    see also 1st Cir. Local R. 32.3(b). However, McCorkle contains
    neither an analysis of the pertinent statutory provisions, nor any
    other authority supporting its conclusory holding.         Indeed,
    McCorkle erroneously cites United States v. Moffitt, Zwerler &
    8
    The government does not contend that it can recover the
    "tainted" property already transferred to Hill and O'Donnell by
    Saccoccia (i.e., the in-cash legal fees), nor does it maintain that
    either Hill or O'Donnell presently holds any property fairly
    traceable to, or acquired with the proceeds of, their legal fees.
    Rather, it argues that its right to recover derives from the
    knowing violations, by Hill and O'Donnell, of the post-indictment
    injunction entered pursuant to § 1963(d)(1), which constrained
    Saccoccia and his counsel from transferring any funds subject to
    forfeiture under subsection 1963(a). Cf. United States v. Moffitt,
    Zwerling & Kemler, 
    864 F. Supp. 527
    , 530-31 (E.D. Va. 1994)
    (finding assets non-forfeitable where transfers to counsel occurred
    prior to injunction); 
    id.
     at 544 n.46 (“Where an attorney accepts
    payment in violation of such a restraining order, the government
    can recover regardless of the fact that the attorney has dissipated
    the funds.”), rev’d on other grounds, 
    83 F.3d 660
     (4th Cir. 1996).
    The absence of language in subsection 1963(m), relating
    to the forfeitability vel non of a third party’s substitute assets,
    simply forecloses one form of remedy, not all.      Relief from a
    Kemler, 
    83 F.3d 660
    , 667-70 (4th Cir. 1996), for the proposition
    that the forfeiture statute “does not abrogate the government’s
    right to recover attorneys’ fees that have been dissipated by a
    third party law firm,” McCorkle, 
    2000 WL 133759
    , at *3 (citing
    Moffitt, 
    83 F.3d at 666-69
    ), even though Moffitt found the basis
    for the government’s potential recovery not in the forfeiture
    statute’s “substitute asset” provision, but in an extra-statutory
    claim for common-law conversion, see infra.
    9
    willful violation of a subsection 1963(d)(1) injunction may be
    obtained   in    a   contempt    proceeding.      See    United   States   v.
    Kirschenbaum, 
    156 F.3d 784
    , 795 (7th Cir. 1998).                On the other
    hand, the government’s initiation of contempt proceedings would
    significantly alter its burden in litigation.           Whereas subsections
    1963(c) and (l)(6) require the third party to establish that it was
    without reasonable cause to believe that the transferred property
    was subject to forfeiture under subsection 1963(a), in a criminal
    or civil contempt proceeding the government would bear the burden
    of persuasion on that issue.         In a criminal contempt proceeding,
    moreover, the government’s burden of proof would be beyond-a-
    reasonable-doubt, see Fed. R. Crim. P. 42; United States v. Mourad,
    
    289 F.3d 174
    , 180 (1st Cir.), cert. denied, 
    123 S. Ct. 337
     (2002);
    and in a civil contempt proceeding, clear and convincing evidence
    would be required, see AccuSoft Corp. v. Palo, 
    237 F.3d 31
    , 47 (1st
    Cir. 2001).     See generally United States v. Marquado, 
    149 F.3d 36
    ,
    39-40 (1st Cir. 1998) (describing salient differences between
    criminal and civil contempt proceedings).               The district court
    noted, however, that “the government is not seeking to hold the
    attorneys in contempt.”         Saccoccia, 
    165 F. Supp. 2d at 114
    .
    Additionally,        subsection   1963(m)    would   not   preempt
    various remedies otherwise available to the government outside the
    forfeiture statute, which would maximize its monetary recovery from
    the substitute assets of culpable third parties. See United States
    10
    v. Moffitt, Zwerling & Kemler, 
    83 F.3d 660
    , 667-70 (4th Cir. 1996)
    (holding that § 1963(m) does not preempt state common-law claims
    that enable the government to reach a third-party transferee’s
    substitute assets).         For instance, since the government’s right,
    title, and interest in all tainted property “relates back” to the
    date Saccoccia committed the relevant acts, see 
    18 U.S.C. § 1963
    (c)
    (“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 the forfeiture.”), presumably it could
    initiate a state-law proceeding against Hill and O’Donnell for
    conversion of such property, and recover compensatory damages from
    their non-tainted assets.          See Fuscellaro v. Indus. Nat’l Corp.,
    
    368 A.2d 1227
    , 1230 (R.I. 1997) (“[T]he gravamen of an action for
    conversion     lies   in     the   defendant’s      taking    the     plaintiff’s
    personalty     without      consent    and   exercising      dominion    over    it
    inconsistent with the plaintiff’s right of possession.”). However,
    had the government brought such a tort claim in the district court,
    the claim presumably would be adjudicated under substantially
    different standards than a claim under subsection 1963(a) or (m),
    since the government would bear the burden of proof, and appellants
    might be entitled to additional procedural safeguards under state
    law, such as a right to jury trial.            See, e.g., Ross v. Bernhard,
    
    396 U.S. 531
    ,   533    (1970);    Evergreen    Marine     Corp.    v.     Six
    Consignments of Frozen Scallops, 
    4 F.3d 90
    , 95 (1st Cir. 1993);
    11
    Russell v. City of Bryan, 
    919 S.W.2d 698
    , 704 (Tx. App. 1996);
    Meyers Way Dev. Ltd. P’ship v. Univ. Sav. Bank, 
    910 P.2d 1308
    , 1320
    (Wash. Ct. App. 1996).
    At first blush, the present holding may appear to diverge
    from   the    stated     legislative    intent        to   accord        the    government
    extremely      aggressive     forfeiture         remedies     so     as    to    preclude
    criminals from realizing the monetary benefits of their crimes.
    See Caplin & Drysdale, Chartered v. United States, 
    491 U.S. 617
    ,
    631 (1989).        On the other hand, the very potency of the forfeiture
    power demands that it be reasonably contained within ascertainable
    limits.      Thus, for example, Congress provided that a non-defendant
    third party with rights in forfeitable property may redeem its
    interest      by    establishing     either       (i)      that     it    predated       the
    defendant’s crime, see United States v. Lester, 
    85 F.3d 1409
    , 1414
    (9th   Cir.    1996)     (holding    that       non-defendant       spouse       had    non-
    forfeitable pre-existing interest in jointly-held property), or
    (ii) that it subsequently acquired a non-forfeitable interest under
    a bona fide purchase for value, see 
    18 U.S.C. § 1963
    (l)(6).
    The implicit limitation in § 1963(m) — the “substitute
    assets”      provision    —   that   the    government        may    reach       only   the
    defendant’s substitute assets and not those of a third party – is
    similar in nature.        Forfeiture is an in personam criminal remedy,
    targeted primarily at the defendant who committed the criminal
    offense.       See    Lester,   
    85 F.3d at
    1414   n.8     (noting      crucial
    12
    distinction between in personam judgment in criminal forfeiture
    proceeding and in rem judgment in civil forfeiture proceeding).
    Finally, the implicit limitation in § 1963(m) does not
    trammel   the     basic    statutory    policy    by    foreclosing        all   other
    remedies available to the government, nor does it enable culpable
    attorneys to dissipate tainted fees with impunity.                       Rather, the
    government may utilize its enforcement powers under subsection
    1963(k) to       “trace”    tainted    funds,    see supra        note    6,   thereby
    disproving the contention that appellants’ cash-on-hand is neither
    the tainted fees, nor other property directly or indirectly derived
    from the tainted fees.           Furthermore, absent such evidence, the
    government may reach other non-tainted cash of the attorneys by
    sustaining      the   somewhat   weightier,      though     not    insurmountable,
    burden    of    establishing     the    elements       of   either       contempt   or
    conversion.
    As our construction of the language utilized in the
    forfeiture statute is one of first impression, the forfeiture award
    against Hill and O’Donnell must be vacated and the case must be
    remanded to the district court for further proceedings consistent
    with this opinion.         Upon remand, the government is to be accorded
    a   reasonable     opportunity    to    determine      whether     it     intends   to
    institute contempt proceedings or submit conversion claims against
    13
    appellants.8
    Accordingly,   the   district   court   order   directing
    appellants Hill and O'Donnell to surrender their post-conviction
    legal fees is hereby vacated, and the case is remanded for further
    proceedings consistent with this opinion.     The order to compel
    8
    Unlike Hill and O'Donnell, Finta failed to raise the
    “substitute assets” issue on appeal. Further, Finta's arguments on
    appeal are meritless.    First, he argues that we lack appellate
    jurisdiction because the district court did not reduce its final
    judgment of forfeiture to a separate document, as required by
    Federal Rule of Civil Procedure 58. Assuming arguendo that Rule 58
    would apply to a criminal forfeiture proceeding against non-
    defendants, but see Fed. R. Crim. P. 32.2(c), Finta unquestionably
    waived the "separate document" rule by appealing from the district
    court’s July 31, 2001 judgment without objection from the
    government. See Bankers Trust Co. v. Mallis, 
    435 U.S. 381
    , 385
    (1978) (“If, by error, a separate judgment is not filed before a
    party appeals, nothing but delay would flow from requiring the
    court of appeals to dismiss the appeal.       Upon dismissal, the
    district court would simply file and enter the separate judgment,
    from which a timely appeal would then be taken. Wheels would spin
    for no practical purpose.”); Fiore v. Washington County Cmty.
    Health Ctr., 
    960 F.2d 229
    , 235 (1st Cir. 1992).
    Second, Finta contends that the district court decision
    violated his Fifth Amendment rights to notice and to confront
    witnesses, by relying upon evidence introduced at the Saccoccia
    criminal trial in which Finta did not participate. This argument
    has been forfeited by Finta's failure to raise it below.        See
    Brigham v. Sun Life of Can., 
    317 F.3d 72
    , 85 (1st Cir. 2003).
    Moreover, given Finta's close involvement with and representation
    of Saccoccia during the relevant time periods, as well as his
    decision not to adduce further evidence to undermine the trial
    record at his forfeiture hearing, we discern no plain error.
    Finally, Finta contends that, without the evidence derived
    from the alleged Fifth Amendment violations, there was insufficient
    evidence from which the district court could conclude that he had
    reasonable cause to believe that the legal fees he received
    following Saccoccia’s conviction were tainted. Not only does this
    contention fail like his second claim, but Finta, not the
    government, bore the burden to adduce sufficient evidence on this
    pivotal issue. See 
    18 U.S.C. § 1963
    (l)(6)(B).
    14
    appellant Finta to surrender $242,000 in post-conviction legal fees
    is hereby affirmed.   SO ORDERED.
    15