United States v. Farmer ( 2001 )


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  •                             PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,              
    Plaintiff-Appellee,
    v.                               No. 00-4580
    WILLIAM HASKELL FARMER,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the District of South Carolina, at Columbia.
    Dennis W. Shedd, District Judge.
    (CR-00-385)
    Argued: October 29, 2001
    Decided: December 12, 2001
    Before WILKINSON, Chief Judge, GREGORY, Circuit Judge,
    and Malcolm J. HOWARD, United States District Judge
    for the Eastern District of North Carolina,
    sitting by designation.
    Vacated and remanded by published opinion. Chief Judge Wilkinson
    wrote the opinion, in which Judge Gregory and Judge Howard joined.
    COUNSEL
    ARGUED: E. E. Edwards, III, Nashville, Tennessee, for Appellant.
    Marvin Jennings Caughman, Assistant United States Attorney,
    Columbia, South Carolina, for Appellee. ON BRIEF: C. Rauch Wise,
    Greenwood, South Carolina, for Appellant. Scott N. Schools, United
    States Attorney, Columbia, South Carolina, for Appellee.
    2                      UNITED STATES v. FARMER
    OPINION
    WILKINSON, Chief Judge:
    Defendant William Farmer seeks a hearing to determine whether
    he is entitled to fund his criminal defense using some or all of the
    assets seized pursuant to civil forfeiture statutes prior to his indict-
    ment. The district court denied Farmer’s request for a hearing.
    Because Farmer made a substantial showing that some of the seized
    assets may be both legitimate and necessary to hire an attorney, we
    vacate the judgment and remand with directions to hold a hearing for
    the limited purpose of determining whether untainted assets have
    been seized and whether Farmer requires those assets to hire counsel.
    I.
    On July 16, 1998, United States Customs Agents executed search
    warrants at Defendant William Farmer’s residence and warehouse.
    These warrants were obtained upon a showing of probable cause that
    Farmer was engaged in illegal counterfeiting of clothing trademarks
    in violation of federal law. During these and subsequent searches, the
    agents seized, inter alia, numerous documents, ten motor vehicles, a
    big screen television, over 3,000 boxes of merchandise, $160,000 in
    cashier’s checks, and more than $380,000 in cash pursuant to civil
    forfeiture statutes.
    In August 1998, Farmer made a motion in the district court for the
    return of the seized property. The district court denied Farmer’s
    motion without a hearing. In an attempt to trigger a civil forfeiture
    proceeding, Farmer then filed a claim and posted a $5,000 cost bond
    pursuant to 
    19 U.S.C. § 1608
    . Farmer also moved a second time for
    the return of the property. In August 1999, the district court denied
    Farmer’s second motion, concluding that the government was pro-
    ceeding diligently and that requiring it to return the seized property
    or institute a forfeiture action could interfere with the government’s
    ongoing criminal investigation of Farmer. No civil forfeiture action
    was ever commenced.
    On May 2, 2000, almost two years after the government seized Far-
    mer’s assets, a ten count indictment was handed down against Farmer.
    UNITED STATES v. FARMER                          3
    The indictment charged Farmer with, inter alia, conspiracy to traffic
    in clothing bearing counterfeit trademarks in violation of 
    18 U.S.C. § 371
    , conspiracy to engage in unlawful financial transactions in vio-
    lation of 
    18 U.S.C. § 1956
    (h), and trafficking in counterfeit clothing
    and money laundering in violation of 
    18 U.S.C. §§ 2320
     and 1957. In
    addition, pursuant to 
    18 U.S.C. § 982
    , the indictment sought forfeiture
    of the property previously seized. The indictment indicated that the
    property was subject to forfeiture as either instruments or proceeds of
    Farmer’s alleged trademark and money laundering violations.
    On July 21, 2000, Farmer filed a motion for an immediate adver-
    sary hearing to determine if a portion of the seized funds should be
    released so that he could pay defense costs. Farmer alleged that the
    government seized all of his substantial assets in 1998, put him out
    of business in the process, and prevented him from using his own
    legitimate assets to fund his criminal defense. Farmer argued that he
    had a Sixth Amendment right to use his legitimate property to hire the
    attorney of his choice and that he had been deprived of that right
    without a meaningful opportunity to be heard in violation of the Due
    Process Clause. Farmer emphasized that the magistrate judge had
    concluded at arraignment that Farmer was entitled to appointed coun-
    sel because he was effectively rendered indigent by the government’s
    seizure of his property. The magistrate reached this conclusion based
    on Farmer’s affidavit and testimony under oath. Furthermore, Farmer
    argued that Customs officials had admitted that at least some of the
    merchandise seized was untainted. In response, the United States dis-
    puted that Farmer had no substantial assets with which to hire coun-
    sel. The government also stressed that Farmer had not challenged the
    probable cause determination underlying the search warrants used to
    seize his assets.
    On August 10, 2000, the district court summarily denied Farmer’s
    motion for an adversary hearing. Farmer appeals.1
    1
    Farmer’s appeal is before this court pursuant to 
    28 U.S.C. § 1291
     and
    the collateral order doctrine of Cohen v. Beneficial Industrial Loan
    Corp., 
    337 U.S. 541
    , 546-47 (1949). See, e.g., United States v. Michelle’s
    Lounge, 
    39 F.3d 684
    , 693-94 (7th Cir. 1994) (collecting cases where
    courts have reviewed similar orders under the collateral order doctrine);
    United States v. Jones, 
    160 F.3d 641
    , 644 (10th Cir. 1998).
    4                      UNITED STATES v. FARMER
    II.
    The Supreme Court has made clear that a criminal defendant has
    no Sixth Amendment right to use illegally obtained funds to hire an
    attorney. In Caplin & Drysdale v. United States, 
    491 U.S. 617
     (1989),
    the Court concluded that any Sixth Amendment right to obtain coun-
    sel of choice does not extend beyond the individual’s right to spend
    his own legitimate, nonforfeitable assets. Caplin, 
    491 U.S. at 624-33
    .
    The Court explicitly rejected "any notion of a constitutional right to
    use the proceeds of crime to finance an expensive defense." 
    Id. at 630
    .
    And the Court stressed that "there is a strong governmental interest
    in obtaining full recovery of all forfeitable assets, an interest that
    overrides any Sixth Amendment interest in permitting criminals to
    use assets adjudged forfeitable to pay for their defense." 
    Id. at 631
    .
    Furthermore, in Caplin’s companion case, the Court held that the pre-
    trial restraint of a criminal defendant’s assets does not violate the
    Constitution as long as the assets are restrained based upon a finding
    of probable cause that they are subject to forfeiture. United States v.
    Monsanto, 
    491 U.S. 600
    , 615-16 (1989).
    However, Caplin and Monsanto expressly left open the issue of
    whether a defendant has a Fifth Amendment right to a pretrial hearing
    to determine whether some or all of the seized assets may properly
    be used to fund his criminal defense. In Monsanto, the Supreme Court
    stated:
    We do not consider today, however, whether the Due Pro-
    cess Clause requires a hearing before a pretrial restraining
    order can be imposed. . . .
    Though the United States petitioned for review of the
    Second Circuit’s holding that such a hearing was required,
    Farmer raises various other claims, among them that he is entitled to
    a release of funds for basic living expenses and that he is entitled to
    accrued interest on the seized property. However, these matters are
    beyond the scope of the basic trial right Farmer asserts in this appeal,
    namely his right to hire the counsel of his choice with his own legiti-
    mately obtained assets.
    UNITED STATES v. FARMER                         5
    . . . 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.
    Monsanto, 
    491 U.S. at
    615 n.10.
    Prior to Caplin and Monsanto, this court addressed a criminal
    defendant’s due process right to a hearing when his assets are seized
    pursuant to criminal forfeiture statutes. In United States v. Harvey,
    
    814 F.2d 905
     (4th Cir. 1987), we stated that "the issuance of ex parte
    restraining orders after indictment without any post-deprivation hear-
    ing other than a criminal trial . . . violates fifth amendment due pro-
    cess guarantees" when all of a defendant’s substantial assets have
    been restrained and the defendant seeks to utilize restrained assets to
    fund his legal defense. Harvey, 
    814 F.2d at 913, 928-29
    .2
    Our sister circuits have agreed with the conclusion in Harvey. They
    have held that due process requires a pretrial adversary hearing when
    a defendant claims that a portion of the assets restrained pursuant to
    criminal forfeiture statues are untainted and that he has no other funds
    from which to secure the counsel of his choice. See, e.g., United
    States v. Jones, 
    160 F.3d 641
    , 645-49 (10th Cir. 1998); United States
    v. Monsanto, 
    924 F.2d 1186
    , 1191-98 (2d Cir. 1991) ("Monsanto
    IV"); United States v. Moya-Gomez, 
    860 F.2d 706
    , 725-30 (7th Cir.
    1988); United States v. Lewis, 
    759 F.2d 1316
    , 1324-25 (8th Cir.
    1985); United States v. Crozier, 
    777 F.2d 1376
    , 1383-84 (9th Cir.
    1985); United States v. Long, 
    654 F.2d 911
    , 915-16 (3d Cir. 1981).
    But see United States v. Register, 
    182 F.3d 820
    , 835 (11th Cir. 1999)
    (recognizing that the Eleventh Circuit is the "only circuit holding that,
    although pre-trial restraint of assets needed to retain counsel impli-
    cates the Due Process Clause, the trial itself satisfies this require-
    ment"). At least one circuit has also concluded that due process
    requires an adversary hearing on probable cause "when the district
    2
    The court in In re Forfeiture Hearing as to Caplin & Drysdale, 
    837 F.2d 637
     (4th Cir. 1988) (en banc), did not grant rehearing en banc on
    this Fifth Amendment issue in Harvey. See 
    837 F.2d at 641
    . And the
    Supreme Court explicitly reserved the issue in Monsanto. See 491 U.S.
    at 615 n.10.
    6                       UNITED STATES v. FARMER
    court has found that the government has seized through civil forfei-
    ture all of the assets a criminal defendant needs to obtain counsel."
    United States v. Michelle’s Lounge, 
    39 F.3d 684
    , 700-01 (7th Cir.
    1994).
    III.
    Due process requires that a person not be deprived of property
    without notice and an opportunity for a hearing "at a meaningful time
    and in a meaningful manner." Fuentes v. Shevin, 
    407 U.S. 67
    , 80
    (1972) (internal quotation omitted). When identifying the specific dic-
    tates of due process, three factors must be considered: (1) "the private
    interest that will be affected by the official action;" (2) "the risk of an
    erroneous deprivation of such interest through the procedures used,
    and the probable value, if any, of additional or substitute procedural
    safeguards;" and (3) "the Government’s interest, including the . . .
    administrative burdens that the additional or substitute procedural
    requirement would entail." Mathews v. Eldridge, 
    424 U.S. 319
    , 334-
    35 (1976). Courts have consistently used this Mathews analysis to
    determine if a defendant is entitled to a postseizure, pretrial adversary
    hearing. See, e.g., Harvey, 
    814 F.2d at 928
    ; Jones, 
    160 F.3d at
    645-
    47; Michelle’s Lounge, 
    39 F.3d at 697-701
    ; Monsanto IV, 
    924 F.2d at 1193-98
    .
    First, Farmer has advanced a "private interest" in obtaining a pre-
    trial hearing. See, e.g., Jones, 
    160 F.3d at 646
    ; Michelle’s Lounge, 
    39 F.3d at 697-98
    ; Monsanto IV, 
    924 F.2d at 1193-95
    . While Caplin
    made absolutely clear that there is no Sixth Amendment right for a
    defendant to obtain counsel using tainted funds, Farmer still possesses
    a qualified Sixth Amendment right to use wholly legitimate funds to
    hire the attorney of his choice. See, e.g., Caplin, 
    491 U.S. at 624-25
    ;
    Powell v. Alabama, 
    287 U.S. 45
    , 53 (1932). Farmer’s assets were
    seized pursuant to civil forfeiture, based on the same allegedly illegal
    activities underlying his current criminal indictment. This places Far-
    mer "in the same position as a criminal defendant whose assets are
    seized pursuant to criminal forfeiture." Michelle’s Lounge, 
    39 F.3d at 697
    . Therefore, Harvey and the cases from our sister circuits that
    found a private interest in a hearing when assets were restrained pur-
    suant to criminal forfeiture statutes are analogous.
    UNITED STATES v. FARMER                         7
    This private interest would be absent if Farmer possessed the
    means to hire an attorney independently of assets that were seized.
    Farmer has previously declared under oath that, due to the govern-
    ment’s seizure of his property, he does not have funds to hire counsel
    for his criminal defense. And the magistrate judge concluded, based
    on Farmer’s "affidavit and [Farmer’s] answers to [his] questions," that
    Farmer was effectively rendered indigent by the government’s seizure
    of his property. While the adversary hearing Farmer seeks may call
    his protestations of indigency into question, the magistrate’s explicit
    finding constitutes a threshold showing that Farmer is without funds
    to hire the attorney of his choice. If a defendant does not make such
    a threshold showing of need to use wrongly seized assets to pay his
    attorneys, "then the private interest of the Mathews calculus drops out
    of the picture, tipping the balance of interests against a post-restraint
    hearing." Jones, 
    160 F.3d at 647
    ; see also Michelle’s Lounge, 
    39 F.3d at 701
     (requiring this threshold determination before due process enti-
    tles the defendant to a hearing); Moya-Gomez, 
    860 F.2d at 730
    (same). In sum, a defendant must "show a bona fide need to utilize
    [seized] assets . . . to conduct his defense" in order to be entitled to
    a hearing. United States v. Kirschenbaum, 
    156 F.3d 784
    , 792 (7th Cir.
    1998) (internal quotation omitted).
    Second, under the circumstances of this case, there is a risk of erro-
    neous deprivation of Farmer’s interest in the absence of any hearing.
    It is true, as the government notes, that the search warrants were
    issued in this case upon a showing of probable cause to believe that
    the assets were tainted and that Farmer has failed to challenge the
    issuance of the search warrants at any point. However, that is not the
    end of the story. To begin with, there has been no civil forfeiture pro-
    ceeding commenced, in which Farmer could have contested the legiti-
    macy of the assets, in the nearly two years between the seizure of the
    assets and Farmer’s indictment. Further, one of Farmer’s attorneys
    has submitted an affidavit under oath stating that Customs officials
    personally admitted to him that many of the items seized were legiti-
    mate dry goods which were not counterfeit and had no unauthorized
    trademarks. The attorney’s affidavit reads as follows:
    4. In a conversation held shortly before March 5, 1999,
    Agent Pharis related to [me] that customs had determined
    that 30 pallets containing NFL jackets, raincoats, boots, key
    8                      UNITED STATES v. FARMER
    chains and Super Bowl hats were in fact legitimate goods.
    Agent Pharis further stated that a substantial quantity of
    Tommy Hilfiger merchandise [was] legitimate but they
    wanted to check to see if any of that merchandise had been
    taken from Dillard’s as that store had incurred a major theft.
    An attorney’s declaration under oath that government agents person-
    ally admitted to him that legitimate assets were seized is not a matter
    we can summarily discount. Allowing Farmer to rebut the govern-
    ment’s showing of probable cause "would afford [him] an important
    opportunity to be heard before his assets to pay attorneys are, in
    effect, permanently seized." Michelle’s Lounge, 
    39 F.3d at 700
    ; see
    also Jones 
    160 F.3d at 646-47
    ; Monsanto IV, 
    924 F.2d at 1195
    .
    Finally, the government would not be unduly burdened by the hear-
    ing Farmer seeks. See, e.g., Jones, 
    160 F.3d at 647
    ; Michelle’s
    Lounge, 
    39 F.3d at 700
    . The fact that Farmer’s representations of
    indigency were credited by the magistrate judge and that his attorney
    averred under oath that the government’s own agents have conceded
    the legitimate character of at least a portion of the seized assets does
    not mark this as a case that will open the floodgates to hearings on
    flimsy or insubstantial grounds. Such threshold showings "protect the
    government and its resources from frivolous challenges" to forfei-
    tures. Jones, 
    160 F.3d at 647
    . Furthermore, at oral argument the gov-
    ernment conceded that it is not opposed to giving Farmer a hearing
    if he shows that he lacks the ability to hire an attorney. The govern-
    ment merely disputes the conclusion that Farmer has made a suffi-
    cient initial showing regarding his need to use seized assets to hire
    counsel.
    Considering the three Mathews factors as they apply to Farmer, we
    conclude that due process requires a hearing for him to challenge
    probable cause. We stress, however, that this is a hearing for limited
    purposes. See Jones, 
    160 F.3d at 647-48
     (noting limited nature of
    hearing); Michelle’s Lounge, 
    39 F.3d at 701
     (same). When assets are
    seized pursuant to civil forfeiture, the hearing right applies "only inso-
    far as the civil seizures affect a defendant’s right to select his counsel
    of choice in a related criminal case, not in the civil forfeiture case
    itself." Michelle’s Lounge, 
    39 F.3d at 704
     (Flaum, J., concurring); see
    also 
    id. at 698
    . And the hearing is certainly not the forum to reach a
    UNITED STATES v. FARMER                        9
    definitive conclusion on the legality of each asset seized. Instead, a
    brief hearing will provide an opportunity for Farmer to prove by a
    preponderance of the evidence that the government seized untainted
    assets without probable cause and that he needs those same assets to
    hire counsel. See, e.g., Michelle’s Lounge, 
    39 F.3d at 701
    ; Monsanto
    IV, 
    924 F.2d at 1194
    . The government for its part may present evi-
    dence that Farmer has other substantial assets with which to hire
    attorneys and/or evidence of probable cause to believe that the seized
    assets are tainted and forfeitable.
    "Due process does not automatically require a hearing and a defen-
    dant may not simply ask for one." Jones, 
    160 F.3d at 647
    . District
    courts enjoy broad discretion to determine the need for hearings of
    this sort, and appellate courts remain properly respectful of the trial
    courts’ supervision of such pretrial proceedings. Here, however,
    because the magistrate judge credited Farmer’s initial representations
    that the government had seized all of his substantial assets, and
    because counsel has sworn in a detailed affidavit that the govern-
    ment’s own agents acknowledged that many seized assets were legiti-
    mate, we hold that the Due Process Clause requires an adversary
    hearing for the purpose described above.
    IV.
    For the foregoing reasons, we vacate the judgment of the district
    court and remand with directions to hold a hearing to determine
    whether there are untainted, legitimate assets in the government’s
    possession and whether those assets are necessary for Farmer to hire
    counsel for his criminal defense.
    VACATED AND REMANDED