Defending the Federal Drug or Racketeering Charge
| Publication year | 1987 |
| Pages | 605 |
1987, April, Pg. 605. Defending the Federal Drug or Racketeering Charge
Daniel J. Sears is a sole practitioner in Denver.
Much has been said and written regarding attempts by the U.S. Department of Justice to forfeit legal fees paid for the defense of the drug kingpin or the prominent organized crime figure. Television programs such as "60 Minutes" have aired complaints by prominent criminal defense lawyers who contend that the government's initiative is causing them to get out of the business of defending clients charged with racketeering or drug offenses. Lawyers who represent clients involved in commercial enterprises may fail to recognize the far-reaching effects of the government's application of these laws to their fee arrangements. This article attempts to demonstrate the pervasiveness of the problems which can touch the civil, as well as the criminal, litigator.
Although the American Bar Association and local groups have vigorously challenged the Justice Department's use of compulsory process to scrutinize the fee records and associational contacts of lawyers, the criminal defense bar, in particular, has taken on a siege mentality in addressing these issues. Much of the fervor has emanated from the utterances of several federal prosecutors from large metropolitan areas. For example, in remarks to the New York City Bar Association, the U.S. Attorney for the Southem District of New York yearned for the day when the federal government has subjected all RICO defendants to the services of court-appointed counsel.(fn1)
The U.S. Attorney for the Southern District of California extended his views of the esteem in which defense lawyers should be held. In a Los Angeles Times article entitled "War on the Defense Bar," Peter Nunez commented, "[L]awyers in private practice are there to make money. They are not altruistic. They are generally not there to do good for society. If they wanted to do that, they would be prosecutors doing good for society."(fn2) In U.S. v. Bodolamenti,(fn3) when a prosecutor was asked by defense counsel why he was compelling the attorney to testify at his own client's trial, he responded: "I want your money."
While Canon 4 of the Code of Professional Responsibility is intended to encourage free and open consultation between lawyer and client without fear of nonconsensual disclosure, high government officials have expressed the view that it is incumbent upon the lawyer to interrogate the client as to the source of fees paid. Assistant Attorney General Stephen Trott stated:
These lawyers say there is no way to know where their client got the money to pay them. Oh, come on, let's be serious. Just ask the client where he got the money. It's that damn simple. Tell him that you can't be paid in drug money. Ask him where he got this money.(fn4)
This type of colloquy has generated much disdain and paranoia over the government's use of forfeiture provisions to insinuate itself into the defense camp. Several criminal defense lawyers associations have suggested that subpoenas are issued and testimony is sought by the prosecution as a means to compel disclosure of information harmful to the client, which could result in the disqualification of prominent and zealous defense counsel in complex and difficult cases.
In 1984, Congress passed the Comprehensive Crime Control Act ("1984 Act"),(fn5) which largely overhauled the federal criminal justice system. Among the more significant provisions was the extensive revision of civil and criminal forfeiture provisions which expanded the government's jurisdictional base for pursuing an offender's property. Congress also promulgated new currency transaction reporting requirements and money laundering statutes. The currency reporting provisions require most businesses to report currency transactions over $10,000 under procedures similar to those imposed upon banks and other financial
The Executive Branch has promoted much of the legislative and prosecutorial action. An interim report of the President's Commission on Organized Crime (commonly known as the Kaufman Commission) issued a broad-based and scathing indictment of the criminal defense bar, charging that a number of its members not only represent but assist members of organized crime in committing major violations.(fn8) A report issued in early 1986 called for the greater use of civil and criminal provisions of the racketeering statute to strike at the economic base of organized crime through the forfeiture of assets, dissolution of business and other enforcement measures.(fn9) Bolstered by the statutory enactments of 1984 and the commentary emanating from the President's Commission, the U.S. Department of Justice initiated a vigorous campaign to force lawyers to disclose their fee arrangements with clients accused of racketeering and federal drug violations.
Although most courts previously adhered to the general rule that information concerning client identity and fees paid is not protected by the attorney-client privilege, such information was not frequently sought prior to 1984. However, during a seven-month period from July 18, 1985, to February 18, 1986, Department of Justice records indicate that a total of 169 grand jury subpoenas were authorized for attorney's records and testimony.(fn10) Moreover, defense attorneys were asked to produce more than mere fee information.
In a New York case, for example, the attorney for an alleged ringleader in a drug case was directed to provide records of dates, times, places and attendees of any meetings between his firm and his client; the parties to any communications between the firm and his client; and any information pertaining to the transfer or disposition of funds or property.(fn11) If the government is successful in gaining such information, it is likely that testimony by the attorney against the client will be desired as well. Once this threshold is crossed, the prosecutor may seek to disqualify counsel from representing the client.(fn12)
For a number of years, the federal statutes have provided for both civil and criminal forfeiture proceedings. The civil forfeiture provisions which are directed toward property used in the commission of or is the fruit of a crime have long been known to federal jurisprudence. Suits in admiralty were commonly utilized in the early nineteenth century, since they dealt with illegal goods on the high seas or smuggling. Congress expanded their application in 1940. In 1970, Congress further broadened the civil forfeiture provisions with the enactment of the Comprehensive Drug Abuse Prevention and Control Act.(fn13) Property which had been used in the manufacturing or transportation of controlled substances could be forfeited pursuant to this act.
In 1978, the statute was amended to cover the proceeds of illicit drug transactions as well. Since such a proceeding is in rem, the action is brought against the property. If probable cause establishes that the property was used in, facilitated the commission of or could be traced to an illicit transaction, title vests in the United States. Civil forfeiture starts with the seizure of the property, followed by the commencement of a civil action in federal court.
Criminal forfeiture, on the other hand, is relatively new to federal law. It is an in personam proceeding which attaches as a sanction against a criminal defendant after conviction. In 1970, Congress promulgated criminal forfeiture provisions in conjunction with the Racketeer Influenced and Corrupt Organizations Act ("RICO") and the Continuing Criminal Enterprise statute ("CCE").(fn14) Under these statutes, a forfeiture claim may be alleged in the indictment charging the criminal offense. If a defendant suffers a conviction of the underlying offense, then the jury must return a special verdict on the forfeiture allegations. A corresponding judgment enters against the defendant, whereupon the government is authorized to seize the property.
Prior to 1984, the cases were in dispute as to the breadth of the definition of "income derived, directly or indirectly, from a pattern of racketeering activity,"(fn15) which was found in the RICO statute. Amended in 1984, § 1963(a) codified the holding of Russello v. United States,(fn16) providing for the forfeiture of any property constituting, or derived from, directly or indirectly, the proceeds of racketeering activity or unlawful debt collection. More recently, the Second Circuit has interpreted the 1984 amendments to encompass gross, not just net profits.(fn17) In 1986, Congress amended the RICO and drug forfeiture laws...
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