United States Court of Appeals
For the First Circuit
No. 06-2121
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN A. SACCOCCIA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Boudin, John R. Gibson,* and Howard,
Circuit Judges.
Mark E. Overland, by appointment of the court, with whom
Overland Borenstein Scheper & Kim LLP was on brief for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Robert Clark Corrente, United States Attorney, was on brief
for appellee.
April 29, 2009
*
Of the Eighth Circuit, sitting by designation.
BOUDIN, Circuit Judge. Appellant Stephen A. Saccoccia
was convicted, along with several co-conspirators, of RICO
conspiracy and money laundering crimes related to proceeds derived
from illegal drug trafficking. 18 U.S.C. § 1962 (2006). In
addition to a sentence of 660 years in prison and a $15.7 million
fine, the district court found that Saccoccia was required to
forfeit over $136 million, comprising the proceeds of his criminal
activity. We affirmed. United States v. Saccoccia, 58 F.3d 754
(1st Cir. 1995); see also United States v. Saccoccia, 42 Fed. Appx.
476 (1st Cir. 2002) (rejecting collateral attacks).
The $136 million was not reachable by federal courts
because nearly all of the illegal proceeds had been wired to
persons and banks abroad. United States v. Saccoccia, 62 F. Supp.
2d. 539, 540 (D.R.I. 1999). Thus, after sentencing, the government
moved, pursuant to 18 U.S.C. § 1963(m), to forfeit certain
substitute assets valued at approximately $7.7 million, the court
did so, and we affirmed. Saccoccia, 58 F.3d at 783-85. This
appeal involves a second motion by the government to forfeit
substitute assets that were already in the government's possession
but had not been specifically named in any prior forfeiture order.
In 2006, the government asked the district court to order
forfeiture of items valued at approximately $58,000--including
precisely identified precious metals, jewelry, foreign stamps and
weapons--that had been seized by the FBI in 1991 from addresses
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associated with Saccoccia and his co-defendants at the time of
their arrest, but were not included in the original forfeiture
order as specific assets to be forfeited. They were arguably
subject to forfeiture at the time, either as the immediate proceeds
of the crimes or items acquired with such proceeds,1 but had been
apparently been overlooked when the government submitted its
proposed judgment in the original criminal trial.
At the time the present motion was filed, the government
was still well short of collecting the $136 million figure due
under the original judgment. The district court granted the
motion, rejecting Saccoccia's argument made pro se that the items
were not subject to forfeiture as substitute assets because the
items at issue were "tainted," that is, were direct proceeds or
acquired from direct proceeds of the crime. This appeal, Saccoccia
now having counsel appointed by this court, followed.
On appeal, Saccoccia first argues that, under either the
fifth or sixth amendment, he was entitled to appointed counsel in
the district court to defend against the government's attempt to
forfeit the substitute assets in question. This appears to be an
issue of first impression. We now hold that Saccoccia had no
constitutional right to appointed counsel in either court, although
1
The government may forfeit as tainted "any property
constituting, or derived from, any proceeds which the person
obtained, directly or indirectly, from racketeering activity or
unlawful debt collection in violation of [18 U.S.C. §] 1962." 18
U.S.C. § 1963(a)(3) (emphasis added) (2006).
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this does not affect our precautionary appointment of counsel to
present Saccoccia's argument in this court.
According to Saccoccia, the sixth amendment entitles him
to appointed counsel because a substitute asset order imposes
additional punishment on a defendant beyond the sentence originally
imposed. If the sixth amendment does not apply, Saccoccia believes
that the fifth amendment's due process clause still entitles him to
counsel under the facts of this case to "ensure that forfeiture of
[his] property occurs only after a reliable determination of the
specific factual prerequisites of 18 U.S.C. § 1963(m)." Neither
claim is sound.
A substitute asset proceeding is simply a means of
collecting on the original forfeiture judgment. United States v.
Reed, 924 F.2d 1014, 1017 (11th Cir. 1991). Because such a
proceeding does not increase the quantum of punishment imposed on
a defendant, no right to appointed counsel exists under the sixth
amendment. Nichols v. United States, 511 U.S. 738, 746-49 (1994).
Even if the punishment were increased, arguably the sixth amendment
would still not apply because imprisonment cannot result, Scott v.
Illinois, 440 U.S. 367 (1979), but that is an argument we need not
reach.
That there is no sixth amendment right to appointed
counsel in a substitute asset case is buttressed by decisions
recognizing there is no sixth amendment jury trial right in
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criminal forfeiture proceedings generally. As the Supreme Court
recognized, there is not even a constitutional right to a jury
trial in an initial forfeiture proceeding. Libretti v. United
States, 516 U.S. 29, 48-49 (1995)2, and similarly there is no such
right in a substitute forfeiture proceeding. United States v.
Hurley, 63 F.3d 1, 23 (1st Cir. 1995).
The fifth amendment's due process clause also does not
entitle Saccoccia to appointed counsel. Saccoccia argues that he
has a constitutionally protected interest in the ownership of
property and that the deprivation of that property interest without
counsel amounts to a violation of the due process clause. Even if
the premise were sound--which it may not be to the extent that the
property in question amounts to criminal proceeds and so was
already forfeited--the conclusion would not follow.
An individual's property can be in jeopardy in many kinds
of proceedings to which the government is a party; examples are
eminent domain proceedings, suits by the government to collect
taxes, disputes with the government over ownership of land, and
suits in which an individual sues the government for patent
violations. The individual in such cases is free to be represented
2
A jury may still get to decide forfeiture because "[i]f the
indictment or the information alleges that an interest or property
is subject to criminal forfeiture a special verdict shall be
returned as to the extent of the interest or property subject to
forfeiture, if any.” Fed. R. Crim. P. 31(e).
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by counsel but has no constitutional right to counsel at the
expense of the government.
Even in criminal cases, the Constitution does not by its
terms provide for appointed counsel. That right has been
interpolated, rather late in our history, because of the value
placed on personal liberty and the concern that a lay defendant
cannot adequately protect himself in complex criminal proceedings
without the aid of counsel. But the Supreme Court's emphasis has
always been upon the threat of incarceration, cf. In re Winship,
397 U.S. 358, 366 (1970); and even there, it has been hesitant to
create an automatic right outside of the original prosecution.3
In a second and separate argument, Saccoccia argues that
because the property in question could have been forfeited under 18
U.S.C. § 1963(a) as property tainted by the RICO offense, it may
not be forfeited as substitute property under section 1963(m).
Section 1963(m) allows inter alia for the forfeiture of substitute
assets whenever any property obtained from RICO violations cannot
be forfeited by the government because of any act or omission of
the defendant.
Here, most of the original proceeds were apparently
stored abroad and Saccoccia does not dispute that the government is
3
Appointed counsel is not a constitutional right in habeas
proceedings, Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), and
even in parole revocation, the Supreme Court has said that the
right is not automatic. Gagnon v. Scarpelli, 411 U.S. 778, 790
(1973).
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entitled to seek otherwise qualified substitute assets. By the
terms of section 1963(m), "any other property" of the defendant may
be forfeited in place of the originally forfeited property. We
think that it makes no difference that this property could perhaps
have been forfeited in the initial forfeiture as comprising or
derived from the proceeds of the illegal activity. Because it was
not forfeited, and there is still an unfulfilled judgment against
Saccoccia, this property may be forfeited in substitution, if it
belongs to Saccoccia rather than another claimant.
As a matter of statutory language alone, Saccoccia's
position is not impossible. The statute proves that if "the
property described in subsection (a)" cannot (for various listed
reasons) be reached by the government, then the court shall order
the forfeiture "of any other property of the defendant" up the
value due to the government. 18 U.S.C. § 1963(m). "Other" could
be read to exclude categorically tainted property that was not
previously forfeited but could have been forfeited at the criminal
trial as proceeds of the crime or derived from such proceeds.
But such a reading is not linguistically required: the
juxtaposition of subsections (a) and (m) is meant, in relation to
substitute assets, to distinguish between tainted property already
forfeited by a court and reached by the government and other
property of the defendant that is still available to cover the
amount yet unpaid because some of the forfeited property is not
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reachable. Whether the now available property is tainted or
innocent could hardly have mattered to Congress, which wanted the
deficiency paid; it would be especially ironic to exclude from
subsection (m) property tainted but not yet forfeited.
Saccoccia relies on United States v. Bornfield, 145 F.3d
1123 (10th Cir. 1998), which does say broadly that "[a]n asset
cannot logically be both forfeitable and a substitute asset." Id.
at 1139. In Bornfield, the circuit court held invalid the jury's
finding that certain assets in question were forfeitable as
proceeds of the offense. The quoted passage was used in rejecting
the district court's alternative holding that even if the jury had
erred in finding the assets forfeited as proceeds, they could be
forfeited as substitute assets.
Whether or not the Tenth Circuit's result was right, the
quoted statement was made in a different context than the one we
face. True, logically an asset cannot both be "proceeds initially
subject to forfeiture" and "not proceeds initially subject to
forfeiture" since one proposition is the negative of the other; but
in our view assets in either category can be used as substitute
assets: in other words, as here, property that the government could
earlier (but did not) have forfeited and seized as tainted can
instead be reached later as substitute assets.
Saccoccia's citation to United States v. Voigt, 89 F.3d
1050 (3d Cir. 1996) is even less helpful to him. There, the court
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held only that commingled funds (that is a bank account containing
both legal and illegal proceeds) could not be forfeited under the
initial forfeiture procedure and had to be forfeited as substitute
assets. Id. at 1088. If anything, this bears out our judgment
that assets that could have been forfeited directly (i.e.,
separately identifiable illegal proceeds) can later be treated
instead as substitute assets.
Saccoccia's final argument is that the sixth amendment as
interpreted by the Supreme Court in United States v. Booker, 543
U.S. 220 (2005), and its progeny require the factual predicates for
a substitute asset forfeiture be found by a jury and not by a
court. This is not so. The Supreme Court has held that there is
no such constitutional right even in initial criminal forfeiture
proceedings, Libretti, 516 U.S. at 49, and we are bound by that
holding. E.g., United States v. Ortiz-Cintron, 461 F.3d 78, 82
(1st Cir. 2006).4
Further, it seems unlikely that Booker will lead the
Supreme Court to reconsider Libretti. Booker's primary concern was
with imprisonment being set or expanded, under mandatory
guidelines, based on conduct of the defendant that the jury had
never considered. To the extent that seizure of substitute assets
4
Accord United States v. Huber, 462 F.3d 945, 948-49 (8th
Cir. 2006); United States v. Leahy, 438 F.3d 328, 331-39 (3d Cir.
2006) (en banc); United States v. Fruchter, 411 F.3d 377, 379-83
(2d Cir. 2005); United States v. Tedder, 403 F.3d 836, 840-41 (7th
Cir. 2005).
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is merely a collection mechanism for amounts already found to be
due to the government, Booker's concern is not remotely implicated.
Affirmed.
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