United States v. Unit No. 7 & Unit No. 8 of Shop in the Grove Condominium

ARNOLD, Circuit Judge,

joined by BOWMAN, Circuit Judge, dissenting.

The important question presented in this case is what process is due to a criminal defendant who is in danger of losing the only money he has to hire a lawyer because of an ex parte finding of forfeitability. Is a grand-jury indictment or a magistrate’s issuance of a civil forfeiture warrant sufficient? Or should there be at least a limited adversary hearing, at which the government would have to show, by analogy to the requirements for obtaining a preliminary injunction, some likelihood of succeeding in its claim of forfeiture? This is the question reserved by the Supreme Court in United States v. Monsanto, - U.S.-, 109 S.Ct. 2657, 2666 n. 10, 105 L.Ed.2d 512 (1989). It is the question that was vigorously debated by Court and counsel at the argument before the Court en banc. But it is not the question decided by the Court today. The Court decides only that the due-process issue is not properly before it, though the issue was at the heart of the panel opinion. Thus this case ends 1 with a whimper instead of a bang. We will have to face the due-process issue another day.

In order to reach this startling result, the Court radically rewrites the history of this case. It is true that the District Court’s opinion was based squarely on the Sixth Amendment. The panel affirmed the District Court, but it did so on a narrower ground — that one’s qualified Sixth Amendment right to counsel of his choice cannot be destroyed by forfeiture without some sort of showing at a hearing at which the defendant is present and has a chance to present his side of the case. There was nothing in the least improper about this. A judgment may be affirmed on any ground fairly apparent on the record, see, e.g., Brown v. St. Louis Police Department, 691 F.2d 393 (8th Cir.1982), cert. denied, 461 U.S. 908, 103 S.Ct. 1882, 76 L.Ed.2d 812 (1983). And a decision on a narrower, as-applied ground should normally be preferred, as a matter of judicial restraint, to one based on a broader, facial ground.

The Court’s invocation of the general rule of appellate practice that issues not passed on below will not be considered is quite beside the point in the present procedural context. The point at issue here is being urged by an appellee in support of the judgment of the District Court. It is *86not being urged by an appellant in an attempt to get that judgment reversed. In Stafford v. Ford Motor Co., 790 F.2d 702, 706 (8th Cir.1986), which the Court cites today, ante at 85, we were dealing with an issue raised for the first time on appeal by the appellant. In that situation, there is normally every reason for the appellate court not to consider the issue. What we have here is the opposite situation: a point raised in defense of the judgment below. We routinely notice such points and affirm judgments in reliance on them. The Court gives no good reason for not doing so in this case.

The government petitioned for rehearing en banc. The petition as originally filed did not attack the adversary-hearing holding of the panel in principle. It argued only that if an adversary hearing were required, the government should be given a fair chance to introduce evidence to show its likelihood of success. It said it had not yet had this chance. The hearing held by the District Court, the petition said, was limited to the issues of the reasonableness of Kiser’s attorney’s fee and the value of any of Kiser’s assets not claimed to be forfeitable. The petition asked that the government be given a chance, on remand, to show its likelihood of success, at precisely the kind of adversary hearing that the panel opinion contemplated.2

As the Court notes, we did not immediately rule on the rehearing petition. We held it pending a Supreme Court decision in Monsanto and its companion case, Caplin & Drysdale v. United States, - U.S. -, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989). When those cases came down, the government wrote the Clerk of this Court to ask that its petition be granted, and that the District Court’s judgment be reversed at once on the authority of the recent Supreme Court opinions.3 The appellee, Kiser, replied, also by letter, pointing out that the Supreme Court, see footnote 10 of the Monsanto opinion, had not decided the question of the procedure required to forfeit assets needed to pay counsel. The letter defended the panel opinion and asked that the petition for rehearing be denied.

The Court then granted the petition for rehearing en banc. It invited (but did not require) the filing of supplemental briefs. The government filed a supplemental brief. It broadened its attack on the panel opinion. It argued not merely that it ought to have a chance to make its showing at an adversary hearing, but that no such hearing is required by the Due Process Clause. Kiser did not file a supplemental brief, but at the argument his lawyer (and counsel for the United States) urged the due-process issues on their merits. No one suggested that the failure of appellee to file a supplemental brief was at all significant. It is incorrect for the Court to state, ante at 84, that the due-process issue was not in the case until the oral argument before the Court en banc.

I would agree that the District Court’s rationale — that the Sixth Amendment forbids forfeiture of assets needed to hire counsel — cannot stand after Monsanto and Caplin & Drysdale. But the essential question is still open. Can Kiser’s property be seized, with no notice or hearing, thus preventing him from hiring his own lawyer, without a post-deprivation hearing held in time to give him effective relief (that is, before the criminal trial for which he needs the lawyer)? The government claims it can effectively take private property, which is explicitly protected by the Fifth Amendment, without any adversary hearing. The panel opinion holds it cannot. The Su*87preme Court has not decided the issue. We should decide it now, instead of taking refuge behind an artificial reading of the procedural history of this case.

Since the Court does not reach the merits, it is not necessary for me to discuss them. I am content to observe that although Monsanto and Caplin & Drysdale may require some changes in the details of the panel opinion’s reasoning, the essential basis of the holding is sound. Some special provision might be necessary for government witnesses whose safety would be endangered if they had to testify at the pretrial adversary hearing contemplated by the panel’s approach. But with that possible exception, I do not believe that due process allows property necessary to hire defense counsel to be seized and retained by the government pending trial, without a timely adversary hearing of some kind.

I respectfully dissent.

. Or does it? The Court says the due-process issue “still may be” “properly raised in the district court....’’ Ante at 84-85 n. 4. So, on remand, Kiser will presumably make to the District Court the argument he thought we were going to decide on this appeal. I hope that he does so, and that the District Court will decide it. Whoever loses will then appeal, and the issue will be right back before this Court.

. Although I thought, at the time of the original order directing the District Court to hold a hearing, that one of the purposes of the hearing would be to allow the government to make a sufficient preliminary showing to justify freezing the assets, I recognize that our order requiring the hearing did not so state. I would therefore be willing to acquiesce in giving the government, on remand, the opportunity it asked for in its petition for rehearing.

. The government’s letter, dated June 30, 1989, makes ironic and interesting reading when compared with the opinion the Court files today. The letter asks us to "return the case to the District Court for a due-process hearing to determine whether there is a substantial likelihood that the government would prevail on the forfeiture of defendant's property”! This is about as far as you can get from saying the due-process issue is not properly before us on this appeal.