concurring.
I concur in the court’s opinion because I agree that our opinion in Thier requires us to reach this result. If I were free to do so, however, I would follow the recent en banc opinion of the Fourth Circuit in In re Forfeiture Hearing of Caplin & Drysdale, 837 F.2d 637 No. 86-5050 (4th Cir. Jan. 11, 1988). The court in Caplin & Drysdale, rejected the defendant’s contention that the forfeiture statute exempts sums paid or committed to counsel for legitimate attorney’s fees:
[T]he language of the forfeiture statute makes no mention of attorneys’ fees, either in its definition of property that is subject to forfeiture in section 853(a) and (b), or in its provision for third-party claims of exemption in section 853(n). The clear terms of the statute subject a defendant’s assets to forfeiture without regard to whether he intends to use them to pay an attorney. Similarly, the statute exempts only those parties who have prior claims or bona fide purchasers, without regard to whether they are attorneys. Where, as here, a statute’s language is unambiguous, the court’s task of statutory construction is at an end unless enforcement of the literal language would contravene a clearly expressed legislative intention.
Further, limiting forfeiture to assets transferred in sham transactions would read the bona fide purchaser requirement right out of the statute. Section 853(n) plainly says that only those who purchase property for value and without cause to believe that it was subject to forfeiture shall be exempt from an order of forfeiture. The specific listing of assets in the indictment and the payment of their fee in cash gave the attorneys representing [the defendant] ample cause to know that the funds were forfeitable under 21 U.S.C. § 853.
Id, at 641 (citations omitted); see also United States v. Monsanto, 836 F.2d 74 (2d Cir.1987).
The court in Caplin & Drysdale also declined to find that the forfeiture statute violated rights secured to the defendant by the fifth and sixth amendments:
We thus decline to expand the qualified right to counsel of choice to an absolute right to retain counsel with illegally acquired assets.
“Criminal defendants have no sixth amendment right to demand that crime-related assets be kept available to pay for privately retained counsel. The sixth amendment guarantees only the right to use legitimate assets to obtain the assistance of counsel. If the defendant has no assets, the sixth amendment requires the appointment of counsel. It does not prevent prosecution of the indigent or require the government to provide the wherewithal to retain private counsel of choice.”
Id. at 646. (quoting Brickey, Forfeiture of Attorneys Fees: The Impact of Rico and CCE Forfeitures on the Right to Counsel, 72 Va.L.Rev. 493, 533 (1986)).