with whom Judges MESKILL and NEWMAN join, concurring:
I believe it unnecessary to address the constitutional issues reached by my colleagues because I conclude that: (i) the statute in question does not permit the pre-conviction restraint of funds needed by a defendant to make ordinary lawful expenditures, including expenditures to retain private legal counsel; and (ii) expenditures expressly authorized by the district court for such purposes are not subject to post-conviction forfeiture.
The relevant provisions of the Comprehensive Forfeiture Act, Pub.L. No. 98-473, 98 Stat. 2040 (1984), are drafted in permissive — “may”—rather than mandatory— “shall” — terms. See 18 U.S.C. § 1963(e) (Supp. IV 1986); 21 U.S.C. § 853(e)(1)(A) (Supp. IV 1986). Because of the “may” language and the lack of any evidence of congressional intent to the contrary, I read the Act to vest district courts with the discretionary power to restrain assets identified in an indictment as subject to forfeiture. The exercise of that discretion is to be guided by traditional equitable principles that balance the relative hardships to the parties. The government has no interest derived from the Act in preventing a defendant from making ordinary lawful expenditures during the period from indictment to conviction, including expenditures for the retention of private counsel. Similarly, the forfeiture provisions governing transfers to third parties are also discretionary, 18 U.S.C. § 1963(a)(3) (Supp. IV 1986); 21 U.S.C. § 853(c) (Supp. IV 1986), and at the very least, must exempt from forfeiture any payments authorized by the court under Section 853(e)(1). If that interpretation is correct, the due process and sixth amendment issues need not be addressed. I therefore concur in the judgment of the court. My reasons follow.
I
The so-called restraint provision of the Act, 21 U.S.C. § 853(e)(1) provides in pertinent part:
(e) Protective orders
(1) Upon application of the United States, the court may enter a restraining order or injunction, require the execution of a satisfactory performance bond, or take any other action to preserve the availability of property described in subsection (a) of this section for forfeiture under this section—
(A) upon the filing of an indictment or information charging a violation of this subchapter or subchapter II of this chapter for which criminal forfeiture may be ordered under this section and alleging that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this section; ...
(emphasis added).
I am frankly puzzled why a statutory provision with such permissive language has been read by so many courts to authorize as a routine matter, much less require, the most draconian of restraints on a defendant’s assets without giving any consideration to the hardship such a restraint imposes. Indeed, the established canon of statutory construction is to favor the retention of full equitable powers by courts absent a clear statement of a contrary legislative intent. Unless Congress “in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction *1406is to be recognized and applied.” Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946); accord, e.g., Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 107 S.Ct. 1396, 1402-03, 94 L.Ed.2d 542 (1987); Brown v. Swann, 35 U.S. (10 Pet.) 496, 503, 9 L.Ed. 508 (1836) (“The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.”). We thus should not lightly presume that Congress, in enacting the Act, intended to dispense with “the requirements of equity practice” and their “background of several hundred years of history,” Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 591, 88 L.Ed. 754 (1944), a history “of which Congress is assuredly well aware.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982).
Even if Congress had used the word “shall” instead of “may,” there is caselaw holding that an exercise of equitable discretion would still be required. For example, the Emergency Price Control Act of 1942 provided that in certain circumstances “a permanent or temporary injunction, restraining order, or other order shall be granted without bond.” Brown v. Hecht Co., 137 F.2d 689, 690 (D.C.Cir.1943), rev’d sub nom. Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754 (1944). Nevertheless, the Supreme Court concluded “that ‘shall be granted’ is less mandatory than a literal reading might suggest.” 321 U.S. at 328, 64 S.Ct. at 591. The Court noted “that if Congress had intended to make such a drastic departure from the traditions of equity practice, an unequivocal statement of its purpose would have been made.” Id. at 329, 64 S.Ct. at 591.
In addition, the legislative history of the Act supports the conclusion that courts retain their full equitable powers in issuing orders under Section 853(e)(1). The Senate Report expressly indicates that district courts may hold hearings concerning restraints on a defendant’s assets imposed under that Section. See S.Rep. No. 225, 98th Cong., 1st Sess. 191, 203, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3374, 3386 (“This provision does not exclude ... the authority to hold a hearing subsequent to the initial entry of the order and the court may modify the order or vacate an order that was clearly improp-er_”). The legislative history is clear, however, that this hearing is not to inquire into the evidentiary strength or weakness of the government’s case on criminality. Immediately after noting that a hearing may be held and “the court may modify the order,” the Senate Report states:
However, it is stressed that at such a hearing the court is not to entertain challenges to the validity of the indictment. For the purposes of issuing a restraining order, the probable cause established in the indictment or information is to be determinative of any issue regarding the merits of the government’s case on which the forfeiture is to be based.
S.Rep. No. 225, at 203, reprinted in 1984 U.S.Code Cong. & Admin.News at 3386.
It seems almost self-evident that if the purpose of the hearing is not to test the government’s evidence of criminality, then its purpose must be to allow an informed balancing of the relative hardships on the parties according to traditional principles of equity with regard to preconviction restraints upon a defendant’s assets. For reasons stated below, that balance should be struck so as to allow a defendant to continue to make ordinary lawful expenditures, including expenditures to retain private legal counsel. These expenditures should be controlled, however, to prevent the defendant from making unusual expenditures for luxuries in anticipation of a conviction and forfeiture, from executing sham transfers, and from using assets for criminal purposes. In short, the court may seize the assets of a defendant but should allow controlled ordinary lawful expenditures.
The Act authorizes pre-conviction restraint in order to protect the government’s right to a post-conviction forfeiture. In weighing the potential hardship on the government with regard to a pre-conviction restraint on a defendant’s assets, therefore, we must scrutinize its interest under the Act in ultimately obtaining a forfeiture
*1407of those assets. Although the Act’s relation-back forfeiture provision gives the government a nominal property right in potentially forfeitable assets, this property rigfit is derived solely from the govern-ment’s interest in crime control. For example, the government expressly disclaimed at oral argument any interest in criminal forfeitures under the Act as a means of raising revenue.1 The mere fact that the assets ultimately forfeited after conviction may be less than if a total preconviction restraint had been imposed does not, therefore, contravene any purpose of the Act. Cases involving the .seizure of property where revenue raising purposes are implicated are thus inapplicable. Similarly, United, States v. Salerno, — U.S. -, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), which upheld a restraint on the person of a defendant, was based on the government’s interest in preventing that defendant from committing crimes in the pre-conviction period.
The Act provides for forfeiture only as a penalty designed to eradicate certain criminal organizations and to deter racketeering and narcotics trafficking. As the Senate Report explained:
Profit is the motivation for this criminal activity, and it is through economic power that it is sustained and grows. More than ten years ago, the Congress recognized in its enactment of statutes specifically addressing organized crime and illegal drugs that the conviction of individual racketeers and drug dealers would be of only limited effectiveness if the economic power bases of criminal organizations or enterprises were left intact, and so included forfeiture authority designed to strip these offenders and organizations of their economic power.
Today, few in the Congress or the law enforcement community fail to recognize that the traditional criminal sanctions of fine and imprisonment are inadequate to deter or punish the enormously profitable trade in dangerous drugs which, with its-inevitable attendant violence, is plaguing the country. Clearly, if law enforcement efforts to combat racketeering and drug trafficking are to be successful, they must include an attack on the economic aspects of these crimes. Forfeiture is the mechanism through which such an attack may be made.
S. Rep. No. 225, at 191, reprinted in 1984 U.S.Code Cong. & Admin.News at 3374 (footnote omitted).
There is nothing in the language or legislative history of the Act indicating that Congress hoped to eradicate criminal organizations or to deter racketeering or narcotics trafficking by imposing financial penalties upon defendants before conviction and forfeiture. In the only passage remotely supporting a contrary view, the Senate Report stated that the restraint provision was intended only “to preserve the availability of a defendant’s assets for criminal forfeiture and, in those cases in which he does transfer, deplete, or conceal his property, to assure that he cannot as a result avoid the economic impact of forfeiture.” Id. at 196, reprinted in 1984 U.S.Code Cong. & Admin.News at 3379 (emphasis added). The “depletions” with which Congress was concerned were thus only those that enable a defendant to avoid the economic impact of a post-conviction forfeiture. Unlike unusual lavish expenditures to accelerate consumption in the pre-trial period, transfers to friends or relatives as a desirable alternative to forfeiture, or transfers for purposes of concealment, ordinary lawful expenditures do not enable a defendant to *1408avoid the economic impact of a post-conviction forfeiture, because such expenditures would have been made without regard to the prospect of such a forfeiture. A pretrial restraint on ordinary lawful expenditures on the other hand irreparably imposes the economic impact of forfeiture before conviction. Read as a whole, the legislative history indicates only that Congress was concerned about the “improper disposition of forfeitable assets,” id. at 194, reprinted in 1984 U.S.Code Cong. & Admin. News at 3377, “defendants defeating forfeiture by removing, transferring, or concealing their assets,” id. at 195, reprinted in 1984 U.S.Code Cong. & Admin.News at 3378, and “shielding] them from ... forfeiture.” Id.2
Congress’s crime-prevention purposes are thus served by preventing a defendant like Monsanto from making unusual expenditures on luxuries in anticipation of incarceration and forfeiture. They are also served by preventing transfers to friends and relatives in the same anticipation or transfers for purposes of concealment and later use. Finally, the Act’s purposes are served by preventing expenditures for criminal purposes during the pre-conviction period. Preventing ordinary lawful expenditures, however, does not serve any purpose of the Act and would constitute a punishment imposed before conviction and forfeiture.3
Because a pre-conviction restraint on ordinary lawful expenditures is a punishment, hardship is inflicted on a defendant to the extent of the restraint. In this case, the effect of the restraint was to render Monsanto indigent. It contained no provision for access to assets for food, medical care or legal counsel. If he were a lessee instead of a homeowner, he would now lack funds for shelter.4 Given the absence of a countervailing governmental interest, it is an abuse of discretion not to acknowledge the priority of a defendant’s interest in making ordinary lawful expenditures, including those necessary to retain private counsel. The actual making of expenditures, of course, can be directly controlled by the district court to insure that they are for permissible purposes.
It should be noted that on this point our difference with the dissent appears to be quite narrow. The dissent agrees that the CFA permits payments to grocers or doctors, and presumably to other purveyors of legitimate and ordinary goods and services, out of restrained assets. Our difference is thus limited to payments for counsel fees. With regard to that difference, we add the following. First, if courts retain their traditional equity powers regarding the scope of pre-trial restraints, there is no reason in the law of equity to distinguish between medical care and legal counsel. So far as cost is concerned, a surgeon of one’s choice *1409may be as expensive as a lawyer of one’s choice. So far as hardship is concerned, defendants subject to a pre-trial restraint on all assets can turn to government programs providing medical care or legal counsel to the indigent. Moreover, payments for legal counsel implicate a constitutional provision providing protection for the retention of private counsel, and it can hardly be contended that equity disfavors the use of private funds for that purpose.
Second, there is nothing in the CFA that exempts attorney’s fees from the exercise of traditional equity powers. This point is best illustrated by comparing the dissent’s interpretation of the statute with that of the panel majority. The panel opinion noted that “the plain language of the statute is categorical and contains no exception for attorney’s fees.” 836 F.2d at 78. It quoted the statutory language, “Any person ... shall forfeit ... any property,” id. (emphasis in panel opinion), and observed that the only exception to this all-encompassing language concerned bona fide purchasers. Id. at 79. It stated that on the face of the statutory language a bona fide purchaser meant simply a purchaser without notice that the property might be subject to forfeiture. The panel next turned to various general statements in the legislative history relied upon by appellant as limiting third-party forfeitures to sham transactions. The panel concluded that the legislative history was “thoroughly ambiguous” and “certainly not clear enough to warrant departure from the plain meaning of the statute.” Id. at 80. Legitimate counsel fees paid to lawyers with notice might therefore be forfeited.
The dissent’s reasoning is at odds with that of the panel because the dissent allows for payments to a considerable variety of providers of legitimate and ordinary goods and services who may have notice that the payments are from assets otherwise subject to forfeiture. The dissent thus does not contemplate, as did the panel, a complete restraint on “any property” from which an exception for attorney’s fees would have to be judicially implied. Instead, the dissent contemplates an exemption from restraint and forfeiture of a variety of legitimate and ordinary expenditures to persons with notice of the possibility of forfeiture. The dissent then implies an exception to those permissible expenditures barring payments for legitimate attorney’s fees. Our position is that if Congress intended to allow courts in the exercise of traditional equity powers to authorize expenditures from otherwise restrained assets, Congress’s failure to include a provision expressly disallowing payments for counsel fees calls into play the plain meaning rule relied upon by the panel.
I believe that a straightforward application of standard principles of statutory construction requires this interpretation of Section 853(e)(1) even in the absence of the far-reaching constitutional issues a different reading of the statute encounters. However, if anything remains of the canon that statutes capable of differing interpretations should be construed to avoid constitutional issues, see Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), it surely applies here.
II
I turn now to whether bona fide payments for ordinary lawful expenditures, including attorneys’ fees, made pursuant to a district court’s exercise of equitable discretion under Section 853(e)(1),5 may nevertheless be subject to post-conviction forfeiture. The forfeiture provision, Section 853(a), provides in pertinent part:
(a) Property subject to criminal forfeiture
Any person convicted of a violation of this subchapter or subchapter II of this chapter punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State law—
*1410(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation;
******
21 U.S.C. § 853(a)(1) (emphasis added). With regard to transfers of forfeitable assets, the statute provides:
(c) Third party transfers
All right, title and interest in property described in subsection (a) of this section vests in the United States upon the commission of the act giving rise to forfeiture under this section. Any such property that is subsequently transferred to a person other than the defendant may be the subject of a special verdict of forfeiture and thereafter shall be ordered forfeited to the United States, unless the transferee establishes in a hearing pursuant to subsection (n) of this section that he is a bona fide purchaser for value of such property who at the time of purchase was reasonably without cause to believe that the property was subject to forfeiture under this section.
Id. § 853(c) (emphasis added).
Again, for the reasons set out at some length with regard to Section 853(e)(1), I would construe the word “may” to vest the district court with equitable discretion in imposing a forfeiture. Having read Section 853(e)(1) to require the exercise of discretion, Section 853(c) must be interpreted in pari materia. Otherwise, it would essentially nullify the district court’s equitable authority to permit defendants to make ordinary lawful expenditures under Section 853(e)(1). For example, one can hardly imagine that any defense lawyer will be able to show that he or she “was reasonably without cause to believe that the property was subject to forfeiture....” 21 U.S.C. § 853(c). As Judge Leval has explained:
No one is more on notice of likelihood that the [tainted] money may come from ... prohibited activity than the lawyer who is asked to represent the defendant in the trial of the indictment. If the statute applies to him, its message to him is “Do not represent this defendant or you will lose your fee.” That being the kind of message lawyers are likely to take seriously, the defendant will find it difficult or impossible to secure representation.
United States v. Badalamenti, 614 F.Supp. 194, 196 (S.D.N.Y.1985). Other potential providers of essential services may also be deterred from engaging in transactions with a highly publicized defendant. A surgeon or grocer who knows that a patient or customer is under indictment for narcotics trafficking may well have “reasonable cause” to believe that his fees are being paid with tainted assets. Cf. id. If the district court’s equitable authority to permit ordinary lawful expenditures is to be effective, payments to third parties made pursuant to that authority must be immunized from post-conviction forfeiture.
In any event, this construction is more consistent with the language of the statute than any other. The phrase “may be the subject of a special verdict of forfeiture” in Section 853(c) should be read to authorize the district court to exempt certain assets from post-conviction forfeiture in order to vindicate the court’s authority under Section 853(e) or otherwise to prevent injustices to third parties. This construction in no way nullifies the phrase “thereafter shall be ordered forfeited” in Section 853(c). That simply means that forfeiture of third-party assets becomes mandatory only after the “special verdict of forfeiture” as to those assets has been returned. Nor does this reading of Section 853(c) defeat the mandatory language of Section 853(a), which by its terms applies only to “any person convicted” of the referenced crimes.
Accordingly, once a district court concludes that controlled expenditures may be made from assets otherwise restrained under Section 853(e)(1), those expenditures must be exempt from subsequent forfeiture under Section 853(e). Again, this interpretation is justified by traditional principles of statutory construction without regard to whether a different construction would implicate constitutional issues. Because a different construction would raise *1411such issues by deterring surgeons, grocers, and lawyers from selling ordinary services and products to a defendant, however, a further reason for adopting my construction of the statute exists.
I therefore concur in the judgment of the court.
MINER, Circuit Judge,with whom ALTIMARI, Circuit Judge, joins, concurring in part and dissenting in part:
While I agree with the panel majority that a post-indictment restraining order cannot be issued without the notice and hearing constitutionally required as a matter of fifth amendment due process, 836 F.2d 74, 83 (2d Cir.1987), I hold the opinion that the procedural safeguards necessary to satisfy due process requirements here must be established by Congress rather than by this Court.
The provision for a pre-indictment restraining order, 21 U.S.C. § 853(e)(1)(B), stands in sharp contrast to the provision for a post-indictment restraining order, id. § 853(e)(1)(A). While the former requires notice and hearing prior to issuance of the order, the latter does not. That Congress intended to maintain this distinction is apparent from the legislative history: “[T]he probable cause established in the indictment ... is to be determinative of any issue regarding the merits of the government’s case on which the forfeiture is to be based.” S.Rep. No. 225, 98th Cong., 2d Sess. 203, reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3386. Expressly rejected, according to the Senate Report, was the holding in United States v. Crozier, 674 F.2d 1293 (9th Cir.1982), vacated, 468 U.S. 1206 (1984), which requires the government to satisfy the standards of Fed.R.Civ.P. 65 in order to obtain a post-indictment restraining order. S.Rep. No. 225, supra, at 195-196 & n. 20, 1984 U.S. Code Cong. & Admin. News at 3378-79 & n. 20.
The forfeiture statute is defective in failing to provide for notice and hearing at least following the issuance of a restraining order in the post-indictment context. The Supreme Court has held that an in rem seizure of a yacht carrying illegal narcotics is permissible on an ex parte application, in light of the significant governmental interest involved, provided that a post-seizure hearing is conducted. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 676-80, 94 S.Ct. 2080, 2088-90, 40 L.Ed.2d 452 (1974). I see no difference between “seizure” and “restraint,” since both deprive an owner of access to or use of his property. The same fifth amendment constraints should apply in either case.
It seems to me, however, that the hearing procedure established in such great detail by the panel majority is beyond our power to create. It simply is not our place, in the face of contrary congressional intent, to provide for a hearing and to spell out the process that is due. Such specific procedural matters as the burden of proof are better left for legislative determination after a finding of unconstitutionality. “The nature and form of such ... hearings ... are legitimately open to many potential variations and are a subject, at this point, for legislation — not adjudication.” Fuentes v. Shevin, 407 U.S. 67, 96-97, 92 S.Ct. 1983, 2002-2003, 32 L.Ed.2d 556 (1972). In this case, the panel majority not only has added an entire procedure that Congress specifically has rejected; it also has eliminated something that Congress specifically provided for by deciding that there can be no post-trial forfeiture of attorney’s fees if the restraining order is lifted.
Having relied on the fifth amendment to declare the post-indictment restraint provision unconstitutional for failure to require notice and hearing, I do not consider the issue of post-conviction fee forfeiture ripe for review. There is nothing in the record to indicate that no lawyer would take the case if he were paid at its inception with funds subject to possible forfeiture after conviction. Monsanto’s problem is that he could not retain counsel of his choice after his assets were restrained. Whether he could have done so if the funds had been available to him in the first instance is not the case before us.
*1412I therefore concur in the per curiam opinion to vacate the restraining order so as to permit Monsanto access to the restrained assets to the extent necessary to pay legitimate attorneys’ fees for the defense of the pending criminal charges. I decline to join in the declaration that such fees shall be exempt from post-conviction forfeiture under the provisions of 21 U.S.C. § 858(c).
. After it obtains a forfeiture verdict, the government of course reaps an economic benefit from forfeited assets by using them to relieve "the financial burden aggressive forfeiture cases placet 1 on our law enforcement agencies.” S.Rep. No. 225, at 197, reprinted in 1984 U.S. Code Cong. & Admin.News at 3380; see 21 U.S. C. § 881(e) (Supp. IV 1986) (providing for sale, destruction or governmental use of forfeited assets). However, as the government's concession at oral argument suggests, forfeiture is not an efficient way to raise revenue. Indeed, the Senate Report notes that the Act was enacted in part to “defray the escalating costs” of forfeiture, S.Rep. No. 225, at 193, reprinted in 1984 U.S.Code Cong. & Admin.News at 3376, and Congress hardly enacted the provisions at issue here in order to defray the cost of their application.
. The dissent quotes at length a portion of the House Report concerning the so-called "Black Tuna” case. The portions italicized by the dissent read in isolation support its position. Read as a whole, the quoted statement simply does not state that either the counsel fees, if legitimate, would be subject to forfeiture. In fact, the statement equates counsel fees with amounts paid to a wife who was apparently a co-owner of the residence. No one has suggested that a co-owner's share of an asset may be forfeited. The only policy concern expressed in the statement is that “a considerable amount of the 'proceeds' of this drug operation are elsewhere, probably funding future 'Black Tunas.’ ”
. It is arguable that a purpose of restraining, prior to conviction, assets that would otherwise have been spent for normal living expenses, including ordinary legal fees, is to deter engaging in activities that yield forfeitable proceeds. That purpose cannot warrant the exercise of discretion to restrain assets needed for ordinary living expenses for three reasons: (1) Congress has given no indication that it wishes to achieve such a purpose by this means; (2) preventing purchase of ordinary goods and services prior to trial has an insignificant marginal deterrent effect compared to the prospect of substantial prison sentences, and any such enhanced deterrence is manifestly outweighed by the equities favoring the defendant’s purchase of ordinary goods and services; and (3) assertion of such a purpose would encounter a substantial due process issue as to whether preventing such purchases in order to deter crime amounts to punishment in advance of conviction.
.Logically, the position that all assets identified as tainted may be seized before trial would entail seizure of a home, rather than a prohibition on encumbrances, so that the rental value might be preserved for ultimate forfeiture instead of being consumed by the defendant.
. Because the restraining order rendered Monsanto indigent, the question of the forfeiture of assets that were not the subject of a Section 853(e)(1) proceeding appears not to be before us. X do note, however, that the government stated at oral argument that it will not seek forfeiture of such assets.