with whom Judges CARDAMONE and PIERCE join except as to Section D of this opinion, dissenting:
I respectfully dissent, and would decide the in banc appeal in accordance with the majority opinion in the original panel determination reported at 836 F.2d 74 (2d Cir. 1987), familiarity with which is assumed. The case is here on appeal from denial of a motion to vacate or modify a post-indictment restraining order (1) to permit appellant Peter Monsanto to use restrained assets to retain private trial counsel, and (2) to exempt legal fees paid to such counsel from post-trial forfeiture.
The panel majority read the pertinent statute, 21 U.S.C. § 853(a) through (e) (Supp. IV 1986), enacted as part of the Comprehensive Forfeiture Act of 1984 (“CFA”), to authorize restraining orders which would freeze assets needed to pay a defendant’s counsel of choice, and concluded that this resulted in no constitutional violation so long as a pre-trial adversarial hearing was provided at which the government established, “by evidence independent of the indictment, a probability of convincing a jury beyond a reasonable doubt both that the defendant has violated the statute and that the assets are subject to forfeiture.” United States v. Monsanto, 836 F.2d 74, 83 (2d Cir.1987) (citations omitted).1 The majority further ruled that if the government failed to prevail at the pre-trial hearing, the assets in question would not be subject to recapture after payment to counsel as legal fees, whatever the outcome of the trial. The hearing mandated by the panel majority was conducted on remand, the government prevailed, and Peter Monsanto is now on trial with his sixteen codefendants, all of whom (including Monsanto) are represented by counsel appointed pursuant to 18 U.S.C. § 3006A (Supp. IV 1986).
The in banc majority now concludes in a per curiam opinion that the panel majority erred, and that Monsanto was entitled to pay counsel of choice from the restrained assets. No majority unites behind a single rationale supporting that result. Rather, there are varying combinations of votes for four concurring opinions. These opinions conclude that the statute requires this result (concurring opinion of Judge Winter), the sixth amendment requires it (concurring opinion of Chief Judge Feinberg), both the fifth and sixth amendments require it (concurring opinion of Judge Oakes), and finally, that the panel majority exceeded its authority by adding a hearing requirement to the statute, although if the statute called for a hearing it would pass constitutional muster (concurring opinion of Judge Miner). These opinions, and the issues they raise, will be considered seriatim.
A. The Statutory Issue (concurring opinion of Judge Winter).
The issue whether 21 U.S.C. 853 (Supp. IV 1986) authorizes an exemption from pretrial freeze orders of sufficient assets to pay for counsel of choice has been considered by a number of circuit courts. Although they have divided on the constitutional issue, these courts have unanimously decided, with one exception that is now under in banc review, that the statute cannot be read to reach that result.
The Fourth Circuit so ruled in In Re Forfeiture Hearing as to Caplin & Drysdale, 837 F.2d 637 (4th Cir.1988) (in banc). See id. at 641-42; id. at 651 (Phillips, J., *1413dissenting). The Tenth Circuit so ruled in United States v. Nichols, 841 F.2d 1485 (10th Cir.1988). See id. at 1491-96; id. at 1509 (Logan, J., dissenting). The panel opinion in this circuit, United States v. Monsanto, 836 F.2d 74 (2d Cir.1987), was unanimous on this point. See id. at 78-80; id. at 85-86 (Oakes, J., dissenting). The Fifth Circuit ruled in United States v. Thier, 801 F.2d 1463 (5th Cir.1986), modified, 809 F.2d 249 (5th Cir.1987), that the statute should be read to authorize, although not mandate, an exemption for attorney’s fees, and this ruling was reaffirmed in United States v. Jones, 837 F.2d 1332 (5th Cir.1988). One judge concurred in Jones, however, only because constrained by Thier, and expressed his preference for the contrary rule of the Second and Fourth Circuits. Id. at 1336 (Davis, J., concurring). The Fifth Circuit has since decided to reconsider Jones in banc. United States v. Jones, 844 F.2d 215 (5th Cir.1988).
Most of the analyses in these cases have been directed to subdivisions (a) and (c) of 21 U.S.C. § 853 (Supp. IV 1986), and have concluded that since subdivision (a) extends to “any property” obtained from or used for criminal violations, and since subdivision (c) calls for recapture of such property from all transferees except bona fide purchasers, a category unlikely to include defense counsel who would presumably be on notice concerning any government claims as to forfeiture, the statute does not authorize an exemption for attorney’s fees. See, e.g., In Re Forfeiture Hearing as to Caplin & Drysdale, 837 F.2d at 641-42. Judge Winter, however, directs his attention exclusively to subdivision (e)(1)(A) of this section, which provides:
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 subehapter 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....
21 U.S.C. § 853(e)(1)(A) (Supp. IV 1986) (emphasis added).
Judge Winter’s analysis is that: (1) the use of the word “may” in this subdivision vests discretion in a court from which a restraining order is sought under this section; (2) that discretion is to be guided by traditional equitable principles that balance the relative hardship to the parties; and (3) a review of the legislative history establishes that “[t]he government has no interest derived from the [Comprehensive Forfeiture] 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.” In reaching this conclusion, Judge Winter’s opinion includes no citation of or reference to any of the many cases that have construed this statute, excepting only a confession that he is “frankly puzzled” that none of them has read the statute as he does.
To begin with, it is obviously appropriate, before consulting the legislative history, to look to the language of subdivision (e)(1)(A) to ascertain its purpose. See, e.g., Russello v. United States, 464 U.S. 16, 20, 104 S.Ct. 296, 298, 78 L.Ed.2d 17 (1983). All of the options which a court “may” pursue pursuant to that provision are directed by its unambiguous language to one express purpose: “to preserve the availability of property described in subsection (a) of this section for forfeiture under this section.” 21 U.S.C. § 853(e)(1) (Supp. IV 1986). It is accordingly beyond dispute that any transfer to a third party of property otherwise subject to a restraining order frustrates, to the precise extent of the property transferred, the expressly stated statutory purpose. It also follows that, however one balances the competing statutory and other interests, it is a transparently wrong reading of the statute to conclude, as Judge Winter does, that the government has “no interest derived from the [Comprehensive Forfei*1414ture] Act” in preventing such transfers, or that “[t]he mere fact that the assets ultimately forfeited after conviction may be less than if a total pre-conviction restraint had been imposed does not ... contravene any purpose of the Act.”
The legislative history of the statute is equally clear as to its purpose. For example, the pertinent Senate report states that: “The sole purpose of the bill’s restraining order provision, like that in the current RICO and CCE statutes, is to preserve the status quo, i.e., to assure the availability of the property pending disposition of the criminal case.” S.Rep. No. 225, 98th Cong., 1st Sess. 204, reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3387 (emphasis added) (hereinafter “Senate Report”). The overall statutory purpose is described in these terms: “both 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.” Senate Report 196. Judge Winter, however, completely disregards the first of these two passages (i.e., Senate Report 204), thus enabling him to characterize the second (Senate Report 196) (emphasis added) as the “only passage [in the legislative history] remotely supporting a ... view” (emphasis added) contrary to his concerning the statutory purpose. I would suggest, however, that in addition to the quite clear meaning of the foregoing passages from the legislative history and the statutory language, the following quotation from the primary report of the House of Representatives concerning the CFA severely undermines the notion that Congress was concerned only with those asset depletions that, as Judge Winter puts it, “enable a defendant to avoid the economic impact of a post-conviction forfeiture” (emphasis in original):
One highly publicized case, although anecdotal, is illustrative of the problem. That case was United States v. Meinster et al. (Case No. 79-105-CR-JKL, Southern District of Florida). In this prosecution, commonly called the “Black Tuna” case, a Florida based criminal organization had imported over a million pounds of marijuana and grossed about $300 million over a 16-month period. The Federal Government completed a successful prosecution in which the three primary defendants were convicted and this major drug operation was aborted. However, forfeiture was attempted on only two residents [sic] worth $750,000, an auto auction business used as a “front” and five yachts.
Of the $750,000 for the residences, $175,000 was returned to the wife of one of the defendants, and $559,000 was used to pay the defendant’s attorneys. The auto auction business was worthless and the five yachts were never found.
The Government wound up with $16,-000.
This was an organization that lived in the “fast lane” of privately owned jets, half million dollar yachts and $60,000 in restaurant bills. Although there are many interrelated reasons for the Government’s lack of success on the economic level, it is obvious that a considerable amount of the “proceeds” of this drug operation are elsewhere, probably funding future “Black Tunas.”
It is against this background that present Federal forfeiture procedures are tested and found wanting.
H.R.Rep. No. 845, Part 1, 98th Cong., 2d Sess. 3 (1984) (emphasis added).
I have no quarrel with Judge Winter’s conclusion that the use of the word “may” in 21 U.S.C. § 853(e)(1)(A) (Supp. IV 1986) brings a trial court’s traditional equity powers into play. These powers are to be exercised, however, in the context provided by the statute as Congress wrote it. It is one thing to conclude that a district court might, in a given case, allow the invasion of restrained assets to pay a grocer’s bill, or provide emergency surgery. It is quite another to conclude that the statute authorizes the rather massive financial outlays often necessary to pay private defense counsel in RICO and CCE prosecutions, and precludes any exercise of a judge’s *1415discretion ever to inhibit such a payment, so long as it is not “sham.” 2
In sum, it is hardly a credible reading of the congressional purpose, given the explicit statutory language and clear legislative history, to conclude that Congress was entirely indifferent to, or intended to create a special exemption for, the use of restraina-ble assets for attorney’s fees. Rather, as most of the circuit courts that have considered the matter have concluded, the statutory issue is not fairly in doubt. This brings us to the question of constitutionality.
B. The Constitutional Issue (concurring opinions of Chief Judge Feinberg and Judge Oakes).
The rationale of the panel majority concerning the constitutional issue was expressed as follows:
Requiring an adversarial hearing, at which the government has the burden to demonstrate the likelihood that the assets are forfeitable, will provide a procedural check against the government’s discretion to limit CCE and RICO defendants’ choice of counsel simply by obtaining a forfeiture charge in the indictment. If the government cannot demonstrate the likelihood that a jury would find the assets to be the proceeds of crime, the interest of the defendant in using the property to retain counsel of choice should prevail....
In the event the district court finds that the government has not met its burden and lifts the restraining order, moreover, we think the district court should also order that any funds thereafter used to pay legitimate attorney's fees be exempt from any future post-trial forfei-ture_ At the pre-trial stage, where the defendant is presumed innocent, we hold that if the government cannot make a sufficient showing to justify a restraining order, the defendant should not have to bear the risk that private counsel will still be deterred by the prospect of disgorging attorney’s fees after trial. To the extent that some funds ultimately found to be forfeitable at trial will remain in the hands of attorneys, we view this as a necessary cost in this difficult balance between the interests of the government and defendant’s sixth amendment right to counsel of choice.
On the other hand, if the government meets its burden at the hearing, we conclude that the defendant has no sixth amendment right to exemption of assets earmarked for attorney’s fees either from pre-trial restraint or from post-conviction forfeiture. Once the government has established a likelihood that the assets are indeed forfeitable, the case is more analogous to the situation in which a defendant is denied access to contraband that is manifestly subject to the interest of someone other than the accused. The right to retain private counsel of choice is not absolute; and, in the event that the defendant does not prevail at a post-restraint hearing, he is still guaranteed appointed counsel under the sixth amendment. We see no constitutional principle requiring that a defendant whose ability to pay private counsel results solely from the possession of property which he has acquired by criminal activity, which property Congress has declared to be forfeitable, must be placed in a position preferable to that of an indigent defendant who does not have such property at his disposal.
836 F.2d at 84-85 (footnote omitted).
The trial in which Peter Monsanto is presently engaged is a stark illustration of this rationale. There are seventeen defendants in that trial, all of whom (including Monsanto) have appointed counsel. The *1416opinions of Chief Judge Feinberg and Judge Oakes hold, although they don’t put it exactly this way, that representation of Monsanto’s sixteen codefendants by appointed counsel poses no constitutional problem, but that the constitution cannot countenance the restraint of assets which Monsanto wants to spend for private counsel, even though the indictment returned by the grand jury charges that those assets are forfeitable under the CFA because derived from illegal drug dealing, and Judge Ward found it probable, after an adversarial pre-trial hearing, that the government would prove this beyond a reasonable doubt.
I view the situation as does the Fourth Circuit:
We ... decline ... to accord this class of criminal defendants a unique and favored constitutional status. Such a rule would constitutionally prefer the drug merchant with none but illicit assets not only to indigent defendants but to defendants with untainted assets, who must sacrifice them to secure the counsel of their choice.
In Re Forfeiture Hearing as to Caplin & Drysdale, 837 F.2d 637, 646 (4th Cir.1988) (in banc).
Or as the Tenth Circuit put it:
It is hard to conceive of a legal system in which appointed counsel is routinely adequate in a death penalty case, but is somehow inadequate in a case involving ‘the career criminal millionaire who purchases cars, businesses, and real estate with cash delivered to banks in suitcases.’ [Forfeiture of Narcotics Proceeds: Hearings Before the Subcomm. on Criminal Justice of the Senate Comm, on the Judiciary, 96th Cong., 2d Sess 1 (1980)] (statement of Sen. Biden).
United States v. Nichols, 841 F.2d 1485, 1507 (10th Cir.1988).
Especially in view of these subsequent decisions, I see no reason to depart from the conclusion of the panel majority that the “freeze” provisions of the CFA are constitutional, provided that an appropriate pre-trial hearing is required with respect to the assets sought to be restrained. Accordingly, I next consider Judge Miner’s concurring opinion, which holds that the panel majority exceeded its authority in requiring such a hearing.
C. The Requirement of a Hearing (concurring opinion of Judge Miner).
Judge Miner “agree[s] with the panel majority that a post-indictment restraining order cannot be issued without the notice and hearing required as a matter of fifth amendment due process, ... [but] hold[s] the opinion that the procedural safeguards necessary to satisfy due process requirements here must be established by Congress rather than by this Court.” Here again, Judge Miner does not acknowledge in any way the decisions in other circuits which, faced with the identical question, have required a pre-trial hearing as a matter of due process, see United States v. Harvey, 814 F.2d 905, 928-29 (4th Cir.1987), rev’d sub nom. In Re Forfeiture Hearing as to Caplin and Drysdale, 837 F.2d 637 (4th Cir.1988) (in banc); United States v. Crozier, 777 F.2d 1376, 1382-84 (9th Cir.1985); United States v. Lewis, 759 F.2d 1316, 1324-25 (8th Cir.), cert. denied, 474 U.S. 994, 106 S.Ct. 406, 407, 88 L.Ed.2d 357 (1985); United States v. Spilotro, 680 F.2d 612, 616-19 (9th Cir.1982); United States v. Long, 654 F.2d 911, 915-16 (3d Cir.1981), or of statutory interpretation, see United States v. Thier, 801 F.2d 1463, 1466-70 (5th Cir.1986), modified, 809 F.2d 249 (5th Cir.1987).
It is perfectly clear, furthermore, that the hearing required by the Monsanto panel majority is not in conflict with the statute. Section 853(e)(1)(A) provides that a court “may” enter a restraining order or injunction, or require a bond, or take other action to preserve the property. If the court “may” take such action, then presumably, as Judge Winter stresses, it also “may” decide not to take such action. Since the court is thus charged with the duty of exercising its discretion one way or the other, it must inherently have the authority to obtain sufficient information to exercise that discretion wisely. Both logically and traditionally, when a court needs *1417information it holds a hearing. As a matter of fact, the legislative history quoted by Judge Miner, two sentences prior to the sentence he quotes, states that “[t]his provision [21 U.S.C. § 853(e)(1)(A)] does not exclude ... the authority to hold a hearing subsequent to the initial entry of the or-der_” Senate Report 203.
The “stark contrast” which Judge Miner discerns between the provision for a pre-in-dictment restraining order, 21 U.S.C. § 853(e)(1)(B), which requires a hearing, and the provision for a post-indictment restraining order, 21 U.S.C. § 853(e)(1)(A), which does not, is easily explained. The authorization of pre-indictment restraining orders was sufficiently novel to call for a specific description of the hearing process needed, a description that was not necessary for the more familiar situation of obtaining a preliminary injunction in a proceeding that was already pending. In any event, there is no need for speculation, since the legislative history quoted above unequivocally establishes that Congress did not, in enacting these provisions, exclude a district court’s normal and traditional authority to hold a hearing with respect to a post-indictment restraining order. Furthermore, a prior decision of this court explicitly recognizes that such hearings are not only authorized, but will routinely and normally occur. See United States v. Gelb, 826 F.2d 1175, 1176-77 (2d Cir.1987) (per curiam).
Judge Miner points to the rejection, at Senate Report 196 n. 20, of United States v. Crozier, 674 F.2d 1293 (9th Cir.1982), vacated, 468 U.S. 1206, 104 S.Ct. 3575, 82 L.Ed.2d 873 (1984), as supportive of his position. Crozier was rejected, however, because the rule stated in that case would “allow the courts to entertain challenges to the validity of the indictment, and require the government to put on its witnesses well in advance of trial....” Senate Report 196.
The panel majority opinion addressed the problem of premature disclosure of witnesses by holding that a district court would not be bound by the Federal Rules of Evidence, and could thus admit hearsay, at a post-indictment, pre-trial adversary hearing to continue a restraint on assets. United States v. Monsanto, 836 F.2d at 85; see also 21 U.S.C. § 853(e)(3) (Supp. IV 1986). The panel majority also concluded, however, that “challenges to the validity of the indictment” were appropriate, holding that due process required the government to establish at a pre-trial hearing, “by evidence independent of the indictment, a probability of convincing a jury beyond a reasonable doubt both that the defendant has violated the statute and the assets are subject to forfeiture....” United States v. Monsanto, 836 F.2d at 83.
It is thus clear that the Monsanto panel majority did not impose a hearing requirement that is at odds with the Congressional mandate. Rather, it provided for a hearing which the statute and the pertinent legislative history clearly envisioned, as the Second Circuit has previously recognized, but rejected only the indications in the legislative history that at such a post-indictment hearing, a court must accept the indictment as “determinative of any issue regarding the merits of the government’s case on which the forfeiture is to be based.” See Senate Report 203.
This was clearly an appropriate, indeed obvious, exercise of the normal judicial function, as the five other circuits to consider the matter have concluded. This is especially the case since the repudiation in the Senate Report of United States v. Crozier, a case which required a pre-trial hearing as a matter of fifth amendment due process, see 674 F.2d at 1297, does not address the sixth amendment issue on which the panel majority ruled here, see United States v. Monsanto, 836 F.2d at 82 n. 7, and the legislative history clearly evidences a congressional intent to leave the resolution of the sixth amendment issue to the courts. See H.R.Rep. No. 845, Part 1, 98th Cong., 2d Sess. 19 n. 1 (1984).
Judge Miner relies on Fuentes v. Shevin, 407 U.S. 67, 96-97, 92 S.Ct. 1983, 2002-03, 32 L.Ed.2d 556 (1972), to reach a contrary conclusion. That case held that the Supreme Court would not, in the first instance, legislate broad new hearing procedures for the replevin statutes of Florida and Pennsylvania. It hardly precludes the *1418application of normal due process standards by the federal courts to pre-trial hearings, which Congress specifically authorized and envisioned, in the course of federal criminal litigation.
D. Post-trial Forfeiture.
Since the motion whose denial is on appeal sought both permission for Monsanto to use the restrained assets to retain private legal counsel, and exemption of legal fees paid to that counsel from post-trial forfeiture, I would reach the latter question and rule, as did the panel majority, that such exemption is appropriate as to assets which are the subject of a pre-trial hearing at which the government does not prevail. Permitting post-trial forfeiture of attorney’s fees would have the effect of discouraging attorneys from representing RICO and CCE clients in the first place, and thus would threaten to deny such defendants counsel of their choice regardless of the outcome of the pre-trial hearing. This rule, of course, stops well short of the per curiam ruling that Monsanto is to be provided access to the restrained assets to whatever extent is necessary to pay nons-ham legal fees, and that assets so used are exempt from subsequent forfeiture.
E. Conclusion.
I would be less than candid if I failed to express my disappointment that, except for a passing reference by Chief Judge Fein-berg, the concurring opinions of my colleagues never address, or even acknowledge, directly pertinent cases from our sister circuits which reach contrary results on the precise issues considered here. We are, of course, free to go our own way. But it would seem to me that the considered views of other circuits are at least entitled to our respectful consideration. As was stated in Keasler v. United States, 766 F.2d 1227 (8th Cir.1985):
“Although we are not bound by another circuit’s decision, we adhere to the policy that a sister circuit’s reasoned decision deserves great weight and precedential value. As an appellate court, we strive to maintain uniformity in the law among our circuits, whenever reasoned analysis will allow.”
Id. at 1233 (quoting Aldens, Inc. v. Miller, 610 F.2d 538, 541 (8th Cir.1979), cert. denied, 446 U.S. 919, 100 S.Ct. 1853, 64 L.Ed.2d 273 (1980)). See also Am. Medical Int’l, Inc. v. Secretary of HEW, 677 F.2d 118, 123 (D.C.Cir.1981); Fed. Life Ins. Co. v. United States, 527 F.2d 1096, 1098-99 (7th Cir.1975); and Cosentino v. Local 28, Int’l Org. of Masters, Mates and Pilots, AFL-CIO, 268 F.2d 648, 652 (8th Cir.1959).
I stress that no special or individualized circumstances are presented for our consideration on this appeal. Rather, we are asked to provide a blanket rule exempting from forfeiture all assets required for non-sham counsel fees. Because I find all of the concurring opinions which reach that result unpersuasive and, in their virtually total disregard of every pertinent opinion from our sister circuits, surprisingly insular, I respectfully dissent.
. Although the requirement of proof beyond a reasonable doubt as to forfeitability of assets is the majority rule, we note that United States v. Sandini, 816 F.2d 869, 874-75 (3d Cir.1987), requires only proof by a preponderance of the evidence, relying in part on our ruling in United States v. Grammatikos, 633 F.2d 1013, 1025 (2d Cir.1980), that forfeiture is not an element of the criminal offense, but simply an additional penalty therefor.
. Judge Winter reads the paragraph to which this footnote is appended as (a) a major departure from the original panel opinion, 836 F.2d 74 (2d Cir.1987), and (b) significantly narrowing the differences between our views. I respectfully disagree. As to (a), the panel opinion did not address the individualized discretion authorized by the use of the word "may” in 21 U.S.C. § 853(e)(1)(A) because it was deemed irrelevant to Monsanto’s wholly unparticularized contention that, either as a matter of statutory construction or constitutional right, any defendant must always be allowed to use otherwise re-strainable assets for non-sham attorney’s fees. As to (b), Judge Winter accepts Monsanto’s position as thus stated, and I reject it.