2303

Sixth Amendment Considerations

Since the Supreme Court's decision in Caplin & Drysdale v. United States, 491 U.S. 617 (1989), it has been well-established that a criminal defendant may not use criminal proceeds to pay a fee to his defense counsel. Nor may defense counsel, who is aware of the source of the property involved, accept a fee paid with criminal proceeds and contend that he acquired the property as a bona fide purchaser for value in exchange for his legal services. In Re: Moffitt, Zwerling & Kemler, P.C., 846 F. Supp. 463, 478 (E.D. Va. 1994) ("attorneys have no special privileged status when it comes to criminal forfeiture pursuant to Section 853; rather, they are subject to the provisions of that section in the same manner as everyone else in society"), aff'd, 83 F.3d 660, (4th Cir. 1996), cert. denied, __ U.S. __, 117 S.Ct. 788 (1987). The third party forfeiture provisions do not prohibit a defendant from paying attorney fees with assets which have no ned from criminal activity. Additionally, if prior to conviction a defendant voluntarily restrains sufficient property to satisfy the judgment of forfeiture, it will not be necessary for the government to void any third party transfers. The same may be true even in the absence of a pretrial restraint if the defendant has sufficient funds at the time of the judgment of forfeiture to satisfy it. Also, a defendant who is indigent by virtue of a restraining order may have counsel of choice appointed, provided counsel is willing to accept appointment under the Criminal Justice Act. Finally, if a defendant transfers forfeitable assets to an attorney and has no assets to satisfy a forfeiture judgment, an attorney still can retain the fee if he/she was an unwitting participant and can establish by a preponderance of the evidence that he/she was reasonably without cause to believe the property was subject to forfeiture. [updated August 1999] [cited in USAM 9-119.200]