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UNITED STATES v. FIGUEROA

August 11, 1986

UNITED STATES OF AMERICA
v.
ANTHONY D. FIGUEROA, Defendant



The opinion of the court was delivered by: BLOCH

 BLOCH, District J.

 Petitioner William C. Kaczynski (Kaczynski) seeks a modification of the forfeiture order entered by the Court on March 24, 1986, to permit payment of the attorney's fees and costs that he incurred in representing defendant Anthony Figueroa.

 On January 17, 1986, the Court appointed Kaczynski as counsel for defendant Figueroa after Figueroa's original court-appointed counsel withdrew his representation. In the indictment against him, Figueroa was charged with various violations of the Drug Abuse Prevention and Control Act (Drug Control Act) and the Travel Act. In addition, Count II of the indictment charged a criminal forfeiture under 21 U.S.C. § 853 of $32,001 that was seized by the government when Figueroa was arrested. A jury found Figueroa guilty of all substantive charges against him and entered a special verdict for forfeiture of the $32,001.

 On March 24, 1986, in accordance with 21 U.S.C. § 853(a), the Court ordered the $32,001 to be forfeited to the United States. Subsequently, the government, as required by § 853(n)(1), published notice of the Court's order. Kaczynski then filed his petition seeking modification of the Court's order.

 Kaczynski and the government have submitted briefs on the issue of whether the Court can modify its forfeiture order to permit the payment of counsel fees and expenses to court-appointed counsel. In addition, the Court has received letters from both parties stating that they would have no evidence to present at a hearing, if one were held. Because the only question before the Court is legal, and not factual, the Court finds that an evidentiary hearing is not necessary. The Court will decide Kaczynski's petition based on the briefs submitted by the parties. For the reasons that follow, Kaczynski's petition is granted.

 The Court is unaware of any case law dealing with the precise issue presented in this case -- whether the Court can order payment of counsel fees to court-appointed counsel from money that has been ordered forfeited. However, an examination of the criminal forfeiture statute, its legislative history, and cases interpreting the forfeiture statute with respect to the fees and expenses of privately-retained counsel provide assistance to the Court in resolving this issue.

 Initially, the Court notes that the Criminal Justice Act of 1984, 18 U.S.C. § 3006A(f) provides:

 
Whenever the United States magistrate or the court finds that funds are available for payment from or on behalf of a person furnished representation, it may authorize or direct that such funds be paid to the appointed attorney. . . .

 Under the statute, the Court, in order to direct the payment of funds to a court-appointed attorney, must find that such funds are "available" for payment. United States v. Santarpio, 560 F.2d 448, 455 (1st Cir.), cert. denied, 434 U.S. 984, 54 L. Ed. 2d 478, 98 S. Ct. 609 (1977). Kaczynski argues that the money ordered forfeited by the Court is a source from which funds are available for payment on behalf of defendant Figueroa. The Court agrees.

 The criminal forfeiture statute permits a third party who asserts an interest in property that has been ordered forfeited to petition the Court for an adjudication of his interest, 21 U.S.C. § 853(n)(2), and the Court should amend its forfeiture order if:

 
(A) The petitioner has a legal right, title, or interest in the property, and such right, title, or interest renders the order for forfeiture invalid in whole or in part because the right, title, or interest was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the commission of the acts which gave rise to the forfeiture of the property under this section; or
 
(B) The petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of purchase reasonably without cause to believe that the property was subject to forfeiture under this section.

 21 U.S.C. § 853(n)(6). In the instant action, it appears that Kaczynski may not be able to make a specific claim for relief under § 853(n)(6). However, the legislative history of the forfeiture statute states that "third parties who assert claims to criminally forfeited property . . . are entitled to a judicial determination of their claim." S. Rep. No. 225, at 208, 1984 U.S. Code Cong. & Ad. News at 3391. As defendant Figueroa's court-appointed counsel, Kaczynski was a good faith provider of legal services, and the Court, therefore, finds that he falls within the scope of persons that ...


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