IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 93-1181

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee

Cross-Appellant,

versus

CHARLES G. FLOYD, JR.,

Defendant-Appellant

Cross-Appellee.

 

Appeals from the United States District Court

for the Northern District of Texas 

 

( May 20, 1993 )

Before KING, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

We vacate a pretrial restraining order freezing certain of

defendant Floyd's assets that were untainted by the alleged

criminal offenses, persuaded that the forfeiture statute does not

authorize their restraint before conviction. We do not reach the

government's cross-appeal contending that insufficient sums were

restrained. We find our jurisdiction under 28 U.S.C. § 1292(a)(1).

I.

Charles G. Floyd, Jr. is the former President and CEO of

United Bank. His codefendant Thomas Merrill Gaubert was a real

estate developer who borrowed money from United Bank. The

indictment alleges that as part of a conspiracy between Floyd and
 

1Floyd was charged with numerous offenses in a twelve count

indictment. Count 1 charges Floyd and Gaubert with conspiracy to

defraud the OCC and to commit various offenses against the United

States in violation of 18 U.S.C. § 371. Count 2 charges Gaubert

with corruptly giving $450,000 to Floyd in connection with Floyd

securing from United Bank four loans of $490,000 (totalling $1.96

million) in violation of 18 U.S.C. § 215. Count 3 charges Floyd

with corruptly accepting the $450,000 payoff in violation of 18

U.S.C. § 215. Count 4 charges Floyd with unlawfully receiving

$450,000 of the bank's money through the alleged payoff in

violation of 18 U.S.C. § 1005. Counts 5-8 charge Floyd with four

counts of misapplying bank funds, each pertaining to the $490,000

loans, in violation of 18 U.S.C. § 656. Count 9 charges Floyd

with money laundering by depositing in another bank a $640,000

portion of the illegal loans in violation of 18 U.S.C. § 1957. 

Count 10 charges Floyd with money laundering by the use of the

$450,000 payoff to obtain a cashier's check from another bank in

violation of 18 U.S.C. § 1957. Count 11 seeks forfeiture under

18 U.S.C § 982(a)(1) from Floyd and Gaubert of property "involved

in" the offenses, specifically the $450,000 cashier's check and

the remainder of the $640,000 deposited in another bank,

including substitute assets to the extent the criminally derived

property is unavailable. Finally Count 12 seeks forfeiture under

§ 982(a)(2) of property "obtained directly or indirectly" by

Floyd and Gaubert up to $1.96 million including substitute

assets.

2

Gaubert the bank loaned $1.96 million to Gaubert for a payoff of

$450,000 to Floyd. These loans, and there were four, were

allegedly in excess of the bank's lending limits. The indictment

also charges that Floyd and Gaubert disguised the loans by making

them to four entities controlled by Gaubert, by failing to make the

required disclosures to the bank, and by making false and

misleading statements about them.1

The government first sought an ex parte order, pursuant to 18

U.S.C. § 982(b)(1)(A), seeking to restrain certain named assets and

asking for a general restraint of Floyd's right to dispose of other

assets. The district court partially granted this application,

ordering Floyd to repatriate sums of $259,331 and $142,388
3

previously transferred to a bank in Liechtenstein. The $259,331

were proceeds from the sale of Floyd's homestead, and the

government concedes that none of the assets it has attempted to

restrain were derived from or connected to Floyd's alleged criminal

activity. As a result, Floyd paid these sums, totalling $401,719,

into the Registry of the Court.

Thereafter, the government sought a protective order under 21

U.S.C. § 853(e)(1)(A) to restrain Floyd's assets up to $1.96

million, urging that this amount was subject to forfeiture in the

event of conviction under 18 U.S.C. § 982(a)(1) or (2) and further

that because Floyd does not possess this tainted money the

restraining order could also apply to substitute assets under 21

U.S.C. § 853(p). After first deciding that § 853 allows the

pretrial restraint of substitute assets, the district court granted

the government's motion but only to the extent of $450,000 in

substitute assets, ruling that the full $1.96 million could not be

restrained because it was not persuaded of a substantial likelihood

that this amount would be forfeitable upon conviction. The effect

of this decision was to require Floyd to pay an additional $48,281

into the Registry of the Court. The district court then denied

Floyd's request to use the funds for living expenses and attorneys'

fees. Floyd appeals the orders restraining $450,000 in substitute

assets and denying use of the funds for expenses. The government

appeals the court's refusal to restrain the full $1.96 million. 
 

2§ 1292. Interlocutory decisions

(a) Except as provided in subsections (c) and (d) of this

section, the courts of appeals shall have jurisdiction of

appeals from:

(1) Interlocutory orders of the district courts of the

United States . . . granting, continuing, modifying,

refusing or dissolving injunctions, or refusing to

dissolve or modify injunctions

. . .

4

II.

A.

The first question is our jurisdiction over these appeals. 

Floyd relies on the collateral order exception to 28 U.S.C. § 1291,

see Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), and

§ 1292(a)(1), which allows the interlocutory appeal of injunctions.

The government contends that the order restraining $450,000 is

final under § 1291 only to the extent it denied restraint of the

full $1.96 million, allowing it to appeal but not Floyd. The

government also seeks a writ of mandamus. We find jurisdiction

over both appeals under § 1292(a)(1).2

In United States v. Thier, 801 F.2d 1463 (5th Cir. 1986), we

reached the merits of the defendant's Fifth and Sixth Amendment

challenge to a restraining order under § 853(e)(1)(A) without

discussing jurisdiction. In United States v. Jenkins, 974 F.2d 32

(5th Cir. 1992), we accepted jurisdiction over a district court's

denial of a motion to dissolve a pretrial restraining order issued

under 18 U.S.C. § 1963(d) in a RICO conspiracy prosecution. We

relied on Thier for the proposition that "[u]nder the law of this

circuit, the district court's denial of Jenkins' motion is an
5

interlocutory order refusing to modify or dissolve an injunction,

and, as such, is immediately appealable under 28 U.S.C.

§ 1292(a)(1)." Id. at 34. We are not alone in holding that

pretrial asset restraining orders are appealable as "injunctions"

under § 1292(a)(1). United States v. All Assets of Statewide Auto

Parts, Inc., 971 F.2d 896, 900-01 (2d Cir. 1992); United States v.

Roth, 912 F.2d 1131, 1132-33 (9th Cir. 1990); see also United

States v. Kramer, 912 F.2d 1257, 1259 (11th Cir. 1990) (stating

that restraining orders under the RICO statute "have all the

indicia of a traditional injunction for purposes of appellate

review"); cf. United States v. Unit No. 7 and Unit No. 8, 853 F.2d

1445, 1448 (8th Cir. 1988) (finding jurisdiction over civil

forfeiture under § 1292(a)(1) and jurisdiction over criminal

forfeiture under the collateral order doctrine).

B.

Our jurisdiction under § 1292(a)(1) to review the district

court's restraining order does not encompass Floyd's contention

that Count 10 fails to state an offense. See Jenkins, 974 F.2d at

34 ("[a]s a general rule, courts of appeals should conduct only a

limited review in interlocutory appeals, and should address only

the propriety of the orders that gave rise to the appeal").

Moreover, we have no interlocutory appellate jurisdiction over an

attack on the sufficiency of the indictment. Abney v. United

States, 431 U.S. 651, 663-64 (1977); United States v. Miller, 952

F.2d 866, 874 (5th Cir. 1992). Floyd, nevertheless, urges us to

consider this claim because, the argument goes, the district
6

court's asset-restraining order necessarily depends on the

sufficiency of Count 10, and if Count 10 is insufficient we must

reverse the restraining order. We are not enticed by this

proffered easier path to decision. The sufficiency of the

indictment can be examined adequately in any appeal from a final

judgment.

III.

Both parties challenge the district court's restraining order.

Floyd argues that the government lacks the statutory authority to

restrain untainted assets before conviction and in any event the

government failed to prove the forfeitability of $450,000, and

finally that the restraint of assets in this case violates the

Fifth and Sixth Amendments. The government argues that the

district court misapplied the statute to preclude restraint of the

full $1.96 million. We do not reach the government's argument

because we agree with Floyd that § 853 does not allow the restraint

of substitute assets before conviction.

Section 853(e)(1)(A) is the source of any authority for the

pretrial restraint of assets:

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
 

318 U.S.C. § 982 is the general criminal forfeiture statute. 

Section 982 incorporates certain subsections of 21 U.S.C. § 853. 

18 U.S.C. §§ 982(b)(1)(A) and (B).

 

4(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--

(1) any property constituting, or derived from, any

proceeds the person obtained, directly or indirectly,

as the result of such violation;

(2) any of the person's property used, or intended to

be used, in any manner or part, to commit, or to

facilitate the commission of, such violation; and

(3) in the case of a person convicted of engaging in a

continuing criminal enterprise in violation of section

848 if this title, the person shall forfeit, in

addition to any property described in paragraph (1) or

(2), any of his interest in, claims against, and

property or contractual rights affording a source of

control over, the continuing criminal enterprise.

The court, in imposing sentence on such person, shall order,

in addition to any other sentence imposed pursuant to this

subchapter or subchapter II of this chapter, that the person

forfeit to the United States all property described in this

subsection. In lieu of a fine otherwise authorized by this

part, a defendant who derives profits or other proceeds from

an offense may be fined not more than twice the gross

profits or other proceeds.

 

5(p) Forfeiture of substitute property

If any of the property described in subsection (a) of

this section, as a result of any act or omission of the

7

event of conviction, be subject to forfeiture under this

section . . .

(emphasis added).3 The parties agree that § 853(a) does not

include substitute assets.4 Section 853(p) allows the forfeiture

of substitute property if the property described in subsection (a)

is unavailable for one of five listed reasons.5 The question is
defendant--

(1) cannot be located upon the exercise of due

diligence;

(2) has been transferred or sold to, or deposited with,

a third party;

(3) has been placed beyond the jurisdiction of the

court;

(4) has been substantially diminished in value; or

(5) has been commingled with other property which

cannot be divided without difficulty;

the court shall order the forfeiture of any other property

of the defendant up to the value of any property described

in paragraphs (1) through (5).

 

6The analogous provisions of RICO are 18 U.S.C. §§ 1963(a),

(d)(1)(A), and (m).

8

whether the government may restrain substitute assets before

conviction under § 853(e) notwithstanding that provision's explicit

reference to the property described in § 853(a). We hold that it

cannot.

The government, as did the district court, relies on the

reasoning of In re Billman, 915 F.2d 916, 920-21 (4th Cir. 1990).

In Billman, the Fourth Circuit interpreted the RICO forfeiture

provisions, identical in all relevant respects to the provisions of

§ 853 involved here, to allow the pretrial forfeiture of substitute

assets.6 The court in Billman read § 853(e)(1)(A) and § 853(p)

together "to preserve pending trial the availability for forfeiture

of property that can be forfeited after trial." Id. at 921. The

Fourth Circuit also found support from the Supreme Court in

Russello v. United States, 464 U.S. 16 (1983), and United States v.
9

Monsanto, 491 U.S. 600 (1989). In Russello, the Court recognized

that the RICO forfeiture statute directs that its provisions "shall

be liberally construed to effectuate its remedial purpose." 464

U.S. at 26-27. According to the Fourth Circuit, the Supreme Court

in Monsanto reached its conclusion that forfeiture under § 853 does

not include an exception for the payment of attorneys' fees by

reading the provisions of the statute together instead of in

isolation. Billman, 915 F.2d at 921.

Whatever the ultimate soundness of Billman, we are not

persuaded that it can fairly support the contended-for restraint of

property. We find that the statute controlling the restraint

before us plainly states what property may be restrained before

trial. Congress made specific reference to the property described

in § 853(a), and that description does not include substitute

assets. Congress treated substitute assets in a different section,

§ 853(p). To allow the government to freeze Floyd's untainted

assets would require us to interpret the phrase "property described

in subsection(a)" to mean property described in subsection(a) and

(p). Like the RICO statute at issue in Russello, Congress also

included a directive in § 853 that "[t]he provisions of this

section shall be liberally construed to effectuate its remedial

purposes." 21 U.S.C. § 853(o). However, this command for a

liberal construction does not authorize us to amend by

interpretation. Monsanto gives no such license. Rather it

counsels against such "glossing." Interpreting the same statute at

issue here, the Monsanto Court refused to find an exception for
 

7Moreover, the Court's reading of § 853(e)(1)(A) appears to

be consistent with ours. In Monsanto, the Court stated

"§ 853(e)(1)(A) is plainly aimed at implementing the commands of

§ 853(a)." 109 S.Ct. at 2665.

 

8(f) Warrant of seizure

The Government may request the issuance of a warrant

authorizing the seizure of property subject to forfeiture

under this section in the same manner as provided for a

search warrant. If the court determines that there is

probable cause to believe that the property to be seized

would, in the event of conviction, be subject to forfeiture

and that an order under subsection (e) of this section may

not be sufficient to assure the availability of the property

for forfeiture, the court shall issue a warrant authorizing

the seizure of such property.

10

attorneys' fees where Congress had not provided one and concluded

by saying, "[i]f . . . we are mistaken as to Congress' intent, that

body can amend this statute to otherwise provide. But the statute

as presently written, cannot be read any other way."7 109 S.Ct. at

2665. We also cannot read § 853(e)(1)(A) any other way.

The government also argues that its interpretation harmonizes

§ 853(e) with § 853(f).8 Subsection (f) requires a court to issue

a warrant of seizure upon the government's request if the court

determines there is probable cause to believe the property would be

forfeitable upon conviction and an order under subsection (e) would

be insufficient to protect the availability of the property. The

government argues that if it cannot restrain substitute assets, it

can simply obtain a warrant under subsection (f) to seize these

assets. The argument continues that Congress could not have

intended that the government must seize substitute assets before

trial. This argument ignores the reality that a warrant is

available to seize property covered by subsection (e) when its
11

procedures are inadequate. It is not available for any asset of

any type. Subsection (e) does not apply to substitute assets. The

government's contention that it has the power to seize property

that is not evidence of a crime nor the fruits of a crime hints of

writs of assistance. At the least it poses Fourth Amendment

concerns sufficient to avert any temptation we might have to engage

in interpretative handsprings to effectuate a legislative purpose

the Congress did not express.

REVERSED.