Of the Eighth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 06-2121

UNITED STATES OF AMERICA,

Appellee,

v.

STEPHEN A. SACCOCCIA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Before

 Boudin, John R. Gibson, and Howard, *

Circuit Judges.

Mark E. Overland, by appointment of the court, with whom

Overland Borenstein Scheper & Kim LLP was on brief for appellant.

Donald C. Lockhart, Assistant United States Attorney, with

whom Robert Clark Corrente, United States Attorney, was on brief

for appellee.

April 29, 2009
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BOUDIN, Circuit Judge. Appellant Stephen A. Saccoccia

was convicted, along with several co-conspirators, of RICO

conspiracy and money laundering crimes related to proceeds derived

from illegal drug trafficking. 18 U.S.C. § 1962 (2006). In

addition to a sentence of 660 years in prison and a $15.7 million

fine, the district court found that Saccoccia was required to

forfeit over $136 million, comprising the proceeds of his criminal

activity. We affirmed. United States v. Saccoccia, 58 F.3d 754

(1st Cir. 1995); see also United States v. Saccoccia, 42 Fed. Appx.

476 (1st Cir. 2002) (rejecting collateral attacks). 

The $136 million was not reachable by federal courts

because nearly all of the illegal proceeds had been wired to

persons and banks abroad. United States v. Saccoccia, 62 F. Supp.

2d. 539, 540 (D.R.I. 1999). Thus, after sentencing, the government

moved, pursuant to 18 U.S.C. § 1963(m), to forfeit certain

substitute assets valued at approximately $7.7 million, the court

did so, and we affirmed. Saccoccia, 58 F.3d at 783-85. This

appeal involves a second motion by the government to forfeit

substitute assets that were already in the government's possession

but had not been specifically named in any prior forfeiture order.

In 2006, the government asked the district court to order

forfeiture of items valued at approximately $58,000--including

precisely identified precious metals, jewelry, foreign stamps and

weapons--that had been seized by the FBI in 1991 from addresses
The government may forfeit as tainted "any property 1

constituting, or derived from, any proceeds which the person

obtained, directly or indirectly, from racketeering activity or

unlawful debt collection in violation of [18 U.S.C. §] 1962." 18

U.S.C. § 1963(a)(3) (emphasis added) (2006). 

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associated with Saccoccia and his co-defendants at the time of

their arrest, but were not included in the original forfeiture

order as specific assets to be forfeited. They were arguably

subject to forfeiture at the time, either as the immediate proceeds

of the crimes or items acquired with such proceeds, but had been 1

apparently been overlooked when the government submitted its

proposed judgment in the original criminal trial.

At the time the present motion was filed, the government

was still well short of collecting the $136 million figure due

under the original judgment. The district court granted the

motion, rejecting Saccoccia's argument made pro se that the items

were not subject to forfeiture as substitute assets because the

items at issue were "tainted," that is, were direct proceeds or

acquired from direct proceeds of the crime. This appeal, Saccoccia

now having counsel appointed by this court, followed.

On appeal, Saccoccia first argues that, under either the

fifth or sixth amendment, he was entitled to appointed counsel in

the district court to defend against the government's attempt to

forfeit the substitute assets in question. This appears to be an

issue of first impression. We now hold that Saccoccia had no

constitutional right to appointed counsel in either court, although
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this does not affect our precautionary appointment of counsel to

present Saccoccia's argument in this court.

According to Saccoccia, the sixth amendment entitles him

to appointed counsel because a substitute asset order imposes

additional punishment on a defendant beyond the sentence originally

imposed. If the sixth amendment does not apply, Saccoccia believes

that the fifth amendment's due process clause still entitles him to

counsel under the facts of this case to "ensure that forfeiture of

[his] property occurs only after a reliable determination of the

specific factual prerequisites of 18 U.S.C. § 1963(m)." Neither

claim is sound.

 A substitute asset proceeding is simply a means of

collecting on the original forfeiture judgment. United States v.

Reed, 924 F.2d 1014, 1017 (11th Cir. 1991). Because such a

proceeding does not increase the quantum of punishment imposed on

a defendant, no right to appointed counsel exists under the sixth

amendment. Nichols v. United States, 511 U.S. 738, 746-49 (1994).

Even if the punishment were increased, arguably the sixth amendment

would still not apply because imprisonment cannot result, Scott v.

Illinois, 440 U.S. 367 (1979), but that is an argument we need not

reach.

That there is no sixth amendment right to appointed

counsel in a substitute asset case is buttressed by decisions

recognizing there is no sixth amendment jury trial right in
A jury may still get to decide forfeiture because "[i]f the 2

indictment or the information alleges that an interest or property

is subject to criminal forfeiture a special verdict shall be

returned as to the extent of the interest or property subject to

forfeiture, if any.” Fed. R. Crim. P. 31(e).

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criminal forfeiture proceedings generally. As the Supreme Court

recognized, there is not even a constitutional right to a jury

trial in an initial forfeiture proceeding. Libretti v. United

States, 516 U.S. 29, 48-49 (1995) , and similarly there is no such 2

right in a substitute forfeiture proceeding. United States v.

Hurley, 63 F.3d 1, 23 (1st Cir. 1995).

The fifth amendment's due process clause also does not

entitle Saccoccia to appointed counsel. Saccoccia argues that he

has a constitutionally protected interest in the ownership of

property and that the deprivation of that property interest without

counsel amounts to a violation of the due process clause. Even if

the premise were sound--which it may not be to the extent that the

property in question amounts to criminal proceeds and so was

already forfeited--the conclusion would not follow.

An individual's property can be in jeopardy in many kinds

of proceedings to which the government is a party; examples are

eminent domain proceedings, suits by the government to collect

taxes, disputes with the government over ownership of land, and

suits in which an individual sues the government for patent

violations. The individual in such cases is free to be represented
Appointed counsel is not a constitutional right in habeas 3

proceedings, Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), and

even in parole revocation, the Supreme Court has said that the

right is not automatic. Gagnon v. Scarpelli, 411 U.S. 778, 790

(1973).

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by counsel but has no constitutional right to counsel at the

expense of the government.

Even in criminal cases, the Constitution does not by its

terms provide for appointed counsel. That right has been

interpolated, rather late in our history, because of the value

placed on personal liberty and the concern that a lay defendant

cannot adequately protect himself in complex criminal proceedings

without the aid of counsel. But the Supreme Court's emphasis has

always been upon the threat of incarceration, cf. In re Winship,

397 U.S. 358, 366 (1970); and even there, it has been hesitant to

create an automatic right outside of the original prosecution.3

In a second and separate argument, Saccoccia argues that

because the property in question could have been forfeited under 18

U.S.C. § 1963(a) as property tainted by the RICO offense, it may

not be forfeited as substitute property under section 1963(m).

Section 1963(m) allows inter alia for the forfeiture of substitute

assets whenever any property obtained from RICO violations cannot

be forfeited by the government because of any act or omission of

the defendant. 

Here, most of the original proceeds were apparently

stored abroad and Saccoccia does not dispute that the government is
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entitled to seek otherwise qualified substitute assets. By the

terms of section 1963(m), "any other property" of the defendant may

be forfeited in place of the originally forfeited property. We

think that it makes no difference that this property could perhaps

have been forfeited in the initial forfeiture as comprising or

derived from the proceeds of the illegal activity. Because it was

not forfeited, and there is still an unfulfilled judgment against

Saccoccia, this property may be forfeited in substitution, if it

belongs to Saccoccia rather than another claimant.

As a matter of statutory language alone, Saccoccia's

position is not impossible. The statute proves that if "the

property described in subsection (a)" cannot (for various listed

reasons) be reached by the government, then the court shall order

the forfeiture "of any other property of the defendant" up the

value due to the government. 18 U.S.C. § 1963(m). "Other" could

be read to exclude categorically tainted property that was not

previously forfeited but could have been forfeited at the criminal

trial as proceeds of the crime or derived from such proceeds.

But such a reading is not linguistically required: the

juxtaposition of subsections (a) and (m) is meant, in relation to

substitute assets, to distinguish between tainted property already

forfeited by a court and reached by the government and other

property of the defendant that is still available to cover the

amount yet unpaid because some of the forfeited property is not
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reachable. Whether the now available property is tainted or

innocent could hardly have mattered to Congress, which wanted the

deficiency paid; it would be especially ironic to exclude from

subsection (m) property tainted but not yet forfeited. 

Saccoccia relies on United States v. Bornfield, 145 F.3d

1123 (10th Cir. 1998), which does say broadly that "[a]n asset

cannot logically be both forfeitable and a substitute asset." Id.

at 1139. In Bornfield, the circuit court held invalid the jury's

finding that certain assets in question were forfeitable as

proceeds of the offense. The quoted passage was used in rejecting

the district court's alternative holding that even if the jury had

erred in finding the assets forfeited as proceeds, they could be

forfeited as substitute assets. 

Whether or not the Tenth Circuit's result was right, the

quoted statement was made in a different context than the one we

face. True, logically an asset cannot both be "proceeds initially

subject to forfeiture" and "not proceeds initially subject to

forfeiture" since one proposition is the negative of the other; but

in our view assets in either category can be used as substitute

assets: in other words, as here, property that the government could

earlier (but did not) have forfeited and seized as tainted can

instead be reached later as substitute assets.

Saccoccia's citation to United States v. Voigt, 89 F.3d

1050 (3d Cir. 1996) is even less helpful to him. There, the court
 Accord United States v. Huber, 462 F.3d 945, 948-49 (8th 4

Cir. 2006); United States v. Leahy, 438 F.3d 328, 331-39 (3d Cir.

2006) (en banc); United States v. Fruchter, 411 F.3d 377, 379-83

(2d Cir. 2005); United States v. Tedder, 403 F.3d 836, 840-41 (7th

Cir. 2005). 

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held only that commingled funds (that is a bank account containing

both legal and illegal proceeds) could not be forfeited under the

initial forfeiture procedure and had to be forfeited as substitute

assets. Id. at 1088. If anything, this bears out our judgment

that assets that could have been forfeited directly (i.e.,

separately identifiable illegal proceeds) can later be treated

instead as substitute assets. 

Saccoccia's final argument is that the sixth amendment as

interpreted by the Supreme Court in United States v. Booker, 543

U.S. 220 (2005), and its progeny require the factual predicates for

a substitute asset forfeiture be found by a jury and not by a

court. This is not so. The Supreme Court has held that there is

no such constitutional right even in initial criminal forfeiture

proceedings, Libretti, 516 U.S. at 49, and we are bound by that

holding. E.g., United States v. Ortiz-Cintron, 461 F.3d 78, 82

(1st Cir. 2006).4

Further, it seems unlikely that Booker will lead the

Supreme Court to reconsider Libretti. Booker's primary concern was

with imprisonment being set or expanded, under mandatory

guidelines, based on conduct of the defendant that the jury had

never considered. To the extent that seizure of substitute assets
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is merely a collection mechanism for amounts already found to be

due to the government, Booker's concern is not remotely implicated.

Affirmed.