The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_781/91_781.zc

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SUPREME COURT OF THE UNITED STATES
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No. 91-781
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UNITED STATES, PETITIONER v. A PARCEL OF
LAND, BUILDINGS, APPURTENANCES and IM-
PROVEMENTS, known as 92 BUENA VISTA
 AVENUE, RUMSON, NEW JERSEY, et al.
on writ of certiorari to the united states court
of appeals for the third circuit
[February 24, 1993]

  Justice Scalia, with whom Justice Thomas joins,
concurring in the judgment.
  I am in accord with much of the plurality's reasoning,
but cannot join its opinion for two reasons.  First, while
I agree that the -innocent owner- exception in this case
produces the same result as would an -innocent owner-
exception to traditional common-law forfeiture (with its
relation-back principle), I do not reach that conclusion
through the plurality's reading of the phrase -property
described in subsection (a),- see ante, at 14-16, which
seems to me implausible.  Secondly, I see no proper basis
for the plurality's concluding that -respondent has
assumed the burden of convincing the trier of fact that
she had no knowledge of the alleged source of Brenna's
gift in 1982, when she received it,- ante, at 18.
                            I
  The Government's argument in this case has rested on
the fundamental misconception that, under the common-
law relation-back doctrine, all rights and legal title to the
property pass to the United States -at the moment of
illegal use.-  Brief for United States 16.  Because the
Government believes that the doctrine operates at the

time of the illegal act, it finds the term -relation back- to
be -something of a misnomer.-  Ibid.  But the name of the
doctrine is not wrong; the Government's understanding of
it is.  It is a doctrine of retroactive vesting of title that
operates only upon entry of the judicial order of forfeiture
or condemnation: -[T]he decree of condemnation when
entered relates back to the time of the commission of the
wrongful acts, and takes date from the wrongful acts and
not from the date of the sentence or decree.-  Henderson's
Distilled Spirits, 14 Wall. 44, 56 (1871).  -While, under
the statute in question, a judgment of forfeiture relates
back to the date of the offense as proved, that result
follows only from an effective judgment of condemnation.-
Motlow v. State ex rel. Koeln, 295 U. S. 97, 99 (1935).
The relation-back rule applies only -in cases where the
[Government's] title ha[s] been consummated by seizure,
suit, and judgment, or decree of condemnation,- Confisca-
tion Cases, 7 Wall. 454, 460 (1869), whereupon -the
doctrine of relation carries back the title to the commis-
sion of the offense,- United States v. Grundy, 3 Cranch
337, 350-351 (1806) (Marshall, C. J.)  (emphasis added).
See also United States v. Stowell, 133 U. S. 1, 16-17
(1890), quoted ante, at 13-14.
  Though I disagree with the Government as to the
meaning of the common-law doctrine, I agree with the
Government that the doctrine is embodied in the statute
at issue here.  The plurality, if I understand it correctly,
does not say that, but merely asserts that in the present
case the consequence of applying the statutory language
is to produce the same result that an -innocent owner-
exception under the common-law rule would produce.
Title 21 U. S. C. 881(h) provides:  -All right, title, and
interest in property described in subsection (a) of this
section shall vest in the United States upon commission
of the act giving rise to forfeiture under this section.-
The plurality would read the phrase -property described
in subsection (a)- as not encompassing any property that
is protected from forfeiture by the -innocent owner-
provision of 881(a)(6).  It proceeds to reason that since,
therefore, the application of (a)(6) must be determined
before (h) can be fully applied, respondent must be
considered an -owner- under that provision-just as she
would have been considered an -owner- (prior to decree
of forfeiture) at common law.
  I would not agree with the plurality's conclusion, even
if I agreed with the premises upon which it is based.  The
fact that application of (a)(6) must be determined before
(h) can be fully applied simply does not establish that the
word -owner- in (a)(6) must be deemed to include (as it
would at common law) anyone who held title prior to the
actual decree of forfeiture.  To assume that is simply to
beg the question.  Besides the fact that its conclusion is
a non sequitur, the plurality's premises are mistaken.  To
begin with, the innocent-owner provision in (a)(6) does not
insulate any -property described- in (a)(6) from forfeiture;
it protects only the -interest- of certain owners in any of
the described property.  But even if it could be regarded
as insulating some -property described- from forfeiture,
that property would still be covered by subsection (h),
which refers to -property described,- not -property
forfeited.-  In sum, I do not see how the plurality can,
solely by focusing on the phrase -property described in
subsection (a),- establish that the word -owner- in
subsection (a) includes persons holding title after the
forfeiture-producing offense.
  The Government agrees with me that 881(h) -covers
all `property described in subsection (a),' including
property so described that is nonetheless exempted from
forfeiture because of the innocent owner defense.-  Brief
for United States 29.  That position is quite incompatible,
however, with the Government's contention that 881(h)
operates at the time of the wrongful act, since if both
were true no one would be protected under the plain
language of the innocent-owner provision.  In the Govern-
ment's view, the term -owner- in 881(a)(6) refers to
individuals -who owned the seized assets before those
assets were ever tainted by involvement in drug transac-
tions.-  Id., at 21.  But if 881(h) operates immediately
to vest in the Government legal title to all property
described in 881(a), even that class of -owners- would be
immediately divested of their property interests and would
be at most -former owners- at the time of forfeiture
proceedings.  Because of this difficulty, the Government
is forced to argue that the word -owner- in 881(a)(6)
should be interpreted to mean -former owner.-  Reply
Brief for United States 5.  Thus, if 881(h) operates at
the time of the illegal transaction as the Government
contends, either the plain language of the innocent-owner
provision must be slighted or the provision must be
deprived of all effect.  This problem does not exist if
881(h) is read to be, not an unheard-of provision for
immediate, undecreed, secret vesting of title in the United
States, but rather an expression of the traditional
relation-back doctrine-stating when title shall vest if
forfeiture is decreed.  On that hypothesis, the person
holding legal title is genuinely the -owner- at the time
(prior to the decree of forfeiture) that the court applies
881(a)(6)'s innocent-owner provision.
  I acknowledge that there is some textual difficulty with
the interpretation I propose as well: 881(h) says that
title -shall vest in the United States upon commission of
the act giving rise to forfeiture,- and I am reading it to
say that title -shall vest in the United States upon
forfeiture, effective as of commission of the act giving rise
to forfeiture.-  The former is certainly an imprecise way
of saying the latter.  But it is, I think, an imprecision one
might expect in a legal culture familiar with retroactive
forfeiture, and less of an imprecision than any of the
other suggested interpretations require.  Moreover, this
interpretation locates the imprecision within a phrase
where clear evidence of imprecision exists, since 881(h)'s
statement that -all right . . . shall vest in the United
States- flatly contradicts the statement in 881(a) that
-[t]he following shall be subject to forfeiture to the United
States.-  What the United States already owns cannot be
forfeited to it.
  This interpretation of 881(h) is the only one that
makes sense within the structure of the statutory forfei-
ture procedures.  Subsection 881(d) provides that forfei-
tures under 881 are governed by the procedures applica-
ble to -summary and judicial forfeiture, and condemnation
of property for violation of the customs laws,- set forth in
19 U. S. C. 1602 et seq.  It is clear from these proce-
dures that the Government does not gain title to the
property until there is a decree of forfeiture.  Section
1604, for example, requires the Attorney General to
commence proceedings in district court where such pro-
ceedings are -necessary- -for the recovery- of a forfeiture.
See United States v. $8,850, 461 U. S. 555, 557-558, and
n. 2 (1983) (detailing circumstances requiring judicial
forfeiture proceedings).  If, however, legal title to the
property actually vested in the United States at the time
of the illegal act, judicial forfeiture proceedings would
never be -necessary.-  Under the customs forfeiture
procedures the United States can, in certain limited
circumstances, obtain title to property by an executive
declaration of forfeiture.  The statute provides that such
an executive -declaration of forfeiture . . . shall have the
same force and effect as a final decree and order of
forfeiture in a judicial forfeiture proceeding in a district
court of the United States,- and then specifies what that
effect is:  -Title shall be deemed to vest in the United
States . . . from the date of the act for which the forfei-
ture was incurred.-  19 U. S. C. 1609(b) (emphasis
added).  Finally, if the Government's construction of
881(h) were correct, the statute-of-limitations provision,
19 U. S. C. 1621, would need to state that title reverts
to the former owners of the property, rather than (as it
does) simply limit the right of the United States to
institute an -action to recover- a forfeiture.
  The traditional operation of the relation-back doctrine
also explains the textual difference between 881(a)(6)'s
innocent--owner- and 853's innocent--transferee- provi-
sions-a difference on which the Government relies
heavily.  See Brief for United States 31-35; Reply Brief
for United States 10-11.  Section 853, which provides for
forfeiture of drug-related assets in connection with crimi-
nal convictions, uses the term -transferee--not
-owner--to protect the interests of persons who acquire
property after the illegal act has occurred.  The Govern-
ment contends that the reason for this variance is that
the term -owner- simply does not cover persons acquiring
interests after the illegal act.  That explanation arrives
under a cloud of suspicion, since it is impossible to
imagine (and the Government was unable to suggest) why
Congress would provide greater protection for postoffense
owners (or -transferees-) in the context of criminal forfei-
tures.  The real explanation, I think, is that the term
-owner- could not accurately be used in the context of
853 because third parties can assert their property
rights under that section only -[f]ollowing the entry of an
order of forfeiture.-  21 U. S. C. 853(n).  See also
853(k) (prohibiting third parties from intervening to
vindicate their property interests except as provided in
subsection (n)).  Thus, at the time the third-party
interests are being adjudicated, the relation-back doctrine
has already operated to carry back the title of the United
States to the time of the act giving rise to the forfeiture,
and the third parties have been divested of their property
interests.  See 853(c) (codifying the relation-back
principle for criminal forfeiture).  Indeed, if the court finds
that the transferee has a valid claim under the statute,
it must -amend the order of forfeiture.-  853(n)(6).
  The owner/transferee distinction is found in other
provisions throughout the United States Code, and the
traditional relation-back doctrine provides the only expla-
nation for it.  While Congress has provided for the
protection of -owners- in many other forfeiture statutes,
see, e.g., 15 U. S. C. 715f(a) (allowing court to order the
return of oil subject to forfeiture -to the owner thereof-);
16 U. S. C. 2409(c) (permitting the -owner- of property
seized for forfeiture to recover it, pendente lite, by posting
bond); 2439(c) (same); 18 U. S. C. 512(a) (permitting
the -owner- of motor vehicle with altered identification
number to avoid forfeiture by proving lack of knowledge),
it consistently protects -transferees- in criminal forfeiture
statutes that follow the procedure set forth in 853:
forfeiture first, claims of third parties second.  See 18
U. S. C. 1467 (criminal forfeitures for obscenity); 18
U. S. C. 1963 (1988 ed. and Supp. III) (criminal RICO
forfeitures); 18 U. S. C. 2253 (1988 ed. and Supp. III)
(criminal forfeitures for sexual exploitation of children).
  I think the result reached today is correct because the
relation-back principle recited in 881(h) is the familiar,
traditional one, and the term -owner- in 881(a)(6) bears
its ordinary meaning.
                           II
  I cannot join the plurality's conclusion that respondent
has assumed the burden of proving that -she had no
knowledge of the alleged source of Brenna's gift in 1982,
when she received it.-  Ante, at 18.  To support this, the
plurality cites a passage from respondent's brief taking the
position that the owner's lack of knowledge of the criminal
activity should be tested -at the time of the transfer,-
Brief for Respondent 37-38.  The fact of the matter is
that both parties took positions before this Court that may
be against their interests on remand.  The Government
may find inconvenient its contention that -the statutory
test for innocence . . . looks to the claimant's awareness
of the illegal acts giving rise to forfeiture at the time they
occur.-  Reply Brief for United States 8.  Which, if either,
party will be estopped from changing position is an issue
that we should not address for two simple reasons: (1)
Neither party has yet attempted to change position.  (2)
The issue is not fairly included within the question on
which the Court granted certiorari.  (That question was,
-Whether a person who receives a gift of money derived
from drug trafficking and uses that money to purchase
real property is entitled to assert an `innocent owner'
defense in an action seeking civil forfeiture of the real
property.-  Pet. for Cert. i.  The plurality's reformulation
of the question in the first sentence of the opinion is
inexplicable.)
  This question of the relevant time for purposes of
determining knowledge was not a separate issue in the
case, but arose indirectly, by way of argumentation on the
relation-back point.  The Government argued that since
(as it believed) knowledge had to be measured at the time
of the illegal act, 881(h) must be interpreted to vest title
in the United States immediately, because otherwise the
statute would produce the following -untenable result-:
A subsequent owner who knew of the illegal act at the
time he acquired the property, but did not know of it at
the time the act was committed, would be entitled to the
innocent-owner defense.  Brief for United States 25.  That
argument can be rejected by deciding either that the
Government's view of the timing of knowledge is wrong,
or that, even if it may be right, the problem it creates is
not so severe as to compel a ruling for the Government
on the relation-back issue.  (I take the latter course: I do
not find inconceivable the possibility that post-illegal-act
transferees with post-illegal-act knowledge of the earlier
illegality are provided a defense against forfeiture.  The
Government would still be entitled to the property held
by the drug dealer and by close friends and relatives who
are unable to meet their burden of proof as to ignorance
of the illegal act when it occurred.)  But it entirely
escapes me how the Government's argument, an argument
in principle, can be answered by simply saying that, in
the present case, respondent has committed herself to
prove that she had no knowledge of the source of the
funds at the time she received them.
  For the reasons stated, I concur in the judgment.