United States Of America v. Approximately $144.001 in United States Currency

Filing 86

ORDER by Judge Jeffrey S. White DENYING WITHOUT PREJUDICE 81 Motion for Release of Funds. (jswlc3, COURT STAFF) (Filed on 11/7/2011)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,

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For the Northern District of California

United States District Court

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No. C 09-04182 JSW
ORDER DENYING, WITHOUT
PREJUDICE, MOTION TO
RELEASE FUNDS FOR LEGAL
FEES

Plaintiff,
v.
APPROXIMATELY $144,001 IN UNITED
STATES CURRENCY,

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Defendant.
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/
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INTRODUCTION
This matter comes before the Court upon consideration of the Motion to Release Funds

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for Legal Fees filed by Claimant, James Anthony Pompey (“Pompey”). The Court has

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considered the parties’ papers, relevant legal authority, and the record in this case, and the Court

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finds the matter suitable for disposition without oral argument. See N.D. Civ. L.R. 7-1(b). The

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hearing set for December 2, 2011 is VACATED and Pompey’s Motion to Release Funds is

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DENIED WITHOUT PREJUDICE.

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BACKGROUND

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On September 10, 2009, the United States filed its Complaint in this action seeking

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forfeiture of approximately $144,001 (the “seized funds”), which was seized on March 18,

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2009, from the residence of James Anthoney Pompey (“Pompey”), in Newark, California.

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(Compl. ¶¶ 7, 17.) Pompey has been charged in Santa Clara County with various criminal

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charges arising out of the execution of search warrants and the seizure of those funds. (Id. ¶¶ 7-

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8, 16-19.)1 On October 23, 2009, Pompey filed a Verified Claim to the seized funds, and on

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November 12, 2009, he filed an Answer.

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On May 3, 2010, the Court granted the United States’ motion to stay this action, over

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Pompey’s objection. On October 7, 2011, Pompey filed his motion to release funds for legal

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fees.

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ANALYSIS

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Pompey argues that a continued hold on the seized funds is impinging upon his Sixth

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Amendment right to counsel. The “Sixth Amendment guarantees a defendant the right to be

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represented by an otherwise qualified attorney whom that defendant can afford to hire, or who
is willing to represent the defendant even though he is without funds.” Caplin & Drysdale,

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For the Northern District of California

United States District Court

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Chartered v. United States, 491 U.S. 617, 624-25 (1989). However, “defendant has no Sixth

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Amendment right to spend another person’s money for services rendered by an attorney, even if

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those funds are the only way that that defendant will be able to retain the attorney of his

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choice.” Id. at 626. Thus, it is not a violation of the Sixth Amendment to preclude a defendant

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from using assets, which have been determined to be forfeitable, to pay his attorney. Id. at 632.

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The Supreme Court also has held there is no Sixth Amendment violation when, “after probable

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cause [for forfeiture] is adequately established,” a defendant is precluded from using such assets

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to pay counsel. United States v. Monsanto, 491 U.S. 600, 617 (1989).

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However, in order to protect a defendant’s Sixth Amendment right to counsel and his

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Fifth Amendment due process rights, a district court may be required to hold a pretrial hearing

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to determine whether some or all of the funds should be released. United States v. Unimex, 991

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F.2d 546, 550-551 (9th Cir. 1993); see generally United States v. Monsanto, 924 F.2d 1186 (2d

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Cir. 1991). The Court finds that, on the existing record, Defendant has failed to show a hearing

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is warranted. Although he argues that he has no assets and that there was not probable cause to

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forfeit the funds, he fails to put forth evidence to support those claims. See Unimex, 991 F.2d at

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Pompey also was indicted on drug related charges in the United States District
Court for the Middle District of Georgia. On October 6, 2011, Pompey entered a plea of
guilty to one count of conspiracy to possess with the intent to distribute cocaine, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), 846. (Opp. Br., Ex. A.)

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551 (concluding district court erred in denying hearing where movant put forth affidavits

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demonstrating assets seized were not subject to forfeiture). In his reply brief, counsel states that

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he is endeavoring to obtain a declaration from Pompey and that these efforts have been

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complicated by the fact that Pompey is incarcerated in Georgia. If counsel is able to obtain a

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declaration from his client, he may file a renewed motion to release the funds.

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CONCLUSION
For the foregoing reasons, the Court DENIES, WITHOUT PREJUDICE, the motion to
release funds for legal fees.
IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: November 7, 2011
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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