People v. $207,766, No. 2-98-1651

2nd District, 27 March 2000

JUSTICE RAPP delivered the opinion of the court:

Attorney, Fred Morelli, Jr., and claimant, Derrick Aquino, timely appeal from peripheral orders arising from the forfeitureof $207,766 and other property. On appeal, Morelli argues that his fee should be paid out of a portion of the forfeited funds.We disagree and affirm.

In January 1996, Aquino was charged with violations of the Illinois Controlled Substances Act (720 ILCS 570/100 et seq.(West 1996)). Incident to Aquino's arrest, the State seized all of his assets, including $207,766 in United States currencyand other valuable property. Two months later, in March 1996, the State sought the forfeiture of the money and property ina civil forfeiture action pursuant to the Drug Asset Forfeiture Procedure Act (Act) (725 ILCS 150/1 et seq. (West 1996)).

Aquino retained Morelli to represent him on the state criminal charges and in the civil forfeiture action. Morelli and Aquinoentered into a written contingent fee agreement. The agreement provided that Morelli would be paid 50% of the value of allproperty not forfeited to the State, and the agreement granted Morelli an attorney's lien.

Subsequently, Aquino was charged in the United States District Court for the Northern District of Illinois with violations offederal narcotics laws. Aquino did not retain Morelli to represent him on those charges. On July 1, 1998, Aquino, whilerepresented by another attorney, entered into a plea agreement in the federal case. In exchange for a 15% reduction in hissentence, the plea agreement required Aquino to cooperate in the prosecution of his codefendants and to execute documentswaiving his claim to the seized money and property. In those documents, Aquino was required to admit that the moneyseized was obtained as a direct or indirect result of the violation of federal and state narcotics laws or that it was used orintended to be used in violation of federal and state narcotics laws. Aquino was also required to waive any right, title, andinterest in the money and to pledge not to further prosecute his opposition to the forfeiture of the money in Kane County.

Later in the day on July 1, 1998, Morelli served notice of his attorney's lien in Kane County. On July 31, 1998, Morellipetitioned to adjudicate the lien, and on October 13, 1998, Aquino moved to release a portion of the seized funds in order topay his attorney fees. In December 1998, the trial court denied both the petition and the motion based on the documentsexecuted in the federal plea agreement and ordered the entire $207,766 forfeited to the State and distributed accordingly.This timely appeal followed.

Morelli launches a three-pronged attack in an attempt to get paid pursuant to his contingent fee retainer agreement withAquino. Morelli first argues that the seizure of all Aquino's assets prevented Aquino from paying him; thus, the seizure andeventual forfeiture violated Aquino's qualified sixth amendment right to counsel of his choice. Second, Morelli argues thatthe failure of the trial court to hold a prompt postseizure probable cause hearing in the forfeiture action violated Aquino'sdue process rights; thus, he, Morelli, is entitled to a portion of the forfeited funds. Finally, Morelli argues that he is entitledto a portion of the forfeited funds by virtue of the attorney's lien Aquino granted him pursuant to the contingent fee retaineragreement.

In support of his first two arguments, Morelli cites United States v. Moya-Gomez, 860 F.2d 706 (7th Cir. 1988), and UnitedStates v. Michelle's Lounge, 39 F.3d 684 (7th Cir. 1994) (Michelle's Lounge I). In Moya-Gomez, the government froze allthe assets of a federal criminal defendant with an ex parte restraining order as a prelude to criminal forfeiture proceedings.The defendant's attorney made a limited appearance in the trial court for the purpose of arguing that the defendant wasentitled to a portion of the seized funds to pay for his criminal defense. The trial court found that the seizure violated thesixth amendment (U.S. Const., amend. VI) and therefore the defendant was entitled to a portion of the funds.

On appeal, the Moya-Gomez court initially addressed the question of whether the seizure of assets impinged on a criminaldefendant's qualified sixth amendment right to retain counsel of his choosing. The court first noted that the relation-backdoctrine, which makes assets forfeitable at the time the illegal actions took place, applied to federal forfeiture actions. Thecourt then held that, pursuant to the relation-back doctrine, a defendant does not have a right to spend funds that are not his,and thus the seizure of all of the defendant's assets by the government did not absolutely violate the sixth amendment.Moya-Gomez, 860 F.2d at 725. But, the court further held that the same sixth amendment concerns, working through thefifth amendment (U.S. Const., amend. V), required greater judicial protection of a criminal defendant's right to counsel thanan ex parte hearing afforded. Moya-Gomez, 860 F.2d at 729. According to the court, due process demands that the trialcourt hold a postseizure adversary hearing if the seizure of the defendant's assets leaves the defendant without other assetswith which to pay for his criminal defense. Moya-Gomez, 860 F. 2d at 730. At the hearing, the government would have toshow probable cause that the assets were forfeitable ("Moya-Gomez" hearing). If the government could not, or chose not to,make such a showing, then the trial court was required to release a sufficient portion of the assets to pay reasonable attorneyfees. Moya-Gomez, 860 F.2d at 730. Michelle's Lounge I extended Moya-Gomez to civil forfeiture proceedings. Michelle'sLounge I, 39 F.3d at 700-01.

Morelli argues that the Moya-Gomez line of cases controls this case. The State counters that, on the facts of this case,section 12 of the Act (725 ILCS 150/12 (West 1996)) controls. According to the State, section 12 of the Act precludes therecovery of attorney fees under any theory advanced by Morelli, irrespective of the Moya-Gomez line. This is a matter ofstatutory construction, so we apply a de novo standard of review. People v. Robinson, 172 Ill. 2d 452, 457 (1996).

In construing a statute our primary goal is to ascertain and give effect to the intent of the legislature. Robinson, 172 Ill. 2d at457. The most reliable indicator of legislative intent is the plain meaning of the statutory language. Robinson, 172 Ill. 2d at457. Where the language is clear and unambiguous, the statute must be applied as written without further aids of statutoryconstruction. Robinson, 172 Ill. 2d at 457.

The Act provides a weapon in the State's arsenal in the "war on drugs." Under the Act, the State can seek civil forfeiture ofproperty that is "used or intended to be used in, [or] is attributable to" the possession, manufacture, or distribution of illegaldrugs. 725 ILCS 150/2 (West 1996). This includes proceeds from drug transactions (725 ILCS 150/7 (West 1996)), exceptfor those proceeds