The Supreme Court's November 7, 1995 ruling that a criminal defendant who agrees in a plea bargain to forfeit property does not have to be told of his right to a jury trial on the amount to be seized. The 8-1 ruling also held that federal rules do not require the judge to inquire into the factual basis for the forfeiture of assets embodied in the plea agreement.

Cite as 95 C.D.O.S. 8576

JOSEPH LIBRETTI, Petitioner

v.

UNITED STATES

No. 94-7427

In the Supreme Court of the United States

On writ of certiorari to the United States Court of Appeals for
the Tenth Circuit.

38 F.3d 523, affirmed.

O'Connor, J., delivered the opinion of the Court, Parts I and II-A
of which were joined by Rehnquist, C.J., and Scalia, Kennedy,
Souter, Thomas, Ginsburg, and Breyer, JJ., Parts II-B and II-C of
which were joined by Rehnquist, C.J., and Kennedy, Souter,
Ginsburg, and Breyer, JJ., and Parts III and IV of which were
joined by Rehnquist, C.J., and Scalia, Kennedy, Thomas, and
Breyer, JJ. Souter, J., and Ginsburg, J., filed opinions
concurring in part and concurring in the judgment. Stevens, J.,
filed a dissenting opinion.

Argued October 3, 1995

Decided November 7, 1995

SYLLABUS

During petitioner Libretti's trial on federal drug and related
charges, he entered into a plea agreement with the Government,
whereby, among other things, he pleaded guilty to engaging in a
continuing criminal enterprise under 21 U.S.C. 848; agreed to
surrender numerous items of his property to the Government under
853, which provides for criminal forfeiture of drug-tainted
property; and waived his constitutional right to a jury trial. At
the colloquy on the plea agreement, the trial judge explained the
consequences of Libretti's waiver of the latter right, but did not
expressly advise him as to the existence and scope of his right
under Federal Rule of Criminal Procedure 31(e) to a jury
determination of forfeitability. After sentencing Libretti to
imprisonment and other penalties, the judge entered a forfeiture
order as to the property in question despite Libretti's objection
to what he saw as a failure to find any factual basis for the
entire forfeiture. The Court of Appeals rejected both of
Libretti's challenges to the forfeiture order, ruling that Federal
Rule of Criminal Procedure 11(f) does not require a district court
to ascertain a factual basis for a stipulated forfeiture of assets
and that Libretti had waived his Rule 31(e) right to a jury
determination of forfeitability.

Held:

1. Rule 11(f)-which forbids a court to enter judgment upon ''a
plea of guilty'' without assuring that there is ''a factual
basis'' for the plea-does not require a district court to inquire
into the factual basis for a stipulated forfeiture of assets
embodied in a plea agreement. Pp. 7-19.

(a) The Rule's plain language precludes its application to a
forfeiture provision contained in a plea agreement. The Rule
applies only to ''a plea of guilty,'' which refers to a
defendant's admission of guilt of a substantive criminal offense
as charged in an indictment and his waiver of the right to a jury
determination on that charge. See, e.g., United States v. Broce,
488 U.S. 563, 570. In contrast, forfeiture is an element of the
sentence imposed following a plea of guilty, and thus falls
outside Rule 11(f)'s scope. That forfeiture operates as punishment
for criminal conduct, not as a separate substantive offense, is
demonstrated by the text of the relevant statutory provisions,
see, e.g.,  848(a) and 853(a), by legislative history, and by
this Court's precedents, see, e.g., Alexander v. United States,
509 U.S. ___, ___. Caplin & Drysdale, Chartered v. United States,
491 U.S. 617, 628, n. 5, distinguished. In light of such weighty
authority, the Court is not persuaded by Libretti's insistence
that the forfeiture for which  853 provides is, in essence, a
hybrid that shares elements of both a substantive charge and a
criminal punishment. Pp. 8-11.

(b) Libretti's policy arguments for construing Rule 11(f) to reach
asset forfeiture provisions of plea agreements-that the Rule's
factual basis inquiry (1) is essential to ensuring that a
forfeiture agreement is knowing and voluntary, (2) will protect
against government overreaching, and (3) is necessary to ensure
that the rights of third-party claimants are fully protected-are
rejected. Pp. 12-14.

(c) The District Court did not rest its forfeiture order solely on
the stipulation contained in the plea agreement. There is ample
evidence that the District Judge both understood the statutory
requisites for criminal forfeiture and concluded that they were
satisfied on the facts at the time the sentence was imposed. Pp.
15-19.

2. On the facts of this case, Libretti's waiver of a jury
determination as to the forfeitability of his property under Rule
31(e)-which provides that, "[i]f the indictment . . . alleges that
verdict shall be returned as to the extent of the . . .
property"-was plainly adequate. That waiver was accomplished by
the plea agreement, in which Libretti agreed to forfeiture and
waived his right to a jury trial, together with the plea colloquy,
which made it abundantly clear that the plea agreement would end
any proceedings before the jury and would lead directly to
sentencing by the court. Accordingly, Libretti cannot now complain
that he did not receive the Rule 31(e) special verdict. The Court
rejects his argument that the Rule 31(e) right to a jury
determination of forfeitability has both a constitutional and a
statutory foundation, and cannot be waived absent specific advice
from the district court as to the existence and scope of this
right and an express, written waiver. Given that the right, as an
aspect of sentencing, does not fall within the Sixth Amendment
right to a jury determination of guilt or innocence, see, e.g.,
McMillan v. Pennsylvania, 477 U.S. 79, 93, but is merely statutory
in origin, the plea agreement need not make specific reference to
Rule 31(e). Nor must the district court specifically advise a
defendant that a guilty plea will result in waiver of the Rule
31(e) right, since that right is not among the information that
must be communicated to a defendant under Rule 11(c) in order to
ensure that a guilty plea is valid. Pp. 19-22.

38 F.3d 523, affirmed.

O'Connor, J., delivered the opinion of the Court, Parts I and II-A
of which were joined by Rehnquist, C.J., and Scalia, Kennedy,
Souter, Thomas, Ginsburg, and Breyer, JJ., Parts II-B and II-C of
which were joined by Rehnquist, C.J., and Kennedy, Souter,
Ginsburg, and Breyer, JJ., and Parts III and IV of which were
joined by Rehnquist, C.J., and Scalia, Kennedy, Thomas, and
Breyer, JJ. Souter, J., and Ginsburg, J., filed opinions
concurring in part and concurring in the judgment. Stevens, J.,
filed a dissenting opinion.

Summary reprinted under license from Barclays Law Publishers.
Copyright Barclays 1995

OPINION

JUSTICE O'CONNOR delivered the opinion of the Court.
[FOOTNOTE *]

Petitioner Joseph Libretti pleaded guilty to engaging in a
continuing criminal enterprise, in violation of 84 Stat. 1265, 21
U.S.C. section 848 (1988 ed. and Supp. V), and agreed to forfeit
numerous items of his property to the Government. We must decide
whether Federal Rule of Criminal Procedure 11(f) requires the
District Court to determine whether a factual basis exists for a
stipulated asset forfeiture embodied in a plea agreement, and
whether the Federal Rule of Criminal Procedure 31(e) right to a
special jury verdict on forfeiture can only be waived following
specific advice from the District Court as to the existence and
scope of this right and an express, written waiver.

I

In May 1992, Joseph Libretti was charged in a multicount
superseding indictment with violations of various federal drug,
firearms, and money-laundering laws. Included in the indictment
was a count alleging that Libretti engaged in a continuing
criminal enterprise (CCE), in violation of 21 U.S.C. section 848,
by operating a cocaine and marijuana distribution organization in
Wyoming and Colorado from 1984 to 1992. Conviction under
section 848 subjects a defendant to, among other penalties, "the
forfeiture prescribed in section 853."[FOOTNOTE 1] 21 U.S.C.
section 848(a). Accordingly, the indictment further alleged that
the Government was entitled to forfeiture of property that was
obtained from or used to facilitate Libretti's drug offenses,
including but not limited to various assets specified in the
indictment. See Fed. Rule Crim. Proc. 7(c)(2) ("No judgment of
forfeiture may be entered in a criminal proceeding unless the
indictment or the information shall allege the extent of the
interest or property subject to forfeiture").

Trial began in September 1992. The Government presented
testimony from 18 witnesses, including several individuals who had
purchased cocaine or marijuana from Libretti, to establish Libretti's
involvement in the possession and distribution of considerable
amounts of narcotics. The testimony also reflected Libretti's
purchase of a home, an automobile, and dozens of automatic and
semiautomatic weapons during a time when he had only modest
sources of legitimate income. Finally, the testimony revealed that
Libretti stored large amounts of money and drugs in safety deposit
boxes and storage facilities away from his home.

Following four days of testimony, Libretti and the Government
entered into a plea agreement, by the terms of which Libretti
agreed to plead guilty to the CCE count of the indictment (count
6). The Government in return agreed not to pursue additional
charges against Libretti and to recommend that he be sentenced to
the mandatory minimum of 20 years' imprisonment. Paragraph 10 of
the plea agreement provided that Libretti would

"transfer his right, title, and interest in all of his assets to
the Division of Criminal Investigation of the Wyoming Attorney
General including, but not limited to: all real estate; all
personal property, including guns, the computer, and every other
item now in the possession of the United States; all bank
accounts, investments, retirement accounts, cash, cashier's
checks, travelers checks and funds of any kind."

Two other paragraphs of the plea agreement also made reference to
the contemplated forfeiture. Paragraph 2 described the maximum
statutory penalty for the offense to which Libretti agreed to
plead guilty, which included "forfeiture of all known assets as
prescribed in 21 U.S.C. section 853 and assets which are
discovered at any later time up to $1,500,000." In paragraph 9,
Libretti agreed to "identify all assets that were used to
facilitate his criminal activity" and to "provide complete
financial disclosure forms requiring the listing of assets and
financial interests." Finally, Libretti acknowledged in the
agreement "that by pleading guilty to Count Six of the Indictment,
he waive[d] various constitutional rights, including the right to
a jury trial." It is beyond dispute that Libretti received a
favorable plea agreement. The Government recommended that
Libretti receive the minimum sentence for conviction under section
848, and agreed to drop all other counts in the indictment. One of those
counts charged Libretti with use of a firearm equipped with a
silencer during the commission of a drug offense, which mandates a
30-year sentence consecutive to the term of imprisonment on the
underlying drug offense. 18 U.S.C. section 924(c)(1). Libretti
also faced a potential fine of up to $2 million. 21 U.S.C.
sections 848(a), 853(a).

At the subsequent hearing on the plea agreement, the trial judge
advised Libretti of his rights, including his right to a jury
trial. The court also clarified the consequences of Libretti's
plea, including the facts that a plea of guilty would mean "the
end of this trial," that "the jury [would] not . . . decide
whether [he's] guilty or not," and that "all the property that's
described in . . . Count 6 could be forfeited to the United
States." App. 87, 88. Libretti was then placed under oath. He
admitted that his plea was voluntary and indicated that he had
read and understood the significance of the indictment and the
plea agreement, including the fact that "all of [his] property
could be forfeited, the property that is owned by [him] by reason
of any drug transaction." Id., at 100. Libretti's only question
about the plea agreement pertained to paragraph 2, which provided
for future forfeiture of assets up to $1,500,000. The District
Court assured Libretti that future forfeiture would be limited to
subsequently discovered drug-tainted assets, and that his future
legitimate income would not be forfeited. Id., at 88-89. After a
lengthy exchange, in which the court reviewed each subparagraph
describing the violations that composed the CCE charge and
Libretti acknowledged each factual allegation, the District Court
found that the guilty plea was voluntary and factually based. Id.,
at 121.

Following preparation of a presentence report, the District Court
held a sentencing hearing, at which Libretti was sentenced to 20
years' imprisonment, to be followed by 5 years of supervised
release, and ordered to pay a $5,000 fine as well as a mandatory
$50 assessment and to perform 500 hours of community service.
The Government filed a motion for forfeiture of Libretti's assets, in
keeping with the plea agreement. Libretti's counsel offered no
objection at the sentencing hearing, declaring that the forfeiture
statute was "a harsh law" and "a bitter pill dealt by Congress,"
but conceding that it was "a pill we must swallow." Id., at 149.
At the conclusion of the hearing, however, Libretti stated on the
record that he "would just like to object to what [he saw] as a
failure to find any factual basis for the whole forfeiture." Id.,
at 154. The District Judge noted the objection, but replied that
"the evidence that I heard before me in the two [sic] days of
trial I think is sufficient to warrant the granting of forfeiture.
I think I have no alternative." Ibid. On December 23, 1992, the
District Court entered an order of forfeiture pursuant to 21
U.S.C. section 853. The order listed specific property to be
forfeited, including a parcel of real property in Wyoming, two
condominiums, two automobiles, a mobile home, a diamond ring,
various firearms, cash, several bank accounts, and a number of
cashier's and traveler's checks. App. 155-164. One check was
forfeited as a substitute asset. Id., at 162. Libretti filed an
appeal from the order of forfeiture.

While this appeal was pending, the District Court entertained
third-party claims to some of the property ordered forfeited. See
21 U.S.C. section 853(n). Following a March 1993 hearing, the
court amended its forfeiture order to return certain property to
the third-party claimants. The court also modified its order with
respect to Libretti, stating that "it may be unjust to enforce the
specific forfeiture provisions in the plea agreement" and
reasoning that Libretti's concession to forfeiture in the plea
agreement provided insufficient basis for the order of forfeiture.
App. 309. The court ordered a magistrate to conduct a hearing at
which Libretti would be given the opportunity to show, by a
preponderance of the evidence, that any portion of his property
was not subject to forfeiture. Upon motion by the Government, the
District Court stayed the proceedings before the Magistrate Judge
pending resolution of Libretti's appeal.

The Court of Appeals for the Tenth Circuit rejected both of
Libretti's challenges to the forfeiture order. 38 F.3d 523 (1994).
The court ruled first that the District Court lacked jurisdiction
to consider Libretti's claims to the property ordered forfeited at
the third-party hearing, because Libretti had filed a notice of
appeal. After noting the divergence in the Courts of Appeals
regarding the applicability of Rule 11(f) to forfeiture provisions
in plea agreements, the court rejected Libretti's contention that
Rule 11(f) requires a district court to ascertain a factual basis
for a stipulated forfeiture of assets. This conclusion, the Court
of Appeals reasoned, follows from the fact that forfeiture "is a
part of the sentence, not a part of the substantive offense." Id.,
at 528. The Court of Appeals also determined that Libretti had
waived his Rule 31(e) right to a jury determination of
forfeitability, despite the fact that the District Court did not
expressly advise Libretti of the existence and scope of that right
during his plea colloquy. Id., at 530-531. We granted certiorari
to resolve disagreement among the Circuits as to the applicability
of Rule 11(f) to asset forfeiture provisions contained in plea
agreements[FOOTNOTE 2] and the requisites for waiver of the right
to a jury determination of forfeitability under Rule
31(e).[FOOTNOTE 3] 514 U.S. ___ (1995).

II

Libretti insists that the District Court's forfeiture order must
be set aside (or at least modified), because the court neglected
to establish a "factual basis" for forfeiture of the property
covered by the order under Federal Rule of Criminal Procedure
11(f). Absent such a finding, Libretti argues, even his concession
to forfeiture in the plea agreement cannot authorize the
forfeiture.

A

Libretti's first claim is that the Rule by its very terms applies
to a forfeiture provision contained in a plea agreement.
Accordingly, our analysis must begin with the text of Rule 11(f):

"Determining Accuracy of Plea. Notwithstanding the acceptance of a
plea of guilty, the court should not enter a judgment upon such
plea without making such inquiry as shall satisfy it that there is
a factual basis for the plea."

By its plain terms, the Rule applies only to a "plea of guilty."
Our precedent makes clear that this language refers to a
defendant's admission of guilt of a substantive criminal offense
as charged in an indictment and his waiver of the right to a jury
determination on that charge. See, e.g., United States v. Broce,
488 U.S. 563, 570 (1989) ("By entering a plea of guilty, the
accused is not simply stating that he did the discrete acts
described in the indictment; he is admitting guilt of a
substantive crime"); North Carolina v. Alford, 400 U.S. 25, 32
(1970); Boykin v. Alabama, 395 U.S. 238, 242 (1969); McCarthy
v. United States, 394 U.S. 459, 466 (1969). With this definition in
mind, we have held that a district judge satisfies the
requirements of Rule 11(f) when he "determine[s] 'that the conduct
which the defendant admits constitutes the offense charged in the
indictment or information or an offense included therein to which
the defendant has pleaded guilty.'" Id., at 467 (quoting Advisory
Committee's Notes on Fed. Rule Crim. Proc. 11, 18 U.S.C. App.,
p.730).

A forfeiture provision embodied in a plea agreement is of an
entirely different nature. Forfeiture is an element of the
sentence imposed following conviction or, as here, a plea of
guilty, and thus falls outside the scope of Rule 11(f). The text
of the relevant statutory provisions makes clear that Congress
conceived of forfeiture as punishment for the commission of
various drug and racketeering crimes. A person convicted of
engaging in a continuing criminal enterprise "shall be sentenced .
section 848(a) (emphasis added). Forfeiture is imposed "in
addition to any other sentence." 21 U.S.C. section 853(a)
(emphasis added). See also 18 U.S.C. section 1963 (forfeiture is
imposed "in addition to any other sentence" for a violation of the
Racketeer Influenced and Corrupt Organizations Act (RICO)). The
legislative history of the Comprehensive Crime Control Act of
1984, Pub. L. 98-473, Tit. II, 98 Stat. 1976, also characterizes
criminal forfeiture as punishment. See, e.g., S. Rep. No. 98-225,
p. 193 (1983) (criminal forfeiture "is imposed as a sanction
against the defendant upon his conviction"). Congress plainly
intended forfeiture of assets to operate as punishment for
criminal conduct in violation of the federal drug and racketeering
laws, not as a separate substantive offense.

Our precedents have likewise characterized criminal forfeiture as
an aspect of punishment imposed following conviction of a
substantive criminal offense. In Alexander v. United States, 509
U.S. ___ (1993), we observed that the criminal forfeiture
authorized by the RICO forfeiture statute "is clearly a form of
monetary punishment no different, for Eighth Amendment purposes,
from a traditional 'fine.'" Id., at ___ (slip op., at 14).
Similarly, in United States v. $8,850, 461 U.S. 555 (1983), we
recognized that a "criminal proceeding . . . may often include
forfeiture as part of the sentence." Id., at 567. And in Austin v.
United States, 509 U.S. ___ (1993), we concluded that even the in
rem civil forfeiture authorized by 21 U.S.C. sections 881(a)(4)
and (a)(7) is punitive in nature, so that forfeiture imposed under
those subsections is subject to the limitations of the Eighth
Amendment's Excessive Fines Clause. 509 U.S., at ___ (slip op., at
16-20). Libretti himself conceded below that criminal forfeiture
"is a part of the sentence, not a part of the substantive
offense." 38 F.3d, at 528.

It is true, as Libretti points out, that we said in Caplin &
Drysdale, Chartered v. United States, 491 U.S. 617 (1989), that
"forfeiture is a substantive charge in the indictment against a
defendant." Id., at 628, n. 5. That statement responded to the
defendant's claim that his Sixth Amendment right to counsel "for
his defense" could be transformed into a defense to a forfeiture
count in the indictment. We intended only to suggest that a
defendant cannot escape an otherwise appropriate forfeiture
sanction by pointing to his need for counsel to represent him on
the underlying charges. Elsewhere in that opinion we recognized
that forfeiture is a "criminal sanction," id., at 634, and is
imposed as a sentence under section 853, id., at 620, n. 1.

Libretti nonetheless insists that the criminal forfeiture for
which section 853 provides is not "simply" an aspect of
sentencing, but is, in essence, a hybrid that shares elements of
both a substantive charge and a punishment imposed for criminal
activity. In support of this contention, Libretti points to three
Federal Rules of Criminal Procedure that, according to him, treat
forfeiture as a substantive criminal charge. Rule 7(c)(2) provides
that "[n]o judgment of forfeiture may be entered in a criminal
proceeding unless the indictment or the information shall allege
the extent of the interest or property subject to forfeiture." If
the indictment or information alleges that a defendant's property
is subject to forfeiture, "a special verdict shall be returned as
to the extent of the interest or property subject to forfeiture,
if any." Fed. Rule Crim. Proc. 31(e). And a finding of
forfeitability must be embodied in a judgment. Fed. Rule Crim.
Proc. 32(d)(2) ("[w]hen a verdict contains a finding of criminal
forfeiture, the judgment must authorize the Attorney General to
seize the interest or property subject to forfeiture on terms that
the court considers proper").

Although the procedural safeguards generated by these Rules are
unique in the realm of sentencing, they do not change the
fundamental nature of criminal forfeiture. The fact that the Rules
attach heightened procedural protections to imposition of criminal
forfeiture as punishment for certain types of criminal conduct
cannot alter the simple fact that forfeiture is precisely that:
punishment. The Advisory Committee's "assumption" that "the
amount of the interest or property subject to criminal forfeiture is an
element of the offense to be alleged and proved," Advisory
Committee's Notes on Fed. Rule Crim Proc. 31, 18 U.S.C. App.,
p. 786, does not persuade us otherwise. The Committee's assumption
runs counter to the weighty authority discussed above, all of
which indicates that criminal forfeiture is an element of the
sentence imposed for a violation of certain drug and racketeering
laws. Moreover, even supposing that the Committee's assumption is
authoritative evidence with respect to the amendments to Rules 7,
31, and 32, it has no bearing on the proper construction of Rule
11. Tome v. United States, 513 U.S. ___ (1995), is not to the
contrary. The Tome plurality treated the Advisory Committee's
Notes on Federal Rule of Evidence 801(d)(1)(B) as relevant
evidence of the drafters' intent as to the meaning of that Rule.
513 U.S., at ___-___ (slip op., at 9-12). In contrast, Libretti
seeks to use the Note appended to Rule 31 to elucidate the meaning
of an entirely distinct Rule. We cannot agree that the Advisory
Committee's Notes on the 1972 amendment to Rule 31(e) shed any
particular light on the meaning of the language of Rule 11(f),
which was added by amendment to Rule 11 in 1966.

B

Libretti next advances three policy arguments for construing Rule
11(f) to reach asset forfeiture provisions of plea agreements.
First, he claims, Rule 11(f)'s factual basis inquiry is essential
to ensuring that a forfeiture agreement is knowing and voluntary.
Next, Libretti declares that a Rule 11(f) inquiry will protect
against government overreaching. And lastly, Libretti insists that
a factual basis inquiry is necessary to ensure that the rights of
third-party claimants are fully protected. We consider these
contentions in turn.

We are unpersuaded that the Rule 11(f) inquiry is necessary to
guarantee that a forfeiture agreement is knowing and voluntary.
Whether a stipulated asset forfeiture is "factually based" is a
distinct inquiry from the question whether the defendant entered
an agreement to forfeit assets knowingly and voluntarily. Libretti
correctly points out that Rule 11(f) is intended to ensure that a
defendant's "plea of guilty" is knowing and voluntary. McCarthy,
394 U.S., at 472 (the Rule 11 inquiry is "designed to facilitate a
more accurate determination of the voluntariness of [a] plea");
Advisory Committee's Notes on Fed. Rule Crim. Proc. 11, 18
U.S.C. App., p. 730. (Rule 11(f) protects defendants who do not
"realiz[e] that [their] conduct does not actually fall within the
charge"). But a "plea of guilty" and a forfeiture provision
contained in a plea agreement are different matters altogether.
Forfeiture, as we have said, is a part of the sentence. If the
voluntariness of a defendant's concession to imposition of a
particular sentence is questionable, the relevant inquiry is
whether the sentencing stipulation was informed and uncoerced on
the part of the defendant, not whether it is factually sound.

Libretti's second argument-that a Rule 11(f) factual basis inquiry
is necessary to prevent prosecutorial overreaching-proves equally
unavailing. As Libretti properly observes, section 853 limits
forfeiture by establishing a factual nexus requirement: Only
drug-tainted assets may be forfeited. Libretti suggests that
failure to ensure, by means of a Rule 11(f) inquiry, that this
factual nexus exists will open the door to voluntary forfeiture
agreements that exceed the forfeiture authorized by statute,
particularly in light of the government's direct financial
interest in forfeiture as a source of revenue and the disparity in
bargaining power between the government and a defendant. We
recognized in Caplin & Drysdale that the broad forfeiture
provisions carry the potential for government abuse and "can be
devastating when used unjustly." 491 U.S., at 634. Nonetheless, we
con-cluded that "[c]ases involving particular abuses can be dealt
with individually by the lower courts, when (and if) any such
cases arise." Id., at 635. However valid Libretti's concern about
prosecutorial overreaching may be, Rule 11(f) simply does not, on
its face, address it.

We do not mean to suggest that a district court must simply accept
a defendant's agreement to forfeit property, particularly when
that agreement is not accompanied by a stipulation of facts
supporting forfeiture, or when the trial judge for other reasons
finds the agreement problematic. In this regard, we note that the
Department of Justice recently issued a Revised Policy Regarding
Forfeiture by Settlement and Plea Bargaining in Civil and Criminal
Actions, Directive 94-7 (Nov. 1994), to instruct that, among the
procedures necessary to ensure a valid forfeiture agreement,
"[t]he settlement to forfeit property must be in writing and the
defendant must concede facts supporting the forfeiture." Id., at
13. In this case, however, we need not determine the precise scope
of a district court's independent obligation, if any, to inquire
into the propriety of a stipulated asset forfeiture embodied in a
plea agreement. We note that the Sentencing Guidelines direct only
that a district court "may" accept an agreement reached by the
parties as to a specific, appropriate sentence, as long as the
sentence is within the applicable guideline range or departs from
that range "for justifiable reasons." United States Sentencing
Commission, Guidelines Manual section 6B1.2(c)(2) (Nov. 1993).
Libretti's plea agreement correctly recognized that the District
Court was not bound by the parties' agreement as to the
appropriate sentence: "[T]he sentencing judge is neither a party
to nor bound by this plea agreement and is free to impose whatever
sentence he feels is justified." App. 81, para.11.

Libretti finally argues that a Rule 11(f) factual basis inquiry is
essential to preserving third-party claimants' rights. A defendant
who has no interest in particular assets, the argument goes, will
have little if any incentive to resist forfeiture of those assets,
even if there is no statutory basis for their forfeiture. Once the
government has secured a stipulation as to forfeitability,
third-party claimants can establish their entitlement to return of
the assets only by means of the hearing afforded under 21 U.S.C.
section 853(n). This hearing, Libretti claims, is inadequate to
safeguard third-party rights, since the entry of a forfeiture
order deprives third-party claimants of the right to a jury trial
and reverses the burden of proof. He concludes that insisting on a
factual basis inquiry before entry of the forfeiture order will
lessen the need for third-party hearings following a broad-ranging
forfeiture agreement, and may even result in the conservation of
scarce judicial resources. Whatever the merits of this argument as
a matter of policy, Congress has determined that section 853(n),
rather than Rule 11(f), provides the means by which third-party
rights must be vindicated. Third-party claimants are not party to
Rule 11(f) proceedings, and Libretti's assertion that their
interests are best protected therein fits poorly within our
adversary system of justice.

C

Contrary to the suggestion of the dissent, post, at 4, the
District Court did not rest its forfeiture order on nothing more
than Libretti's stipulation that certain assets were forfeitable.
In fact, there is ample evidence that the District Court both
understood the statutory requisites for criminal forfeiture and
concluded that they were satisfied on the facts of this case at
the time the sentence was imposed. First, the District Judge
correctly recognized the factual nexus requirement established by
section 853. App. 89 (change-of-plea hearing) ("[I]t has to be the
product of a drug transaction to be forfeited"). Count 6 of the
indictment specified numerous items of property alleged to be
subject to forfeiture under that statute, including a parcel of
real property in Wyoming; two automobiles; over $100,000 in cash
proceeds from drug transactions; $12,000 in cash that Libretti had
stored inside a paint can at his home; a diamond ring; "[a]ll
United States currency and travelers checks" recovered from
Libretti's storage lockers, safes, home, and person; a mobile
home; a computer system; four bank accounts; two GNMA
investment certificates; bonds; three cashier's checks; and the contents
of two safe deposit boxes. Additional property was identified in a
bill of particulars and a restraining order issued, and
subsequently amended, by the District Court pursuant to 21 U.S.C.
section 853(e) ("[u]pon application of the United States, the
court may enter a restraining order . . . to preserve the
availability of property described in subsection (a) of this
section for forfeiture under this section"). After one week of
trial, the parties submitted to the court an agreement which set
out, in detail, specific items of property to be forfeited
following Libretti's plea of guilty, including "all real estate;
all personal property, including guns, the computer, and every
other item now in the possession of the United States; all bank
accounts, investments, retirement accounts, cash,cashier's checks,
travelers checks and funds of any kind." App. 81. The plea
agreement also explained that the maximum penalty for the offense
to which Libretti agreed to plead guilty included "forfeiture of
all known assets as prescribed in 21 U.S.C. section 853 and assets
which are discovered at any later time up to $1,500,000." App. 79.

Before issuing the order of forfeiture, the trial judge listened
to four days of testimony, in which government witnesses detailed
numerous drug transactions with Libretti. See, e.g., 2 Tr.
124-126, 137-139; 3 id., at 271-272; 4 id., at 495-501; 5 id., at
946-949. One witness recounted Libretti's purchase of a home in
1985 with a $100,000 down payment, at a time during which he was
earning an annual salary of approximately $20,000. 2 id., at
179-180, 210-216; App. 123 (Presentence Report, Prosecutor's
Statement para.6); Presentence Report para.37. Another told of
Libretti's purchase of a sports car with a check for $19,114. 5
Tr. 907-913. Other witnesses described Libretti's possession, in
his capacity as a federal firearms dealer, of numerous automatic
and semiautomatic firearms, later determined to be worth at least
$243,000. See, e.g., 2 id., at 140-141, 156-162; 5 id., at
844-853; App. 123 (Presentence Report, Prosecutor's Statement
para.9). One witness testified that Libretti admitted having
"quite a bit of money stashed away" in safe deposit boxes, 5 Tr.
834, and on at least one occasion had "a couple thousand" dollars
in cash "sitting around." Id., at 835. Other witnesses established
that Libretti often stored cash and drugs in safe deposit boxes
and storage facilities away from his home. See, e.g., 2 id., at
155-156; 4 id., at 718-720, 738-743. One of Libretti's drug
customers testified that he broke into a storage facility at which
Libretti had rented a storage locker and discovered a briefcase
containing a large amount of cash (later estimated in the
presentence report to be approximately $150,000), a large block of
cocaine, and five large trash bags, at least one of which was
filled with marijuana. Id., at 558-566, 588-589.

Prior to sentencing, the court received the presentence
investigation report, which contained, among other things, a
summary of Libretti's legitimate income during the relevant time
periods. During 1985 and 1986, Libretti worked as a restaurant and
grocery store manager, earning approximately $20,000 per year. In
early 1987, he was employed as a temporary stock broker and was
paid on commission only. Later that year, he managed a Tenneco
thrift store. In 1989, Libretti reported an income of
approximately $50,000 from his firearms business. During 1988 and
1989, Libretti also owned a partnership interest in two
condominiums; he reported that the rental income did not meet his
expenses and thus he did not earn a profit. Between June 1989 and
his arrest in December 1991, Libretti worked as a full-time
accounting supervisor, earning a salary of approximately $40,000
per year. Presentence Report para.para.35-37.

Included in the presentence report was a Prosecutor's Statement
detailing the amounts of cocaine and marijuana involved in
Libretti's drug operation and various sums of money Libretti
earned from his drug dealing. App. 122-135. The Statement
described Libretti's substantial expenditures, including the
$100,000 cash deposit on a house in 1985 ($72,000 of which was
derived from Libretti's sale of drugs) and the purchase of a
$20,000 mortgage in 1986 (again, allegedly with proceeds from his
distribution of drugs). Id., at 123. Paragraph 12 reported that
Libretti had opened a safe deposit box in 1987 in which he placed
$48,000 in cash. On another occasion, Libretti placed
approximately $10,000 into an account bearing his brother's name.
Id., at 124-125. The Statement described Libretti's practice of
storing large amounts of cash and drugs in safes, storage lockers,
and safe deposit boxes. Id., at 124, 129. Libretti also stored
drugs, a weapon, and a cashier's check for $65,000 in his personal
locker at his place of employment. Id., at 129. The Statement
related Libretti's investment of at least $243,000 in numerous
firearms. Id., at 123-124. These funds again reportedly derived
from Libretti's drug distribution activities; the Statement
indicated that "Libretti's gun business was used to launder drug
proceeds" and served as a means by which Libretti could "justify
his income since [he] was not working at times during the
conspiracy and, when he was working, was not bringing in the
money that would pay for the Lakewood house and other
investments."
Id., at 127. Finally, the Statement suggested that substantial sums of
cash derived from Libretti's drug activities were never recovered
by law enforcement authorities. Id., at 134. Defense counsel
conceded at the sentencing hearing that "the [presentence] report
of Mr. Libretti's background, education, financial circumstances
are [sic] accurate." Id., at 138. In light of these facts, defense
counsel acknowledged that "the forfeiture is going to take regular
money and illegal money under the substitute assets" provision of
section 853. Id., at 149.

In view of the plea agreement, the indictment, and the amended
restraining order, the trial judge issued an order forfeiting to
the government the Wyoming lot, both condominiums, both
automobiles, $8,000 in cash proceeds of Libretti's drug
transactions, the diamond ring, the mobile home, all firearms, an
IRA account, three bank accounts, bonds, two GNMA certificates,
and several cashier's and traveler's checks. One check was ordered
forfeited as a substitute asset "for assets dissipated and
otherwise expended by Libretti." Id., at 162.

It is not, as Libretti maintains, implausible that the court
concluded on the record before it that the forfeiture order was
appropriate. Following Libretti's objection to the forfeiture
order for lack of factual foundation, the trial judge replied that
"the evidence that I heard before me in the two [sic] days of
trial I think is sufficient to warrant the granting of
forfeiture." Id., at 154. We cannot say that the District Judge,
despite his subsequent uncertainty, erred in issuing the
forfeiture order on the facts before him.

III

Libretti also challenges the adequacy of his waiver of a jury
determination as to the forfeitability of his property under
Federal Rule of Criminal Procedure 31(e). The right, he argues,
has both a constitutional and a statutory foundation, and cannot
be waived absent specific advice from the district court as to the
nature and scope of this right and an express, written agreementto
forgo the jury determination on forfeitability. We disagree.

Federal Rule of Criminal Procedure 31(e) provides that, "[i]f the
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." Libretti would have us equate this statutory
right to a jury determination of forfeitability with the familiar
Sixth Amendment right to a jury determination of guilt or
innocence. See, e.g., United States v. Gaudin, 515 U.S. ___, ___
(1995) (slip op., at 5) ("The Constitution gives a criminal
defendant the right to demand that a jury find him guilty of all
the elements of the crime with which he is charged"). Without
disparaging the importance of the right provided by Rule 31(e),
our analysis of the nature of criminal forfeiture as an aspect of
sentencing compels the conclusion that the right to a jury verdict
on forfeitability does not fall within the Sixth Amendment's
constitutional protection. Our cases have made abundantly clear
that a defendant does not enjoy a constitutional right to a jury
determination as to the appropriate sentence to be imposed. See,
e.g., McMillan v. Pennsylvania, 477 U.S. 79, 93 (1986) ("[T]here
is no Sixth Amendment right to jury sentencing, even where the
sentence turns on specific findings of fact"); Cabana v. Bullock,
474 U.S. 376, 385 (1986) ("The decision whether a particular
punishment . . . is appropriate in any given case is not one that
we have ever required to be made by a jury"); Spaziano v. Florida,
468 U.S. 447, 459 (1984) (no right to a jury determination as to
the imposition of the death penalty).

Given that the right to a jury determination of forfeitability is
merely statutory in origin, we do not accept Libretti's suggestion
that the plea agreement must make specific reference to Rule
31(e). Nor must the district court specifically advise a defendant
that a plea of guilty will result in waiver of the Rule 31(e)
right. Federal Rule of Criminal Procedure 11(c) details the
information a district court must communicate to a defendant in
order to ensure that a guilty plea is valid. Advisory Committee's
Notes on 1974 Amendment of Fed. Rule Crim. Proc. 11(c), 18
U.S.C. App., p. 731 (the Rule "codifies . . . the requirements of
Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274
(1969), which held that a defendant must be apprised of the fact that
he relinquishes certain constitutional rights by pleading guilty")
(emphasis added). Specific advice regarding the Rule 31(e) ly
objected to resolution of forfeiture issues by the court without a
jury. See, e.g., id., at 150, 154.

In addition, Libretti was represented by counsel at all stages of
trial and sentencing. Apart from the small class of rights that
require specific advice from the court under Rule 11(c), it is the
responsibility of defense counsel to inform a defendant of the
advantages and disadvantages of a plea agreement and the attendant
statutory and constitutional rights that a guilty plea would
forgo. Libretti has made no claim of ineffectiveness of counsel
before this Court. As we noted in Broce, "[a] failure by counsel
to provide advice may form the basis of a claim of ineffective
assistance of counsel, but absent such a claim it cannot serve as
the predicate for setting aside a valid plea." Broce, 488 U.S., at
574.

Of course, a district judge must not mislead a defendant regarding
the procedures to be followed in determining whether the
forfeiture contemplated in a plea agreement will be imposed, nor
should the court permit a defendant's obvious confusion about
those procedures to stand uncorrected. On this record, however, we
find no hint that Libretti labored under any misapprehension.
Although the District Judge did not spell out for Libretti that,
had he declined to enter a plea of guilty, and had the trial gone
forward, the jury would eventually have been required to determine
which of Libretti's assets were forfeitable, when viewed in its
entirety, the plea colloquy made it abundantly clear that the plea
agreement would end any proceedings before the jury and would
lead directly to sentencing by the court. As the Court of Appeals
observed, "there is no evidence at [the change-of-plea] hearing
that [Libretti] wanted a jury trial on the forfeiture issue, or
thought he was going to have one." 38 F.3d, at 531. Taken
together, the plea agreement and the plea colloquy waived
Libretti's right to insist on a jury determination of
forfeitability under Rule 31(e).

IV

For these reasons, we reject Libretti's challenges to the District
Court's forfeiture order. Under the plain language of Rule 11(f),
the District Court is not obliged to inquire into the factual
basis for a stipulated forfeiture of assets embodied in a plea
agreement. And because Libretti agreed to this forfeiture and
waived his "right to a jury trial," he cannot now complain that he
did not receive the special jury verdict on forfeitability for
which Rule 31(e) provides. Accordingly, the judgment of the Court
of Appeals is affirmed.

It is so ordered.

JUSTICE SOUTER, concurring in part and concurring in the
judgment.

I join in the judgment and Parts I and II of the Court's opinion.
I would not reach the question of a Sixth Amendment right to trial
by jury on the scope of forfeiture or whether the Constitution
obliges a trial court to advise a defendant of whatever jury trial
right he may have. In cases like this one, any such right to
instruction will be satisfied by the court's obligatory advice to
the defendant of the right to jury trial generally. See Fed. Rule
Crim. Proc. 11(c)(3) ("Before accepting a plea of guilty . . . the
court must address the defendant personally in open court and
inform the defendant of, and determine that the defendant
understands . . . that the defendant has . . . the right to be
tried by a jury"). It is reasonable to understand the scope of the
right as covering all matters charged in the indictment, which
under Rule 7(c)(2) will include the forfeiture claim. Since a
defendant will have been provided a copy of the indictment, see
Fed. Rule Crim. Proc. 10 ("The defendant shall be given a copy of
the indictment or information before being called upon to plead"),
and will have heard it read or summarized, see ibid. ("Arraignment
shall be conducted in open court and shall consist of reading the
indictment or information to the defendant or stating to the
defendant the substance of the charge"), he will naturally
understand that his right to jury trial covers a verdict on the
forfeiture claim.

If, in speaking to the defendant or in other statements within his
hearing, the court should affirmatively say or suggest that the
right to jury trial would not extend to the forfeiture, that would
be error under the current law, whatever the constitutional status
of that right may be. While there is some reason to argue that the
court's colloquy with the defendant in this case was misleading,
see App. 87 ("if you plead guilty . . . . the jury is not going to
decide whether you're guilty or not"), I think Justice Ginsburg is
right to conclude otherwise, for the reasons given in her separate
opinion.

JUSTICE GINSBURG, concurring in the judgment and in Parts I
and II of the opinion.

Rule 11(f), I agree for reasons the Court states, does not impose
on district courts an obligation to find a "factual basis" for
asset forfeitures stipulated in a plea agreement. But the
jury-trial right for which Rule 31(e) provides, as I see it, must
be known in order to be given up voluntarily. I therefore set out
briefly my view of the second issue the Court decides.

At the plea hearing, the District Court carefully and
comprehensively informed Libretti that his guilty plea would waive
his right to jury trial on the crimes charged in the indictment.
The court did not then refer to the unusual jury-trial right on
criminal forfeiture provided by Rule 31(e) of the Federal Rules of
Criminal Procedure:

"If the 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."

See also Fed. Rule Crim. Proc. 7(c)(2) ("No judgment of forfeiture
may be entered in a criminal proceeding unless the indictment or
the information shall allege the extent of the interest or
property subject to forfeiture"); Fed. Rule Crim. Proc. 11(c)(1)
(court must address defendant personally in open court and inform
him of "the nature of the charge" when plea of guilty is offered).

Just as intelligent waiver of trial by jury on the underlying
offense requires that the defendant be advised of the right, so
waiver of the extraordinary jury-trial right on forfeiture should
turn on the defendant's awareness of the right his plea will
override. That right, uncommon as it is, may not be brought home
to a defendant through a bare reading of the forfeiture clause in
the indictment. Clarity, however, is easily achieved. In cases
like Libretti's, trial judges can readily avoid unknowing
relinquishment of the procedural right to a jury verdict on
forfeiture by routinely apprising defendants, at plea hearings, of
Rule 31(e)'s atypical special-verdict requirement.

Failure to mention Rule 31(e) at Libretti's plea hearing is not
cause for revisiting the forfeiture of his property, however,
because at least two pretrial references were made to Rule 31(e)'s
requirement. First, there was a brief exchange between court and
counsel on the need for a special-verdict form. 1 Tr. 8. Second,
and more informative, the trial judge explained to the jurors
during voir dire that the indictment included

"a provision for a forfeiture of all property of any kind
constituting or derived from proceeds that Mr. Libretti received
directly or indirectly from engaging in said continuing criminal
enterprise. And that's a subject matter on which the jury will be
required at the end of the case to answer a specific question
relating to it." Id., at 188.

In view of this statement to the lay triers-telling them in
Libretti's presence that they would be called upon specifically to
decide the matter of forfeiture-Libretti cannot persuasively plead
ignorance of the special-verdict right Rule 31(e) prescribes.

JUSTICE STEVENS, dissenting.

While I agree with the Court's conclusions (1) that Federal Rule
of Criminal Procedure 11(f) does not create a duty to determine
that there is a factual basis for a forfeiture of assets pursuant
to 21 U.S.C. section 853 and (2) that the record in this case does
establish a factual basis for forfeiting the assets described in
Count 6 of the indictment, I believe it important to emphasize the
underlying proposition that the law-rather than any agreement
between the parties-defines the limits on the district court's
authority to forfeit a defendant's property. Moreover, entirely
apart from Rule 11(f), the district court has a legal obligation
to determine that there is a factual basis for the judgment
entered upon a guilty plea. For that reason, the Court of Appeals
was plainly wrong in holding that simply because the defendant
unequivocally agreed to "'forfeit all property,'" the law
authorized the forfeiture of all of his assets. 38 F.3d 523, 526
(CA10 1994).

The facts of this case well illustrate the particular need for the
district court to determine independently that a factual basis
supports forfeiture judgments that it enters pursuant to plea
agreements. As the Court correctly notes, this defendant received
a favorable plea agreement. The record demonstrates that the facts
would have supported a much longer term of imprisonment than was
actually imposed. In such circumstance, it is not unthinkable that
a wealthy defendant might bargain for a light sentence by
voluntarily "forfeiting" property to which the government had no
statutory entitlement. This, of course, is not the law. No matter
what a defendant may be willing to pay for a favorable sentence,
the law defines the outer boundaries of a permissible forfeiture.
A court is not free to exceed those boundaries solely because a
defendant has agreed to permit it to do so. As Judge Cudahy aptly
put it, "[t]he mere fact that the defendant has agreed that an
item is forfeitable, in a plea agreement, does not make it so."
United States v. Roberts, 749 F.2d 404, 409 (CA7 1984).

The proposition that the law alone defines the limits of a court's
power to enter a judgment can be traced to this Court's early
precedents. In Bigelow v. Forrest, the Court explained that a
court "transcend[s] its jurisdiction" when it orders the
forfeiture of property beyond that authorized by statute. 9 Wall.
339, 351 (1870). In a similar vein, Ex parte Lange concluded that
a judgment imposing punishment in excess of statutory
authorization is not merely voidable, but "void." 18 Wall. 163,
178 (1874). Precisely because extrastatutory punishments implicate
the very power of a court to act, the district court must,
entirely apart from the specific procedure mandated by Rule 11(f),
satisfy itself that there is a factual basis for any judgment
entered pursuant to a guilty plea that threatens to exceed
statutory bounds.[FOOTNOTE 1] Were a court to do otherwise, it
would permit the parties to define the limits of its power.

In sum, Rule 11(f) does not create a substantive right. Instead,
it prescribes a procedure that is intended to protect every
defendant's pre-existing right not to receive any sentence beyond
statutorily prescribed limits. Rule 11(f) states that if there is
no factual basis for the guilty plea, the court has no power to
"enter a judgment upon such plea . . . ." In so stating, the Rule
does not impliedly authorize courts to impose sentences upon a
plea of guilty greater than the maximum prescribed for the
admitted offense. The pre-existing substantive limits on the
court's power to impose a judgment upon a plea of guilty, which
apply to the forfeiture aspect of the judgment as well as to the
finding of guilt, preclude such a result. Nothing in the Rule
suggests otherwise.

Because the foregoing thoughts are implicit in this Court's
independent examination of the record to assure itself that there
is indeed a factual basis for the forfeiture of the property
described in Count 6, and for the further conclusion that the
forfeiture order does not extend beyond the line that the law has
drawn, I endorse almost all of the Court's opinion. Nevertheless,
I do not agree with the Court's disposition of the case because I
believe the opinion of the Court of Appeals can fairly be read to
approve of the forfeiture of all petitioner's property, rather
than just the assets described in Count 6.[FOOTNOTE 2]

Although the majority marshals ample support for much of the
forfeiture authorized here, the record simply does not provide a
factual basis for the whole of it. For example, nothing in the
Court's opinion provides a basis for concluding that the small
bank account that petitioner opened while a young boy, and which
had not been augmented since 1975, should be subject to
forfeiture. Nor can all of his assets necessarily be deemed
subject to forfeiture as "substitute assets." As the Court
recognizes, the District Court determined that only one check was
subject to forfeiture on that basis. Ante, at 18.

The sole basis for the wholesale forfeiture affirmed here stems
from one paragraph in the defendant's plea agreement which states
his willingness to "transfer his right, title, and interest in all
of his assets to the Division of Criminal Investigation of the
Wyoming Attorney General."[FOOTNOTE 3] App. 81. As I have
explained, however, a defendant's bare stipulation does not
determine what property a court may forfeit. The district court
must independently make that determination. Here, the record
reveals that the District Court had not determined that a factual
basis existed for the sweeping forfeiture it ordered. Indeed, the
District Court subsequently sought to hold a hearing for the very
purpose of determining whether a factual basis existed. The
District Court was precluded from undertaking that necessary
inquiry only because this pro se petitioner filed an early notice
of appeal that divested the court of jurisdiction. However, that
jurisdictional bar did not, and could not, relieve the District
Court of its prior duty to find a factual basis for its forfeiture
judgment.

Because the District Court had not assured itself that its
judgment fell within the bounds established by law, and because
the record does not support the conclusion that it did, I would
vacate and remand for further proceedings consistent with this
opinion.

:::::::::::::::::::: FOOTNOTES ::::::::::::::::::::

FN* JUSTICE SCALIA and JUSTICE THOMAS join all but Parts
II-B and II-C of this opinion. JUSTICE SOUTER and JUSTICE
GINSBURG join only Parts I and II.

FN1. Section 853(a) provides for criminal forfeiture of
drug-tainted property:

"(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
suchviolation;

"(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 of 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."

In addition, section 853(p) provides that, when property subject
to forfeiture under subsection (a) cannot be recovered for various
reasons, "the court shall order the forfeiture of any other
property of the defendant up to the value of" the forfeitable but
unrecoverable assets.

FN2. Compare United States v. Reckmeyer, 786 F.2d 1216, 1222
(CA4) (Rule 11(f) applies to forfeiture provisions in plea agreements),
cert. denied, 479 U.S. 850 (1986), and United States v. Roberts,
749 F.2d 404, 409 (CA7 1984) (same), cert. denied, 470 U.S. 1058
(1985), with United States v. Boatner, 966 F.2d 1575, 1581 (CA11
1992) (Rule 11(f) does not apply to stipulated forfeiture
provisions in plea agreements), United States v. Bachynsky, 949
F.2d 722, 730-731 (CA5 1991) (Rule 11(f) does not apply to
forfeiture provisions, but a forfeiture order will be upheld only
if the record provides a factual basis for forfeiture), cert.
denied, 506 U.S. 850 (1992), and 38 F.3d 523, 528 (CA10 1994)
(case below).

FN3. Compare, e.g., id., at 38 F.3d, at 531 ("specific reference
to" the Rule 31(e) right to a special jury verdict is not required
when a defendant's "unambiguous plea agreement" and "knowing
and voluntary plea" establish waiver); United States v. Robinson, 8
F.3d 418, 421 (CA7 1993) ("a defendant's waiver of his statutory
right [under Rule 31(e)] to have a jury determine which portion of
his property is subject to forfeiture is only valid if knowingly
and voluntarily made"); United States v. Garrett, 727 F.2d 1003,
1012 (CA11 1984) (a defendant has a constitutional right to a jury
trial to determine forfeitability; waiver of that right must be in
writing), aff'd on other grounds, 471 U.S. 773 (1985); United
States v. Zang, 703 F.2d 1186, 1194-1195 (CA10 1982) ("[t]he
parties can waive their right to a special verdict [under Rule
31(e)] by not making a timely request"), cert. denied, 464 U.S.
828 (1983).

FN1. Of course, the court's power to act is not similarly
implicated when it imposes a sentence that is arguably erroneous
but nonetheless within the range authorized by statute.

FN2. Moreover, I agree with Justice Ginsburg that the jury trial
right which Rule 31(e) provides must be known in order to be given
up voluntarily.

FN3. The record does not make clear why the property would be
transferred to state, rather than federal, law enforcement
authorities.