# United States v. Richard H. Thier

> Court of Appeals for the Fifth Circuit · January 27, 1987 · 801 F.2d 1463

URL: https://www.frixlaw.com/law-library/cases/9475402

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Richard H. THIER, Defendant-Appellant
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** January 27, 1987
- **Citations:** 801 F.2d 1463
- **Precedential status:** Published
- **Opinion:** Concurrence by Rubin
- **Judges:** Clark, Rubin, Garza
- **Cited by:** 57 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Questioned by United States v. Holy Land Foundation for Relief, 493 F.3d 469 (2006).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9475402

## Opinion text

ALVIN B. RUBIN, Circuit Judge,
concurring.
Although I agree with the result reached by the majority, I would require the district court to permit the defendant access to sufficient funds to pay the reasonable costs of his defense and necessary living expenses for himself and his family unless the government can show a compelling reason why this should not be done.
“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” 1 What constitutes a “meaningful” hearing fulfilling the requirements of due process depends, of course, upon the nature of the case. 2 “Where only property rights are involved, mere postponement of ... judicial equity is not a denial of due process, if the opportunity given for the ultimate judicial determination of the liability is adequate.” 3 Indeed, when governmental interests are powerful enough, property may be withheld by the state temporarily before any adversary hearing at all. 4
Due process is not a procedural absolute. What is required may depend on the weight of the interests involved. The Government certainly has a valid interest in assuring that funds illegally obtained are not laundered or secreted between the time a defendant is indicted and the time when his criminality is determined by actual conviction. This is sufficiently important to weigh heavily in deciding what due process requires when the Government seeks to protect its interest. But due process must be determined on a scale whose balances weigh both sides, not simply the Government’s interest. The scale must also weigh the private interests of the affected individual, the risk of an erroneous deprivation of that interest under the procedures used, and the probable value and additional costs, *1476 if any, of additional or substitute procedural safeguards. 5
The Government contends that all the assets it has asked the courts to freeze are not Thier’s property but the Government’s. The Government, however, has no right to the property to which Thier now has legal title unless it establishes both his guilt of engaging in a continuing criminal enterprise and the fact that the property it seeks to forfeit has been derived from criminal activity. 6 Whether it can do so remains to be seen. Although the Government argues persuasively that, for purposes of obtaining a restraining order freezing an accused’s apparently ill-gotten assets until trial, the Government should not be required to meet the heavy burden of proof it will ultimately face at trial, the balance of hardship shifts substantially when the Government seeks to freeze all of an accused’s known assets, including those necessary to provide the accused with counsel and sustenance for himself and his family.
Even with the procedural safeguards my colleagues properly require, the right of an accused person to an adequate defense and sustenance of his family depend upon the discretion of the trial judge. If the district court sees fit, on the basis merely of its apparently unfettered judgment, the prosecution may thus exact from a person who has been charged with violating 21 U.S.C. § 848 a pretrial punishment more stringent than arrest, for an arrested person can at least employ counsel and is housed and fed by the government.
If Thier has no money to buy food or to pay for housing, he might waive his right to release on bail and go to jail, but he still could not employ counsel and his family would remain stripped of all means of support — without even the option of reporting to jail — though accused of no crime. That the mere fact of an indictment accompanied by the affidavit of a prosecutor can accomplish these results should shock the judicial conscience at least as much as does the assertion that the prosecution may pump the stomach of an accused person in order to obtain evidence. 7
Due process also requires the appointment of counsel for every indigent person accused of a crime, but courts appoint lawyers of average competence who typically have little experience in complex cases. No one would wish to be represented by appointed counsel in a case of this nature. Preparation for trial can be expected to require months of work. This defendant, made indigent by government action, should not be dependent on the list of those available for routine cases. 8 The tool of the restraining order, thus put into the hands of the prosecution, gives the Government the power to exclude vigorous and specialized defense counsel. While the majority’s opinion blunts that tool by giving the accused an opportunity to invoke the district court’s discretion, I would not make either the sustenance of the defendant and his family or the defendant’s right to retain counsel so dependent.
The fact that Thier has been indicted is no evidence of his guilt. Like all others in this free nation, he is presumed innocent, whatever the Government charges. In the absence of exceptional circumstances, the Government may not even search private property without obtaining a warrant from an impartial magistrate based on a showing of probable cause. The restraining order in this case imposes an even more stringent penalty without such a determination, for despite the statutory declaration to the contrary, a grand jury indictment is not equivalent to a determination of probable cause by an impartial judicial officer. Indictments are notoriously easy to obtain, and grand juries today offer little protection against unwarranted prosecution.
*1477 The Government seeks a restraining order freezing all of the accused’s property, including not only specified assets but also “all monies in [his] possesion, custody or control,” which presumably includes the contents of his billfold and the change in his pockets. I would require the Government to submit proof that the accused will not be left without adequate means to retain vigorous counsel and to provide basic sustenance for himself and his dependents. In instances in which such proof cannot be made, the virtual confiscation of an accused’s property — though temporary and accompanied by fair notice and a timely hearing — is so unconscionable as to deprive the accused of substantive due process however it is accomplished procedurally. This is indeed punishment before conviction and before trial.
Even our system of civil justice rests on the adversary process. In a criminal trial that process is paramount. The Government should not be permitted to cripple the defendant at the outset of the struggle by depriving him of the funds he needs to retain counsel and to provide food for himself and his family. Even in the war against crime, due process forbids terrorism. While I welcome the safeguard of judicial discretion, I would set a standard that would guarantee the accused fundamental fairness in the resolution of his dispute with the Government by assuring him minimal funds, reasonable in amount and subject to the court’s scrutiny, to employ counsel and to pay essential living expenses until the Government has proved its claim.
. Mathews v. Eldridge, 424 U.S. 319, 333 , 96 S.Ct. 893, 902 , 47 L.Ed.2d 18 (1976), quoting Armstrong v. Manzo, 380 U.S. 545, 552 , 85 S.Ct. 1187, 1191 , 14 L.Ed.2d 62 (1965).
. Morrissey v. Brewer, 408 U.S. 471, 481 , 92 S.Ct. 2593, 2600 , 33 L.Ed.2d 484 (1972); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 , 70 S.Ct. 652, 656 , 94 L.Ed. 865 (1950).
. Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 596-97 , 51 S.Ct. 608, 611 , 75 L.Ed. 1289 (1931). See also Springer v. United States, 102 U.S. (12 Otto) 586, 593, 26 L.Ed, 253 (1880); Scottish Union & National Insurance Co. v. Bowland, 196 U.S. 611, 631 , 25 S.Ct. 345 , 49 L.Ed. 619 (1905).
. Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976).
. Mathews v. Eldridge, 425 U.S. at 334-35, 96 S.Ct. at 903 (1976); Cafeteria & Restaurant Workers Local 473 v. McElroy, 367 U.S. 886, 895 , 81 S.Ct. 1743, 1748-49 , 6 L.Ed.2d 1230 (1961).
. See 21 U.S.C. § 848 .
. Rochin v. California, 342 U.S. 165, 172 , 72 S.Ct. 205, 209 , 96 L.Ed. 183 (1952).
. Note, The Taxpayer’s Right to Counsel in Jeopardy Assessments, 56 Tex.L.Rev. 883 (1978).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9475402. Public record. Not legal advice.