136
Scalia, J., concurring in judgment
the right of the United States to institute an "action to recover" a forfeiture.2
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" provisions—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 criminal convictions, uses the term "transferee"—not "owner"—to protect the interests of persons who acquire property after the illegal act has occurred.3 The Government 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 forfeitures. The real explanation, I think, is that the term "owner" could not accurately be used in the context of
2 Section 881(d) provides that the customs procedures are applicable only to the extent "not inconsistent with the provisions [of § 881]"—so one might argue that the provisions I have discussed in this paragraph, to the extent contrary to the Government's interpretation of § 881(h), are simply inapplicable. That disposition is theoretically possible but not likely, since it produces massive displacement of not merely the details but the fundamental structure of the referenced forfeiture procedures.
3 Title 21 U. S. C. § 853(c) provides: "All right, title, and interest in property described in subsection (a) of this section vests in the United States upon the commission of the act giving rise to forfeiture under this section. Any such property that is subsequently transferred to a person other than the defendant may be the subject of a special verdict of forfeiture and thereafter shall be ordered forfeited to the United States, unless the transferee establishes in a hearing pursuant to subsection (n) of this section that he is a bona fide purchaser for value of such property who at the time of purchase was reasonably without cause to believe that the property was subject to forfeiture under this section."
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