138
Scalia, J., concurring in judgment
I think the result reached today is correct because the relation-back principle recited in § 881(h) is the familiar, traditional one, and the term "owner" in § 881(a)(6) bears its ordinary meaning.
II
I cannot join the plurality's conclusion that respondent has assumed the burden of proving that "she had no knowledge of the alleged source of Brenna's gift in 1982, when she received it." Ante, at 130. To support this, the plurality cites a passage from respondent's brief taking the position that the owner's lack of knowledge of the criminal activity should be tested "at the time of the transfer," Brief for Respondent 37-38. The fact of the matter is that both parties took positions before this Court that may be against their interests on remand. The Government may find inconvenient its contention that "the statutory test for innocence . . . looks to the claimant's awareness of the illegal acts giving rise to forfeiture at the time they occur." Reply Brief for United States 8. Which, if either, party will be estopped from changing position is an issue that we should not address for two simple reasons: (1) Neither party has yet attempted to change position. (2) The issue is not fairly included within the question on which the Court granted certiorari. (That question was, "Whether a person who receives a gift of money derived from drug trafficking and uses that money to purchase real property is entitled to assert an 'innocent owner' defense in an action seeking civil forfeiture of the real prop-protects only the rights of "owners," and has an express relation-back provision. See 18 U. S. C. §§ 2254(a), 2254(g) (1988 ed. and Supp. III). Under the Government's view, whenever the United States would be unable to obtain property through the criminal forfeiture mechanism because of the innocent-"transferee" defense, it could simply move against the same property in a civil forfeiture proceeding, which gives a defense only to "owners." See also 18 U. S. C. § 981 (1988 ed. and Supp. III) (civil forfeiture provision); 18 U. S. C. § 982 (1988 ed., Supp. III) (parallel criminal forfeiture statute incorporating by reference the procedures in 21 U. S. C. § 853).
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