54
Stevens, J., dissenting
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
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