If you’re a criminal defense attorney in South Florida, you’re well aware that everything is harder for you in Federal court. Not only do your clients have a high likelihood of being detained pre-trial without bond, but the Government might even move, pre-trial, to restrain assets which might otherwise be used to retain counsel. In April, the Eleventh Circuit issued an opinion in United States v. Kaley which not only affirms the right of the Government to restrain assets pre-trial, but also prohibits the defense from challenging the Government’s evidentiary support and legal theory to do so. If you practice in the jurisdiction of the Eleventh Circuit, take a few minutes to read it. And don’t forget to read the concurrence by Judge Edmondson, since it reads more like a dissent than a concurrence. Overall, the opinion gives you a lot to think about in terms of the right to counsel, the right to counsel of choice, and allowing the defense a fair shot at challenging the Government’s use of power.
After reading the opinion, you might feel dejected. After all, here’s yet another pro-Government opinion issued by the Eleventh Circuit. But wait- there might be hope! The United States accepted cert in the Kaley case on March 18, 2013, and issued the following Question Presented:
12-464 KALEY V. UNITED STATESDECISION BELOW: 677 F.3d 1316CERT. GRANTED 3/18/2013LOWER COURT CASE NUMBER: 10-15048QUESTION PRESENTED:Title 18 U.S.C. § 853(e) authorizes a district court, upon an ex parte motion of the United States, to restrain an indicted defendant’s assets that are subject to forfeiture upon conviction. The statute does not provide for a post-restraint, pretrial adversarial hearing at which the indicted defendant may challenge the propriety of the restraints.In United States v. Monsanto, 491 U.S. 600 (1989), this Court rejected a Fifth and Sixth Amendment challenge to the restraint of an indicted defendant’s assets needed to pay counsel of choice but, in a footnote, explicitly left open the question -by then already dividing the circuits -”whether the Due Process Clause requires a hearing before a pretrial restraining order can be imposed.” Id. at 615 n.10.Since 1989, the circuit courts have continued to wrestle with the issue, producing a firmly entrenched split among the eleven circuits that have addressed it. Acknowledging the widespread conflict, the Eleventh Circuit held that assets needed to retain counsel of choice may remain frozen through trial based solely on a restraining order obtained ex parte, despite a defendant’s timely demand for a hearing to challenge the viability of the charges and forfeiture counts that purportedly justify the pretrial restraint. United States v. Kaley, 677 F.3d 1316 (11th Cir. April 26, 2013) (“Kaley II”), App. 1-31.Thus, the question presented in this petition, which would resolve a split in the circuits,is:When a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, do the Fifth and Sixth Amendments require a pretrial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges?