Women Criminal Defense Attorneys: U.S. Supreme Court to Hear U.S. v. Kaley and Address Pretrial Restraint of Assets

Just last month, the United States Supreme Court granted writ of certiorari in U.S. v Kaley, an important case out of the United States Court of Appeals for the Eleventh Circuit relating to pretrial seizure of assets.  It will be argued by one of our colleagues here in Miami, Howard Srebnick, who has championed this client’s cause from the outset.  Howard Srebnick and Richard Strafer filed the brief.

This is a significant case from many perspectives.  The case involves a challenge to the pretrial seizure of assets by the Government that prevents a defendant from being able to hire counsel of choice.  At the heart of the case is whether or not a defendant is entitled to challenge the merits of the evidence supporting a seizure of assets before trial and post-Indictment.

There is a split in the Circuits regarding whether allowing a post-restraint of assets hearing creates an undue burden on the Government after the grand jury has already made a probable cause determination.  The Eleventh Circuit found that it does place an undue burden on the Government’s interests, because they have to choose between prematurely revealing their evidence when a grand jury has already found probable cause, or foregoing a right created by Congress to seek pretrial restraint of assets. Other Circuits such as the Second Circuit have found that this imposes no real burden on the Government, because they can simply decide to forgo pretrial restraint and seek forfeiture after conviction, thereby alleviating any such burden.

Pretrial restraint of assets can have a devastating effect on a client’s ability to defend against a Government Indictment.  Having access to funds to quickly hire counsel of choice, as well as investigators, paralegals, or experts is vital when you’re up against an opponent like the U.S. Government.  The Government has endless resources in manpower and funds, which makes this kind of restraint that much more harmful if left unchecked.  The grand jury process, as we all know, is one sided-- and an adversarial challenge to evidence relied upon to restrain assets pretrial should be a fundamental right.

The criminal defense bar is skittish, rightfully so, about money… especially when the Government is taking the position that the money is tainted.  But we must remember that these kinds of seizures are as much a violation of our clients’ rights as any other seizure; with sometimes far more devastating consequences.  The unchecked power of the Government to restrain assets pretrial can effectively cut a client off at the knees.  It is hard to fight Goliath when you are fatally injured before the fight begins.  I will certainly be watching the Kaley case. It’s a reminder that as criminal defense attorneys, men and women alike, we cannot give up on any fight that affects our clients’ rights.