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Criminal Forfeiture Laws

By Robert J. Anello

The government's ability to freeze a defendant's assets pursuant to 21 U.S.C. Section 853(e) before trial and the resulting impact on the defendant's constitutional right to counsel of his choice is currently before the Supreme Court in Kaley v. United States, 12-464 (Oct. 15, 2012). That case focuses on whether defendants who need potentially forfeitable money to hire counsel are entitled to challenge the evidentiary support and legal theory of the underlying charges at a pretrial hearing or are limited to challenging the determination that the restrained assets are connected to the alleged criminal activity. The Circuit Courts of Appeal are split.

The Second, Ninth, and D.C. Circuits have held that a pretrial hearing regarding frozen assets can address whether probable cause exists to believe that the defendant is guilty of the crime that makes the assets forfeitable. The Eleventh, Tenth, Sixth, and Seventh Circuits have held that defendants only are allowed to challenge the grand jury's finding of probable cause to believe the restrained assets are linked to the crime with which the defendant is charged. U.S. v. Kaley, 677 F.3d 1316, 1329 n.9 (11th Cir. 2012) (citing decisions from other Circuits).

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