United States v. Kaley

conflict potential Together, of interest. TJOFLAT, Before MARCUS attorneys Kaleys the two informed the WILSON, Judges. Circuit legal their to take the case fees through trial approximately would be MARCUS, Judge: Circuit $500,000. pay To obtain to those funds case, a grand jury sitting In this fees, Kaleys applied for and obtained a District United States Court for South- $500,000 of equity home line credit of on ern District of Florida returned an indict- proceeds their residence used the defendants, Brian Ka- charging ment (“CD”). of buy deposit a certificate ley Kaley, conspiracy Kerri with 6, 2007, jury February grand On transport property, transportation stolen justice, against of returned a seven-count indictment property, stolen obstruction day, Kaleys.1 charged One con- The next Government filed a no- Count pendens against tice of lis PMDs in interstate spiracy transport residence. knowing commerce while them to have stolen, § of 18 been violation U.S.C. 5, 2007, On March moved the charged five sub- through Counts Two Six February district court to vacate the 7th offenses,2 § 2314 and Count Seven stantive protective They order. contended that the justice, violation charged obstruction prevented order them from coun- retaining 1512(b)(3). § The indictment of 18 sel of their choice in violation of their Sixth prop- criminal forfeiture of all sought also Amendment representation offenses, in- erty traceable to magistrate counsel. A judge heard this CD, cluding money judgment and a April motion too 6th5 and sustained the $2,195,635.28.3 order; however, protective the amount of he limited the (insofar protective order’s scope ap- as it February On Government CD) $140,000.6 plied to the parte moved the district court ex for a protective restraining April grand jury On transferring disposing from or otherwise a superseding returned indictment. This property of the listed the forfeiture indictment replicated the first seven count, magistrate judge, and a concluding counts of the first indictment added probable that the indictment established charge additional count —a property cause that the was “traceable to” had conspired proceeds launder the Kaleys’ offenses, § § the commission of the of- the violation of 18 fenses, 1956(h).7 granted day.4 § the motion the same U.S.C. This indictment also against provides "[ujpon § 1. The indictment applica- was also returned which that Gruenstrass, States, Jennifer whose case has since tion of the United the court enter Kaleys’. been severed from the restraining injunction, require order or bond, satisfactory performance execution of “[wjhoever provides 2. Section 2314 that any preserve prop- or take other action to transmits, transports, or transfers in interstate erty [listed the forfeiture That count].” wares, foreign goods, any or chandise, commerce mer- ap- section of the Controlled Act Substances money, securities or of the value of plies Kaleys pursuant to 28 U.S.C. $5,000 more, knowing or the same to have 2461(c). § supra note 3. stolen, been converted or taken fraud” subject liability. shall be to criminal magis- 5. The motion was referred to a second § U.S.C. 2314. judge, place trate who handled the case in 3. The forfeiture was authorized the civil magistrate judge. magistrate the initial This statute, 981(a)(1)(C), § forfeiture U.S.C. judge Kaleys’ during heard the motion a tele- provides property which for forfeiture of actu- call, phone conference which was not record- ally specific "traceable to” the crime al- ed or transcribed. leged here, conspiracy to violate and viola- — § tions of 2314. Such forfeiture become can time, magistrate judge 6. At the same part pursuant of a criminal sentence to 28 April scheduled a 2007 on the 2461(c), § provides pertinent which Kaleys' protective motion to vacate the order part that "[i]f defendant is convicted of entirety. in its forfeiture, giving the offense rise to the court shall order the forfeiture of the 1956(h) provides "any person 7. Section that part of the sentence in the criminal case.” conspires any who to commit offense defined language The "traceable to” limited the Unit- $140,000 § subject in this section 1957 shall be ed States to forfeiture of of the Kaleys' penalties prescribed assets. the same as those for the offense the commission of which was the ob- § 4. The Government based its motion on ject conspiracy.” Act, of the Controlled Substances 21 U.S.C. February protective amended the 7th or- forfeiture of the CD the criminal

sought theory scope to include within its the full residence on the der Kaleys’ Kaleys’ in” the and the residence. were “involved value CD those assets 1956(h) 2nd, May magistrate judge of- issued a commission of On Kaleys’ 17th, renewed denying motion April On third order fense.8 February 7th to vacate the protective their motion vacate the order and to hold a (as by the order amended protective pretrial, post-restraint evidentiary hearing. 6th), requested a expressly order, April magistrate judge In that con- evidentiary hear- post-restraint pretrial, post-restraint hearing cluded that “no ing.9 necessary until trial.” judge heard the motion magistrate

The May Kaleys appealed On questioned 27th. whether the April He judge’s May and 2nd magistrate 1st orders cause provided probable alone indictment 25th, court. to the district On June and or- the defendants’ assets to restrain magistrate district court affirmed the an affidavit prosecutor to submit dered order, judge’s protective issuance of the prosecu- cause. The supporting probable concluding agent’s that the case affidavit un- by filing, in secret and responded tor probable cause “demonstrated to believe seal, by the FBI an affidavit executed der the Defendants’ residence was ‘in- agent. money laundering volved in’- the offense indictment, charged superseding in the judge May magistrate On $63,007.65 order, all and that but of the funds two orders. In the first he issued on the indict- used to obtain the CD were ‘traceable to’ found cause—based trial agent’s affidavit—that the residence.” The court also af- ment and the case Kaleys’ magistrate judge’s the residence were firmed the denial of a the CD and 1956(h) § pretrial evidentiary hearing, concluding in” of “involved the violations order, postponing § In he the until the trial and 2314. the second By adding money laundering conspiracy independently appealable, the under the doc- 8. indictment, grand jury enabled the pendent appellate jurisdiction. to trine of "Un- to utilize the criminal forfeiture United States statute, appellate jurisdiction der the doc- pendent 982(a)(1), § 18 U.S.C. which author- trine, [only] we address orders if [such] of assets "involved in”—rather izes forfeiture they ‘inextricably are intertwined’ with an proceeds than "traceable to the of”—the of- appealable decision or if ‘review of former fense. necessary meaningful decision to ensure [is] ” Hall, review of the latter.’ Hudson v. moving addition to the district court to 9. In 1289, (11th Cir.2000) (quoting F.3d order, protective Kaleys vacate the moved Assoc., Pryor, Summit Med. P.C. v. the indictment the district court to strike from Cir.1999)) (quotation marks allegation seeking forfeiture under 18 However, omitted). rulings the two are not 982(a)(1) ground § on inextricably intertwined with the district "vindictive,” allegation was in retaliation for ruling denying court’s motion for having Kaleys moved the court on March pretrial hearing validity of the Febru- February protective on vacate the 7th or- 5'th to order; ary protective der. The also moved the district court 7th nor is review of allegation rulings necessary meaningful to strike from the indictment to ensure those seeking under 18 U.S.C. forfeiture the district court’s June review of 981(a)(1)(C) ground § denying pretrial, post-restraint order 981(a)(1)(C) applied § without could not be We, seeking. Kaleys are there- violating the Ex Post Facto Clause. The dis- fore, appellate pendent to exercise our decline motions. trict court denied both .jurisdiction. brief, ask us to In their blue well, rulings these two which are review property especially On restraints on their process. June itself satisfied interlocutory Kaleys lodged this purpose retaining for the of coun- needed challenging the district court’s de- appeal, so, are doing sel of their choice. we cision. by our controlled decision United States (11th Cir.1989). Bissell, II. presented argument Bissell the same and jurisdiction This Court has to en clearly this Court held that a defendant “[ijnterlocutory appeals tertain orders are pursuant whose assets restrained ... con granting, of the district courts indictment, charge criminal forfeiture in an refusing, dissolving tinuing, modifying, him rendering unable afford counsel 1292(a)(1). § injunctions.” 28 U.S.C. choice, pretrial hearing entitled to a preserve designed Protective orders balancing if the test enunciated assets, the one in forfeitable like this Wingo, Barker v. 407 U.S. 92 S.Ct. injunctions jurisdictional for the qualify as (1972), L.Ed.2d 101 is satisfied. 1292(a)(1). § purposes of United States Thus, our appeal Id. task Monsanto, 600, 602-06, is to decide whether district court cor- (1989) (exercising rectly interpreted applied the Barker jurisdiction interlocutory pre to review a order, review, restraining granted balancing thorough trial which was test. After we parte purpose preserving ex for the incorrectly conclude that the district court forfeiture); prior assets forfeitable Rob test, we, therefore, applied that re- States, erts v. United 1471 verse and remand the case for further (11th Cir.1998) (stating that denial of a opinion. consideration consistent with this protective motion to vacate a order over grand jury indicted each of forfeitable assets would be reviewable as the defendants with one or more of the interlocutory appellate in the 1292(a)(1)). following § violating courts under offenses: the Racketeer protec Such injunctions tive orders are like because Corrupt Organizations Influenced and Act they party, are “directed to a enforceable (“RICO”), seq.; 18 U.S.C. 1961 et engag- by contempt, designed to accord or ing Continuing in a Enterprise, Criminal protect some or all of the substantive re 848; § 21 and conspiring import U.S.C. to sought by lief complaint more than cocaine, § 21 U.S.C. 846. 866 F.2d temporary fashion.” 16 Charles Alan at 1347. The indictment contained crimi- Wright, Arthur R. Miller & Edward H. pursuant nal forfeiture counts to 21 U.S.C. Cooper, Federal Practice and Procedure 853, § grand jury alleged which the that (2d. 1996) 3922, § (quotation at 65 ed. from, to, all assets derived or devoted vio- omitted). We, therefore, marks review lations of federal narcotics laws were sub- 1292(a)(1) § under the district or court’s ject to forfeiture upon the defendants’ con- denying der motion to vacate Following victions. Id. the return of the protective denying order and them a indictment, the Government seized the de- pretrial evidentiary hearing. pursuant assets a it fendants’ to warrant

III. obtained from the district court ex parte 853(f). pursuant Id. No settled, jurisdiction our With we pretrial, post-indictment motion was made today: address the main issue raised contesting legality to the district court Kaleys’ argument they that have a due of the and no court-ordered restraints process right post-indictment, to a pretrial evidentiary 1347-48, hearing legality hearing sought. on the of the Id. at was claim, applying Wingo the Bissell defendants the Barker v. appeal,

On things, they that among other argued, holding10 framework and circum under the under the Fifth Amend- entitled were stances of the case that the defendants pretrial Clause to a Due Process ment’s post-indictment, pre were not entitled to a government must hearing at which triaj Indeed, hearing. spe we framed the justi- the forfeiture was that demonstrate iggue ug thig cffie way. before and that provide failure to that fled [Appellants] contend that this scheme fatally tainted their convictions. hearing process. They due that argue violate[d] directly Id. panel at 1352. A this Court rejected unambiguously imposed when restraints are pretrial addressed Plainly, employed determination that the Barker fac- of decision. this Court 10. Bissell's to evaluate when a defen- pretrial tors should used Barker factors to determine whether a pretrial post-indictment, a dant is entitled to required. require- was There is no holding, process of law under due is explication ment in our law that the of the frequently not dicta. As our cases have ob- governing principle may only of law be taken served, portions is defined as those of an dicta argument party. from an advanced a necessary deciding opinion that are "not discerning What matters in whether a rule of United States v. the case then before us.” expounded by holding law a court in fact is (11th Eggersdorf, 126 F.3d 1322 n. necessary whether it was to the result Cir.1997); Crosby, v. 451 F.3d Schwab reached, or, alternative, in the could be dis- Cir.2006); Hamlett, (11th v. Jordan impairing carded .without the foundations of (5th 1963); Carpenter Paper Cir. here, holding. panel And of this Court Co., Paper 164 F.2d Co. v. Calcasieu deliberately carefully analyt- offered 1947); (5th see also United States Craw- Cir. way set ical framework forth in Barker as the (7th Cir.1988) ("We ley, analyze ultimately decide the issue. judi- in a have defined dictum as statement prior We add panel that another of our opinion could have been deleted cial applica Court has also observed that Bissell’s seriously impairing analytical without holding. tion of the Barker factors is United holding.”) (quotation foundations Register questioned States soundness of omitted). Conversely, holding marks Bissell, observing appropriate n “in observed, is, Supreme Court com- "perhaps case” Bissell should” be re-exam prised of the case and of the result both light only ined in of the fact that we are “the portions opinion necessary “those that, holding although pre-trial circuit re by which we are bound.” Semi- that result straint of assets needed to retain counsel im Florida, Florida v. nole Tribe of Clause, plicates the Due Process the trial itself 66-67, requirement.” satisfies this (1996). conclusion that there was Bissell's 1999) added). (emphasis And Cir. of the defendants’ Fifth Amend- no violation thought our Court is not the one to have rights necessary to its ment application of the Barker factors fact, adoption ultimate decision. Bissell's See, holding. the Bissell court constituted part and use of the Barker test forms critical Monsanto, 1186, e.g., United States v. 924 F.2d holding. Our that of the case's conclusion (2d 1991); Holy Cir. United States v. process rights were the defendants’ due not Dev., 469, Land Found. & 493 F.3d by, was driven and cannot be under- violated for Relief (5th Cir.2007); United States v. Kirschen apart application of the Barker stood from our baum, 784, (7th Cir.1998); to the facts of case. While it is true test Farmer, 800, United States v. the court could have decided the case on that (4th Cir.2001); ("At error, § 13 Fed. Proc. 35:790 plain panel grounds, such as other spectrum, end process the other of the the Eleventh defendant’s due claim resolved the process applying Wingo Circuit has held that there is no due explicating the Barker v. analysis. right hearing prior entry ato to the of an freezing property, a defendant’s and the suggestion special Despite the con- in bright process imposes line due clause no curring opinion, it is of no moment that it was hearing might dictating post-restraint parties, when panel, and not the that the Bissell case.”). analysis legal rule occur in a criminal forfeiture proposed the Barker case, Supreme ance. In that assets, requires Fifth Amendment Court gov- merits at which the hearing on the of whether question addressed the narrow probability that prove ernment must eighteen-month delay between the sei- be convicted and the defendant will that currency being transport- zure of that was forfeited. Since no his assets will be being reported ed without U.S. Cus- in ap- occurred such Service, toms in violation of 31 U.S.C. they that have been denied pellants urge 1101, resulting § and the civil forfeiture disagree. of law. We process proceedings, process the due violated (“We 1352; must con- at see also id. Id. in rights of an individual with an interest right had a to an appellants sider whether 556-62, currency. the seized Id. hearing.”). post-restraint immediate $8,850, imported 2005. In the Court that panel recognized “once The Bissell in balancing the four-factor test laid out issued, may an indictment has the court Wingo, Barker v. 92 S.Ct. preserve order such restraints forfeita- [to (1972), a case that parte.” in a criminal ex case] ble assets delay trying in assessed whether a crimi- addition, at 1349. the Court ex- Id. nal case violated a defendant’s Sixth that its own terms plained right speedy Amendment to a trial as the 853(a)(1) require § not a hearing does be- applicable analytical framework. The stat- assets, fore or after the restraint of importing ed reason for the Barker test legislative history that re- “the statute’s into the realm of the defendant’s claim Congress veals while did not intend $8,850 under the due clause in hearing prior there to be a to the issuance that “the Fifth Amendment claim here— restraint, retain district does challenges only length which of time authority post-restraint hearing.” to hold a between the seizure and the initiation (citing S.Rep. Cong., Id. No. 98th 1st the forfeiture trial —mirrors the concern of reprinted Sess. 3386). delay Further, encompassed undue to a U.S.C.C.A.N. Bissell, panel observed: speedy trial.” 866 F.2d at 1352 $8,850, (quoting hearing, may At that the defendant un- U.S. 2005). prove government

dertake to turn, imported the Bark- wrongfully specific restrained assets er test into the realm of a defendant’s due which are outside the scope indict- process claim when his assets were re- ment, from, in, not derived crim- used a hearing pursuant strained without activity, inal challenge but thereby preventing him from re- validity of the indictment itself and thus taining counsel of choice. require government present its Thus, Bissell, we evaluated the defen- evidence trial. before claim light dants’ of the four factors Id. (1) length taken from Barker: deciding analytical which framework delay before the defendants their received apply process, any, to determine what if (2) post-restraint hearing; the reason for is due to a criminal defendant whose assets (3) delay; assertion of defendants’ pursuant have been to a crimi- restrained right hearing to such a pretrial; charge thereby preventing nal forfeiture (4) prejudice the defendants suffered choice, him retaining from his counsel of delay weighed against due to the panel the Bissell looked to United States $8,850 555, strength of the United States’s interest in Currency, in U.S. 461 U.S. 103 2005, (1983), guid- subject property. for F.2d at 1352. factors, As for the first of the Barker in cision United States v. Gonzalez-Lopez, post-re- we concluded that no 165 L.Ed.2d necessary was because the

straint (2006). They are mistaken. mayWe delay eight of months between the re- disregard the holding prior opinion of a straint of the assets and the criminal trial only that “holding by where is overruled at insignificant. 866 F.2d 1353. As sitting Court en banc or the Su- delaying for the reason for preme Court.” Smith v. Corp., GTE (the until trial of the second Barker fac- (11th Cir.2001). F.3d 1300 n. 8 To tors), legisla- we referenced the statute’s constitute an “overruling” purposes for the history explained tive that requiring rule, of prior panel precedent this the Su- government requirements to meet the preme clearly Court decision “must be issuing temporary restraining order point.” Garrett v. Univ. Ala. at Bir- underly- and to establish the merits of the Trs., mingham Bd. 344 F.3d ing criminal case and the forfeiture before (11th Cir.2003); see also Drug, Main Inc. obtaining the trial would make a restrain- Healthcare, Inc., v. Aetna U.S. 475 F.3d ing order difficult because of the abundant Cir.2007) (“Of course, we dangers surrounding premature disclo- prior will not follow panel precedent that government’s sure of the case and its wit- has been overruled a Supreme Court nesses. Id. decision, clearly but without a contrary factor, As for the third we held that opinion Supreme Court or of this whether the defendants’ asserted their banc, sitting en we cannot overrule post-indictment hearing to a prior to court.”) prior decision of a panel of this trial, weighed against the defendants in (quotation omitted); marks and citations Bissell because the defendants not “d[id] Chubbuck, United States to, point disclose, and the record not d[id] (11th Cir.2001) (“[T]he n. 7 any prior motion for a hearing to contest the government’s precedent restraints.” Id. 1353. rule apply would not if interven- ing on-point case law either from

Finally, as for the last of the Barker banc, Court en Supreme United States (the prejudice factors associated with the Court, or the Florida Supreme Court ex- restraint), we recognized the not inconsid- isted.”). being addition to squarely on danger erable that “perfectly legitimate point, the doctrine of prior adherence to restrained,” wrongfully assets will be would, turn, precedent also which mandates the interven- palpable result prejudice defendant, ing Supreme particularly actually abrogate Court case when the defendant sought to use those directly with, opposed conflict assets to retain counsel of his choice. 866 weaken, merely holding of the prior But, observed, F.2d we when Provenzano, panel. re parties arguably both property rights have (11th Cir.2000) (“We would, assets, the constrained process “a due course, be authorized but also analysis comprehend must both interests.” required depart from prior [our deci- Finally, Id. weighing the four Barker fac- if an intervening Supreme sion] Court de- concert, tors we concluded that the de- actually cision overruled or conflicted with fendant suffered no due violation. it.”); Thompson, Chambers v. 150 Id. (11th Cir.1998) (“We are bound prior panel to follow a or en however, holding, banc Kaleys argue,

The except holding Bissell where that longer good light is no law in has been over- Supreme United States Court’s recent de- ruled or point undermined to the of abro- delay the in subsequent length or Su- found that of this case gation by a en banc decision.”). (a months) preme eight was not projected signifi- Court that had government cant and the a sub- Gonzalez-Lopez, Supreme the Court In revealing interest in its stantial not a court errone- addressed whether district witnesses trial. Neither of and before coun- the defendant’s chosen ously refused these two determinations amounts to an vice before right practice pro sel to hac the discretion, although of it is abuse worth 147-51, 126 548 U.S. at court. in white noting passing that in this collar that the government 2557. The conceded already case the defendants have had ac- of the of counsel deprived denial defendant reversed, to much of choice, Supreme government’s the cess the evidence and Court disqualification against co-conspirator, erroneous the case their finding the to be subject Gruenstrass, to error review. and not harmless severed Jennifer and she what, if way Id. in no The case addressed November, acquitted was tried and any, right a criminal has to use defendant (ex- 2007. See F.2d at subject pursu- to assets forfeiture criminal history plaining legislative of pay ant for the to an indictment order to 853(a)(1) that while “reveals Con- legal fees of the counsel of his choice. Nor not gress did intend there to be any way did case in the cir- address restraint, prior issuance of mak- under which a defendant cumstances authority court district does retain to hold ing of choice a Sixth Amendment counsel post-restraint hearing.”). pretrial to a re- challenge post-indictment As for the third factor.—the defendants’ hearing. straint would be entitled to a right pretrial assertion of their dis- —the Thus, it cannot be said that Gonzalez- trict court held that Lopez “clearly point,” on or that it “di- [wjhile Defendants have [asserted their rectly analytical with” frame- conflicts case, right hearing] to in this that fact work announced in Bissell. this Court inquiry. does end the As the Bissell fact, Supreme itself said Court noted, purpose post-re- of a Gonzalez-Lopez that “[njothing we have straint is to determine whether any any today places said casts doubt or legitimate outside assets —those qualification upon previous holdings our scope indictment —have been limit the counsel of choice and wrongfully present restrained. recognize authority trial courts to upon money based laundering criteria for admitting lawyers establish charge and them,” this Court’s cause argue before id. determination, only way including cases such as Bissell. Ac- Defendants could cordingly, the district court was bound to demonstrate that restrained assets, $63,007.65 apply exercising Bissell its discretion other than the that is Kaieys a hearing. order, award being released are by this outside scope is to the indictment chal- hand, In the case at the district lenge its merits. validity on the As has employ the court did Bissell factors previously, been seen such a challenge Kaieys determine whether the had a due best, cannot be At pretrial. made process right pretrial evidentiary to a equipoise. third factor is in legality hearing of the restraints. 07-80021-CR, v. Kaley, United States No. It each of addressed the four factors (S.D.Fla. 2007 WL at *3 June found that first and second factors 2007) (citations omitted) weighed quotations favor the Government. omitted). things, Among (emphasis other the district court added As for the

1257 factor, grant request the for a pretrial court did not defendant’s the district fourth evidentiary hearing in of or in order to it cut favor determine clearly state whether hearing, ob- in evidentiary whether assets described the forfeiture pretrial a against proba- court’s only wrongly that “a district count of the indictment were serving (or determination, present is placed seized under the restraint of a ble cause order). here, prejudicial effect of diminishes the The court in an protective appro- restraint,” offering no indi- may but pretrial priate grant the defendant’s re- nature, degree, impact of quest notwithstanding cation the fact that Id. at *4. any such diminution. of the indictment proba- return established assets, ble cause to seize or restrain the made an error plainly The district court in the possibly, as with that third factor. disposing in of Bissell’s of law probable cause buttressed an affidavit of the dis- language As the underscored agent parte submitted the case ex reveals, evaluating in holding trict court’s purpose hearing camera. The factor, the district court conclud- the third guilt would not be to determine or inno- that, probable once cause ed under but, rather, cence to determine the determined, propri- way that a has been Moreover, ety of the seizure. such a are not defendant can show assets defendant, movant, hearing, as the the crime forfeitable is to establish of proof, not occur. would have burden and the charged in the indictment did This, however, prosecution thus holding was not the of Bis- would be saved from hav- opinion’s ing preview could not have been the its entire case. sell and intent, because, as the district court cor- This approach is same that the Su- noted, rectly challenge a to the indictment preme Court has taken civil cases where pretrial. pretrial made A chal- cannot be property parte is seized based on ex require indictment would lenge to the See, proceeding. e.g., Mitchell v. W.T. evidentiary court to hold an hear- district Co., Grant U.S. S.Ct. crime oc- ing to determine whether the (1974). cases, L.Ed.2d 406 In these curred. The court would hear the Govern- creditor claims an interest a debtor’s response, ment’s case and the defendant’s against property and files suit the debtor whether the crime had and then determine 601-02, interest. Id. at obtain such and, thus, occurred whether assets S.Ct. 1895. To ensure that the cases, many were forfeitable. such disposed prior to the trial on the far go would so as to render merits, creditor a court obtains charge trial on the merits of the criminal freezing property by making the debtor’s short, unnecessary. a procedure such parte showing probable an ex cause that require preview would the Government to likely prevail the creditor is on the least, very its case—at the the Govern- 602-03, merits. Id. at 94 S.Ct. 1895. The put enough evi- ment would have that, Supreme Court has held in these dence to a motion to dismiss the withstand situations, is, least, at debtor owed undeniably But the court charge. Bissell post-restraint to determine wheth- contemplated some circumstances actually probable er cause exists. See id. which, despite presence 1895; Shevin, Fuentes v. cause, would be re- pretrial hearing U.S. S.Ct. quired. (1972). post-restraint hearing The ordained, however, has is not the Court principle

The of law Bissell ad that, plaintiffs claim. four trial on the merits of weighing vances is after Mitchell, factors, Barker district ability effectively to to impediment his sepa-

(identifying pretrial the merits). Rather, procedures nation’s criminal navigate trial on the our rate from the hearing is to reduce the Gonzalez-Lopez, of the purpose protections. the and (“[T]he re- imposed the that the possibility Sixth U.S. at Fuentes, 407 U.S. improvidently. straint to of choice ... right Amendment counsel 92 S.Ct. 1983 92 S.Ct. commands, fair, a trial but that not that be hear- purpose pretrial of a (noting that the pro- fairness guarantee a of be particular “substantively unfair and prevent ing is to wit, that defend- the accused be vided—to of deprivations mistaken simply best.”); by counsel he believes to be ed the interests”). States, Wheat United (1988) 1692, 100 L.Ed.2d 140 clear, then, that notwith It is that, subject it although (explaining cause court’s standing the district representation by to ensure ef- limitations determination, Kaleys the were entitled counsel, and be right fective “the select assets; in on their challenge the restraints attorney is represented preferred one’s so, requiring not the doing they would Amendment”); by the charged comprehended of Sixth to establish Government Kaleys challenged the generally Garey, fense. Because the see United States often, Cir.2008) (en early very banc) this case is restraints and Bissell, in “nothing than where (“The different a fundamental to counsel is defendants] the record that indieate[d] [the system of criminal part adversary of the early hearing desired an to contest truth justice recognizes and the obvious Bissell, 866 government’s restraints.” average not have defendant does then, a minimum Bis- F.2d at 1353. At him- professional legal protect skill to factor, sell’s third “assertion brought before a tribunal with self when pretrial hearing, weigh should right” to liberty.”) (quota- to take his life or power favor the defen in the defendants’ when omitted). tion marks and citation every step have taken available dants effectively shut out Being contest the restraints. counsel of retaining the state from addition, court also district one’s choice a serious criminal case is searching exposi in a more engage should prejudice, source of but substantial tion and calculus of the fourth Bissell fac inequities actually go beyond in this case tor, weigh preju it to requires which being able to retain the counsel choice. by the due to the dice suffered defendants present The restraint of assets in the case delay post-restraint probable their before Kaleys from retain prohibits hearing against strength cause choice, ing their counsel of but also from subject prop interest in the United States’ retaining experienced attorneys who erty, give powerful care to and take grand represented have them since the prejudice Kaleys will forms January, jury investigation began F.2d at ample suffer consideration. 866 Losing long-time access to counsel who out, pointed wrongful 1354. As Bissell already have invested substantial time into as deprivation legitimate of a defendant’s learning the intricacies of the rendering sets him unable to retain his unquestionably trial preparing will severely his impair counsel of choice will Kaleys prejudice. cause the ability himself. Id. at 1354. In to defend Moreover, any private order to retain deed, unambiguous our law is clear and (not choice), counsel even the counsel depriving a defendant of the counsel $183,500 significant must incur a non- of his choice is serious penalty stage and tax in sets and retain new counsel at this liquidation recoverable only remaining their unre- proceedings. therefore, to release order Under (retirement college assets strained trial re-weigh court must the Barker accounts). record, it is On savings factors in order to calculate whether the $323,000 to access the clear that post-indictment are entitled to a (k) plan in 401 at the time contained their pretrial evidentiary hearing. motion, court considered their

the district $168,000 Kaleys pay forced to would be IV. penalties and income early in withdrawal $155,000 only to leaving taxes them with If writing we were on a blank slate To legal allocate for their fees. access the inclined, today we would be Judge as $111,000 college savings in ac- contained concurrence, Tjoflat suggests special in his counts, $15,000 Kaleys pay must in apply by the test announced the Su- liquidation penalties capital gains and tax- preme Court in Mathews v. 424 Eldridge, And, they ultimately prevail if in es. even 893, U.S. 47 L.Ed.2d 18 case, Kaleys will never be able to (1976), in order to determine process what penalties those and taxes. recover is due to defendants in circumstances like

These serious and substantial burdens these. weighed by the district court must be Indeed, virtually every circuit to address against government’s real interest in this issue other than this Court has found if, indeed, recovering the seized assets that criminal such defendants as these are guilty charged are criminal entitled, under the Due Process Clause of and those assets are found to conduct be Amendment, the Fifth pretrial to a hear activity. to the illicit This inter- traceable ing order to determine whether it is by supported est is some measure likely that the restrained assets will be jury’s probable determina- grand cause subject to forfeiture.11 Holy See Land returning seeking tions in two indictments Dev., 475; Found. & 493 F.3d at Relief the criminal forfeiture of the CD Jones, 641, v. United States 160 F.3d residence, by proba- as well as (10th Cir.1998); Monsanto, 924 F.2d at by cause affidavit executed the FBI ble 1195-98; Moya-Gomez, United v. States agent and filed the Government. (7th Cir.1988); 860 F.2d 728-29 Unit (“[T]he 866 F.2d at 1354 See dis- (4th Harvey, ed States 814 F.2d trict court’s cause determinations Cir.1987), issues, superseded as to other In significant govern- check on the provided Hearing re to Caplin & power legitimate, ment’s to restrain nonin- Forfeiture Chartered, (4th Drysdale, 837 F.2d 637 assets.”). dicted We leave it to the district Cir.1988) (en banc), aff'd, 491 U.S. weigh powerful competing court to in- (1989); S.Ct. United terests in order to calculate whether the Crozier, (9th States v. probable cause determination and the ac- Cir.1985); Lewis, United States companying government affidavit diminish Cir.1985); prejudice 1324-25 the undeniable substantial cf. if they Long, will suffer are forced to United States v. (3d Cir.1981). fact, liquidate remaining their unrestrained as- the more recent 853(l)(a), post-indictment subject 11. Because 21 U.S.C. the statute restraint of assets forfeiture, governing procedures applicable required to a such a criminal charge, expressly may not criminal forfeiture does because it be mandated the Fifth provide pretrial regarding process. for a Amendment’s V. test em- balancing cases have utilized in Mathews. ployed sum, the district court did abuse assessing two first its discretion may particularly test The Mathews But, factors. the district Bissell it because present well suited interpret- an error of law in plainly made employed is the traditional test the third of the Bissell ing applying is due before determine what us, this On the record before factors. at the hands of the deprivation favor as weighed factor the defendants’ Mathews, 424 state be sustained. Moreover, law. the district a matter of (deciding whether U.S. finding a clear as to the court did not make hearing under entitled to a an individual is prejudice Bissell factor —the associ- fourth gov Fifth Amendment to contest We, therefore, with the restraint. ated inter deprivation property of a ernment’s court’s decision and reverse the district 1328, 1340 est); Grayson King, to the district court so remand the case Cir.2006) (“Mathews (11th applies the fourth Bissell that it recalibrate liberty prop or where an individual has factor, all factors weigh and then government seeks to erty interest that the together in order to determine the defen- eliminate.”); Moya-Gomez, 860 see also post-indictment entitlement to a evi- dants’ that the de (determining F.2d at 725-26 dentiary hearing. deprivation fendant suffered “a and REMANDED. REVERSED sense,” because “[t]he the constitutional ... to remove restraining operates TJOFLAT, Judge, specially Circuit defen the assets from the control concurring: government that it dant on the claim of the I with the court’s decision to re- agree higher right has a to those assets. While remand, separately I verse and write but restraining order does not divest defin disagree I with the court’s ratio- because rights of the defen itively ownership nale for its decision. The court reverses dant, certainly it does remove those assets and remands because it holds that and therefore from his immediate control misapplied court the four factor district inter significant property divest him of a That test from United States Bissell.1 est”). There can be little doubt test, Wingo’s uses Barker v. Sixth which plainly deprives the posture of this case speedy-trial standard to re- Amendment their assets and that defendants of due issue this procedural solve the question Kaleys have raised is one of necessary appeal presents, was procedural process. due non- holding Bissell and is therefore apply If we were to Mathews in this binding dicta. The district court erred ease, entitled to a would be relying on the Bissell test because the test pretrial hearing pro- on the merits of the view, cannot, my squared with Su- day, At tective order. the end process prec- preme procedural Court due however, duty apply are bound to our explain, we I shall the court edent.2 As precedent appeal using and examine this matter have resolved this should rather than the Supreme precedent under the framework outlined Court contradictory dicta from our own circuit. Court in Bissell. Bissell, Wingo, 2. See Barker v. 1. United States v. (1972). Cir.1989). L.Ed.2d 101 I. the defendants move the district court to quash the challenge warrants otherwise Bissell, the defendants were indicted validity of the Government’s retention of the federal narcot- violations various appeal, of their assets.4 Id. at 1353. On F.2d at 1347. The ics laws. time, for the first the defendants chal- jury superceding later returned two grand lenged constitutionality “the of the ex indictments, containing seeking counts parte, pretrial restraints on their assets.” pursuant of assets forfeiture Id. at 1348.5 Even in their appeal, brief on superseding 853. Id. After the indict- argue they defendants failed to returned, the ap- ments were Government pretrial, post-restraint were entitled to a peared parte before the district court ex hearing. au- and obtained the issuance warrants thorizing the Government to seize the as- initiative, however, On its own the counts,3 in the forfeiture includ- sets listed posed question the defendants had ing the defendants’ bank accounts. Id. whether, never asked: issuing after then The Government executed war- warrants, the district court should have rants and seized the assets. Id. pretrial hearing held a to determine course, trial, and proceeded the case the application whether for the warrants convicted. Id. at & defendants were authorizing the supported by seizures was sentencing, At the assets n. 2. listed probable cause. The court then answered to the the forfeiture counts were forfeited question by stating its own that under the part States as defendants’ United speedy-trial Sixth Amendment standard of sentences. Wingo, Barker v. pretrial evidentiary a following required.6 was not point At no Government’s The court’s any dicta, of pure ques- seizure of the defendants’ assets did answer constituted as the pur- challenge 3. The district court issued the warrants 5. The defendants had waived their 853(f), constitutionality suant to 21 U.S.C. which states: parte to the of the ex re- by presenting straints not it to (f) the district Warrant of seizure Gen., Att’y court. See Madu v. U.S. may request 470 F.3d The Government the issu- 1362, (11th ("[A]n Cir.2006) authorizing argu- a warrant 1366 n. 2 ance seizure of of subject property to forfeiture under this sec- ment made for the first time in court of provided ....”) tion in the same manner as appeals generally (citing is waived for Hammer, warrant. If the court determines search Sterling Group, Pin. Inv. Inc. v. probable that there is cause to believe that 1223, (11th Cir.2004)); Mills v. would, property to be seized in the (11th Singletary, 63 F.3d 1008 n. 11 conviction, subject event of to forfeiture Cir.1995) ("The law in this circuit is clear that (e) and that an order under subsection of arguments presented in the district court this section not be sufficient to assure will not be considered time for first availability property of for forfei- Newsome, appeal.”); Lancaster v. 880 F.2d ture, the court shall issue warrant autho- (11th Zant, Cir.1989); Stephens rizing property, the seizure of such 1983) (per Cir. cu- added). (emphasis pro- Fed.R.Crim.P. 41 riam). procedure obtaining vides the for a search and, thus, property warrant the seizure of recognized 6. Since the court that the defen- subject 41(g) to forfeiture. Fed.R.Crim.P. dants had never asked the district court for a provides procedure challenging for the sei- hearing, interpret application one could its of zure. See note 4. infra Wingo the Barker v. standard as a statement required that a district court to consider challenged 4. The defendants could have pretrial hearing whether to hold a even seizure of their in the district court though request a pursuant 41(g). supra the defendant does not hear- to Fed.R.Crim.P. See ing. interpretation. There is no basis for this note requires different measures process was of due by any party, raised tion was never Morrissey v. Brew- unnecessarily injected into the in different contexts. unnecessary itself, er, and was therefore 408 U.S. defendants’ (1972) (“[D]ue resolution of the Bissell to the process is L.Ed.2d 484 appeals.7 procedural pro- flexible and calls such particular situation de- tections as

II. mands.”); Bank Mullane v. Cent. Hanover Bissell’s discus- acknowledge If we Co., 306, 313, 70 Trust & dicta, we are of the issue at hand is sion (1950) (holding that 94 L.Ed. 865 ques- on the binding precedent no left with requires hearing “appropri- process defendant of whether a criminal tion case”). any ate to the nature of the is entitled as standing in the shoes context, three are rele- particular factors post-restraint to a a matter of due of what constitutes a question vant to In the absence of hearing prior to trial.8 hearing: meaningful binding panel should have precedent, First, private interest that will be general requirements pro- looked action; second, affected the official process. United States v. cedural due deprivation the risk of erroneous (D.C.Cir. Ltd., E-Gold through procedures such interest 2008) (using approach to determine uséd, value, any, and the if pretrial hearing post-restraint, whether a procedural safe- additional or substitute due). today, approach The court’s guards; finally, the Government’s following the dicta in contravenes interest, including the function involved principles. these and the fiscal and administrative bur- requirement “The fundamental of due dens the additional substitute ‘at a opportunity is the to be heard procedural requirement would entail. meaningful meaningful time and man Mathews, 335, ” at 424 U.S. at 96 S.Ct. 903. liberty of. upon deprivation ner’ circumstances, ordinary pri- Under 424 property. Eldridge, Mathews v. U.S. weighs heavily enough vate interest to re- 319, 333, 893, 902, 47 L.Ed.2d 96 S.Ct. 18 quire government provide notice (1976) Manzo, (quoting Armstrong v. 380 552, 1187, 1191, hearing prior and some sort of 545, U.S. 85 S.Ct. 14 (1965)). deprivation. L.Ed.2d 62 This basic statement United States v. James Dan- reading opinion clearly four-day 7. A of the Bissell dem- trict court heard the motion in a evidentiary hearing. onstrates that the court did not entertain the The district question probable restraining and answer it under the rubric of the found cause for the de- upheld plain doctrine. See United States v. fendant’s assets and thus the order. error Evans, 1332, (11th Cir.2007) interlocutory ap- The then 478 1338 defendant took (finding process argu- peal, way that defendant’s due which worked its to the United subject plain Supreme upheld was error review be- States Court. The Court ment order, validity restraining holding cause it not raised before the district was court). possession may that “assets in a defendant’s way they be restrained in the were here Monsanto, finding In United States v. 491 U.S. based on a cause to be- 603-06, 2660-61, 600, 2657, 109 S.Ct. 105 lieve that the assets are forfeitable.” Mon- santo, (1989), Supreme L.Ed.2d ex- 491 U.S. at 109 S.Ct. at 2666. It Court plicitly sidestepped question. hearing ... a In that declined “to consider whether case, Government, parte, required by ex obtained a the Due Process Clause” pre-trial restraining the the district court had held an exten- defendant's because purportedly post-restraint hearing Id. forfeitable assets. The defen- sive issue. order, at 2666 n. 10. dant moved to vacate the and the dis- at 615 n. 109 S.Ct. 43, 53, Property, judge showing 510 U.S. with a that the delinquent iel Good Real (1993) 492, 501, 126 L.Ed.2d 490 “conceal, 114 S.Ct. power debtor had the dispose (civil Shevin, forfeiture); Fuentes v. 407 of, property or waste the or the revenues 67, 82, 1983, 1994-95, 92 S.Ct. U.S. therefrom, property or remove the from (1972) (“Although ... L.Ed.2d 556 parish, during pendency form a process tolerates variances action.” Id. at at (quot S.Ct. hearing appropriate to the nature of the 3571). ing Proc. Ann. art. If La.Code Civ. traditionally ... the Court has insist- satisfied with the showing, judge would form, that, opportunity ed whatever its for then a writ of sequestration. issue Id. at hearing provided must before the 605-06, 1895; 94 S.Ct. see also Calero- effect.”) (quota- takes deprivation issue Co., Leasing Toledo Pearson Yacht omitted). Fuentes, example, tion 663, 679-80, 2080, 2089-90, U.S. 94 S.Ct. struck down a state law that Court (1974) 40 L.Ed.2d 452 (allowing postpone creditors, parte, allowed ex to obtain a ment of notice and a until hearing after the prejudgment ordering writ the sheriff to yacht part seizure of a pre because goods. seize a debtor’s The law failed might seizure notice have prompted the because it did not afford the debtor notice conceal, destroy, defendant to or remove hearing prior and a to the seizure. property). Fuentes, 407 U.S. at 92 S.Ct. at 1983; 92 S.Ct. see also v. McDon- however, postponed, If notice and a Wolff nell, 539, 557-58, 418 U.S. hearing given immediately must be after (1974) (“[S]ome 2975, 41 L.Ed.2d 935 kind Mitchell, deprivation. 416 U.S. at required is some time before 606, 94 S.Ct. at 1899. Under the statute person finally deprived of his Mitchell, upheld in a creditor could obtain interests.”); Doehr, Connecticut v. 501 a of sequestration writ based on an ex 2105, 2116, U.S. S.Ct. determination, parte judicial but the debt- (1991) (requiring prior L.Ed.2d 1 notice or, afterwards, could ... “immediately “exigent the absence of seek dissolution of the writ.” (empha- Id. eircumstance[s]”). added). Barchi, Similarly, in Barry sis situations, In extraordinary notice and a hearing may postponed be until after the (1979), the Court struck down a statute deprivation. Property, Good Real 510 allowing Racing the New York State and (“We at at U.S. tolerate Wagering postpone Board to a notice and exceptions general requir- some rule hearing unspecified until an time after the ing predeprivation hearing, notice and but a suspension racing horse license. It only extraordinary in situations where provision that delaying held for governmental some valid at interest hearing administrative “neither on its face justifies postponing hearing stake in applied nor as assured a event.”) (quotations until after the omit- proceeding prompt prompt disposition and ted). Grant, In Mitchell v. W.T. Barchi, outstanding of the issues.” 1895, 1902, 94 S.Ct. 40 L.Ed.2d U.S. (1974), for example, the Court distin- principles These constitutional are mir- guished a upheld Fuentes and statute al- rored in the framework of Rule 65 of the lowing sequester goods creditors to Federal Rules of Civil Procedure. Rule 65 delinquent affording debtors without them that, ordinary provides under circum- prior hearing. notice and a Under the stances, Mitchell, courts have discretion to a in order sequester goods, statute parte application issuing pre- a creditor could file an certain course of action a ex ten-day afforded within the affording hearing are injunction only after liminary expire. will hearing.9 period, the TRO notice and a party” “adverse hearing required a are and Prior notice recognized also these norms Congress duplicative will hearing if the be even stat- of the criminal forfeiture parts those trial. litigated at the issues to be protective orders entered regulate ute that 65(a)(2). Fed.R.CivJP. indictment, an prior to the return of situations, Rule like extraordinary indictment is § 853.10 Before the Clause, an ex- provides the Due Process returned, § the court to 853 authorizes general prior rule of notice ception to the per- property only restrain “after notice that a hearing. provides Rule 65 and a to have an interest appearing sons (“TRO”) restraining may temporary order hearing.” property opportunity notice, only if the without but granted be 853(e)(1)(B). it hearing, § At the before spe- requesting the order can offer party restraint, the court must deter- issues the clearly showing that “immediate cific facts probabili- a substantial mine that “there is loss, injury, damage or will irreparable prevail will ty that the United States to the movant before the adverse result 853(e)(l)(B)(i). § of forfeiture.” issue Fed. opposition.” can be heard party like Rule allows this hear- Section 65(b)(1)(A). “designed are R.Civ.P. TROs until after the ing delayed to be restraint until there is an preserve quo the status exceptional cases. occurs When hearing appli- to hold a on the opportunity returned, yet indictment has not been injunction.” 11A preliminary cation for a temporary restraining court enter a Miller, Arthur R. & Wright, Charles Alan opportunity without notice or for a order Kane, Mary Kay Federal Practice and “if the United States demonstrates (2d. § at 253 ed. Procedure: Civil that there is cause to believe 1995). provision jeopardize ... of notice will availability of the for forfeiture.” Rule 65 process, Consistent with due 853(e)(2). cases, Even these rare requires prompt post-restraint hearing however, must be held within granted. expire a TRO is TROs when restraint, days ten restraint period after a fixed of time set “[sjuch expire: temporary will longer days. that can be no than ten 65(b)(2). days more than ten after Immediately expire after shall Fed.R.Civ.P. therefore, on which it is entered .... A granted, appli- the TRO is date injunc- hearing requested concerning a preliminary [a TRO] cant must move for tion, possible at the earliest time requires prior which notice and shall held 65(a); expiration tempo- hearing. prior Fed R. Civ. P. see Fed. 65(b)(3). rary a R.Civ.P. Unless notice and order.” Id. 65."). hearing noting due a Rule I refer to Rule In the similarities between the under process requirement prompt post-re a only point 65 that in those to underscore hearing adopt and Rule I do not straint exceptional hearing a cases where notice and necessarily requires process view due that occurs, delayed are until after the restraint compliance. v. Rule 65 See United States hearing ought prompt- as to be conducted Holy Develop Land Foundation and for Relief ly possible. as ment, Cir.2007) (en F.3d 473-76 Roth, banc); but see United States 10. Section 853 speaks to the return of (9th Cir.1990) (“[I]n order for a filing indictment or the of an information. I § restraining under 853 to [21 U.S.C.] order only refer here to indictments. constitutional, the district court must hold be First, private have a of the criminal forfeiture interest parts

In those using property in their that akin orders en- regulate protective statute in private interests Mitchell and Fuentes. of an indict- following the return tered cases, a alleged those creditor an inter however, ment, was silent as to Congress in delinquent property est debtor’s to a is entitled whether the defendant property wished to freeze that before the hearing prior to trial. See post-restraint parties’ rights adjudicated. could be 853(e)(1)(A). general apply I id. Co., Mitchell v. W.T. Grant 416 U.S. above to requirements discussed process 601-02, 1895, 1897, 94 S.Ct. 40 L.Ed.2d 406 requires the Constitution determine (1974); Shevin, Fuentes v. 407 U.S. 69- hearing a be held in this context. that such 1988-89, 92 S.Ct. 32 L.Ed.2d 556 (1972). The difference here is that the III. Government, private rather than a credi then, property once has been general, tor, asserts the interest. In both Mitchell order, by a court Fuentes, seized or restrained that, the Court noted even must, minimum, giv- owner at be property though the property status of the contested, of the seizure or restraint and a en notice the defendant retained an intere hearing. argues st,11 The Government prompt required and due therefore rule in departure general prompt hearing propriety for a from this on the Mitchell, 606-07, one, deprivation. like this where the court re- U.S. cases (holding 94 S.Ct. 1899-1900 that a stat subject to forfeiture property strains entitling ute the defendant to an immedi argues The criminal case. Government hearing following ate issuance of a writ of cases, that, pro- on the these sequestration a constitutional “effected] delayed priety of the restraint accommodation of the conflicting interests until the criminal case comes to trial. To Fuentes, parties”); 407 U.S. at 81- justi- determine whether the (holding 92 S.Ct. at 1994-95 departure general require- fies a from the defendant’s requires interest prompt post-restraint hearing, of a I ment hearing). pre-seizure the three relevant interests that examine out the Supreme have been set Court: The also have an pri- additional (1) private in a hear- prompt interest prompt in a vate interest that is (2) of an ing, depriva- the risk erroneous because, present the civil context (3) tion without a prompt hearing, order, protective a result of the they can- government delaying interest the hear- not use their assets to employ pre- their ing Eldridge, attorneys. until trial. See Mathews v. protective ferred The 319, 335, 893, 903, implicates U.S. 47 therefore their Sixth Amend- (1976)(the factors”). right L.Ed.2d 18 “Mathews ment to counsel of choice. The Bailey, provision 11. Our decision in United States v. fied that there is no “unheard-of (11th Cir.2005), immediate, undecreed, vesting F.3d 1208 further affirms secret of title Bailey, that criminal defendants retain an interest in the United States.” 419 F.3d at property. Bailey, (quoting forfeitable Prior some United States 92 Buena Vista Ave., 1126, 1140, potentially courts had held that forfeitable (1993) (Scalia, government immediately concurring assets vest in the J. giving judgement)). Bailey, upon potentially the act in the Under commission of rise rule, govern- forfeiture. Under such forfeitable assets listed in the forfeiture count government they ment all and title do not vest in the are takes to forfeitable until investigation actually upon even and indict- forfeited or assets before conviction court Bailey ment of the criminal defendant. clari- order. See id. 1266 interest, reason, absolute, weighs for that choice, ment while not is counsel of

to heavily the defendant in the balance. merely not satisfied because coun- adequate substitute is able to retain factor, analyze the second the risk I next defendant’s It a criminal protects sel. an deprivation an erroneous without of lawyer he particular ability to hire case, hearing. prosecu- In this immediate Gonzalez-Lopez, v. prefers. United States the likelihood of torial incentives increase 2557, 2562, 165 U.S. in the of deprivation an erroneous absence (2006) (“[T]he Amend- L.Ed.2d 409 Sixth prosecutor A has ev- prompt hearing. ... of choice com- right to counsel ment by restraining assets that erything gain fair, mands, but that a that a trial be not ultimately may By doing forfeited. provid- of fairness be particular guarantee so, govern- in the he can stack the deck wit, that the be defended ed—to accused by crippling the defendant’s ment’s favor best.”). to be by the counsel he believes If ability high-quality to afford counsel. therefore, case, it irrelevant from In this is delay judicial oversight can prosecutor point Amendment of view a Sixth trial, has of the restraint until he also $270,000 in unrestrained as- Kaleys have lose, nothing to as he does not have to expensive less with which to hire sets any defending dedicate extra resources that, counsel. What matters is without decision. his pro- covered access to the Also relevant to the risk of an erroneous order, Kaleys are unable to tective value, any, if deprivation probable is “the attorneys, Howard preferred their retain procedural of additional or substitute safe- Dusen. Srebnick and Susan Van Mathews, guards.” U.S. hearing until Delaying the due without a S.Ct. 903. Ka only temporarily deprive trial will rests, cause ini- prompt hearing, probable it leys property rights, of their but will tially, grand jury having on the found right to counsel completely eviscerate their returning before the indict- probable cause is of choice. After the verdict handed and, then, on the district court’s find- ment down, course, longer will no cause, probable of which find- ing of both retain Dusen. need to Srebnick Van ings were made on the Government’s ex deprivation Amendment] “While the [Sixth showing.12 procedure sig- Neither parte nominally it ‘in that re temporary, is nificantly reduced the risk of erroneous spect effectively permanent one.’ ‘The deprivation. grand jury proceedings, attorney needs the now if the defendant ” government may rely, entirely, even attorney any him good.’ is to do United witnesses,” hearsay “read-backs and Unit- E-Gold, Ltd., v. 521 F.3d 417- States Waldon, 1103, 1109 ed States v. 363 F.3d (D.C.Cir.2008) v. (quoting United States (11th Cir.2004) curiam), illegally (2d (per Monsanto, Cir. evidence, 1991) (en States v. Calan- banc); acquired United Moya- United States Gomez, (7th Cir.1988)) dra, 338, 344-45, 354-55, U.S. (1974).13 613, 618, 623, The (emphasis original). Sixth Amend- cases, government may rely even the court treat 13. The on testimo In some indictment, alone, standing establishing ny perjured. turns out to be magistrate judge Corr., cause. The did Sec'y Dep't. Anderson that here. It was after the moved (11th Cir.2006) (per cu 1326-27 protective vacate the order that riam). magistrate judge required prosecutor camera, present, independent proof probable cause.

1267 duty requiring government to prove has no disclose to government The underlying merits of the criminal grand jury, to the evidence exculpatory pretrial and forfeiture would Williams, make ob- 504 v. U.S. United States taining restraining order too difficult (1992), 1735, 118 L.Ed.2d 352 pursuing would make such an order testify to has no the defendant government’s inadvisable from the 6(d)(1). appear, see Fed.R.Crim.P. even standpoint potential because of the for then, a mechanism grand jury, is not The damaging premature disclosure a defendant designed protect to well government’s trial strategy, case and as deprivation. an erroneous against jeopardizing safety well as of wit- finding slightly The district court’s is nesses and victims. grand jury’s. than the It more reliable Br. Although Gov’t. at 31. these are cer- was, however, upon parte made an ex interests, tainly legitimate the Government showing; opportunity had no to overlooks the fact that party challeng- showing. challenge the Government’s ing the restraint bears the burden con- sense, the court’s cause find- vincing the court that probable cause is ing comparable parte judicial is to the ex lacking. This is true whether the defen- Mitchell, in Mitchell. determination challenge dants pursuant seizure made (describ- at 94 at S.Ct. 1899 853(f) § to a warrant via a motion filed ing judge a statute that allowed a to issue pursuant 41(g) Rule of the Federal sequestration upon a writ of a creditor’s ex Procedure, they Rules of Criminal could Here, parte application). as in that have or a restraint affected parte the ex determination is insufficient to 853(e) pursuant § to a protective order via justify delaying post-restraint hearing a motion to vacate the order. long imposed. after the restraint factors, balance, The Mathews do not (stressing 94 at 1905 See id. justify an exception to the settled mini- that, deprivation, after the the debtor is mum process requirement due of a prompt hearing). entitled to an immediate post-restraint hearing. Accordingly, the I in- Finally, examine the Government’s pretrial are entitled to a hearing on Citing history legislative terest. protective merits order.14 This statute, forfeiture the Government asserts court should therefore have reversed and that: in- remanded district court with majority prompt hearing 14. The of our sister circuits that have the district court to hold a considered the issue are in accord. See E- Gold, which the can owner contest the (requiring post-re F.3d at 419 restraining waiting order—without until trial straint, pretrial hearing when the defendant to do so—at least when the restrained assets meaningfully needs assets to exercise pay attorney”); are needed to for an Unit- cf. Monsanto, counsel); right to 924 F.2d at 1203 (3rd Long, ed States v. 654 F.2d (same); Moya-Gomez, 860 F.2d at 728-29 Cir.l981)(rejecting process challenge due Lewis, (same); v. United States restraining pursuant § order issued (8th Cir.1985) (same respect 1324-25 with hearing); where order issued after United restraining pursuant orders issued to 21 Farmer, States F.3d 805-06 Crozier, 848); United States v. (4th Cir.2001) (requiring post-restraint, pre- (9th Cir.1985) (noting F.2d 1383-84 trial but where the defendant process requirement post-restraint of a shows restrained assets are untainted and orders); involving § in cases see choice); necessaiy to secure counsel of United Subdivision, also United States v. Melrose East Jones, States Cir. (5th Cir.2004) (noting the 1998)(same). agreement process requires "broad that due pretrial afford the structions to they could show

hearing at which cause not have did

Government their assets. Because

to restraint it mistakenly is bound believes Bissell, however, reasons, For these right. of this

deprived

I concur. specially HEIGHTS, BAKER

AIG STERLING

LLC, Partner- A.B. II Limited Olathe

ship, Plaintiffs-Counter-Defendants-

Appellants, MULTI-CINEMA,

AMERICAN

INC., Defendant-Counter-

Claimant-Appellee.

No. 08-14600. Appeals,

United States Court of

Eleventh Circuit.

Aug.

Case Details

Case Name: United States v. Kaley

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 18, 2009

Citation: 579 F.3d 1246

Docket Number: 07-13010

Court Abbreviation: 11th Cir.