*2 MARCUS, I, Before EDMONDSON and summarized the basic we FAWSETT,* Judges, procedural history Circuit District facts and of the case way: Judge.
* Fawsett, da, sitting by designation. Honorable Patricia C. United States Judge of Flori- District for Middle District January Kaley, Kaleys’ able to” the Kerri then a commission offenses, Ethicon Endo- representative granted
sales the motion the Surgery, informed was the tar- she .... day same *3 jury investigation in get grand of a the 5, 2007, Kaleys On March the moved Southern District of Florida. was February the district court to vacate the suspected stealing prescription medi- protective They 7th order. contended (“PMDs”) hospitals cal from devices and prevented that the order them from re- selling then them on black the market. taining counsel of their choice in viola- Kaley retained ... counsel the inves- tion of their Sixth Amendment to husband, Kaley’s Brian tigation. Kaley, representation the A magis- of counsel. investigation also who was under ... judge motion trate heard this too on separate attorney .... retained a To- April protective 6th and the sustained gether, attorneys the two informed the order; however, protec- he limited the Kaleys legal that their to take fees the (insofar scope tive as it applied order’s through approxi- case trial would be CD) $140,000. to the $500,000. mately pay To obtain funds to fees, those the applied and April grand On jury the equity obtained a home line of credit of superseding turned a indictment. This $500,000 their on residence used the replicated indictment the first seven proceeds buy deposit a certifícate of the first counts of indictment and added (“CD”). an additional count—a 6, 2007, February grand
On
jury
the
conspired
pro-
had
to launder the
returned
seven-count
indictment
offenses,
§
ceeds of the
in violation
against
Kaleys.[FNl]
Count One
1956(h).
§
of 18 U.S.C.
This indictment
charged conspiracy
transport
PMDs
sought
also
the criminal forfeiture of the
in interstate
while knowing
commerce
the Kaleys’
CD and
on
residence
stolen,
them to have been
in violation of
theory that those
were
assets
“involved
§
371.
through
Counts Two
in”
Kaleys’
commission of the
Six
five
charged
[18
substantive
U.S.C.]
1956(h)
§
17th,
April
offense.
On
offenses,
§ 2314
and Count Seven
Kaleys renewed their motion to vacate
justice, in
obstruction of
viola-
(as
February
7th protective order
1512(b)(3).
§
tion of 18 U.S.C.
The in-
by
6th),
April
amended
the order of
sought
dictment also
criminal forfeiture
expressly requested
pretrial, post-re-
§
of all property traceable to the
evidentiary hearing.
straint
offenses, including
....
the CD
magistrate
The
heard
judge
the mo-
FN1: The indictment
also
was
returned
April
tion
questioned
on
27th. He
Gruenstrass,
against
Jennifer
whose
provided
whether the
alone
indictment
case has
been
since
severed from the
probable cause to restrain the defen-
Kaleys’.
dants’
prosecutor
assets and ordered the
7, 2007,
February
On
the Government
an
supporting proba-
submit
affidavit
parte
moved the district court ex
prosecutor responded
ble
by
cause.
protective
order
the Kaleys
seal,
filing, in secret and
an
under
affi-
transferring
from
disposing
otherwise
davit
agent.
executed
the FBI case
listed in
forfeiture
count,
a magistrate judge,
May
magistrate
On
judge
conclud-
order,
that the indictment
prob-
established
issued two orders.
In the first
he
able
cause that the
was
“trace-
found
in-
cause—based
to consider at
agent’s affidavit— court
and the case
dictment
likely
whether the
would be
Kaleys’
residence
the CD and
prevail
They
in”
violations of
at trial.
asserted that
were “involved
1956(h)
unlikely
prevail
§
In the second
would be
February 7th
order,
theory underlying
prosecu-
its
he amended
because
to include within its
facts
order
tion was baseless and
protective
and the
scope
charges.
the full value of
CD
The Ka-
support
could not
2nd,
May
On
Kaleys’ residence.
leys explained
they
were accused of
judge issued
third
magistrate
receiving
prescription
unwanted
medical
Kaleys’
(“PMDs”)
motion to vacate the
denying the
pre-
hospitals
*4
devices
pretrial,
order and to hold
protective
Ethicon,
viously
purchased
had
them
hearing —
evidentiary
post-restraint
reselling
Kaley’s employer, and then
Kerri
re-
7, 2007,
those PMDs themselves rather
than
May
Kaleys appealed
the
On
turning
According
them to Ethicon.
judge’s May 1st and 2nd
magistrate
the
Kaleys,
government’s theory
the
court. On June
the
to the district
orders
Kaley
was that Kerri
held the
25th,
prosecution
court affirmed the
the district
in a
pro-
returned PMDs
“constructive trust”
judge’s issuance
magistrate
so,
PMDs,
Ethicon,
by selling
the
....
The trial court also
tective order
Kaleys unlawfully converted Ethicon’s
magistrate judge’s denial of
the
affirmed the
Kaleys
The
contended that
evidentiary hearing,
property.
conclud-
hearing until the
there could be no constructive trust be-
postponing
that
the
they
any fiduciary
cause
did not owe
duties
process.
satisfied due
On
trial
itself
2007,
Ethicon,
Kaleys
and because Ethicon had never
lodged [an]
the
June
in
challenging
any property rights
the dis-
the un-
interlocutory appeal,
asserted
Kaleys
wanted PMDs. The
also noted
trict court’s decision.
that the
had offered this con-
(footnotes
I,
Kaley
the district court concluded that the implicated Sixth Amendment here— inquiry relevant was wheth- qualified right to counsel of choice—is er restrained were assets traceable to *5 See, weighty a e.g., concern. v. Powell alleged or involved in the criminal conduct. Ala., 45, 53, 55, State 287 53 U.S. S.Ct. Kaleys attempt Because the not did to (1932) (“It 77 L.Ed. hardly 158 neces- challenge traceability way arguing— sary to say that the right being counsel government’s that conceded, a defendant should be afforded a case had no merit —the district court de- opportunity fair to secure counsel of his their nied motion to vacate the protective choice.”). A pretrial own restraining order order. On October may make unavailable that a crimi- lodged assets interlocutory this second appeal nal pay defendant needs to for from the district his counsel court’s order. I,
of choice.
recognized Kaley
As we
II.
this is a serious consequence for
defen-
Bissell,
“Being
dant:
panel
effectively
In
shut out
a
of this
Court laid out
state from retaining
the factors that
must
the counsel
weigh
courts
in de-
of one’s
termining
whether an indicted
choice
a serious criminal
defendant
case is a sub-
____”
whose assets have
pretrial
been restrained
stantial
of prejudice
Kaley
source
I,
is entitled
an evidentiary
hearing.
continuation
retaining
him from
prevents
dant’s assets
makes it abun
And the statute
ing order.
choice,
process requires a
counsel of
due
Congress
how to
dantly clear that
knew
hearing if the four-factor balanc-
hearing if it had wanted
for such a
provide
ing
Wingo,
test enunciated in Barker v.
853(e)
a court
authorizes
to do so. Section
es that the test, the pretrial hearing to a under Bissell in the event of conviction. Id.3 forfeiture ultimately court concluded subpara two as the district The difference between these unambiguously demonstrates I graphs Kaley after our remand. The district the issue of a hear Congress contemplated found that the first two court factors require post- one ing, but decided not to government, in be weighed favor indictment.4 delay until projected the trial was had a short and the substan no hear- imposes the statute itself
Since revealing in its case hearing tial interest before requirement, only pretrial the however, alleging today, wheth- under this section do not consider "[w]e hearing requires respect a er the Due Process Clause to which the order is pretrial restraining would, conviction, can be im- before a order sought in the event of posed”). subject to forfeiture under this section .... 853(e)(1)(A). § 21 U.S.C. provides perti- in Specifically, the statute 3. part: nent provides pre-indict- statute also for a The States, Upon application the United of restraining temporary order without a ment may restraining in- enter a order or met, hearing requirements but it if certain are junction, require of a satisfac- the execution that, upon request, hearing requires "shall bond, any tory performance or take other possible time.” 21 be held at the earliest availability proper- preserve of action to Thus, 853(e)(2). Congress was also (a) ty of this section described in subsection hearing aware that it could after under this section— for forfeiture order, parte restraining it entry an ex but of (A) filing in- upon the of an indictment or require- plainly impose such declined to charging this a violation of sub- formation post-indictment ment for the continuation chapter subchapter chapter or II of this restraints. be ordered which criminal forfeiture But and fourth factors trial on trial.5 the third the merits of the criminal weighed Kaleys’ in favor were unnecessary .... But the Bissell court enough Kaleys to to an eviden- entitle undeniably contemplated circum- some I, tiary hearing. explained Kaley which, As we presence stances in despite weigh the third factor must cause, pretrial defen- every they dants’ favor when “have taken be required. step available contest the restraints.” The principle of law Bissell advances Id. 1257-58. And as for the fourth that, weighing after the four Barker factor, although has a factors, may grant the district court strong property, interest request defendant’s for a evi- outweighed significant preju- it is dentiary hearing in determine dice the without a suffer whether assets described the forfei- hearing: depriva- the potentially wrongful ture count of the indictment were tion of the resources needed retain their (or wrongly placed seized under the re- counsel of choice. The were thus order)____ protective straint of a The pretrial, post-restraint entitled to a hear- purpose of would not be to ing. rather, guilt but, determine innocence question now before Court is propriety determine the of the sei- exactly what hearing requires. Kaley Moreover, hearing, zure. I suggested that the defendants cannot defendant, movant, as the would have indictment itself. proof, burden of prosecution holding /’s the district court having would thus be saved incorrectly applied had the Bissell test was preview its entire case. based the district court’s error in evalu- Kaley I Id. 1257-58. concluded that the ating the third factor—the defendants’ as- analysis district court had erred in its sertion of the third Bissell factor it miscon- because explained:
We strued the nature to which evaluating factor, the third the dis- [I]n *7 be the would entitled. The district that, Bissell, trict court concluded under way had only court assumed that the probable once cause has been deter- challenge by conducting the restraint was mined, only way the that a defendant global pretrial hearing a challenging the can show that assets are not forfeitable sufficiency factual of underlying the indict- tois charged establish the crime that, I Kaley explained although ment. This, the did indictment not occur. how- a challenge such is not a permissible, more ever, holding was the not of Bissell hearing addressing “propriety modest the intent, opinion’s could not have been the the an ap- of seizure” would lawful in be because, correctly as the court district propriate Id. at case. 1257. noted, challenge a to the indictment can- pretrial. Admittedly, not be made A chal- because the issue be lenge to Kaley the indictment would fore this I simply the district court to an evidentiary hold whether the were entitled to some hearing to hearing, determine whether the crime kind of we did not have occasion many cases, occurred .... In a hearing’s to discuss exact the nature and hearing go so as would far to render the contours. That the issue raised I, we held that the district court's not amount to an of abuse discretion. on these determinations first two factors did F.3d at 1256. exclude, however, authority the to hold a appeal: whether Kaleys in this second the entry the hearing subsequent to the initial of is limited scope the may of the order and the at traceability permits or instead of issue or or- traceability modify the order vacate an challenge both time defendants clearly improper (e.g., that was cause deter- der grand jury’s probable presented To information where for the offenses. minations property shows that re- Kaley I did not settle extent that among was not issue, post- that at a strained pretrial, we now hold indictment). However, it the Bis- named hearing required under restraint a test, challenge is stressed that at such not petitioner sell not underlying challenges court is to entertain evidentiary support validity the indictment. For the charges. order, issuing restraining purposes limita- counsel for this Several reasons probable cause established in the In the scope tion on or information is deter- indictment to be noted, statute place, as we’ve first of any regarding minative issue the mer- for a and to provide hearing, does not itself government’s case its of the on which Congress contemplated extent that based. the forfeiture is to be it that a defendant hearing, determined 98-225, (1983), S.Rep. No. at 168-69 challenge not be allowed should history in 1984 U.S.C.C.A.N. 3385- legislative printed itself. indictment added). It (emphasis too much to surrounding the codification of 853(e) challenge to say allowing a the factual or more unam- be clearer couldn’t underpinnings charges biguous point: on the be pretrial, post-restraint hearing (1)(A) provides that a re- Paragraph legislative history. with this at war may issue the fil- straining “upon or information ing of an indictment Moreover, kind of this alleging ... charging a violation an indictment supporting to the evidence to which respect wholly Su be inconsistent with the would, sought in the event the order is pronouncements repeated Court’s preme conviction, subject to forfeiture be States, Costello United Thus, under section.” (1956), and its 100 L.Ed. 76 S.Ct. the indictment established cases, the Court progeny. these itself, is, in a sufficient information pre to allow profound reluctance shown order. *8 basis issuance jury’s challenges grand probable to a trial may factors consider While As the ob determination. cause Court bearing on the reasonableness in “An indictment re Costello: served it is not “look behind” sought, order by a constituted and unbi legally turned govern- the indictment or face, jury, on grand ... if valid its ased re- produce additional evidence ment charge call trial of the on enough to of the case .... garding the merits requires The Fifth Amendment merits. 363, 76 more.” at S.Ct. 406. pre-indictment nothing Id. In contrast to the holding repeatedly reaffirm authority out This has been straining set order Williams, v. 504 (1)(B), See United States post-indictment ed. paragraph 1735, 54-55, 112 36, 118 L.Ed.2d S.Ct. does not re- U.S. provision (“Our (1992) bear words Costello opportunity 352 prior notice quire facially valid indict- Review of provision repeating: does not hearing .... This 1324 grounds inadequate on dant always pre- [of
ments
evi-
could
insist on kind of
[the]
liminary
‘would run counter to the
dence]
whole
trial
the competency
to determine
institution,
history
grand jury
adequacy
evidence before the
justice
concept
neither
nor the
of a fair
grand
but,
jury,”
as the
explained,
Court
(alterations omitted)
requires
trial
it.’”
required by
is not
the Fifth Amend-
“[t]his
Costello,
364,
(quoting
1325
indictment,
dating power
personal
or malice and
ill
reasoning
missed the
665,
exculpatory
Branzburg
“created
v. Hayes,
«evidence
will.”
408 U.S.
withheld
23,
2646,
about [the defendant’s]
doubt
n.
92 S.Ct.
L.Ed.2d 626
reasonable
687
33
jury’s
(alteration
grand
(1972)
and “thus rendered the
guilt”
original)
(quoting
Id. at
gravely suspect.”
to indict
375, 390,
decision
Georgia, 370
82
Wood v.
U.S.
(alterations
internal
39,
(internal
1735
(1962))
112 S.Ct.
1364, L.Ed.2d
S.Ct.
8
569
omitted).
marks
But the Su-
quotation
omitted).
Indeed,
marks
quotation
“[t]he
rejected this kind of
squarely
Court
preme
of the
that a
very purpose
requirement
supervision
quantity
of the
by grand
limit
jury
man be indicted
is to
“^Judicial
upon by
relied
quality of
jeopardy
charged by
his
offenses
51,
at
1735.
jury.”
Id.
112 S.Ct.
grand
indepen-
his fellow
group
acting
of
citizens
reviewing
must
courts
“abstain
Since
dently
prosecuting attorney
of either
or
support
grand
evidentiary
for the
States,
v.
361
judge.” Stirone United
U.S.
and its
jury’s judgment” under Costello
270, 4
80 S.Ct.
L.Ed.2d 252
that “[i]t
Court reasoned
progeny,
(1960).
little
courts
would make
sense” to
important
light
of the
historical role
sufficiency
prose-
of the
to “scrutiniz[e]
jury
grand
independent
as an
accu-
54, 112
presentation.” Id. at
S.Ct.
cutor’s
satory body,
progeny
Costello and its
Thus,
jury
long
grand
so
as the
powerful
pre-
to allow
evince
reluctance
cause,
there is
finds
challenges
evidentiary support
trial
to the
failure to
even “sub-
prosecutor’s
present
course,
for an indictment. Of
a defendant
exculpatory
not in-
evidence does
stantial”
may challenge
variety
an
on a
indictment
39, 112
the indictment.
id. at
validate
See
grounds,
failure to state
including
of other
S.Ct. 1735.
offense,
jurisdiction,
lack of
an
double
Underlying all of
cases is the Su-
these
jeopardy,
improper composition of
recognition
unique
preme Court’s
of
jury, and certain
grand
types
prosecuto-
of
grand
independent
an
jury
nature
as
6(b)
rial misconduct. See Fed.R.Crim.P.
See,
an arm of
body,
prosecution.
(allowing a defendant
to dismiss
to move
Calandra,
343,
e.g.,
414
94 S.Ct.
U.S.
grand
on the
the indictment
basis that the
(noting
grand jury’s responsibility
613
summoned,
lawfully drawn,
jury “was not
against “arbitrary
citizens
protect
selected,”
juror
or that an individual
or
oppressive governmental action” in
legally qualified);
was not
Fed.R.Crim.P.
prosecu-
of “unfounded
form
criminal
12(b)(3)(B) (allowing
to chal-
a defendant
Costello,
tions”);
362,
U.S. at
S.Ct.
to invoke
lenge an indictment
“fail[ure]
(summarizing
indepen-
the historical
jurisdiction
an of-
the court’s
or
state
Williams,
grand jury).
dence of the
fense”);
Scotia,
Bank
Nova
jury
explained
grand
cases
(noting prior
108 S.Ct.
to no branch
institutional
“belongs
racial or
holding
gender
discrimina-
Government, serving
as a kind of buffer
jurors
grand
tion in the selection of
referee between
Government
indictment);
Williams,
id. at
quires dismissal
people.”
before and then again in the main act view because of potential for damag- before judge and jury.8 ing premature disclosure of govern- ment’s case and trial strategy and for We add that allowing a defendant jeopardizing the safety of witnesses and post-restraint convert a hearing into a victims ... who would be required to mini-trial on the merits would often inter- testify at the restraining fere with the real interest expressly recog- S.Rep. 98-225, nized No. Congress in the pretrial preser- at (footnote vation of legislative assets. The U.S.C.C.A.N. 3378-79 history omit- ted). surrounding This legislative history statute reveals persuasive. that 21 853(e) United just Moya-Gomez, intended to States avoid Cf. (7th Cir.1988) such a F.2d result. As the Senate (quoting ex- Report plained: passage same noting and that “[t]hese con- siderations, the product of a careful
Although
current
law does authorize
deliberate judgment of Congress[,] ...
re-
issuance
orders
quire our
respectful
careful and
post-indictment
accep-
period, neither ... stat-
tance”);
Monsanto,
United States v.
any
ute
articulates
standard for the issu-
(2d
(en
F.2d
Cir.1991)
banc)
ance of these orders. Certain recent
(Cardamone, J.,
(“The
dissenting)
prosecu-
court decisions
required
have
gov-
ability
tion’s
to prepare its case
ernment
without
meet essentially the same
being forced to ‘tip its hand’ prematurely
stringent standard
applies
to the
paramount
was of
importance to the
issuance of
draft-
temporary restraining orders
ers
provides
persuasive
reason for
the context of
litigation
civil
....
delaying a full
effect,
adversarial hearing
such
on the
decisions allow the courts to
merits of
government’s
during
entertain
case
challenges to the validity of
post-restraint, pretrial period.”).
indictment,
govern-
prove
ment to
the merits of
underly-
At least
circuits,
one of our sister
howev-
ing criminal case and
er,
forfeiture counts
has concluded that allowing such a
and put on its witnesses well in advance
challenge imposes no real burden on the
of trial in order to obtain an order
government,
because the United States
straining the defendant’s transfer of
always
choose to forgo
property alleged to be
forfeitable
restraint. The Second Circuit
sug-
indictment. Meeting such requirements
gested that “the hearing ...
not being
can make obtaining a restraining or-
upon
forced
government,”
and that
der—the sole means available to the
the government
“[i]f
in any
determines
government to assure
availability
case
an adversary hearing in advance
assets after
quite difficult. of a criminal
inadvisable,
trial is
it always
conviction—
addition,
requirements
these
may has
option
forgoing
the restraint
make pursuing a restraining order inad-
and obtaining forfeiture after conviction.”
Kaleys’
8. The
proposed rule would also lead
conclude that a
supported by grand
to an anomalous result: defendants with as-
jury's probable
requires
cause determination
sets that the
seeks to restrain
proof
additional
collateral
when
get
a chance to
validity
attack the
restrained,
assets are
but that a defendant
trial,
the indictment before
but defendants
gets
without
opportunity
assets
no
for a
not,
without
assets would
no matter how
preview
similar sneak
of the government’s
potential
severe the
implications for their lib-
case,
capital
even if he faces
charges.
erty interests.
It
odd indeed to
count,
Monsanto,
By our
at least three of our
(majority
sister
ing by is This Constitution. EDMONDSON, Judge, Circuit question important, is one on which concurring in the result: Supreme the circuits split. are The question present- has never considered the
I
in
I
today’s
concur
result.
concur
in
appeal.
ed
this
strong
I cannot
with
confi-
say
because
my colleagues
panel
dence that
on
are
By freezing
property
a citizen’s
at a time
way they
incorrect
the law
see
crime,
presumed
when he is
innocent of
working.
deep
But I
concur
doubts.
(and,
matter,
practical
the citizen
as a
his
alone,
deciding
And if I were
the case
I
others)
family
subjected
and perhaps
is
to
expect I would reach a different result and
hardship.
severe
The
in
hardship includes
something
in
largely
write
line with United
inability
this
employ
case
of
counsel
(2d
Monsanto,
v.
States
Third opin- albeit in an guilty defendant is crime makes ion, adopted recently has more the Tenth Cir- E- assets forfeitable. United States v. Jones, Gold, Ltd., analysis concluding (D.C.Cir.2008); cuit’s in that "[t]he 521 F.3d Roth, post-restraint inquiry at the hear- adversarial United States v. 912 F.2d (9th Cir.1990). traceability is limited to the of the re- bringing likely is most not needed action the criminal initiates event, But, government in cause. prosecu- Executive Branch’s charges. The for itself what cards to show can decide seat, choosing in the driver’s tors are trial; the the actual worst will before charges and number nature restraint on happen is addition, in choosing, brought and here property will not continue. The criminal be- citizens’ the accused restrain trial still looms ahead. something step is This later fore trial. extra, ordinary prosecution; and beyond participate in an For the Defen- case, step said to disable adversary hearing after seizure and before inconvenient, fact, But the dants, employing counsel trial is of course. ought not government’s inconvenience defend themselves. the outcome of this kind of case. determine ordinary prosecu- That this add-on to takes this inconvenience effect, the seizure tion—in by making its own choice about upon itself trigger extra and of trial —would advance a criminal case. At proceed how it will for the procedural safeguards significant *15 outset, go pretrial the choice to way odd to property and his no citizen prosecutors’ restraint is the to make. Be- hearing by probable me. And a cause deciding employ strategy to a fore seizure, I do not understand following the includes a restraint on a defen- any- to do to be forced government property, prosecutors weigh can dant’s case try much less to its criminal thing, (1) the extra time and trouble associated simply can choose government twice. The n with an evidentiary pretrial hearing to govern- If property. to release the restraint on a keep up defendant’s proper- not wish to release the ment does (2) (as against the benefit property evidentiary hearing should be con- ty, an it) country to the prosecutors see both the probable about cause on ducted prohibiting would flow from the defendant criminal offense and the forfeita- predicate using his before trial. property supposed to bility (traceability of assets necessary choices are a and Cost-benefit crime) At that specified property. of the life, litigation. part including normal government can decide for hearing, Furthermore, of the ulti- the outcome much evidence it precisely itself how jeopardized by mate trial itself need not be about the criminal of- present wishes to hearing; govern- a cause if the probable If not wish to government fense. does keep that it to some ment thinks is best trial, certain evidence before reveal trial, until the actual evidence secret government rightly can withhold evi- Moreover, government keep can it secret. dence. probable hearing very possibly cause government respond To ask the to a by presiding judge in can be tailored probable on cause that way a as to make the be actually occurred is not to crime significantly different from kind of burden; Besides, government heavy gov- if place on the criminal trial.1 even hear- conviction at trial ernment loses at the everything needed for a protect grand jury proceedings tailoring evidentiary dence to 1. This against just protect for trial. unwarranted invasion.” United functions not States, E-Gold, Ltd., adversary hearing, 521 F.3d “In such an the court (D.C.Cir.2008); United States v. Mon- of evi- see also could use limitations on disclosure santo, Cir.1991) (en dence, (2d hearings appro- 924 F.2d such as in camera (Fed.R.Evid. banc) apply hearings do not priate application of the normal rules of evi- So, ing, might things all the itself I ulti- are fair. do think that Mon- E-Gold, decisions, mately to the santo lost as law are —if actually very possibly is later obtained at the stressing conviction on tack: judicial criminal trial.2 responsibility requiring broader keep up of Rights, Constitution’s Bill includ- straint when the in- restraint Amendments, the Fifth and Sixth terferes with a employ citizen’s abilities to by protect intended the Framers citi- legal counsel of his choice to him in defend high power zens from the the federal proceeding. criminal government. guar- The Constitution is to antee each fair deal Like many appellate judges citizen a when the (probably most), federal takes aim at him. I separately do not write or dissent every specifically property, ought myself disagree- More about we time that find I majority ment “Liberty, proper- to bear mind this fact: with the on a judges upon case we ty, stamps! working: and no It had been the which are first almost always, slogan majority the American taken a hard look Revolution.” case; (in view) Bowen, position their my Catherine Drinker Miracle at one; is a Story resulting reasonable and the Philadelphia: The the Constitu- precedent impression will make an May on the September tional Convention (1966). body of deep law that will be at 70 neither nor Property rights, in them- wide. I selves, stop separately today to write amply guarded deserve to be because the case touches on the fundamen- American But courts. when a citizen’s *16 and, thus, tals (as impresses being un- case) me as liberty present depends to usually important. high degree property, on his the stakes are particularly high. I am panel satisfied that the of judges I which am a part genuinely seri- Executive,
For the Federal effect, ously Judge studied this case. Marcus has seize property; deprive citizen’s him opinion written a thoughtful in which thereby of the means to best defend him- Judge fully Fawsett has I concurred. case; then, in a self criminal by means doubts, have my firmly voiced but I cannot case, criminal to take his liberty legal conclude that position my experi- strikes me as a set of circumstances about enced, colleagues able have taken defi- is history which our nation’s and its Constitu- nitely Therefore, erroneous. I do not dis- process tion demands that step each sent, although uneasy I am that the limits fully potential fair. The for the domi- that we today set essential nating power of the Executive Branch to continue a property restraint on by arbitrary be misused acts of prose- might well be limiting too under Con- cutors is real. The courts must be alert. stitution. hear from To the other side at a time when (in instance, it matters before the
criminal trial: a trial without counsel of choice)
Defendants’ the basic and tradi- way
tional judges that American assure on whether a erty restraint on commonly hands transferees continue). can government. put recoverable I aside question money paid whether to de- 2. The option retains the of ob- fense counsel as reasonable fees could be taining govern- forfeiture of after the recovered, in a like case this one. ment prop- obtains a conviction. Forfeitable