When a defendant is convicted of a federal crime, the local district court retain the defendant assets in accordance to Title 18 U.S.C sec. 853(e); however, the law doesn't cover pretrial hearings. In the case before the Court will determine whether a defendant has a right for a pretrial hearing before the assets are seized if the assets are going to be used to finance legal defense.
In Kaley v. U.S, Kerri and Brian Kaley was indicted for conspiracy to transport prescription medical devices PMD while knowing to stole them on February 6th of 2007. Prior to the indictment, the Kaley's took out and home equity line of credit to by a certificate of deposit to finance the legal fees. The indictment sought a protective order to freeze all assets associated with the alleged crime including the CDs. The Kaley attempted to vacate the protective order arguing that the protective order would prevent them from obtaining and retaining legal counsel of their choice.
In Barker v. Wingo 407 U.S. 514 1972, the Court held when a defendant could be prevented from obtaining legal council by a restraint of assets, due process requires pretrial hearing when one of the following is met:
- when a delay before post-restraint
- reason for delay
- defendant assert the right to council
- prejudice the defendant suffered due to delay weighed against the strength of the United States interest subject to property
In the latest ruling, the 11th Circuit Court of Appeals held that while the Kaleys were entitled to a pretrial/ post-indictment hearing to determine the constitutionality of the restraining order, the restraining order was upheld. The 11th Circuit heard the Kaleys' case twice.
we reversed the district court’s prior order which had concluded that the Kaleys were not entitled to a pretrial evidentiary hearing on their motion to vacate the protective order, and we remanded for further proceedings. On round two, the district court determined that the Kaleys were entitled to a pretrial, post-restraint hearing, but that the only question to be addressed at the hearing was whether the restrained assets were traceable to or involved in the conduct charged in the indictment