SCOTUSblog: Kaley v. United States
Background: The Kaleys were indicted for conspiracy to transport prescription medical devices (PMDs) from hospitals and then selling them on the black market (among other charges). The indictment also sought criminal forfeiture of all property traceable to the charged offenses. The government asked the District Court for an ex parte protective order restraining the Kaleys from transferring or otherwise disposing of the property listed in the forfeiture count. Included in this property was a $500,000 certificate of deposit purchased with a home equity line of credit on their home which they intended to use to fund their criminal defense. The Kaleys contended that the order prevented them from retaining counsel of their choice in violation of their Sixth Amendment right to the representation of counsel. Further, they asked the court to vacate the protective order and and expressly requested a pretrial, post-restraint evidentiary hearing, both of which were denied. The Eleventh Circuit affirmed.
Issue: The question before the Court was whether, when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges.