Monday, October 14, 2013

Howard Srebnick and Richard Strafer head to the Supremes

They have oral argument this week in Kaley v. United States, presenting the following issue: 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.

Here's the 11th Circuit opinion, holding that no adversarial hearing was required, which split with a number of other circuits, leading the Solicitor General to agree with the cert request.

Harvey Silverglate wrote an op-ed in the WSJ supporting the Kaleys:

On Oct. 16, the Supreme Court will hear oral arguments on a claim brought by husband and wife Brian and Kerri Kaley. The Kaleys are asking the high court to answer a serious and hotly contested question in the federal criminal justice system: Does the Constitution allow federal prosecutors to seize or freeze a defendant's assets before the prosecution has shown at a pretrial hearing that those assets were illegally obtained?
Such asset freezes often prevent a defendant from hiring the trial counsel of his choice to mount a vigorous defense, thus increasing the likelihood of the government extracting a guilty plea or verdict. Because asset forfeiture almost automatically follows conviction, a pretrial freeze ultimately enables the Justice Department to grab the frozen assets for use by executive-branch law enforcement agencies. It is a neat, vicious circle.
And Jay Weaver covered the upcoming argument in the Miami Herald:

Srebnick will argue that defendants should be allowed to keep their bank accounts and other possessions unless prosecutors can show before trial that the evidence supporting an indictment justifies the seizure of those assets.
For decades, prosecutors have only needed to point to a federal grand jury indictment to argue that defendants' assets are traceable to the criminal allegations and therefore can be seized. And judges have almost always ruled in the prosecution's favor because of the presumption that the grand jury found "probable cause" that a crime was committed.
Eventually, depending on whether a defendant is found guilty or is acquitted, frozen assets are either kept or returned by the government.
In legal briefs, Srebnick has asked the Supreme Court to allow a hearing that would test the strength of the prosecution's evidence before a jury hears the government's case against his two clients, a New York couple. Kerri and Brian Kaley were charged in 2007 with illegally profiting from the resale of older medical devices in South Florida's "gray market." The equipment had been given to the wife and other equipment sales representatives by hospitals that no longer needed them because they purchased newer devices.
The couple obtained a $500,000 equity line of credit on their home so they could pay projected legal fees to their "preferred" defense lawyers, Srebnick, and colleague, Susan Van Dusen, who claimed the government's case was "baseless." But after the couple's indictment, prosecutors obtained a judge's order to seize their home and other assets valued at nearly $2.2 million, leading to the Supreme Court case.

Read more here:

Good luck Howard and Richard!


Anonymous said...

I like how the FACDL brief makes the argument that public defenders can't handle these big cases.

Rumpole said...

I read the cert papers and briefs yesterday (SCOTUS blog is a great resource) in preparation for an issue I have in Texas where the Feds seized my clients bank accounts pre-indictment, NO NOTICE and shrugged when I suggested that they didn't follow the law. This is a very important case and I think they have the right court (property rights) to secure a big win.