Kaley v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of petitioners.

Brief filed: 07/05/2013


Kaley v. United States

United States Supreme Court; Case No. 12-464

Prior Decision

Decision below 677 F.3d 1316 (11th Cir. 2011).

Question Presented

When a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, do the Fifth and Sixth Amendments require a pretrial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges?


A seizure of allegedly forfeitable assets needed to retain counsel is constitutionally unreasonable without more evidential support than ordinary seizures require. The right to counsel of choice is of a nature with the rights to speak, associate, and petition the government. The retention or appointment of alternate counsel does not mitigate the threatened constitutional violations. Recognizing that seizures of assets needed to retain counsel pose the same dangers as other prior restraints on protected speech resolves the issues dividing the courts of appeals.

Featured Products


University of Miami School of Law Professor Ricardo J. Bascuas, Coral Gables, FL.