Brief filed: 07/05/2013
Kaley v. United States
United States Supreme Court; Case No. 12-464
Decision below 677 F.3d 1316 (11th Cir. 2011).
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.
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