Brief of Amici Curiae National Association of Criminal Defense Lawyers and the Cato Institute in Support of Appellant.
Argument: This court's prior decision in Billman is not a viable authority and should no longer be followed. Billman authorizes the pretrial restraint of any property – whether tainted or untainted – that might ultimately be forfeited to the government upon conviction. Every other circuit to address the issue has held that the statute does not authorize the government to restrain a defendant's untainted, substitute assets before trial. Luis rejected the argument that the government is authorized to restrain all property that might ultimately be forfeited to the government upon conviction. Luis expressly rejects the broad reading of Monsanto relied upon by this court in Billman. Luis holds that the proper inquiry is to examine the parties' respective property rights under the statute. Luis describes section 853 as permitting only the pretrial restraint of tainted assets, and the government agreed with the court's description during oral argument. En Banc proceedings are not necessary to overrule Billman in this case.
Brief of Criminal Defense Attorneys (NACDL and FACDL) as Amicus Curiae in Support of Petitioner (On Petition for Writ of Certiorari).
Argument: The Sixth Amendment right to counsel demands a strict construction of section 1956(a)(1)(B)(i)’s heightened intent requirement. The reasoning of Caplin & Drysdale and Monsanto is flawed. In those cases, the Court construed the Sixth Amendment as offering no constitutional protection to the payment of counsel of choice with the proceeds of alleged, but not yet proven, criminal conduct. This case represents an ideal vehicle to determine whether the validity of the decisions should be reconsidered, as Justice Kagan, in Luis v. United States, 136 S. Ct.1083, 112 (2016) (Kagan, J., dissenting), suggested might now be appropriate.