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April 14, 2008

Notable DC Circuit ruling on Fifth and Sixth Amendment rights

A busy schedule kept me from noticing an interesting opinion by the DC Circuit late last week in US v. E-Gold, Ltd., No. 07-3074 (DC Cir. April 11, 2008) (available here).  Though focused on an array of issues in a civil forfeiture context, the conclusion highlights why the ruling might have broader implication than it might seem upon first look:

In short, we hold that where the government has obtained a seizure warrant depriving defendants of assets pending a trial upon the merits, the constitutional right to due process of law entitles defendants to an opportunity to be heard at least where access to the assets is necessary for an effective exercise of the Sixth Amendment right to counsel.  We need not determine, nor do we determine, whether the due process rights of the defendants compel such a hearing when the assets are not necessary to obtaining counsel of choice.

I am too distracted with other matters this week to figure out whether E-Gold might be a hidden nugget (or perhaps fool's gold) for those interested in expanded Fifth and Sixth Amendment rights.  Perhaps readers can do the hard work of talking through whether there are golden constitutional possibilities in the comments.

April 14, 2008 at 11:14 AM | Permalink

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Comments

I think this just brings the DC Circuit in line with the Second and applies the M v. E balancing test to these seizures. There isn’t much in the way of a sixth amendment issue here because the evidentiary hearing would be before a judge.
Notable quotes

  • For the reasons more fully set forth below, we conclude that appellants have established that their constitutional rights are being violated by the continued seizure of their assets without a
    post-seizure evidentiary hearing.




  • We thus join the Second Circuit in holding that defendants have a right to an adversary post-restraint, pretrial hearing for the purpose of establishing whether there was probable cause “as to the defendant[s’] guilt and the forfeitability of the specified assets” needed for a meaningful exercise of their rights to counsel.




  • We need not determine, nor do we determine, whether the due process rights of the
    defendants compel such a hearing when the assets are not necessary to obtaining counsel of choice.
  • Posted by: S.cotus | Apr 14, 2008 12:27:56 PM

    I am partial to the Taking Clause--"nor shall private property be taken for public use without just compensation." It was put in the Fifth Amendment for a reason. When they take your money or property is it not for public use? What is the stated objective of taking your property? Had Jefferson's first draft of the Declaration of Independence been kept on the page--"Life, Liberty and Property" instead of that "happiness" crap we might not have such things in life as "forfeitures". I believe that the Framers intended that all of the phrases of each provision (Article or Amendment) of the Constitution were to be read together-- and that all of the Bill of Rights were to be taken together. That is why they positioned the right to arm bears right after the right to talk. Or am I reading that incorrectly?

    Posted by: M.P.B. | Apr 17, 2008 2:05:16 AM

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