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February 25, 2014

With intriguing coalitions, SCOTUS limits right to challenge pre-conviction asset seizure

The Supreme Court handed down an opinion this morning in Kaley v. US, No. 12-464 (S. Ct. Feb 25, 2014) (available here), which is notable for its holding and the groups of Justices joining together.  Here is the start of the opinion for the Court, which was authored by Justice Kagan and joined by Justices Scalia, Kennedy, Thomas, Ginsburg and Alito:

A federal statute, 21 U. S. C. §853(e), authorizes a court to freeze an indicted defendant’s assets prior to trial if they would be subject to forfeiture upon conviction.  In United States v. Monsanto, 491 U. S. 600, 615 (1989), we approved the constitutionality of such an order so long as it is “based on a finding of probable cause to believe that the property will ultimately be proved forfeitable.”  And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer.

In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the seizure's legality under Monsanto.  The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury's prior determination of probable cause to believe they committed the crimes charged.  We hold they have no right to relitigate that finding.

Here is the start of the lengthy dissent in Kaley  which was authored by Chief Justice Roberts and joined by Justices Breyer and Sotomayor:

An individual facing serious criminal charges brought by the United States has little but the Constitution and his attorney standing between him and prison. He might readily give all he owns to defend himself.

We have held, however, that the Government may effectively remove a defendant’s primary weapon of defense — the attorney he selects and trusts — by freezing assets he needs to pay his lawyer.  That ruling is not at issue.  But today the Court goes further, holding that a defendant may be hobbled in this way without an opportunity to challenge the Government’s decision to freeze those needed assets.  I cannot subscribe to that holding and respectfully dissent.

The Court also handed another criminal defendant another 6-3 loss today in a Fourth Amendment case from California. Here is how the majority opinion, per Justice Alito, gets started in Fernandez v. California, No. 12-7822 (S. Ct. Feb. 25, 2014) (available here):

Our cases firmly establish that police officers may search jointly occupied premises if one of the occupants1 consents. See United States v. Matlock, 415 U. S. 164 (1974). In Georgia v. Randolph, 547 U. S. 103 (2006), we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search. In this case, we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.

February 25, 2014 at 10:23 AM | Permalink


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John Roberts was an advocate, including appointed as such, in a range of appellate cases, so his concern in this case about a litigant's right to have the means to choose counsel of their choice is understandable.

His dissent is written in his usual straightforward style.

Posted by: Joe | Feb 25, 2014 2:51:03 PM

I thought both opinions were well-written. I disagree with the majority and I sometimes think Justice Kagan's dismissal of opposing arguments is too perfunctory, but that's about it. Her argument to the suggestion that inconsistent decisions could be attributable to the Prosecution simply not fully presenting their case at the hearing by responding that this would mean that the Judge would then be incorrect about whether there is probable cause is a good one (that sentence got away from me, I couldn't find a way to make it less confusing).

However, I fail to see why inconsistent probable cause determinations require any kind of adverse consequences. They're PC for different reasons. I'm from a state where a Judge determines probable cause at a preliminary hearing. However, if the Judge fails to find probable cause and dismisses the charges, the Prosecution can simply direct indict and proceed anyway. I think this is true in the federal system as well. No one thinks that inconsistent findings require the Prosecution to ethically dismiss the charges.

Regarding Fernandez (to change topics real quick): I almost agree with the majority's holding and think the rule I almost agree with makes sense. It should be based on objective reasonableness where, if a defendant is removed due to a lawful arrest, he has no right to object (however, if he's removed without lawful cause, Randolph would still apply because the consent is the fruit of the poisonous tree). My only objection is the inclusion of "lawful detention." If a person is removed from their home to "control the situation" without any cause to otherwise detain a person, I think the objection should still be valid. To hold otherwise would make a mockery of Randolph because it would allow the police to deliberately end run around the case without even individualized suspicion.

Posted by: Erik M | Feb 25, 2014 3:58:32 PM

I would think the problem, if there were one, could be solved by the government simply going ahead with the forfeiture proceeding before the criminal trial. The forfeiture may be based on the same acts but does not require the same proof.

Given that, while I don't particularly like this ruling I do nonetheless think it correct. Where I think the change needs to be made is with the grand jury system and its finding of probable cause to begin with, but I am not honestly not sure how to go about creating anything better.

Posted by: Soronel Haetir | Feb 25, 2014 4:02:07 PM

They don't want to go through with forfeiture ahead of time for a couple of reasons. One, it requires proof by preponderance of the evidence, not probable cause. Second, it would require them to reveal their witnesses and would certainly be an adversarial process. Third, it could reveal important trial strategies beyond what discovery reveals. Fourth, it would give the defendant more resources to defend their asset seizure case with.

I don't have a huge problem with this ruling given the tremendous amount of deference Grand Juries are given on their finding of probable cause (the preliminary hearing being the most prominent example where they more or less overrule a Judge). I just don't see the big deal about inconsistent decisions between the two deciding entities.

As an aside, I wonder if a finding of probable cause based on presentment would be enough. After all, it'll be the same rule for state courts and Hurtado is the opposite of this one when it comes to respect for Grand Juries.

Posted by: Erik M | Feb 25, 2014 4:26:18 PM

lord talk about talking out of their asses!

"We hold they have no right to relitigate that finding."

Unless of course this now means defendants are allowed to be PART of the grand jury process and submit witnesses and cross the DA!

other wise the all knowing USSC has screwed the pooch AGAIN!

Posted by: rodsmith | Feb 26, 2014 12:43:27 AM

There appears to be an underlying reason that the Kaley's are having such difficulties. On page 3 of the dissent, you will read that the Government only traced $140,000 in proceeds to the Kaleys. Proceeds of the crime are forfeitable, without doubt (see 18 USC 853 a). There is an analogy used in the supporting cases quoted by the majority...Caplin & Drysdale, and Monsanto..."Why should a bank robber get to use the stolen funds to defend himself?" Even if the bank robber is declaring himself innocent, in order for the funds to be frozen in the first place, the Gov must have made SOME showing of probable cause to assert that the frozen funds were in fact, the Stolen funds from the bank. There is an interest in making sure those funds don't disappear.
But in the Kaley's case, it appears the Gov only traced $140,000 of proceeds to the Kaleys...So why is a $500,000 CD being held as frozen? Then answer is again on page 3 of the dissent...the Government got a superceding indictment alleging money laundering. By tacking on the extra charge, the Government is able to sweep in EVERYTHING the proceeds TOUCHED as being "involved" in the money laundering. The NON-proceeds of the crime funds are now able to be held as "forfeitable" too (because they "facilitated" the "money laundering")
So if you are unlucky enough to believe you are NOT committing a crime (as the Kaleys have long protested they have not)...and you put ANY funds that the Gov claims are proceeds in contact AT ALL with funds that are NOT in question as proceeds, the Gov can tie up EVERYTHING. If the Kaleys are ultimately found guilty...they lose not just the proceeds, but everything the proceeds touched as well. (see US v McGauley for a sample case supporting this proposition). This same concept keeps them from using their legit funds to defend themselves.
It would have seemed that trying to excise the facilitating property (the clean funds) from the proceeds might have been a better approach...but of course, the Gov will aggressively fight anything that might mean less money...even, again, in light of the 6th amendment. The Courts broad allowance to the Gov of tying up legitimate "facilitating" property by the mere suggestion of "money laundering" would appear to be more of the problem here.

Posted by: folly | Feb 26, 2014 9:41:37 AM

The government's tactics are indeed concerning. I do think the Kaleys can challenge traceability. Has the government's interpretation of the Money Laundering statute that allows such a broad reach been considered by the Supreme Court? I do wonder if they have options there.

But I do think the Court needed to consider the question of whether the determination of Probable Cause that a crime has been committed where assets could be seized must be determined by a court or if a Grand Jury is sufficient. This is true even when the government's tactics and motives are questionable.

Posted by: Erik M | Feb 26, 2014 10:06:53 AM

Farewell, Georgia v. Randolph. We hardly knew ya. Gee whiz -- the guy explicitly denied consent while present at the house. What is left of Randolph if that is not enough?

The facts of this case provide a road map to get around Randolph, not to mention the warrant requirement: arrest and remove your suspect (or if necessary, remove him for his own safety/to contain the situation/for hindering the investigation), bully the remaining co-tenant into consent (here, by threatening to take away her kids), toss the place, presto, valid search. If you think this isn't how it plays out on the ground, you are as aloof from/indifferent to the realities of police practice as SCOTUS.

Posted by: anon | Feb 26, 2014 12:06:11 PM

It's always amusing to find out from our pro-criminal contingent that Kagan and Ginsburg have become fascists along with Alito, Scalia and Thomas.

Posted by: Bill Otis | Feb 26, 2014 1:30:14 PM

"My only objection is the inclusion of "lawful detention." If a person is removed from their home to "control the situation" without any cause to otherwise detain a person, I think the objection should still be valid. To hold otherwise would make a mockery of Randolph because it would allow the police to deliberately end run around the case without even individualized suspicion."

So basically, the amount of homes that can now be legally searched will increase exponentially. All they have to do is to arrest the suspect for any reason, take him away from the premises, then knock on the door and intimidate the occupant (wife, gf, mother, etc.) to allow them to search.

The police already have techniques to probe the limits of the law as it stands now. With this new decision, the 4th will take a pretty savage beating for awhile.

Posted by: Eric Knight | Feb 26, 2014 1:31:24 PM


Sorry, while I agreed entirely with the outcome in Randalf v. Georgia I really don't see a problem with Fernandez. I believe the courts got it right when they say that this is not even a close case as to whether the police had reasonable cause to remove Fernandez. The court goes out of its way to preserve the Randalf rule for cases where removing an objecting co-occupant was unreasonable.

Posted by: Soronel Haetir | Feb 26, 2014 4:05:41 PM


You are 'pro-criminal' in that you think prisoners obviously have some rights and the government is under some obligation to protect them.

The person here was just arrested. He was not a convicted criminal yet. The rule set here applies to totally innocent people as well.

Still, I don't find the results of the ruling in question that extreme though I agree with the dissent. The dissent's argument was partially that a search still could be done in most cases with little effort (extenuating circumstances or just getting a warrant, likely to be given, often very quickly). Also, you still have to have probable cause to arrest, so it is not quite "open season." That provides SOME restraints here.

"Fascist" (not that the word was actually used) is sort of overheated. Not quite as much as "pro-criminal" perhaps.

Posted by: Joe | Feb 26, 2014 7:27:56 PM

well bill and soronel I think it's time we went to a tried and true menthod of fixing these types of problems.

You know start treating thiefing little shits even theieing govt little shits like we did in the good old days when caught in the act.

Put a friggin bullet through their heads.

sorry but based on this retarded decision if the govt decide's I've stolen $1.00 and it's in an account with 50 million they are taking it all. Sounds like the text book def of a fucking thief.

Posted by: rodsmith | Feb 26, 2014 11:54:39 PM

Joe --

"You are 'pro-criminal' in that you think prisoners obviously have some rights and the government is under some obligation to protect them."

I am not "pro-criminal" in the sense relevant to my comment, to wit, I do not, while writing on this blog, routinely favor the criminal as against the prosecution. You do, however, and thus, as between those two parties, count as pro-criminal.

"The person here was just arrested. He was not a convicted criminal yet. The rule set here applies to totally innocent people as well."

In my lexicon, and the lexicon of almost all fair-minded laymen, a person becomes a criminal when he commits a crime. It does not matter when (or if) he is convicted. For example, Ted Bundy was a criminal (indeed, a murderer) after he killed his first coed; the appellation did not have to wait until several more years (and several more corpses) later.

"'Fascist' (not that the word was actually used) is sort of overheated. Not quite as much as 'pro-criminal' perhaps."

Wrongo. Fascist is a profound insult -- recalling Hitler and Mussolini -- and is used as such in order to drive conservatives off the board, so that the ever-tolerant and diverse liberals will have it all to themselves. More importantly, it is false. The commenters against whom it is most frequently aimed -- federalist, Kent, TarlsQtr, Adamakis and me -- are not fascists, period. I am proud to be friends with three of them, and I'd love to meet Adamakis. Our views about the death penalty, for example, are far more representative of the majority's than are yours.

Is the majority in this country fascist?

By contrast, it is entirely correct to label as "pro-criminal" commenters who, in the context of the discussions that occur on this blog, routinely speak up on behalf of the criminal, whether it be about the death penalty, mandatory minimums, sex crimes, or what have you. It is no more false or insulting to label as "pro-criminal" a person who routinely takes the side of the criminal vis-a-vis the prosecution than it is to label as "pro-Yankees" a person who routinely roots for the Yankees vis-a-vis the Red Sox.

Posted by: Bill Otis | Feb 27, 2014 6:09:26 AM

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