On February 25, 2014, the Supreme Court issued its decision in Kaley v. United States. The question in this case is whether, when a post-indictment ex parte restraining order freezes assets needed by a criminal defendant to hire his attorney of choice, the Fifth and Sixth Amendments require a pre-trial hearing at which the defendant may challenge the evidentiary support and legal theory upon which the government relied to freeze the assets.

In a 6-3 opinion delivered by Justice Kagan, the Court held that when challenging the legality of a pre-trial asset seizure under 21 U.S.C. § 853(e)(1), a criminal defendant who has been indicted is not constitutionally entitled to contest a grand jury’s determination of probable cause to believe that he committed the crimes charged. The opinion of the Eleventh Circuit was affirmed and remanded. Justices Thomas, Alito, Kennedy, Ginsburg, and Scalia joined the opinion of the Court. Chief Justice Roberts filed a dissenting opinion, which Justices Breyer and Sotomayor joined.

To discuss the case, we have Darpana Sheth, an attorney at the Institute for Justice in Arlington, VA.

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