Federal Appeal Regarding Funds Needed to Hire Criminal Defense Lawyers

Last month, the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, and hears appeals from both civil and criminal federal cases, decided United States v. Kaley, a case regarding due process requirements for protective orders over property defendants wish to use to hire criminal defense counsel of their choice.

In Kaley, a wife and husband were each indicted with conspiracy, transportation of stolen property, obstruction of justice, and money laundering. The indictment included a criminal forfeiture count and the government obtained an injunction against the Kaleys encumbering the property listed in the forfeiture count. The government got that injunction ex parte, without a hearing in which the Kaleys could participate.

The property that the government enjoined was the property that the Kaleys planned on using to hire their criminal defense lawyers. Their legal fees were estimated at $500,000. To pay that amount, the Kaleys had gotten a home equity line of credit and used the proceeds to buy a certificate of deposit. The government claimed that those assets were “involved in” the Kaleys’ commission of their alleged crimes and sought to forfeit the property.

The Kaleys argued that the protective order prohibiting them from using the money prevented them from retaining counsel of their choice, in violation of their 6th Amendment right to the representation of counsel. The magistrate judge found that no hearing regarding the restraint on the property was necessary until trial and the district court agreed. The Kaleys appealed to the Eleventh Circuit.

The Court held that under Eleventh Circuit precedent, “a defendant whose assets are restrained pursuant to a criminal forfeiture charge in an indictment, rendering him unable to afford counsel of choice, is entitled to a pre-trial hearing only if the balancing test enunciated in Barker v. Wingo is satisfied. ” The Court further held that the District Court had not correctly applied the balancing test in the Kaleys’ case and reversed, requiring the district court to re-weigh the factors and determine whether the Kaleys may have a pre-trial hearing on the matter.

The most interesting part of this case is the Court’s discussion of its obligation to follow its own precedent in the case. The Court stated that, had it been writing from a blank slate without that precedent, it would have applied a different test to determine whether the Kaleys were entitled to a hearing. The case the Court was bound to follow, U.S. v. Bissell, was decided by the Eleventh Circuit in 1989.

Had the Court not been bound by Bissell, it would have applied the test announced by the Supreme Court in Mathews v. Eldridge, which decided whether an individual was entitled to a hearing under the 5th Amendment to contest governmental deprivation of a property interest in civil cases. Other circuits have applied Mathews in situations such as the Kaleys’. Had that test been applied, “the Kaleys would be entitled to a pretrial hearing on the merits of the protective order,” said the Court. “At the end of the day, however, we are duty bound to apply our case precedent and examine this matter under the framework outlined by this Court in Bissell.”

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