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Forfeiture, Assets, Probable Cause, and Hiring Attorneys

Wrapping up our belated notes on Tuesday's decisions, there is Kaley v. United States:

A federal statute, 21 U. S. C. ยง853(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 that they have no right to relitigate that finding.
Unusual lineup on this one.  Opinion by Justice Kagan, joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Alito.  Dissent by Chief Justice Roberts, joined by Justices Breyer and Sotomayor.


I am most assuredly in the minority on this blog, but I agree with Roberts. His 5A/6A "fairness" argument seems to me to be more in line with "justice."

I'm curious--how is a grand jury finding "relitigated"? It's not like the ham sandwich got to make arguments or file briefs. That seems a bit of sophistry to me.

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