Kerri and Brian Kaley were investigated for stealing medical devices and laundering money they earned from sale of the stolen property. The Kaleys arranged for an equity loan to pay for their defense counsel. However, upon the Kaleys being indicted on the charges, the government successfully moved to freeze their assets, thereby leaving them without the funds to retain the counsel of their choice.
The defendants sought to have the order vacated and argued that they had the right at least to a hearing to determine whether the money was traceable to the criminal activity.
The court ruled that the defendants did not have the right to a pretrial hearing on the asset forfeiture because the grand jury already established probable cause that linked the assets to the crime.
The circular logic means that, for purposes of asset forfeiture, the Kaleys are considered guilty unless they are proven innocent at trial.
Fighting white collar crimes is complex. The Kaleys reasonably wanted to retain a lawyer with the skills necessary to raise a strong defense. The Kaleys claim that the ruling denies them the right to counsel of their choice, a violation of their Sixth Amendment rights. In February of this year, the U.S. Supreme Court approved the lower court’s decision to allow forfeiture of the Kaleys’ assets without a pretrial hearing.
The opinion in Kaley v. United States says, “When challenging the legality of a § 853(e)(1) pre-trial asset seizure, a criminal defendant who has been indicted is not constitutionally entitled to contest a grand jury's determination of probable cause to believe the defendant committed the crimes charged.”