On
March 18, 2013, the United State Supreme Court granted certiorari in Kaley v. United States. Docket No. 12-464. The case represents a complicated but narrow
legal issue regarding the scope of a defendant’s right to challenge an order
seizing property that the government claims is subject to forfeiture when the
defendant asserts that the property is necessary to pay legal fees. Typically, these seizure orders come during
an ex-parte hearing where the government needs to show property is subject to
forfeiture based on probable cause.
Those assets are then frozen until the conclusion of an underlying
criminal proceeding. The Federal Circuits
permit defendants to challenge the traceability of those assets in
post-indictment, pretrial Jones-Farmer
hearings. The Circuits are split,
though, as to whether a defendant may challenge the evidentiary support and
legal theory of the underlying charges or only the traceability of the property
the government claims is subject to forfeiture.
