Supreme Court To Consider Post-Indictment, Probable Cause Challenges To Forfeiture

The Supreme Court has granted certiorari to consider whether defendants are entitled to a hearing to challenge the probable cause underlying the Government's theory of prosecution that supports any post-indictment, pre-trial restraining order that freezes assets the defendant needs to retain counsel. The Supreme Court left unresolved the issue of whether due process required such a hearing in Caplin & Drysdale v. United States, 491 U.S. 617 (1989). And the Circuits have split on the issue. Now in Kaley v. United States, the Supreme Court has agreed to consider whether such a hearing is required under the Fifth and Sixth Amendments.

In Kaley, the United States Court of Appeals for the Eleventh Circuit found that the defendants were entitled to a post-indictment, pre-trial hearing to challenge whether...