## Facts

- Kerri Kaley, a medical-device sales representative, received surplus or outdated prescription devices from hospitals and, with her husband Brian Kaley and others, resold them to a Florida company.
- Federal prosecutors alleged the devices were stolen property and that the Kaleys participated in an illegal resale scheme.
- In February 2007, a federal grand jury indicted the Kaleys on multiple counts, including conspiracy to transport stolen goods across state lines and money laundering.
- The indictment included a criminal forfeiture allegation seeking property traceable to the charged offenses, including a $500,000 certificate of deposit funded through a home-equity loan and intended to pay defense counsel.
- Under 21 U.S.C. § 853(e)(1), the government obtained a post-indictment pretrial restraining order freezing assets alleged to be forfeitable, including the $500,000.
- The Kaleys argued the freeze violated the Sixth Amendment right to counsel of choice and sought an evidentiary hearing to challenge the basis for the restraint, including the grand jury’s probable-cause determination that they committed the charged crimes.
- The district court permitted only a limited hearing on whether the assets were traceable to the offenses and barred relitigation of the grand jury’s probable-cause finding as to guilt; the restraint remained in place.

## Issues

1. Whether the Fifth and Sixth Amendments require a post-indictment hearing allowing defendants to contest the grand jury’s probable cause that they committed the charged offenses as a condition to lifting a § 853(e)(1) pretrial asset restraint needed to retain counsel of choice.
2. Whether, after indictment, a court may treat the grand jury’s probable-cause determination as conclusive for purposes of maintaining a pretrial restraint on assets alleged to be forfeitable.

## Decision

- The Supreme Court affirmed, holding (6–3) that an indicted defendant is not constitutionally entitled to contest the grand jury’s probable-cause determination of guilt in a hearing seeking to lift a § 853(e)(1) pretrial asset freeze.
- The Court recognized that a defendant may seek a hearing on whether restrained assets are traceable to (and thus tainted by) the alleged offenses, but not on whether probable cause existed to indict.
- The Court rejected the argument that the Sixth Amendment right to counsel of choice requires relitigation of probable cause to believe the defendant committed the crimes when the restrained assets are intended to pay attorney’s fees.
- The Court concluded that due process does not require duplicating the grand jury’s role by conducting a pretrial, adversarial reassessment of the evidence supporting the indictment in the forfeiture-restraint context.

## Legal Principles

- Under 21 U.S.C. § 853(e)(1), courts may restrain assets pretrial to preserve potentially forfeitable property pending criminal proceedings.
- Consistent with United States v. Monsanto, pretrial restraint of assets alleged to be forfeitable may include assets the defendant wishes to use to pay counsel, so long as probable cause supports forfeiture.
- After a grand jury returns an indictment, its determination of probable cause that the defendant committed the charged offenses is conclusive for purposes of maintaining a post-indictment pretrial forfeiture-asset restraint.
- The Fifth Amendment does not require a hearing that allows an indicted defendant to relitigate the grand jury’s probable-cause finding as to guilt; any hearing may be limited to the nexus between the property and the alleged crime.
- The Sixth Amendment right to counsel of choice does not include a right to use assets supported by probable cause to be forfeitable to fund the defense.

## Conclusion

The Court held that, once a grand jury indicts, defendants whose assets are restrained under § 853(e)(1) are not entitled under the Fifth or Sixth Amendments to a pretrial hearing to challenge the indictment’s probable-cause determination of guilt, even when the restraint limits their ability to retain counsel of choice.


Kaley v. United States, 571 U.S. 320 (2014)