Can Criminal Defendants Challenge the Government’s Evidence of Guilt at Pretrial Asset Forfeiture Hearings?

Munger, Tolles & Olson’s Daniel B. Levin, Michael J. Mongan and Emily B. Viglietta working with the California Attorneys for Criminal Justice (CACJ), filed an amicus brief in the U.S. Supreme Court on behalf of defendants Kerri and Brian Kaley. In Kaley v. United States, the government alleged criminal forfeiture against funds that defendants Kerri and Brian Kaley needed to pay for counsel of their choice. The Kaleys sought to challenge this forfeiture on the grounds that no crime had in fact been committed.

Munger Tolles and the CAJC argued that the Kaleys should be entitled to a pretrial evidentiary hearing at which they could present evidence that the charged conduct did not amount to a crime. Specifically, the brief sought to rebut the government’s argument that such pretrial evidentiary hearings would force the government to “tip its hand” before trial. The brief gave multiple examples of proceedings in which the government regularly shows its evidence of guilt before trial – most notably, at bail hearings – and argued that there have been no horrible consequences of forcing the government to do so.

Additionally, working with the National Association of Criminal Defense Lawyers (NACDL), Munger Tolles attorneys have filed three other amicus briefs with the High Court in the last 16 months. The briefs addressed issues involving plea negotiations, mandatory minimum sentences and bank fraud. All but one, Loughrin v US (13-316), have been ruled on by the High Court.  In her concurring opinion in Alleyne v. US, Justice Sotomayor cited Munger’s brief for NACDL.

In Kaley, though the Court ruled against the defendants in a 6-3 decision on Feb. 26, 2014, Chief Justice Roberts cited the Munger Tolles/CACJ brief in his dissent, which Justices Breyer and Sotomayor joined.

Writing for the majority, Justice Kagan held that a criminal defendant is not constitutionally entitled to contest a grand jury’s determination of probable cause in a pre-trial evidentiary hearing regarding asset forfeitability. The majority’s primary rationale was that the probable cause determination should be entrusted to the grand jury and should not be second-guessed by the trial judge. The majority noted that the court’s precedents allow criminal defendants to be placed on trial and deprived of their liberty based on the grand jury’s finding of probable cause. In light of these precedents, the court reasoned that “if judicial review of the grand jury’s probable cause determination is not warranted ... to put a defendant on trial or place her in custody, then neither is it needed to freeze her property.” The majority found that allowing the Kaleys to challenge the grand jury’s probable cause determination in a pretrial restraint hearing would have “strange and destructive consequences.” For instance, a trial judge could end up presiding over the trial of a case for which that judge had already found probable cause to be lacking. The majority was concerned that this would cause “legal dissonance.”

The dissenting justices were more focused on the facts of the case, arguing that the Kaleys’ plight highlights the injustice of the rule set forth by the majority opinion. The dissent noted that the hearing sought by the Kaleys would not be a “mere relitigation of the grand jury proceedings,” since the trial judge would not necessarily be asked to consider the same evidence that the grand jury considered. The dissent dismissed the government’s concerns (echoed by the majority opinion) that allowing a pretrial restraint hearing would tax the government’s resources and force it to reveal its trial strategy. The dissent cited the Munger Tolles/CACJ brief in the following passage:

“In any event, these concerns are exaggerated. What the Government would be required to show in a pretrial restraint hearing is similar to pretrial showings prosecutors make in other contexts on a daily basis. As mentioned above, when the Government seeks an order detaining a defendant pending trial, it routinely makes an extensive evidentiary showing—voluntarily disclosing much of its evidence and trial strategy—in support of that relief. See Brief for California Attorneys for Criminal Justice as Amicus Curiae 11–18. The Government makes similar showings in the context of other pretrial motions, such as motions to admit hearsay evidence under the coconspirator exception, or to discover attorney-client communications made in furtherance of a future crime. Id., at 19–28. In those contexts, as in this one, the decision how much to ‘show its hand’ rests fully within the Government’s discretion.”

The cases are Kerri L. Kaley, et vir, Petitioners v United States, case number 10-15048 (US Court of Appeals Eleventh Circuit), Kevin Loughrin, Petitioner v. United States, case number 11-4158 (US Court of Appeals Tenth Circuit), Allen Ryan Alleyne, Petitioner v. United States, case number 11-4208 (US Court of Appeals Fourth Circuit) and United States v. Anthony Davila, case numbers 10-15310, 11-10224 (US Court of Appeals Eleventh Circuit).

Mr. Levin and Ms. Viglietta are litigators in the Los Angeles office of Munger, Tolles & Olson.

Mr. Mongan is a litigator in the San Francisco office of Munger, Tolles & Olson.