Kaley v. United States – decided February 25, 2014 – the United States Supreme Court held that a defendant cannot challenge the pretrial seizure of his assets including any money the defendant intended to use to pay his attorney. When the grand jury indicts a defendant, it has determined that there is probable cause to support the charges. The constitution does not require that the defendant be given an opportunity to challenge that finding in order to defeat pretrial seizure of assets ostensibly arising out of the crime for which the defendant is charged. The Kaleys (the wife was a sales rep. for Johnson & Johnson) were indicted on charges arising from a plan to steal and then re-sell prescription medical devices. Based on the indictment, the federal government also got a restraining order to freeze their assets. The Kaleys asked the district court to lift the freeze so that they could pay their lawyers. Although they did not dispute that the frozen assets could be traced to the conduct for which they were indicted, they argued that the charges against them were “baseless.”
The Kaleys here demand a do-over, except with a different referee. They wish a judge to decide anew the exact question the grand jury has already answered—whether there is probable cause to think the Kaleys committed the crimes charged. But suppose the judge performed that task and came to the opposite conclusion. Two inconsistent findings would then govern different aspects of one criminal proceeding: Probable cause would exist to bring the Kaleys to trial (and, if otherwise appropriate, hold them in prison), but not to restrain their property. And assuming the prosecutor continued to press the charges, 8 the same judge who found probable cause lacking would preside over a trial premised on its presence. That legal dissonance, if sustainable at all, could not but undermine the criminal justice system’s integrity—and especially the grand jury’s integral, constitutionally prescribed role. For in this new world, every prosecution involving a pre-trial asset freeze would potentially pit the judge against the grand jury as to the case’s foundational issue.