It is not uncommon for the defense of a white collar prosecution to require substantial legal fees. Nor is it unusual for government to seek to seize and forfeit assets held by the defendant in cases in which the prosecution claims that the defendant has obtained significant sums of money illegally. This confluence of circumstances does, of course, often provide for a difficult road for defendants and their counsel. In Kaley v. United States [enhanced version available to lexis.com subscribers], argued early in this new Term of the Court, the Supreme Court will have the opportunity to resolve a split amongst the Circuits concerning what a defendant may do to challenge a pre-conviction forfeiture seizure.
The Supreme Court granted certiorari because at least several circuits, including the D.C., Second and Ninth, have allowed for probable cause to be addressed at the pretrial hearing challenging restraints of assets. Specifically, the question before the Court is "[w]hether an indicted defendant who asserts that a pretrial order restraining potentially forfeitable assets impairs his ability to retain counsel of choice, and who has been afforded a post-restraint hearing, must be permitted to challenge the order by attacking the grand jury's determination of probable cause to indict the defendant on the offenses as to which forfeiture is sought."
Jay Shapiro is a partner in the New York office of White and Williams LLP. Jay has more than 30 years experience concentrating his practice in litigation matters. He began his legal career as a prosecutor in the Bronx County District Attorney's Office (1980-1988) and later joined the King's County District Attorney's Office (1990-2002) where he became the Deputy District Attorney in charge of the Rackets Division before going into private practice. Mr. Shapiro has tried more than thirty-five cases in state and federal court. In private practice, he has handled litigation involving insurance fraud, white collar crime and Lanham Act (trademark) violations.
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