When White Powder Law Meets White Collar
Simple Justice: A reader sent over a link to this law.com post about the 11th Circuit appeal of the government’s pre-trial asset seizure from Kerri Kaley in anticipation of forfeiture.
For years, the criminal defense bar has been arguing wholesale seizures of assets are unconstitutional because they strip defendants of their Sixth Amendment right to choose the counsel of their choice.
“The Kaleys simply want to use their own money to retain counsel of choice to defend them at trial,” said one of their attorneys, Howard Srebnick of Black Srebnick Kornspan & Stumpf in Miami. “The government is interfering by freezing their assets, including the equity in the home they purchased more than a decade ago, without giving the Kaleys an opportunity pre-trial to confront witnesses and present evidence to establish they have committed no crime.”
There’s really nothing particularly new about the concept, as it’s been used since the late 1980s to prevent accused drug dealers of hiring counsel to defend themselves. Almost the entirety of federal forfeiture law, one of the most notorious and offensive of weapons in the government’s arsenal, was developed to fight the “white powder” criminal defense bar, lawyers who represented drug dealers.
The basic idea is this: Criminals are not entitled to use the proceeds of their crimes to hire lawyers to defend themselves. Criminal proceeds are forfeited to the sovereign from the outset, not merely after the money is determined to be criminal proceeds, and the government is thus entitled to freeze the assets to prevent them from being wasted and used, thereby protecting them so that the sovereign can get its hands on them.
The practical impact is that it creates a Catch-22. Seize assets first, deny a defendant the ability to retain counsel to defend, win the case, which therefore proves that the initial seizure was…