The Supreme Court on Thursday handed down an absolutely appalling, though not surprising, decision that makes it even easier for the government to seize your assets on the grounds that they were gained through the commission of a crime before ever convicting you of that alleged crime. The case is Kaley v United States.
In a 6-3 ruling written by Justice Kagan, the court ruled that the government can seize someone’s assets after they are indicted by a grand jury but before they actually go to trial and that there is no need to allow them to challenge that forfeiture.
The grand jury s indictment in this case charges a scheme to steal prescription medical devices and resell them for profit. The indictment accused petitioner Kerri Kaley, a sales representative for a subsidiary of Johnson & Johnson, and petitioner Brian Kaley, her husband, with transporting stolen medical devices across state lines and laundering the proceeds of that activity. The Kaleys have contested those allegations throughout this litigation, arguing that the medical devices at issue were unwanted, excess hospital inventory, which they could lawfully take and market to others.
Immediately after obtaining the indictment, the Government sought a restraining order under § 853(e)(1) to prevent the Kaleys from transferring any assets traceable to or involved in the alleged offenses. Included among those assets is a $500,000 certificate of deposit that the Kaleys intended to use for legal fees. The District Court entered the requested order. Later, in response to the Kaleys’ motion to vacate the asset restraint, the court denied a request for an evidentiary hearing and confirmed the order, except as to $63,000 that it found (based on the parties’ written submissions) was not connected to the alleged offenses.
On interlocutory appeal, the Eleventh Circuit reversed and remanded for further consideration of whether some kind of evidentiary hearing was warranted. The District Court then concluded that it should hold a hearing, but only as to “whether the restrained assets are traceable to or involved in the alleged criminal conduct.” The Kaleys informed the court that they no longer disputed that issue; they wished to show only that the “case against them is `baseless.’” Accordingly, the District Court affirmed the restraining order, and the Kaleys took another appeal. The Eleventh Circuit this time affirmed, holding that the Kaleys were not entitled at a hearing on the asset freeze “to challenge the factual foundation supporting the grand jury’s probable cause determination” — that is, “the very validity of the underlying indictment.”
We granted certiorari in light of the Circuit split on the question presented, 568 U. S. ___ (2013), and we now affirm the Eleventh Circuit.
Justice Kagan was joined by Justices Scalia, Kennedy, Thomas, Ginsburg and Alito. Chief Justice Roberts and Justices Sotomayor and Breyer dissented. Kagan’s written opinion is little more than a long ode to the wonders of the grand jury, but grand juries can only hand down indictments, not convictions. It is an absolutely crystal clear violation of the Bill of Rights to seize assets on the grounds that they were gained through a criminal act without first convicting the defendant of having carried out that criminal act. Due process is dying of a thousand SCOTUS-inflicted cuts. You can read the full ruling here.