In U.S. v. Kaley, No. 10-15048 (April 26, 2012), the Court held that, in a pretrial hearing on whether a post-indictment restraining order on a defendant’s disposition of assets encroaches on the defendant’s Sixth Amendment right to pay for his counsel of choice, the defendant may not challenge whether the conduct alleged in the indictment supports probable cause.
The Court found that the "paramount importance" of not forcing the government to "tip its hand" prematurely about the strength of its case outweighed the defendant’s constitutionally-protected right to counsel.
The Court recognized that it is Due Process that requires a hearing on the permissibility of a restraint on a defendant’s assets, as Congress neglected to provide for such a hearing by statute when it empowered the government to restrain a defendant’s assets pre-trial. To determine the requirements of Due Process, the Court cited the legislative history of the statute that neglected to provide for a hearing.
The Court explained that "defendants are not entitled to try their entire case twice," and pointed out that, even without counsel of choice that a defendant could pay for, at trial "the defendant will have counsel (appointed, if necessary)."
