from the United States District Court for the District of
Wyoming (D.C. No. 2:17-CR-00029-ABJ-1)
L. Hayes, Laramie, Wyoming, for Defendant-Appellant.
Stephanie Hambrick, Assistant United States Attorney (John R.
Green, United States Attorney, District of Wyoming, with her
on the brief), Casper, Wyoming, for Plaintiff-Appellee.
HARTZ, McKAY, and MORITZ, Circuit Judges.
Shakeel Kahn seeks a district-court hearing to challenge the
seizure of assets that he contends are necessary for him to
retain an attorney to represent him in his upcoming criminal
trial. The district court denied a hearing because he has
some unseized assets with which to pay an attorney.
We reverse and remand because the proper test is whether he
has sufficient unseized assets to pay for the reasonable cost
of obtaining counsel of his choice.
January 2017 a grand jury in the United States District Court
for the District of Wyoming returned a 21-count indictment
against Kahn (who is a physician) and others charging
distribution of controlled substances and money laundering.
The indictment included a criminal forfeiture count under 21
U.S.C. § 853, which listed a number of his assets that
the grand jury identified as fruits of the alleged crimes.
Most of those assets had been seized by the government before
filing the indictment. Two weeks after the indictment, Kahn
moved for a hearing to challenge the seizure of $1, 140,
699.95 in currency and bank accounts. He asserted that he
needed this money to retain private counsel of his choice,
noting that his only unseized assets were a $175, 000 home
encumbered by an $80, 000 lien and a business that brought in
less than $3, 000 a month after taxes. He estimated that he
would need at least $200, 000 to pay counsel and that his
total defense costs would be at least $450, 000.
April the district court denied the motion. The court
recognized that the case is not a simple one-it had granted
the government's motion to declare the case complex for
purposes of the Speedy Trial Act-but it declined to consider
whether Kahn's unseized assets were sufficient to retain
counsel of his choice. It interpreted this court's
opinion in United States v. Jones, 160 F.3d 641
(10th Cir. 1998), as requiring such a pretrial hearing only
if (1) the defendant has no assets with which to pay
an attorney and (2) there is good reason to believe that the
grand jury erred in finding that the seized assets are
traceable to the alleged crime. Under that interpretation of
the first requirement, the court needed to determine only
whether a defendant had any assets remaining after
seizure, not whether those assets would be sufficient to
cover the cost of his defense. See R., Vol. 1 at
425-26 ("It is possible that the cost of defense is an
inherent factor of the Jones test, but this Court
will not consider the cost of defense as a factor in the
Jones test without any supporting authority to do so
or instruction from the Tenth Circuit to do so.").
Because Kahn still had some unencumbered assets, the court
held that he had failed to make the showing necessary to
obtain a hearing. It therefore did not consider whether the
assets had been properly tied to his alleged offenses.
filed a timely interlocutory appeal and obtained a stay of
the proceedings. We have jurisdiction under the
collateral-order doctrine. See id. at 644. We
clarify our holding in Jones, and reverse and remand
for further proceedings. A hearing on a pretrial challenge to
the seizure of assets is not barred under the first prong of
the Jones test just because the defendant has
some unseized assets. The test is whether the
defendant lacks sufficient unseized assets to pay for the
reasonable cost of counsel of choice.
is this court's leading precedent governing pretrial
challenges by criminal defendants to the seizure of assets
allegedly necessary to pay for an attorney. In that case the
defendant had been indicted for health-care fraud. See
Jones, 160 F.3d at 643. The indictment included a count
alleging that certain assets were subject to forfeiture and
the government invoked § 853(e)(1)(A) to freeze these
assets pending trial, based solely on the indictment. See
id. The defendant moved for a pretrial hearing to
challenge the seizure so that some of the assets could be
used for legal and living expenses. See id. The
district court denied the motion. It held that a defendant
was not owed a hearing under either § 853 or the Fifth
Amendment's Due Process Clause. See id. at 644.
We reversed, concluding that the seizure of a defendant's
assets without affording the defendant a pretrial hearing
could violate due process. See id. at 649.
Process Clause forbids the federal government from depriving
a person of life, liberty, or property without due process of
law. U.S. Const. amend. V. To assess its application in this
context, Jones employed the balancing test in
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
See Jones, 160 F.3d at 645. Under the Mathews
approach a court must consider the "private interest
affected by the restraint; the risk of an erroneous
deprivation of that interest through the procedures used, as
well as the probable value of an adversarial hearing; and the
government's interest, including the administrative
burden that an adversarial hearing would impose."
identified two important interests of the defendant: a
property right and a right to counsel. Both parties in
Jones acknowledged that "a restraining order
issued under section 853(e)(1)(A) deprives one of property
even though the assets named in the indictment are only
frozen and may eventually be returned." Id. The
defendant had a significant interest in "paying for
ordinary and necessary living expenses (food, shelter, and
the like) until the conclusion of her trial."
Id. at 646. "A restraining order that prevents
a defendant from supporting herself and her family pending
and during trial would likely work an injustice with
constitutional implications." Id.
addition, the defendant had an essential interest in the
Sixth Amendment's "qualified right to counsel of
choice." Id. The right to counsel of choice
"stems from a defendant's right to decide what kind
of defense he wishes to present, for the selection of one
attorney over another can profoundly affect the course and
outcome of trial." Id. (citation and internal
quotation marks omitted). "To improperly impede this
interest would likely work a permanent deprivation on a