Is Criminal Defendant Entitled to His Seized Money to Fund Legal Defense ?
In United States v. Moya-Gomez, 860 F.2d 706 (7th Cir. 1988), the government froze all the assets of a federal criminal defendant with an ex parte restraining order as a prelude to criminal forfeiture proceedings.
The defendant's attorney made a limited appearance in the trial court for the purpose of arguing that the defendant was entitled to a portion of the seized funds to pay for his criminal defense.
The trial court found that the seizure violated the sixth amendment (U.S. Const., amend. VI) and therefore the defendant was entitled to a portion of the funds.
On appeal, the Moya-Gomez court initially addressed the question of whether the seizure of assets impinged on a criminal defendant's qualified sixth amendment right to retain counsel of his choosing.
The court first noted that the relation-back doctrine, which makes assets forfeitable at the time the illegal actions took place, applied to federal forfeiture actions.
The court then held that, pursuant to the relation-back doctrine, a defendant does not have a right to spend funds that are not his, and thus the seizure of all of the defendant's assets by the government did not absolutely violate the sixth amendment. Moya-Gomez, 860 F.2d at 725.
But, the court further held that the same sixth amendment concerns, working through the fifth amendment (U.S. Const., amend. V), required greater judicial protection of a criminal defendant's right to counsel than an ex parte hearing afforded. Moya-Gomez, 860 F.2d at 729.
According to the court, due process demands that the trial court hold a postseizure adversary hearing if the seizure of the defendant's assets leaves the defendant without other assets with which to pay for his criminal defense. Moya-Gomez, 860 F.2d at 730.
At the hearing, the government would have to show probable cause that the assets were forfeitable ("Moya-Gomez" hearing).
If the government could not, or chose not to, make such a showing, then the trial court was required to release a sufficient portion of the assets to pay reasonable attorney fees. Moya-Gomez, 860 F.2d at 730.