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Click here for the full text of this decision FACTS:Lyman D. White and his company, Drug and Alcohol Counseling Inc., came under investigation for possible Medicaid fraud. DAC claimed to have provided substance abuse counseling to several youths, but interviews revealed that none received counseling at DAC, though some acknowledged having attended camp or youth programs there. During an investigation by a third party hired by the Louisiana Department of Health and Hospitals, White formed a personal relationship with an employee of the third party, who turned over certain patient information to White, which he then used to further bill for Medicaid payments. The employee received money from White, but probably as his girlfriend, rather than a kickback. However, another medical company began using the patient information to file false claims of its own, paying kickbacks to the employee. It was alleged that White began funneling Medicaid payments made to DAC from an official account to one from which he could purchase real estate and annuities for himself. As a result, the government filed a civil complaint for forfeiture against the property on Aug. 22, 2001, citing 18 U.S.C. ��981 and 985. Those sections allow the government to seize property involved in a money laundering offenses. The civil complaint was accompanied by an FBI declaration that recounted the facts leading up to the forfeiture as evidence of probable cause to support the government’s action. At the same time, the government filed a restraining order, which the district court granted, under �983(j)(1)(A), that prohibited any transfer of the targeted property, unless any proceeds from a transfer were deposited in an escrow account until a trial on the merits. White was indicted on Oct. 31, 2001. He soon filed a motion seeking either an adversary hearing on the restraining order or the release of restrained fund so he could pay for a defense attorney. In opposition to the motion, the government provided several documents: the declaration that accompanied the forfeiture complaint; White’s indictment; the factual statements adopted by the employee and the other company’s president, as part of their plea bargains; and several charts tracing the connections between DAC’s Medicaid receipts and the restrained assets. The district court heard no live testimony, but both parties filed post-hearing briefs. The district trial court ruled that the government had met its burden of proof. On rehearing, the district court then backed off a ruling it said was “a little too hard” on the government, and said that that the evidence showed there was probable cause to believe that the property was subject to forfeiture and continued the pretrial restraining order. On appeal, White claims the district court used the wrong standard in analyzing whether to grant the restraining order. He says that a standard higher than probable cause should have been used. In the alternative, he says that if probable cause is the standard, the evidence failed to meet that standard. HOLDING:Affirmed. Probable cause is the correct standard, the court rules in this matter of first impression, and the evidence supported a finding of probable cause. The court notes that �983, the restraining order statute, was the product of the Civil Asset Forfeiture Reform Act of 2000, and that it provides for hearing and notice in cases where the restraining order is sought before a criminal complaint is filed, but not, as in this case, when the order is sought post-complaint. Nonetheless, as even the government concedes, due process could necessitate a prompt hearing. The court rejects White’s argument that the government should not be permitted to restrain assets that he needs to pay his criminal counsel unless the government can make a post-restraint showing that it is likely to succeed on the merits of the forfeiture action. Essentially, the government would be required to meet the burden generally imposed on parties seeking preliminary injunctions, which is presumably somewhat higher than a mere showing of probable cause. White relies on United states v. Their, 801 F.2d 1463 (5th Cir. 1986). White also argued that since CAFRA raised the burden of proof for forfeitures from probable cause to preponderance of the evidence, so, too, should the burden for the restraining order. Noting again that � 983(j)(1)(A) does not mention a hearing, let alone fix the standard of proof in such a hearing, the court instead determines that “when due process requires a hearing, as both sides agree that it sometimes does, we think that the standard of proof applied at such a hearing should likewise be a function of what due process requires.” The court finds instructive United States v. Monsanto, 852 F.2d 1400 (2nd Cir. 1988, en banc), when determining what due process requires. The Monsanto case was a criminal forfeiture proceeding, and it said is was all right to subject assets a criminal defendant would need to pay for an attorney upon a showing of probable cause. “It is true that Monsantoarose in connection with a criminal forfeiture proceeding, but we see no reason why due process should require a different standard of proof when the assets needed to pay an attorney to provide a criminal defense are restrained as part of a related civil forfeiture proceeding.” CAFRA raised the standard, the court acknowledges, but it did not raise it beyond what Monsanto required at the pretrial stage. The court also suggests that its case in Theirmay or may not still be good law. Applying the probable cause standard to the facts at hand, the court rules the government’s evidence meets the standard. OPINION:King, C.J.; King, C.J., Dennis and Lynn, JJ.

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