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In its October 2013 term, the Supreme Court for the first time in 23 years will squarely consider the constitutionality of pretrial restraints on assets needed by a criminal defendant to pay counsel of choice. In Kaley v. United States,1 the court will decide whether the Fifth and Sixth amendments entitle a defendant whose assets are restrained post-indictment to a pretrial hearing on release of funds needed to pay attorney fees. When the court last considered this issue in 1989, a 5-4 majority in two related cases concluded that attorney fees were not exempt from pretrial restraint, but declined to reach the issue of what, if any, hearing might be appropriate under the Due Process clause.2 Since that time, however, the number of federal crimes for which forfeiture is available has increased vastly—far beyond narcotics trafficking and organized crime—to all manner of fraud-based offenses.3 So too has the government's aggressive use of pretrial asset restraints in white-collar cases.4 Thus, the issue has taken on broad significance.

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