August 20, 2009
NACDL’s Aug. 20, 2009, White Collar Crime CLE – “Litigating Pre-Trial Restraint of Assets in Criminal Cases”
Guest Blogger: Cynthia Hujar Orr, President of the National Association of Criminal Defense Lawyers (NACDL)
Tiffany Joslyn, NACDL’s White Collar Crime Policy Counsel, put together this evening’s two-hour continuing legal education (CLE) program on the all-important topic of government efforts aimed at criminal pre-trial restraint of assets. “In the 1999 decision Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., the U.S. Supreme Court characterized pretrial asset restraint as a ‘nuclear weapon of the law’ and the government consistently requests pretrial asset restraining orders in almost all forfeiture cases,” Tiffany explained, adding that “this panel of highly experienced white collar defenders were just the practitioners to effectively dissect this complex area of criminal law and provide defense attorneys with critical tips for protecting their client’s assets.”
Tonight’s program featured some leading defenders with valuable experience and insight when it comes to confronting government efforts to seize your clients’ assets prior to any finding of wrongdoing. Together, these practitioners brought to the table extensive prosecutorial and defense experience, not to mention significant contributions to the organized bar, including in the area of forfeiture law. The panel was moderated by David Smith, a founding partner of the Alexandria, Va. firm of English & Smith, and the panelists were Samuel J. Buffone, partner in the Washington, D.C. office of Ropes & Gray LLP; Nina J. Ginsberg, a founding partner of the Alexandria, Va. firm DiMuroGinsberg, PC; and Andrew Weissman, partner in the New York City office of Jenner & Block LLP.
The first order of business in tonight’s program was a brief discussion of the general concept and purpose behind pretrial restraint of assets. It was immediately clear that the implications of such restraint extend well beyond the general point that a person who has yet to be convicted of anything is being deprived of their assets. A critical constitutional dimension was a thread throughout the discussion – pretrial asset restraint may deprive defendants of their chosen counsel. And this should be a concern to anyone representing a client charged with a federal crime. As David Smith explained in tracing the roots of current federal law concerning pre-trial restraint of assets from the federal drug and RICO case context, “By now, just about every federal felony can trigger a forfeiture.” “We now find ourselves where the extraordinary ‘nuclear weapon’ has become standard operating procedure in the criminal case,” added panelist Samuel Buffone.
The panelists discussed the procedures for challenging pretrial restraint of assets and explored numerous, often under-utilized, strategies for confronting such restraining orders. Key to the effort, of course, is getting the often elusive hearing to level such a challenge. Indeed, the discussion included a survey of the different circuit standards and requirements regarding the necessary showing to get a hearing to challenge the restraining order.
The two-hour discussion had the added dimension of tapping into the prosecutorial experience of certain members of the panel to explain how they would respond to the defense counsel strategies articulated by the other members of the panel. It was, in a sense, a terrific brainstorming session among leaders in the field of forfeiture law who have been involved on both sides of the criminal case. Panelists discussed in detail the current relevant statutory and case law sources for anyone practicing in this area, as well as the constitutional dimensions of the issue. Nina Ginsberg and the other panelists discussed the argument that it constitutes a due process violation for the government to be able to so restrain assets pre-trial in the absence of any showing whatsoever.
As David Smith, the panel moderator and the author of the leading two-volume treatise Prosecution and Defense of Forfeiture Cases, explained in detail in his presentation, there are critical arguments that defense lawyers need to make and often fail to make to resist or reverse the pre-trial restraint of assets. Panelist Andrew Weissman, with his vast experience in federal law enforcement, was there throughout the discussion offering his insight as to anticipated government strategies in response to the defense strategies that were offered up by the other members of the panel.
In sum, this program is an invaluable resource for attorneys seeking to ensure that their clients do not wrongfully have their assets restrained and, most importantly, that they are not deprived of their right to the counsel of their choice.
Click here to read more about the program, panelists and to reach a link to purchase a recording of the program.
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