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Asset Forfeiture
Last month, we began discussion of the Department of Justice's (DOJ's) increased use of asset forfeiture and pursuit of higher-value forfeitures when it is prosecuting economic crimes. Sometimes when the alleged “ill-gotten gains” are restrained or seized prior to the criminal trial, the accused is left without sufficient funds to pay counsel. In other cases, assets rightfully belonging to third parties are affected. In such cases, although the laws are written to favor the government's interests, those whose assets are (or may be) seized have some options.
A Monsanto Hearing
As discussed in Part One of this article, the Fifth and Sixth Amendments to the Constitution give criminal defendants, including those that are the subject of parallel criminal and civil actions, the right to a pretrial probable cause hearing ' commonly referred to as a “Monsanto hearing” after United States v. Monsanto, 491 U.S. 600 (1989) ' to challenge a pretrial asset restraint or seizure if the defendant lacks sufficient funds to pay counsel. United States v. Kam, 2010 U.S. Dist. LEXIS 143458 (E.D.N.Y. 2011), a recent case involving a challenge to the seizure of commingled accounts, is instructive as to what counsel should be prepared to show to obtain a Monsanto hearing.
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