we'll hear argument next this morning case twelve for sixty four caylee versus united states was just remnick thank you mr chief justice and may please the court when the government restrains private property the owner of that property has the right to be heard at a meaningful time and in a meaningful manner for a criminal defendant who's facing a criminal trial whose property has been restrain that time is now before the criminal trial so that he or she can use those assets that property to retain an exercise counsel of choice i mean you know i find it hard to think that that the right of property is any more sacrosanct to them that the right to freedom of the purse and we allow a individual and if he if he doesn't have bail he's permanently in jail until the trial is over and we allow all of that just on the basis of a grand jury indictment and you're telling us it's ok for that or maybe  think it's not ok for that but i think you're saying it's ok for that but it's not ok for destroying his property i find it hard to think that it's ok for the one and not ok for the other scalia it's not ok for either ok under this is a bigger case and i thought the right to be released on bail that is the right not to be detained all the way until trial under this court's precedent in united states versus salerno the court provided procedural safeguards to ensure that before someone is held all the way until trial they would have a hearing or a hearing which would include a right to challenge the weight of the evidence and other factors we ask for something no different indeed the indictment itself can justify the detention of the body and the detention of the asset until such time as well that's great i'm sorry that's pretrial detention without bail i thought justice scalia's question had to do with detaining someone who was indicted but couldn't make bail every person is limited by their own financial wherewithal and so long as bail is set not as an excessive bail here she must rely on the assets that he or she owns but why in that situation with the defendant not have the constitutional right to have a determination by judge as to whether there was probable cause in the context of a bail hearing a judge does make that determination yes there are several factors that safeguards a right to be heard shortly after the arrest in the context of the restraint of assets as it stands now in the eleventh circuit there is no right to be heard at any time until trial by jury answer might have been that yes in fact the property isn't titled the greater protection because it's going to be used to hire counsel that will keep the person out of jail long term even if you can be put in jail pending the trial is the chief justice we've certainly made that argument in our brief some might find it more important to have those assets to retain counsel of choice than having their liberty deprived temporarily in either case the right to be heard should include the right to be heard by a judge a judge who would have the authority to provide relief is this only in the case where the person has no other assets where all of his assets are see so that he can't he can't hire counsel suppose only half of his assets are determined to are asserted by the government to have been the product of criminal activity and he has a lot of other money with which he can hire an attorney would set a different case and we're not that's not be forced here that's not this case so long as the so you have a hearing on whether he has other money but such a hearing took place in this case indeed but nevertheless the petitioners the cayley's did not have sufficient other funds to retain counsel of choice if you if you open this in prevail there would be nothing indeed if the court were to modify the restraining order to allow funds to be paid to counsel the court would supervise the release of those funds to ensure that indeed the funds were be using or being used for the exercise of the right to counsel of choice we're not asking for a vacation of the restraining order so that the monies can be used for other purposes i i see the government strongest argument as being that the grand jury finding a probable cause is sacrosanct and a hearing like the one that you're proposing would call the village he of finding into question why don't you address that because we were talking about in bed now the validity of the charges are not at issue just one factor in the court's determination of whether to restrain him or her is the strength of the government's case are you trying to tour a similar analogy to your just to sort of my or what we're proposing and indeed it's been a hearing that's taken place in several of the circuits for some twenty five years and there's at least five  are similarly to yours so for twenty five years the courts in those circuits have been holding these hearings and what these hearings look like are similar to a pretrial detention hearing they are similar to suppression he they are similar indeed to what rule five point one eleven or hearings might look like and all these hearings require is a presentation by both sides each side makes its presentation of course the grand jury is a one sided presentation of course the grand jury does not give the defendant an opportunity to be heard indeed the grand jury doesn't give the defendant an opportunity to have his adversary present exculpatory evidence to the grand jury based on scalia we are not quarreling with the power of the grand jury to initiate the charge we're simply saying the grand jury doesn't have the power to initiate and hold for the period between in bagman and trial but i don't have that then there  issue at the hearing is what the government presents at that hearing as compared to what the defense presents at that hearing no different i submit that in civil cases under rule sixty five we're a judge holds an interim hearing on the entry or not entry of an injunction that doesn't define the outcome of the case in your view what we the court the trial court and that hearing give to the fact of the indictment i believe the indictment authorizes the initiation of the restraint and not more so up the government no no wait no look we've now had a hearing i ignore the indictment let's have a trial that's your position justice kennedy if the defendant makes a presentation at the hearing you know i would think the government has the burden if the defendant is entitled to the hearing because the defendant needs assets to retain counsel of choice and the government rests on the indictment and the defense presents nothing more i submit the government would prevail at that hearing if nothing i wouldn't want but what about a in certain offenses or an indictment has been returned that the person is a flight risk but it is a rebuttal presumption we are asking for the same opportunity to rebut the entry of the restraint so we in no way are submitting that the prosecution is prevented from proceeding to trial but a quick jury dykeman doesn't doesn't establish that there is probable cause to believe that the person is a flight risk it doesn't contradict what the grand jury found you're asking the judge here to contradict what the grand jury said we're asking that the judge to make an independent finding based on what's presented to the judge at the hearings from the very hearings that have been occurring for what the judge might conclude is at that hearing at that moment in time the government didn't satisfy its burden on that one day in time it doesn't mean that the judge has gone back to look at what occurred before the grand jury at these hearings when they've been conducted what do they look like the rules of evidence would not apply i assume so i'm the only government could call it's a case agent who would provide a summary of that of some of the evidence enough of the evidence that was submitted to the grand jury to establish in one indeed happened in this case in the case of the caylee's the defense presented transcripts of testimony all we asked the judge to do is to consider it indeed the judge had presided over a trial of a codefendant who was acquitted well this was an unusual that's a somewhat unusual situation where you had been there already been a trial of someone else excuse me who was allegedly involved in the scheme but what if that was not the case in the more ordinary situation what would happen in the more ordinary situation the defense if it chose to offer evidence it would be subject to the rules of the standard for issuing subpoenas under nixon only if there were material exculpatory evidence that needed to be presented this would not be a discovery exercise this would not be an effort to simply learn identity of witnesses indeed the government could and does rely upon hearsay witnesses case agents to summarize the case where the defense as here offered the judge evidence mistakes case we have if we agree with you will be somebody saying due process does not allow you to proceed with a trial when it has been found by an impartial judge that there is no probable cause that's that would be your next case right and you may well known he would do and to to you the truth i would prefer to save your client i would prefer a rule that says you cannot even with a grand jury indictment prevent the defendant from using funds that are in his possession to hire counsel don't need to hear just just it's unconstitutional for the roof for the room to be any broader then withholding money that the defendant does not need to defend himself you like that i really prefer it to yours i think you are it's leads us into really strange territory justice scalia i believe that was the issue in monsanto naplan in drysdale where this court held five to four decision that assets that are demonstrably tainted can be restrained over the objection of the defendant who needs those assets to retain counsel of choice today i'm asking the court not to allow the restraint of those assets that are demonstrably not tainted can i ask what the prospects of success at a hearing like this are you know there's an amica spree for which lists twenty five cases in the second circuit in which this kind  you're in was hell and my clerk went back and found that in twenty four of those cases the motion was denied and in the twenty fifth the motion was granted but then reversed on appeal so and you know it's not surprising really i mean probable cause it's a pretty low bar so what are we going through all this rigamarole for for the prospect of you know coming out the same way in the end justice kagan with that brief just to support no one in a million which might be your case well i think that's the point actually i believe that the brief of the new york counsel defense lawyers that justice kagan refers to points out that there are many other cases where at the courthouse steps the parties resolve the question of the restraint of those assets you know i would suppose if the government knows it's got to go through a hearing where it has to lay out part of its case it may well decide at that point it's not worth that so it's not twenty four twenty five who knows how many hundreds of times the government would have sought to seize the assets but didn't because they knew they would have to justify it at a hearing mr chief justice that maybe so but it appears that the government does exactly that every day in federal court during pretrial detention hearings when it proffers its case in order to convince a judge to detain to defend it and we're asking for something no different if you said something about that plainly tainted determine whether the assets restraint were traceable to the conduct in the indictment what we would like to show at a hearing indeed i think we have shown it on the record before the district court is that even though the assets that are under restraint are traceable to the conduct the conduct is simply not criminal and we'd like the court to hold a hearing which would not bind the court at trial again no different than courts hole in civil cases with a rule sixty five this interim decision is not a determination of whether the grand jury got it right or wrong it's a determination of whether the government presented a sufficient case on that day to satisfy its berth and there's been the suggestion that if the judge were to find that there was a lack of probable cause the prosecutor would be under an ethical obligation to dismiss the charges do you agree with justice alito not necessarily it would depend on why there was no so called probable cause if it was based on a something known to the prosecutor that would constrain him or her ethically perhaps but if it was simply because the prosecutor on the day of the hearing only presented one witness instead of all five that would not constrain the prosecutor ethically in any way the prosecutor retains the discretion to decide how strong a presentation to make at this hearing no different than the prosecutor would have to make that same decision at a preliminary hearing at a pre trial detention hearing or plaintiffs have to make it a rule sixty five hearing but if it's the same evidence the same evidence is introduced before the grand jury let's say it's a credibility determination the grand jury finds the prosecution witness credible the judge finds the prosecution witness not credible is there then an ethical obligation to dismiss the charges just as a leader again not necessarily people can differ about credibility we're not talking here about knowingly presenting perjured testimony or anything of that sort that might raise ethical constraints we would presumably like to hear if there is a legal dispute in the government thinks the judge is wrong they would try the case and go up on appeal and i haven't studied whether they would have a right to an interlock atory appeal from that unfreezing of the assets i said i suppose they would just like we did it to desist sharing include an assessment of the reasonable missive attorney's fees i mean if you're only withholding lawyer i'm going to hire and here's the feel i'm going to charge in this case yes because counsel of choice had been retained two years before the indictment had been working on the case for two years when the indictment was returned and the restraining are i don't even know who the lawyer is going to be this defendant just comes in says i want to hire a lawyer and the court says you know any particular way you know i just want to lawyer the court's going to have to make up a fee i assume right scalia we're talking now about the right to counsel of choice the lawyer would have been chosen by the defendant the lawyers fees would be disclosed to the court and the court would then have information upon which to make a decision about whether the fees are reasonable and on here should choose a lawyer before this year but if the defendant is seeking a particular amount to be unfrozen at the time of the transfer of funds of course the court would need to know who the lawyer was and how much the fee was and so there's no problem with the court administering those issues indeed the courts on a daily basis supervise the payment of pointed  that the defense here is asking for is an opportunity to be heard in a meaningful manner not simply about whether the asset restraint is traceable to the conduct of this court's precedents is never to that extent but no one yes justice ginsburg so there's no mystery in this case who counsel is what the estimate of fees are that's not the issue in this case the issue in this case is whether the petitioners have an opportunity to be heard so as to challenge this restraining order that purports to remain in effect indeed has remained in effect for six years what was that what was the  investigation costs consultants experts etc that was the budget that was no actual dollar figure set in stone it was a budget in order to allow the defense to have their council of choice it was a case with very substantial documents etc yes justice kennedy and there was never a question by the district court or indeed by the government as to the reasonableness of that budget if the case were to go all the way through trial and we should because i don't know the answer can the government track tainted funds that have been given to other people including lawyers justice scalia i believe they can i think they can to so what happens if this lawyer gets his five hundred thousand dollars and you've had the traceability hearing so he's are tainted funds if he's convicted he gives the money back in the in the in this case if the hearing would go forward the only way the lawyers would be paid is if there would be a finding by the court that the conduct at issue will not give rise to forfeiture and so the lawyers would course try to rely upon that traditional decision to establish the bonnet feeding of their accepting that feat in the event that the defendants were convicted and the government sought forfeiture the defense lawyers might be at risk it please the court for over two hundred years the rule in this court and in all lower courts has been that the grand jury's determination of probable cause is conclusive for purposes of the criminal case and that  has been extended not only to bringing the defendant to trial but also depriving the defendant of liberty imposing occupational restrictions on the defendant imposing firearms restrictions on the defendant but none of that goes to his ability to hire counsel of choice i mean it seems to me to make this case quite different it's not that property is more valuable than liberty or anything like that it's that the property can be used to hire a lawyer who can keep him out of jail for the next thirty years so the parallels don't strike muse useful with the parallels i think mr chief justice illustrate that the process for determining probable cause by a grand jury has been deemed sufficiently reliable so that further judicial inquiry is not warranted and that is borne out by two features of the grand jury one the way it operates and the second the empirical realities of what it has produced the grand jury is set up as an independent body to protect the defendant from unfounded prosecutions it is structurally independent from the prosecution and the courts and it's composed i understand the theory in reality it's not terror it's not great installation from the over weaning power of the government well it is a protection in the following sense mr chief justice if the court is seriously considering departing from the universal rule up till now in its cases and in other english speaking courts al arian a review of whether there is probable cause after the grand jury has found it ought at least have a good reason for doing so well namely some reason to think that defendants hearings as you don't need a hearing with there's nothing get a hearing about it so unless the defendant demonstrates that there is a sound reason to believe that the grand jury was wrong they only heard one side of the story and that there is no probable cause you don't have to give them a hearing but the word is made and so like five circuits mr magistrate if you think that there is a good chance phrase that is you want that they can show that the grand jury was wrong and they want the money to pay a lawyer by the way without a good lawyer they're never going to make their case and then under those circumstances the magistrate make now it's a narrow exception preserves the lawyer it's consistent with the words of the statute that respects prior just to start with the last thing you said it isn't consistent with the way this court has analyzed the constant always leaves open it leaves open the question in monsanto explicitly and the only change that i've made without explicitly having open the d process question in the footnote in monsanto is instead of turning it on the constitution i turn it on the principle of constitutional avoidance i wasn't referring to monsanto just as prior i was referring never is consistently and i think it is consistent with  violent referring to monsanto courts reservation of this issue i agree with you monsanto did not decide whether they're securing but in the bell context this court has determined that a grand jury indictment is sufficient to hold the defendant statute in which congress and numerated the factors that the judge is going to consider there's never a reconsideration of whether there is probable cause for the indictment as i but other i'm i'm asking perhaps not to clearly i'm in a certain class of cases justice kennedy the indictment itself creates a presumption that no conditions will assure the safety of the community and the appearance of the defendants have ended but that the two different is the only under the bailiff format not because of the constitution but under a format that either the defendant poses a danger to the community or a risk of flight in considering those issues the court will consider a proffer from the government on the nature of the evidence of guilt it's not a full blown adversarial hearing in which new transcripts are being presented to witnesses are being called the government has a burden to him justify its  mean i don't like casting into doubt the judgment of the grand jury why couldn't we say that when you were taking away the forms that are needed for buying a lawyer for your defense you need something more than probable cause could we make that up that would it was a dupe due process requires something more than probable cause that's clearly contrary to what this court held in united states versus monsanto monsanto considered against the backdrop of kaplan and drysdale which said forfeiture of funds that were desired to be used for attorney's fees is constitutional then turn to the question of can those funds be restrained so they will be available for forfeiture at the end of the day i don't see what this case blankly has to do with the grand jury at all a review of the grand jury determination you don't have to put forward in this hearing but what you put forward before the grand jury at all you could put forth different stuff you could put forth less of it maybe you don't want to show you or your whole hand maybe the part in the other side they don't want to show their whole head in two so they don't want to show all this other evidence that's going to prove prove their innocence it's an entirely separate proceeding now maybe the fact of the grand jury indictment should be given some weight or not but but if it's not reviewing a particular determination it's the judge making a determination on what he or she has before him at that particular hearing i contradict the determination i know it's not in the sense that before the grand jury you say ok here we showed the grand jury these six things and they said yes you look at those six things that there's probable cause at this other hearing you say i've got i'm going to show you these two things and the other side's about these three things and the judge of apple and says well you don't have enough to restrain the property it's not reviewing the other determination it's entirely separate proceeding but it is seeking to contradict the other determination because it's asking the judge to find that there is no probable cause when the grand jury has found that there is probable cause and the grand jury's determination not only allows the government to bring the defendant to trial which would be very odd if a court had found that there's really traditional finding has any legal of that other than to release the money in addition the judge is basically saying like he does in a hearing this evidence is not the strongest side seen in balancing the government's desire for restraint and the fundamental right to hire a lawyer choice it's not srong enough in this situation with what i've been presented to continue restraining the money i don't see it as a legal determination of no probable cause i see it as it defining the word may in the statute if judge has discretion question has to be informed by something i think united states versus monsanto essentially rejected the argument that there's any discretion not to restrain the funds actually what it says is we reject the discretion in sensibly can be construed to give the district court discretion to permit the dissipating of the very property that a fifty three a requires to be forfeited upon conviction exact day exact that's what it says so the claim here is this is property that a fifty three a does not require the defendant to forfeit upon conviction for there can be no conviction because there is no evidence and therefore i don't find that that sentence in monsanto destroys the use of the word which congress put in that i don't think that there is any serious question that monsanto meant to preclude free floating discretion what it did was focus on the question of probable cause and the court squarely held that assets in the defendant's possession may be restrained in the way that they were here based on a finding of probable cause to believe that the assets are for fuel ok are we getting into the i am so far this is very conceptual which is absolutely fine i just want to leave that playing for a moment and if i leave the prince a conceptual what i find is that they have a pretty complicated case they are saying that this defendant took some medical devices with permission from hospitals that were old he didn't return them to the manufacturer who didn't want and what he did he figured out this way of selling them and making money that's not them and you're saying it is that and so to make the argument is  can't do it without a good lawyer he has the money to hire a lawyer and you say undercut the grand jury you say this is been the law in five circuits and the government has not come to the end of its prosecutions it hasn't injured prosecutions so as a purely practical matter first amendment no real harm to the government that i can see and so let's impose some kind of statutory limitation on use of this but where there's a big play in portland use well let me start with the fact that i think that there is harm and there's very little benefit and i want to turn to both sides of that empirical equation before the court concludes that for the first time a grand jury indictment can be contradicted by educational finding that there is no probable cause i'll be in on different evidence the court should have a good reason to think that grand juries in a sufficient number of cases so that this hearing which will have costs i'll describe is worth doing there is no evidence to that amend justice kagan statement about those cases in only one respect in twenty four of them the defendants lost outright in the twenty fifth one they won and they were reversed on appeal that is accurate but the district court did not actually find that a grand jury  probable cause because that case involved a civil complaint not a grand jury indictment what we have is thousands of indictments hundreds of thousands of indictments over the ten year period that respondents have canvassed in talking about warrants were courts and found no probable cause for prosecution he's pointed to four cases there have been six hundred and sixty thousand indictments during that time period the way shield between the cases in which the system didn't work and the grand jury malfunctioned and the cases where it did and where the defendant gets the opportunity for discovery fishing expedition that's are you talking about cases in like the second circuit or the d c circuit where you do have these hearings i'm talking about two things mr chief justice first of all in the d c circuit second circuit seventh circuit and elsewhere in the country where the laws not established defendants can seek these hearings in the twenty years that they have been available to be sought and not one has produce finding of note that i raised this point earlier it may be because the government particularly when it may have tenuous probable cause basis decides it's not worth it to go through this year in to seize retain the assets and it just seems that the statistics are phony in the sense that where the impact of this is going to be is not in reported cases it's going to be when the u s attorney says it's not worth it it would jeopardize trial on the merits and so they don't even they don't even go through the process of restraining the essence while mr chief justice i agree with you that those cases exist anecdotally they exist for the government to terms that the costs of exposing its witnesses the dangerous to  the potential undermining of the integrity of the trial makes it too high a price to go through this hearing as it were gored by word that and the more that the facts and the funds are traceable anyway we'll have an opportunity to get them at the end even if they don't get the restraining order makes it not worth it no that doesn't always work mr chief justice let's keep in mind that this statute operates in its core in drug trafficking cases in serious organized criminal cases were the exposure of the identit government's witnesses can lead to serious problems of obstruction of justice this is the real cost of these kinds of has that happened in the circuits that to permitted this the government is unlikely to jeopardize the safety of  now given us some statistics so in how many cases in the circus that have permitted what they want or my version of it in the circuits that have permitted some form of allowing the magistrate to look behind the grand jury indictment in appropriate cases and find that if it's there there is no probable cause so you can use this to hire a lawyer or a bunch of circuits that have had rules like back in how many cases in those circuits has the government faced the serious risks that you're talking about we do face them i cannot quantify you give me a guess you are so i mean you are like a huge point of how this the government at the disadvantage so someone in your office probably you ask people in the justice department you have any examples or how many cases have there been were these serious problems arose and you probably got some kind of answer so you probably had some kind of idea you were correct i did ask and i've received anecdotal responses how many anecdotes i received several specific well and good but it's not like the whole case falls apart depending on whether or not you can restrain the assets you know it's not just that mr chief justice these assets are generally used to pay restitution to victims of crime and if the assets are paid out to attorneys although in theory as justice scalia explained it is possible under the relation back principle to go into the attorney's files and into their assets and recover them in practice is not so easy to do because if you've touched on something that i think is reported they're used to pay restitution to the victims i mean the whole point here and presumably it's something that the your friends on the other side would raise in one of these hearings there are no victims right that's the theory and maybe it'll fall apart the judge will say of course there was but as i understand it the hospitals you know gave them to the people the companies didn't want them back because they have to give a credit you know i'm sure the government has a different view of the facts but that's a good example case has even resulted how often has happened in the five circuits but the frequency of these hearings is limited in part because it's a way out of that defendants are able to show that they have no other assets to ret swing twitches you talk about the compulsion on the governments but the compulsion on the defendant not to have a hearing because they're required to say something that could put them at greater risk whether it's because of the enhancements for obstruction of justice or merely from losing the advantage of their defense at trial that's why these hearings are so rare i think it's less about the government not wanting to disclose this case and more about the inducements against the defense wanting to preview its case and also this the use stark unlikelihood that the defense will prevail unless the on the basis of the figures that i got out of the d o j on the on line about twenty five to twenty to twenty five percent goes to a category called third party interests now the third party interests include mortgagees it includes othe seeking rescue seeking funds for forfeiture particularly in white collar cases like this is to pay rest of that is maybe if you look at the actual amount in general what the interested issue here are one this money goes to pay for a lawyer so the person can prove that there is not even a claim against him and to end it risks of course sometimes depriving the recipients of the forfeiture monies and those would normally be almost entirely d o j for the expenses  think i'm not sure that is a fair comment in this case for example the government does believe that the medical providers from which these medical supplies were obtained and then sold into the black market by agents of a company are victims of the crime to restitution in the prosecution of one of the coconspirators in this case and that is the way the government is planning to proceed if the defense is able to come out and based on case law that really has very little to do with any situation like this that would be up to this court's decision and the what would what is your view as to what the constitution requires in that respect i'd be happy to have the defendants bear the burden of proof but i think the courts typically have placed the burden of proof on the government to show trace is all i need probable cause can and do judges say that that does that suffice to comply with the statute i think typically justice kennedy the government makes a proffer of the evidence that it intends to use the proffer is very limited it's hearsay it's a description of the crime rather than a detailed evidentiary presentation of the kind that petitioners want to hear well that i'm sorry i  not think that typically resting on the indictment alone will satisfy the weight of the evidence factor but the humoring that is provided for in salerno is not a hearing that this court has said you must do as a matter of process it is what congress has a stablished as a requirement in the bailiff format when it comes to do will if it's required anyway then certainly the due process argument that you make is much less weighty if we have to go through this anyway for case is all about all the talk about what about defendants being exonerated the judge is going to find a lack of probable cause that's you know that's fantasy land for the most part but what it's really about is about  examinations when do they ever occur in federal felony cases they're always almost always eliminated by indictment the defense bar hates grand jury proceedings they would like to have a problem in their hearing where they get some discovery of the government's trial case and that's what this is all about so that seems to me that what's important is the nature of if there's going to be any kind of a hearing what is going to take place at this and what typically happens beyond what i mentioned before a case agent taking the stand and providing some summary of the evidence that was provided to the grand jury how much further do they go is the defense entitle to any discovery do they subpoena witnesses they can do both of those things this is within the discretion of district courts the second circuit which probably has the most experience with these hearings under monsanto has held that hearsay evidence is sufficient to meet the government's burden a probable cause what happens then are frequently excruciating fishing igs expedition cross examinations of the government agent in the defense efforts to attempt to find out more about the government's case to ask for additional documents to make later claims that brady evidence wasn't produced in connection with the monsanto hearing and various sanctions should fall on the government and the hearings do generally take the form of efforts by defense to attain some strategic advantage they have never resulted in the finding of no probable cause and the court question i think here is really is there anything on the defendant's side of the scale other than the abstract desire to use money that the government says is for football to pay for a that that would be difficult the new claim what is the difficulty we know with how much that the way the difficulty is that we have to actually trace the specific assets into the defendant's own accounts and if the defendant's lawyer has spent that money and has used you know paid out in salary paid out and expenses it's gone the government can't make a bad tracing argument it can't forfeit substitute assets from the attorney so it has to go under some state law theory that and then sue the lawyers and argue that the funds were held in constructive trust for the government state law varies widely on this it's a big messy uncertain project and as a result it doesn't happen very often typically if the funds are released to the attorneys they will be gone and if the defendant is at the end of the day convicted of a serious financial crime and the government wants those assets available to compensate investors to compensate victims of food and drug violations the funds are not there they have been spent on an attorney and under this court's decision in kaplan and drysdale those funds were never the defendants funds at all what happens is that they may have been released because the expedition of residence and that there is good cause to think that the defendant will succeed well that would go to circumstances under which is pretty limited under those circumstances then he has discretionary authority to grant a defendant will be able to show you know that there is not probable cause to believe a crime was committed by those high bars would be helpful but once the defendant clears them the government faces the same pressures and at the end of the day the same consequence is going to occur that if the judge does find in that one in a million case which has not yet been encountered that there was no probable cause for the indictment you will have the defendant proceeding on to trial in a judicial system that is honoring the finding of the grand jury after the judges concluded to the contrary and it's about a different subject is might we were here it's about the subject of quashing the warrant or it's about the subject injunction now grant you reinjury things there are but it's also there when you're talking about certain bail hearings it's different in the bail context because the judge at the bail hearing is never questioning probable cause  he's only questioning whether the evidence is sufficient to justify restraining the defendant thank you thank you mr green have three minutes remaining the government is asking for an extraordinary remedy we're asking for limited relief justice alito we're asking for the kind of hearing that federal courts do every day this is not a fishing expedition this is not a discovery exercise where you mean it's a kind of hearing that's held every day i thought these were in some circuits it is but it's held occasionally the hearing loss very similar to a pretrial detention hearing and in two thousand and eight for the d c circuit the government was asked the question that this court asks today what would be the prejudice to the government or what has been the prejudice to the government in holding these hearings i quote from the d c circuit quote the government could not identify any harm to its law enforcement efforts in the second circuit that has resulted from the monsanto standard five twenty one fed third at four one thousand foot no one today we hear fears of lawyers abusing the process we have a record all we ask is the judge to read the trial record that he presided over and come to a conclusion that will not bind the court at trial it will not bind the government to trial counsel i think your quotation from the d c circuit was it was not quite on point my understanding is the court was asking for impure court evidence that this is caused particular problem now whether they could point to any concerns i think we've seen the concerns laid out today i understand the hypothetical concerns that the prosecution raises i understood the d c circuit to say is there any empirical evidence in mathews the case that we cited and that we believe controls this court said better statistics rarely provide a satisfactory measure of fairness the decision making process and so rather than rely on statistics we rely on the due process clause guarantee that you have an opportunity to be heard when the government wants to freeze the equity in my client's home and say to her and say to her husband they can't use the equity in their home to retain counsel of choice when they've shown the court that they can prevail the government says the judge must close his eyes the judge can't consider the trial that he presided over instead he must be constrained by a one sided proceeding that the judge never observe the grand jury we say the grand jury is enough to make my client go to trial we'll be there if we have to be there but we say she and he should have the right to use their assets to retain their counsel of choice after all this court has held that the right to counsel of choice is a structural right it is per se reversible to die someone their counsel of choice i ask that this court not rule that the government can beggar a defendant into submission i ask this court not to rule that the government the government can impoverish someone without giving them a chance to be her through their counsel of choice there are no further questions  thank you counsel the case is submitted