[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12049

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

JOHN PAUL GOSNEY, JR.,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 9:22-cr-80022-AMC-3

____________________

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2 Opinion of the Court 22-12049

Before LUCK, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:

John Paul Gosney appeals the district court’s denial of his 

motion to vacate a restraining order on a bank account. We affirm.

I. 

In February 2022, a grand jury charged several defendants, 

including Gosney, with multiple criminal offenses in connection 

with a scheme to submit false and fraudulent claims to Medicare 

for reimbursement. The indictment gave notice that the government would seek criminal forfeiture in connection with the 

charged offenses. Specifically, the indictment stated that, upon 

conviction, the defendants would forfeit property constituting or 

derived from, directly or indirectly, gross proceeds traceable to 

health care fraud, conspiracy to commit health care fraud and wire 

fraud, and kickback offenses, as well as any property “involved” in 

the money-laundering offenses and any property “traceable to” 

such property. The indictment listed certain property subject to 

forfeiture as a result of the charged offenses, which “include[d], but 

[was] not limited to,” funds from four listed bank accounts and 

three parcels of real property. 

After filing the indictment, the government applied ex parte 

for an order under 21 U.S.C. section 853(e)(1) and 18 U.S.C. section 

982(b)(1) restraining all funds on deposit in an account at Valley 

National Bank on which Gosney was a signatory. In support of its 

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application, the government submitted the declaration of an FBI 

agent setting forth the probable cause to restrain the funds in the 

account. The account wasn’t specifically listed in the criminal forfeiture section of the indictment but was mentioned elsewhere, including a criminal count alleging conduct related to concealment 

money laundering. 

The district court granted the government’s request. Based 

on the grand jury indictment, the district court concluded that 

there was “probable cause to find that [the account] [was] subject 

to forfeiture” upon Gosney’s conviction and thus that “the United 

States [was] entitled to a protective order pursuant to 21 U.S.C. 

[section] 853(e).” The district court entered a protective order restraining the account to preserve its availability for forfeiture. 

Gosney moved to vacate the district court’s protective order, arguing that the restraint on the account violated his Sixth 

Amendment right to counsel of choice by denying him access to 

the funds he needed to hire the counsel he wanted. Specifically, 

Gosney asserted that the account wasn’t restrainable because it 

wasn’t listed in the criminal forfeiture section of the indictment, so

neither the district court nor the grand jury had determined that 

the account was traceable to a charged offense. Gosney also requested that the district court grant him a pretrial hearing on the 

traceability of the account to the crimes alleged in the indictment. 

In opposing the motion, the government argued that the indictment and agent declaration established the account as tainted property subject to criminal forfeiture and that Gosney’s challenge was 

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barred under the Supreme Court’s decision in United States v. Kaley, 571 U.S. 320 (2014), as an impermissible attack on the grand 

jury’s probable cause determination underlying the criminal 

charges. 

Following a hearing, the district court denied Gosney’s request to vacate outright the restraining order. But the district court 

granted Gosney leave to make an ex parte showing of financial 

need to determine whether he was entitled to a hearing to challenge the restraint. Based on our decision in United States v. Kaley, 

579 F.3d 1246, 1252 (11th Cir. 2009) (“Kaley I”), the district court 

found that Gosney wasn’t entitled to a pretrial hearing unless he 

showed that the asset restraint effectively prevented him from hiring his counsel of choice. It permitted Gosney to attempt to make 

such a preliminary showing by submitting documentary evidence 

of financial hardship. 

Gosney filed financial information ex parte as ordered. But

he “indicated that he would not testify about his finances at a future 

adversarial hearing.” The district court ordered Gosney to file a 

notice indicating whether he intended to meet his burden to show 

financial need by a preponderance of the evidence at an adversarial 

pretrial hearing. In response, Gosney asserted that only he had sufficient personal knowledge about his finances and that he wouldn’t 

testify in open court without a grant of use immunity. 

The district court denied Gosney’s motion to vacate the restraining order, finding that a pretrial hearing on traceability of the 

restrained funds to the charged offenses was “unwarranted.” The 

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district court assumed (without deciding) that Gosney had established financial hardship. But it determined that Gosney still wasn’t 

entitled to a hearing under the four-part balancing test established 

in Barker, which we applied to criminal asset restraints in United 

States v. Bissell, 866 F.2d 1343, 1352 (11th Cir. 1989). This test includes four factors: “(1) the length of the delay before the defendants received their post-restraint hearing; (2) the reason for the delay; (3) the defendants’ assertion of the right to such a hearing pretrial; and (4) the prejudice the defendants suffered due to the delay 

weighed against the strength of the United States’[] interest in the 

subject property.” Kaley I, 579 F.3d at 1254.

As to the first Barker factor, the district court noted that,

“[i]n the context of asset restraints, the relevant length of delay is 

the amount of time between when the restraint is imposed and 

when the restraint would be reconsidered and resolved,” which the 

district court calculated to be “between ten and eleven months.” 

The district court found that “[a] delay of that length, although not 

insignificant, is not so substantial as to clearly favor a pre-trial hearing” and thus determined that this factor was “either neutral or 

marginally weigh[ed] in Gosney’s favor.” 

As to the second factor, the district court observed that the 

case involved twenty-two charges against ten defendants “in connection with a multimillion-dollar health care fraud conspiracy, including charges of money laundering that implicate numerous entities and bank accounts.” The district court noted that the discovery was “massive,” as it involved “hundreds of thousands of 

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documents and necessitat[ed] a detailed and developed discovery 

protocol for use by a filter team.” The district court found that 

because of “the complexities of this case, the extremely voluminous discovery, and the expressed need for adequate preparation 

on both sides,” the reason-for-delay factor was neutral. 

As to the third factor, the district court found that it weighed 

in Gosney’s favor because he timely moved to vacate the restraining order “one month after [it] was entered.”

As to the fourth factor, the district court conducted the 

“more searching exposition and calculus” we required in Kaley I. 

579 F.3d at 1258. In doing so, the district court explained that the 

Supreme Court, in Kaley, distinguished between “(1) the grand 

jury’s determination of probable cause to believe a defendant committed a crime and (2) the grand jury’s determination that the assets subject to forfeiture are traceable to the charged crime” and 

“made clear that only the latter determination . . . may be subject 

to second-guessing.” “Conversely,” continued the district court,

quoting Kaley, “the former determination by the grand jury—that 

probable cause exists to believe a defendant perpetrated the offenses alleged based on the factual allegations supporting the grand 

jury’s probable cause determination—is ‘conclusive’ at this stage, 

i.e., not subject to ‘any review, oversight, or second-guessing’

pending resolution of the case.” After a thorough analysis, the district court found that “Gosney’s arguments on the merits all reduce[d] to a claim that neither he nor his co-defendants committed 

the charged crimes or obtained any significant amount of money 

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from improper Medicare claims.” But, because that determination 

“falls within the sole province of the grand jury under the Supreme 

Court’s binding decision in Kaley,” the district court concluded that

Gosney had failed to show prejudice. Meanwhile, the government 

had a “substantial interest in continuing to restrain [the account] 

without any pre-trial hearing.” Accordingly, the district court determined that this factor weighed “decidedly in favor of the 

[g]overnment.” 

Gosney timely appealed. 

II. 

We review a district court’s refusal to vacate an injunction 

for abuse of discretion. CBS Broad. Inc. v. EchoStar Commc’ns 

Corp., 532 F.3d 1294, 1299 (11th Cir. 2008). The legal conclusions 

underlying the district court’s decision are reviewed de novo, and

factual findings are reviewed for clear error. Dillard v. Baldwin 

Cnty. Comm’rs, 376 F.3d 1260, 1265 (11th Cir. 2004). We review 

de novo issues of constitutional law and statutory interpretation. 

United States v. Castro, 455 F.3d 1249, 1251 (11th Cir. 2006).

III. 

Gosney argues that the district court erred in two ways. 

First, he claims that the indictment didn’t permit the district court 

to enjoin transfers from his account. Second, he argues that he was 

entitled to a pretrial hearing on whether the restraint was constitutional. We address each argument in turn.

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A.

Under 21 U.S.C. section 853(e), a district court may impose 

pretrial restraints on property that would be subject to criminal forfeiture in the event of a defendant’s conviction. Specifically, a district court “may enter a restraining order or injunction” to preserve 

such property for forfeiture “upon the filing of an indictment or 

information charging a violation . . . for which criminal forfeiture 

may be ordered under this section and alleging that the property 

with respect to which the order is sought would, in the event of 

conviction, be subject to forfeiture under this section.” 21 U.S.C. § 

853(e)(1)(A). The Supreme Court has held that a pretrial restraint 

of assets is constitutionally permissible when it is “based on a finding of probable cause to believe that the assets are forfeitable.” 

United States v. Monsanto, 491 U.S. 600, 615 (1989).

Gosney argues that the district court wasn’t authorized to 

issue an order restraining his account because the account wasn’t

specifically listed in the non-exhaustive forfeiture allegations section of his indictment. To support this argument, Gosney cites 

United States v. Kaley, 677 F.3d 1316, 1327 (11th Cir. 2012) (“Kaley

II”), for the proposition thatsuch an omission from this specific part 

of the indictment is “fatal to the validity of the district court’s order.” But Kaley II says no such thing. True, we noted that the 

prosecution can’t restrain assets “[w]ithout the grand jury’s probable cause determination and the court’s approval.” Kaley II, 677 

F.3d at 1327. But we made this statement in the context of “emphasizing that the prosecution cannot unilaterally restrain a 

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defendant’s assets between the time of indictment and trial.” Id. 

We never specified that a grand jury’s probable cause determination must appear in a particular part of the indictment, nor did we

preclude district courts from making their own post-indictment 

probable cause determinations. 

The indictment’s allegations, in conjunction with the FBI 

agent’s declaration, established probable cause that the funds in the 

account would be forfeitable upon Gosney’s conviction. Specifically, the FBI agent declared that investigators had identified more 

than twenty million dollars in proceeds from Medicare contractors 

tied to reimbursements for false and fraudulent claims submitted 

to Medicare by the clinical laboratory used by Gosney and his codefendants. More than thirteen million dollars of these funds were 

transferred to an account at JPMorgan. Between October 2020 and 

February 2021, $1,954,100.00 was transferred in a series of fortyone wire transfers from the JPMorgan account to a Wells Fargo 

account on which Gosney was the sole signatory. In July 2021, approximately two million dollars was transferred from the Wells 

Fargo account into the account at issue in this case. The indictment 

identified Gosney as the owner of this account and charged him for 

the two-million-dollar transfer, which the indictment described as 

“proceeds of specified unlawful activity”—namely, “conspiracy to 

commit health care fraud and wire fraud,” “health care fraud,” and 

“receipt of kickbacks in connection with a [f]ederal health care program.” In light of what was presented to the district court, combined with the indictment’s clear notice that any property involved 

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in or traceable to the charged offenses would be subject to criminal 

forfeiture upon a defendant’s conviction, the district court’s restraint of the account was proper under section 853(e).

B.

On the issue of whether Gosney is entitled to a post-indictment, pretrial hearing on the legality of the restraint on his property, we’re bound by our decision in Bissell. In Bissell, we clearly 

held that a defendant whose assets are restrained pursuant to a 

criminal forfeiture charge in an indictment, rendering him unable 

to afford counsel of choice, is entitled to a pretrial hearing only if 

the balancing test in Barker is satisfied. 866 F.2d at 1353. Thus, we 

must decide whether the district court correctly interpreted and applied the four factors of the Barker balancing test: “(1) the length 

of the delay before the defendants received their post-restraint 

hearing; (2) the reason for the delay; (3) the defendants’ assertion 

of the right to such a hearing pretrial; and (4) the prejudice the defendants suffered due to the delay weighed against the strength of 

the United States’[] interest in the subject property.” Kaley I, 579 

F.3d at 1254.

Gosney provides no legal argument as to the first three factors, which the district court found weighed neutrally or marginally in Gosney’s favor. Gosney devotes the lion’s share of his brief 

to challenging the district court’s finding that the fourth factor 

weighed “decidedly in favor of the [g]overnment.” So the question 

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before us is whether the district court erred in finding that Gosney 

wasn’t unduly prejudiced by the restraint on his assets. 

When a defendant’s assets are forfeitable as a result of criminal conduct, a defendant has no Sixth Amendment right to use 

those tainted funds to hire an attorney. See Caplin & Drysdale, 

Chartered v. United States, 491 U.S. 617, 632 (1989). In Kaley, the 

Supreme Court concluded that an asset restraint that deprives a defendant of his Sixth Amendment right to retain counsel of his 

choice is “erroneous only when unsupported by a finding of probable cause.” 571 U.S. at 337 (emphasis omitted); see also Monsanto, 

491 U.S. at 615 (holding that no constitutional violation occurs 

where assets are restrained pretrial based on a finding of probable 

cause that the assets are forfeitable). 

The Kaley Court recognized that a pretrial asset restraint 

must be supported by two probable-cause determinations: “There 

must be probable cause to think (1) that the defendant has committed an offense permitting forfeiture, and (2) that the property at issue has the requisite connection to that crime.” 571 U.S. at 323–24. 

Kaley held that a defendant seeking to lift a pretrial asset restraint 

has no right to a hearing to contest the first determination—the 

grand jury’s finding of probable cause to believe that the defendant 

committed the crimes charged. Id. at 322. The Court emphasized 

the grand jury’s “singular role” in finding “probable cause necessary to initiate a prosecution for a serious crime” and explained 

that, because “a fundamental and historic commitment of our 

criminal justice system is to entrust those probable cause findings 

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to grand juries,” a defendant isn’t entitled to a “judicial re-determination of the conclusion the grand jury already reached.” Id. at 328. 

Thus, only the second determination may be challenged before

trial. See id. at 331 n.9, 333. This is because “the tracing of assets

is a technical matter,” whereas the grand jury’s determination of 

probable cause to support criminal charges is part of its “core competence and traditional function” and thus “conclusive[].” Id. at 

328, 331 & n.9 (quotation omitted). This distinction is consistent 

with Kaley II, where we held that “a defendant who is entitled to a 

pretrial due process hearing with respect to restrained assets may 

challenge the nexus between those assets and the charged crime, 

but not the sufficiency of the evidence supporting the underlying 

charge.” 677 F.3d at 1327; see also Kaley, 571 U.S. at 324 (noting 

that lower courts allow a defendant to challenge “whether probable cause exists to believe that the assets in dispute are traceable or 

otherwise sufficiently related to the crime charged in the indictment”).

Although couched as a traceability challenge, we agree with 

the district court that Gosney’s argument constitutes an impermissible attack on the grand jury’s determination of probable cause

that he committed an offense permitting forfeiture. Gosney pays 

lip service to Kaley II by stating that he seeks to challenge the 

“nexus” between the account and the charged crimes. But he 

doesn’t argue that the account’s funds are from sources unrelated 

to his alleged conduct. Rather, he cites testimony from his co-defendants’ preliminary hearing to show the absence of fraud and 

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argues that the scheme didn’t constitute fraud because the billings 

were for medically necessary services authorized by physicians. Essentially, he insists that “the revenues . . . do not constitute proceeds of a fraud” because the conduct with which he is charged 

doesn’t actually constitute fraud. This argument is squarely at odds 

with the factual allegations in the indictment and thus is foreclosed 

by Kaley. See 571 U.S. at 341. 

As a fallback, Gosney urges us to overturn Bissell and “conclude that, in assessing the need for a hearing, Gosney may challenge not only the nexus prong, but the guilt prong as well.” Even 

if we were at liberty to overturn our binding precedent, as Gosney 

suggests, it’s not Bissell that compels our conclusion. Rather, it’s 

the Supreme Court’s Kaley opinion, which mandates that Gosney 

has “no right to relitigate” the “grand jury’s prior determination of 

probable cause to believe [he] committed the crimes charged.” 571 

U.S. at 322. And, “under our system of vertical precedent, we are 

bound to apply [Kaley] until it is overruled, receded from, or in 

some other way altered by the Supreme Court.” United States v. 

Henco Holding Corp., 985 F.3d 1290, 1302 (11th Cir. 2021).

AFFIRMED. 

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