Brief of Amici Curiae National Association of Criminal Defense Lawyers and the Cato Institute in Support of Appellant.
Argument: This court's prior decision in Billman is not a viable authority and should no longer be followed. Billman authorizes the pretrial restraint of any property – whether tainted or untainted – that might ultimately be forfeited to the government upon conviction. Every other circuit to address the issue has held that the statute does not authorize the government to restrain a defendant's untainted, substitute assets before trial. Luis rejected the argument that the government is authorized to restrain all property that might ultimately be forfeited to the government upon conviction. Luis expressly rejects the broad reading of Monsanto relied upon by this court in Billman. Luis holds that the proper inquiry is to examine the parties' respective property rights under the statute. Luis describes section 853 as permitting only the pretrial restraint of tainted assets, and the government agreed with the court's description during oral argument. En Banc proceedings are not necessary to overrule Billman in this case.
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NACDL urges all states and U.S. territories to adopt such constitutional provisions, laws or regulations necessary to guarantee that every accused person, irrespective of financial capacity to engage counsel, shall be guaranteed counsel at the first appearance before a judicial officer at which liberty is at stake or at which a plea of guilty to any criminal charge may be entered. ............