Case 2:18-cr-00422-DJH Document 1438 Filed 12/10/21 Page 1 of 17
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`United States of America,
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`Plaintiff,
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`v.
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`Michael Lacey, et al.,
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`Defendants.
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`No. CR-18-00422-001-PHX-DJH
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`ORDER
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`Before the Court is the Motion to Partially Vacate Seizure Warrants and Release
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`Funds (Doc. 1366) filed by moving Defendants Michael Lacey, James Larkin, Scott Spear,
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`and John Brunst (“Defendants”).1 The Government has filed a Response (Doc. 1384) and
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`Defendants have filed a Reply (Doc. 1390).2 Defendants have requested oral argument,
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`but the Court finds the matter can be resolved on the briefing and denies this request.
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`1 The Court notes that Defendants make many of their substantive arguments in the 23
`footnotes they have included in their Motion. Future filings that abuse the page limitations
`in such a manner will be summarily stricken. Moreover, hereafter, the parties are
`specifically prohibited from using footnotes to cite to authority supporting any statement
`made in the body of their argument. These citations and/or explanatory parentheticals must
`be in the main text.
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` 2
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` The Government seeks permission to file a Surreply, claiming Defendants’ Reply raises
`new arguments not presented in their Motion that they would like to respond to.
`(Doc. 1397). They also object to Defendants’ request to submit sworn declarations in
`camera and under seal—Declarations Defendants claim show “that they have a dire need
`for these funds to pay for their defense, and that they will use these funds for that purpose.”
`(Doc. 1390 at 4). To the extent new arguments are raised in Defendants’ Reply, they will
`not be considered. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district
`court need not consider arguments raised for the first time in a reply brief.”). The Court
`also denies Defendants’ request for an in camera review of the Declarations.
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`Case 2:18-cr-00422-DJH Document 1438 Filed 12/10/21 Page 2 of 17
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`LRCiv 7.2(f).
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`Defendants’ Motion seeks the release of four categories of assets that have been
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`seized by the Government in criminal and civil forfeiture proceedings related to this case.
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`Defendants seek to be released from seizure, in whole or in part:
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`1. $407,686.14 from Compass Bank Account ’4862, held by Cereus Properties,
`LLC (“Cereus”)3 (the “Compass Assets”);
`2. Funds seized from a series of attorney trust accounts (the “IOLTA Funds”);
`3. Unspecified funds from non-adult advertising on Backpage (the “Non-Adult
`Advertising Funds”); and
`4. Unspecified funds from revenues accrued outside of the United States (the
`“International Funds”).
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`(Doc. 1384 at 5). Defendants claim the continued retention of these funds is unlawful
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`because the Government cannot show the funds are traceable to the alleged crimes.
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`I.
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`Background
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`Defendants are former owners and operators of Backpage.com, LLC (“Backpage”).
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`Backpage was an internet-based company that allowed its customers to post classified
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`advertisements online, including “adult” ads that offered to sell adults or children for sex.
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`Backpage generated nearly a half-billion dollars selling these adult ads. The Government
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`alleges that to avoid liability and negative publicity associated with these activities,
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`Defendants engaged in a variety of money laundering strategies aimed, in part, to conceal
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`the source and location of the revenues from its illicit ads. Criminal charges were brought
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`as a result of these actions.
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`A.
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`Backpage and its CEO Plead Guilty and Criminal Forfeiture Proceedings
`are Initiated in the District of Arizona.
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`On May 1, 2018, Backpage.com LLC, and related entities Website Technologies
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`LLC, Posting Solutions LLC, Amstel River Holdings LLC, Ad Tech BV, UGC Tech Group
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`3 In their Response, the Government states that this account is held in the name of Voice
`Media Group (Doc. 1384 at 5). Defendants say the account is held by Cereus and that the
`account exclusively holds the proceeds from the sale of their print newspaper business to
`Voice Media Group. (Doc. 1366 at 9). For purposes of this Motion, the discrepancy
`appears immaterial, as the account has clearly been seized pursuant to a civil arrest warrant
`in the CDCA In Rem Proceeding. (Doc. 1384-1).
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`Case 2:18-cr-00422-DJH Document 1438 Filed 12/10/21 Page 3 of 17
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`CV (collectively, “Backpage”) pled guilty to a charge of money laundering conspiracy
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`under 18 U.S.C. § 1956(h) and agreed to the forfeiture of all property involved in that
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`offense pursuant to 18 U.S.C. § 982(a)(1). United States v. Backpage.com, LLC, No. CR-
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`18-465-PHX-DJH (“Backpage Proceeding”) at Docs. 20; 22; 44. Around the same time,
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`Backpage’s CEO, Carl Ferrer (“Ferrer”), pled guilty to conspiracy under 18 U.S.C. § 371
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`and similarly agreed to the forfeiture of property traceable to or involved in his crime.
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`United States v. Ferrer, No. CR-18-464-PHX-DJH (“Ferrer Proceeding”) at Doc. 7-1.
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`Preliminary Orders of Forfeiture (“POF”) were issued as to those assets in both cases.
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`Backpage Proceeding at Docs. 22, 42, 44; Ferrer Proceedings at Doc. 23. The IOLTA
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`Funds are among those assets listed in the POFs. Backpage Proceeding at Doc. 22 at 17;
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`Ferrer Proceedings at Doc. 23 at 12–13. Backpage and Ferrer have yet to be sentenced.
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`On June 29, 2018, and July 1, 2018, moving Defendants and other claimants4 moved
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`for a hearing in the Backpage Proceeding seeking a determination of their asserted third-
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`party interests in the property alleged to be subject to forfeiture. Backpage Proceeding at
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`Docs. 28–40. Defendants then filed Verified Petitions seeking to determine their interests
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`in the property that was subject to forfeiture. Id. at Doc. 61, 62, 64. The request for an
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`ancillary hearing was granted and initially set for November 16, 2018. Backpage
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`Proceeding at Doc. 46. Upon the parties’ stipulated requests, the hearing has been
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`continued several times. A similar process has played out in the Ferrer Proceeding. A
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`Status Conference on the ancillary hearing is currently set for January 11, 2022, in both
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`cases. Backpage Proceeding at Doc. 119; Ferrer Proceeding at Doc. 110.
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`B.
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`Civil Forfeiture Proceedings in Central District of California.
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`Between March and November of 2018, magistrate judges in the Central District of
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`California (“CDCA”) found probable cause to issue warrants to seize various assets
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`involved in or traceable to Backpage illicit operations, including the Compass Assets. (See
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`Doc. 1384-1). On September 28, 2018, the Government initiated civil in rem forfeiture
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`4 Other claimants include James Larkin, Joye Vaught, and Andrew Padilla, Medalist
`Holdings, Inc., Leeward Holdings, LLC, Camarillo Holdings, LLC, Vermillion Holdings,
`LLC, Cereus Properties, LLC, and Shearwater Investments, LLC.
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`Case 2:18-cr-00422-DJH Document 1438 Filed 12/10/21 Page 4 of 17
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`proceedings related to Backpage assets in the CDCA. Defendants and Defendant Lacey
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`sought to vacate or modify those seizure warrants under Federal Rule of Criminal
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`Procedure 41(g), in part because they believed the Government was denying their Sixth
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`Amendment right to counsel due to lack of funds. In the Matter of Seizure of Any and All
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`Funds Held in Republic Bank of Arizona Accounts, 2019 WL 8892585 at *8 (C.D. Cal.
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`Dec. 20, 2019). Their request was denied. Id. The court found that the claimants’ motion
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`“makes no reference to their present availability of funds, and the Court cannot find
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`anything in the hundreds of pages of exhibits that they have submitted from which it can
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`draw any inference on the subject. As such, the Court finds that Defendants have failed to
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`make the necessary prima facie showing to justify a hearing on release of funds to pay for
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`counsel.” Id.
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`In the same order, the court also rejected the claimants’ request for a “preliminary
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`tracing hearing.” Id. Claimants had argued that “the Government ha[d] not adequately
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`connected the seizures with specific illegal acts,” and they “oppose[d] the Government’s
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`decision to seize the entire balances of accounts in which Backpage funds had been
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`commingled with non-Backpage funds on the theory that the ‘untainted funds were
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`purportedly used to ‘facilitate’ the laundering of Backpage-related funds.’” Id. (citing
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`claimants’ briefing). The court held that “[d]espite the opportunity for additional briefing,
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`Claimants have not identified what the legal mechanism for this requested relief is, nor
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`have they suggested what legal standard the Court should apply. The Court therefore treats
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`this aspect of the present Motion as a motion for the return of property under Rule 41(g).”
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`Id. at *9. The court agreed that additional proceedings were necessary on these issues but
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`“are available through the continuation of [the civil forfeiture action].” Id. The court
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`specifically noted that “[i]n this action, Claimants will have the opportunity to present
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`evidence, identify with specificity the funds which they assert are improperly seized, and
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`make a full argument for their return. The Court will not at this point, however, simply
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`‘vacate’ the seizure warrants to the extent that Claimants argue they are unjustified.” Id.
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`Defendants then filed claims to some of the assets at issue in those actions, which
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`Case 2:18-cr-00422-DJH Document 1438 Filed 12/10/21 Page 5 of 17
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`were eventually consolidated into one action. United States v. $1,546,076.35 in Bank
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`Funds Seized from Republic Bank of Arizona Account 1889, No. CV-18-08420-RGK-PJW
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`(“CDCA In Rem Proceedings”) at Doc. 31, 36. On June 1, 2020, the Government filed a
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`First Amended Consolidated Master Verified Complaint for Forfeiture (“FAC”) that
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`asserted three forfeiture claims against the defendant assets arising from violations of 18
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`U.S.C. § 981(a)(1). Id. at Doc. 108. On December 1, 2020, the CDCA court granted the
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`Government’s motion to strike Defendants’ claims to the Compass Assets for lack of
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`standing. United States v. $1,546,076.35 in Bank Funds Seized from Republic Bank of
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`Arizona Account 1889, 2020 WL 8172984, at *4 (Dec. 1, 2020). The court specifically
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`found that that claimants lacked standing to assert shareholder claims to the $407,686.14
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`held in the name of Cereus because “a claimant’s status as a shareholder does not confer
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`an ownership interest upon the claimant with respect to corporate funds.” Id.
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`The parties subsequently requested a stay of those proceedings, pending resolution
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`of this criminal matter, which the court granted. (Id. at Docs. 188, 189).5
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`C.
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`Defendants Are Charged and Indicted.
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`On July 25, 2018, a federal grand jury returned a 100-count superseding indictment
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`(“SI”) against moving Defendants and others. (Doc. 230). The SI alleged that the
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`Defendants engaged in criminal acts while operating Backpage.com, including conspiracy,
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`facilitating prostitution, and money laundering. (Id.) The SI includes forfeiture
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`allegations. (Id.)
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`In November of 2018, Defendants Padilla and Vaught petitioned this Court for an
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`emergency stay of the seizure warrants issued by the CDCA. (Doc. 360). The Court denied
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`that request, holding that those Defendants had a sufficient legal remedy for any challenges
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`to the warrants in the CDCA court. (Doc. 401 at 56–59). In January of 2019, Defendant
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`Lacey then moved for the release of funds seized by CDCA warrants that he claimed were
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`unrelated to Backpage. (Doc. 385). The Court denied the request, again on the grounds
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`that “any legal or equitable relief from the warrants issued by the Central District of
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`5 The Court notes that claimants’ Motion for Relief from the Order granting the Stay is
`currently under review by that court. Id. at Doc. 208.
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`Case 2:18-cr-00422-DJH Document 1438 Filed 12/10/21 Page 6 of 17
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`California is properly sought in that district.” (Doc. 447 at 4). Then in May 2019,
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`Defendants filed a Motion to Dismiss on the grounds that the Government had violated
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`their Fifth and Sixth Amendment rights in the manner it had sought and executed the
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`seizure warrants of the forfeitable assets. (Doc. 456, 463, 464, 465, 467). They argued, as
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`they do in the present motion, that the seizures were “unlawful” because the assets the
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`Government had seized are “untainted.” Judge Brnovich rejected Defendants’ arguments,
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`noting that magistrate judges had found probable cause to believe that the assets will
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`ultimately prove forfeitable, and that Backpage and Ferrer had pled guilty and stipulated
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`to preliminary orders of forfeiture. (Doc. 559 at 6–7 (stating “[p]retrial restraints based on
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`probable cause to believe that the assets will be ultimately forfeited does not offend the
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`Fifth or Sixth Amendment”) (citing United States v. Monsanto, 491 U.S. 600, 615
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`(1989)and Kaley v. U.S., 571 U.S. 320, 371 (2014) (“So again: With probable cause, a
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`freeze is valid”)). She further noted that the Court had already told Defendants that their
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`disagreement with the CDCA rulings needed to be taken up with that court, and that
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`petitions to determine their interests in the seized assets were pending in the Backpage and
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`Ferrer criminal proceedings, but had been repeatedly continued at the parties’ request.
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`(Id.) Accordingly, she found no constitutional violations justifying dismissal of the
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`indictments. (Id.)
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`Trial began in this case on September 2, 2021 but ended in a mistrial after four days
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`of testimony. (Doc. 1308). The judge overseeing that trial then recused herself from the
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`case, and the proceedings were assigned to this Court. A second trial is currently scheduled
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`to begin on February 9, 2022. (Doc. 1377).
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`In their Motion before the Court, Defendants argue that because the Government
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`“has failed to show that any of these four categories of assets are traceable to the crimes
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`alleged in the indictment or the civil complaint, the government lacks probable cause to
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`support their forfeiture of these assets.” (Doc. 1366 at 8). Although Defendants generally
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`claim they need these funds to pay their counsel, they do not seek a hearing so that the
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`Court may make such a determination. They instead argue that a hearing is not needed
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`Case 2:18-cr-00422-DJH Document 1438 Filed 12/10/21 Page 7 of 17
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`because there is no probable cause for the Government to retain the assets in question. (Id.
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`at 14 (“While a defendant’s need for counsel is one factor the Court can consider in
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`deciding whether to vacate a pretrial restraint, it is not an evidentiary burden that a
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`defendant must clear to get judicial review where the assets at issue are legitimate and
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`untainted, as is the case here.”). Defendants spend much of their briefing arguing why the
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`assets at issue are not traceable to the crimes alleged.
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`The Government responds by pointing out that the previously-assigned district court
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`has already confirmed that the seizures are supported by probable cause that the assets at
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`issue are tainted and therefore their pre-trial restraint is justified. (Doc. 1384 at 9). It also
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`points out that because district court has already made this determination, and repeatedly
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`told the parties recourse should be sought in the CDCA proceedings, that the law of the
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`case doctrine should apply. (Id.) Finally, the Government argues that Defendants have
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`failed to show that the restraint of these assets is depriving them of their right to counsel of
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`their choice because they have not made a showing that they lack other funds to pay
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`counsel. (Id. at 10–11).
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`In their Reply, Defendants again argue “the law does not allow [the Government]
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`to seize untainted funds and does not put the onus on Defendants to prove that they need
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`the funds for counsel as a precondition to challenging that unlawful seizure.” (Doc. 1390
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`at 4). They nevertheless seek to have the Court review in camera declarations from defense
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`counsel attesting to Defendants’ need for funds for counsel. (Id. at 6).
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`III. Legal Standards
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`A.
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`Criminal Forfeiture
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`Courts impose criminal forfeiture as punishment following conviction of a
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`substantive criminal offense. Libretti v. United States, 516 U.S. 29, 39 (1995). Criminal
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`forfeiture operates in personam against a defendant to divest him of his title to proceeds
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`from his unlawful activity as a consequence of his criminal conviction. United States v.
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`Nava, 404 F.3d 1119, 1124 (9th Cir. 2005). Title 18 U.S.C. § 982(a)(1) directs a court to
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`order forfeiture as an additional sanction when sentencing a person convicted of violating
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`Case 2:18-cr-00422-DJH Document 1438 Filed 12/10/21 Page 8 of 17
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`18 U.S.C. § 1956. United States v. Bajakajian, 524 U.S. 321, 328 (1998).
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`Under Federal Rule of Criminal Procedure 32.2(a), the United States must provide
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`notice of its intent to pursue forfeiture in the indictment or information. “As soon as
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`practical after a verdict or finding of guilty, or after a plea of guilty [] is accepted, on any
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`count in an indictment or information regarding which criminal forfeiture is sought, the
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`court must determine what property is subject to forfeiture under the applicable statute”
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`and upon such a finding, issue a preliminary order of forfeiture (“POF”). Rule
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`32.2(b)(1)(A), (2). Then, at a post-trial or post-plea hearing, “[i]f the government seeks
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`forfeiture of specific property, the court must determine whether the government has
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`established the requisite nexus between the property and the offense.” Rule 32.2(b)(1)(A).
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`The Rules are clear that a court must enter a POF “without regard to any third party’s
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`interest in the property.” Rule 32.2(b)(2). The determination of any potential third-party
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`interest in property “must be deferred until any third party files a claim in an ancillary
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`proceeding under Rule 32.2(c).” Id. Accord 21 U.S.C. §§ 853(k)(1), (2) (stating that a
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`third party claiming an interest in property subject to forfeiture may not intervene in a trial
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`or appeal of a criminal case involving the forfeiture or commence an action at law or equity
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`against the United States concerning the validity of the alleged interest after the United
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`States files an indictment with a forfeiture allegation). Those third-party claims are
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`determined by the court after an adversarial hearing at which the third-party claimant “may
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`testify and present evidence and witnesses on his own behalf, and cross-examine
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`witnesses....” 21 U.S.C. § 853(n)(5). Indeed, “[t]he law appears settled that an ancillary
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`proceeding constitutes the only avenue for a third party claiming an interest in seized
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`property.” United States v. Lazarenko, 476 F.3d 642 649 (9th Cir. 2007).
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`An exception to this general rule is when a defendant’s Sixth Amendment right to
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`the representation of their choice is threatened by the seizure of forfeitable assets. In that
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`circumstance, if a defendant makes a prima facie showing that their Sixth Amendment
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`right to be represented is implicated, the Court must hold a hearing to determine whether
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`release of funds that have been seized in forfeiture proceedings is necessary. United States
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`Case 2:18-cr-00422-DJH Document 1438 Filed 12/10/21 Page 9 of 17
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`v. Unimex, Inc., 991 F.2d 546, 551 (9th Cir. 1993). At the hearing, commonly referred to
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`as a Monsanto hearing, the Government must demonstrate that there is probable cause that
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`the assets are indeed forfeitable upon conviction. Generally, probable cause has two
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`components: “(1) that the defendant has committed an offense permitting forfeiture,”
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`which is established by a grand jury’s indictment, and “(2) that the property at issue has
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`the requisite connection to that crime,” in other words, that the property is traceable to the
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`alleged offense. Kaley, 571 U.S. at 323–24, 398 (2014). A defendant may challenge
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`probable cause only on the second ground during a Monsanto hearing. Id. at 398. If the
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`government cannot meet its burden to demonstrate probable cause that the property is
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`traceable to the crime, the court may modify the POF and/or release of the funds. Id.
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`B.
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`Civil Forfeiture
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`The government begins a civil forfeiture proceeding by filing an in rem complaint
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`against the property that is subject to forfeiture. 18 U.S.C. § 983(a)(3)(A). Third parties
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`with interests in the property can intervene in these civil proceedings as claimants. 18
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`U.S.C. § 983(a)(4)(A), (B); Supp. R. G(5). To intervene, a claimant must have standing.
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`United States v. $133,420.00 in U.S. Currency, 672 F.3d 629, 637 (9th Cir. 2012).
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`“Claimants in civil forfeiture actions can satisfy this test by showing that they have “a
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`colorable interest in the property. . . which includes an ownership interest or a possessory
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`interest.” Id. (citations omitted).
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`C.
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` Law of the Case
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`Under the doctrine of law of the case, “a court is generally precluded from
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`reconsidering an issue that has already been decided by the same court, or a higher court
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`in the identical case,” absent a material change in circumstances. See Thomas v. Bible, 983
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`F.2d 152, 154 (9th Cir. 1993). “The doctrine encourages the conservation of limited
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`judicial resources and promotes consistency by allowing court decisions to govern the same
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`issues in subsequent stages of the same case.” East Bay Sanctuary Covenant v. Trump, 950
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`F.3d 1242, 1262 (9th Cir. 2020) (citing Am. Civil Liberties Union v. F.C.C., 523 F.2d 1344,
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`1346 (9th Cir. 1975)). “For the doctrine to apply, the issue in question must have been
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`decided either expressly or by necessary implication in the previous disposition.” Thomas,
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`983 at 154 (internal quotations and alterations omitted). If the issue in question has already
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`been decided, then reconsideration of the order is generally only permitted if “the prior
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`decision is ‘clearly erroneous’ and enforcing it would create ‘manifest injustice’;
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`intervening, controlling authority encourages reconsideration; or substantially different
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`evidence is produced at a later merits trial.” East Bay Sanctuary Covenant, 950 F.3d at
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`1262.
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`III. Discussion
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`In light of the procedural history of this case and the applicable legal framework,
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`the conclusion here is straightforward. As third parties to the ongoing forfeiture
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`proceedings, Defendants have had and continue to have adequate avenues from which to
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`argue for the return of their interests. They have also not made the requisite showing of
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`need for funds to pay counsel in this case. Accordingly, the Court will deny Defendants’
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`Motion at this time.
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`A.
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`The Statutory Procedures Available to Third-Party Claimants in
`Forfeiture Proceedings Adequately Protect Defendants’ Alleged
`Interests
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`First, as third-party claimants in the related criminal and civil forfeiture proceedings,
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`the Defendants will be able to employ the procedures set out in 21 U.S.C. § 853(n), Rule
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`32.2(c), 18 U.S.C. § 983(a)(4)(A), (B), and Supplemental Rule G(5), all which govern a
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`third party’s ability to challenge the forfeiture of specific property. Defendants have
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`offered no authority or procedure by which this Court may sidestep these procedures and
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`release the seized funds they contend are untainted. See e.g., United States v. Nava, 404
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`F.3d 1119, 1125 (9th Cir. 2005) (stating that “section 853(n) is the exclusive proceeding in
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`which third parties may claim interests in property subject to criminal forfeiture). Notably,
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`Defendants have been repeatedly advised by the district court that the CDCA is the place
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`to address concerns with regard to the in rem property at issue there. (See Doc. 401 at 56–
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`59 (“this Court finds that the defendants have a sufficient legal remedy for any challenges
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`to the seizure warrants issued by the Central District of California in that district”); Doc.
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`447 at 4 (stating that “any legal or equitable relief from the warrants issued by the Central
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`District of California is properly sought in that district”); Doc. 559 at (“As this Court
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`previously ruled, any disagreement with the CDCA’s rulings should be taken up in that
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`court.”). Defendants’ objection that they have never challenged these particular assets is
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`meritless: the law of the case doctrine applies with full force to the issue of whether this
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`Court may review the seizures at issue there. See Thomas, 983 at 154 (“For the doctrine to
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`apply, the issue in question must have been decided either expressly or by necessary
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`implication in the previous disposition.”). Nothing in these prior decisions was clear error.
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`Indeed, Defendants’ attempt to again contest those seizures in this Court is somewhat
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`confusing as they are actively involved in protecting their claimed interests there.
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`Defendants have filed verified claims of interest, challenged the seizures, and sought
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`dismissal of the FAC in that action. The CDCA court has informed Defendants that
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`additional proceedings will be needed to assess the veracity of the forfeiture claims and is
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`currently reviewing Defendants’ request to lift the stay they requested.
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`Similarly, Defendants have filed verified petitions to assert their interests in the
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`assets subject to the POFs in the Backpage and Ferrer proceedings. A status conference
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`on the ancillary hearings in those Proceedings is currently scheduled for January 11, 2022.
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`The eventual ancillary proceedings will offer Defendants the opportunity to establish their
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`superior ownership interests in the contested property and release of their funds.6
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`Lazarenko, 476 F.3d at 648 (“Section 853(n) provides the process for vindicating a third
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`party’s interest in forfeited property.”). This Court will not leap over those statutory
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`procedures because Defendants contend these various funds are untainted.
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`6 Indeed, it is unclear to the Court at this point what ownership rights Defendants have with
`regard to the four categories of funds identified in their Motion. A defendant has “no Sixth
`Amendment right to spend another person’s money for services rendered by an attorney,
`even if those funds are the only way that the defendant will be able to retain the attorney
`of his choice.” Caplin & Drysdale, 491 U.S. 617, 626 (1989). If Backpage or Ferrer has
`superior rights to the seized assets and has stipulated to their forfeiture, then Defendants
`have no grounds at all to seek their release. Notably, the CDCA court has already
`determined that as shareholders of the account owner, Moving Defendants do not have
`standing to raise third-party claims to the Compass Funds. The CDCA court accordingly
`granted the Government’s motion to strike those claims.
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`B.
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`At This Time, Defendants Have Not Met Their Burden of Showing a
`Mansanto Hearing Is Warranted
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`The parties heavily dispute whether Defendants must make a showing that they need
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`funds to pay counsel before they can challenge the underlying lawfulness of the asset
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`seizures in question. After a thorough review of the relevant case law, the Court concludes
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`that a showing of need is required, and Defendants, who hang their hat on the contention
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`that the funds are untainted, have failed to make it in their moving papers.
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`In 1989, the Supreme Court resolved two cases involving a defendant’s overlapping
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`right to due process under the Fifth Amendment and assistance of counsel under the Sixth
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`Amendment. In Caplin & Drysdale v. United States, the Court rejected the claim that a
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`convicted defendant was deprived of his Sixth Amendment right to counsel when the
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`forfeiture of tainted assets had prevented him from paying his attorney of choice. 491 U.S.
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`617 (1989). In United States v. Monsanto, the Court held that a defendant who had yet to
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`be convicted likewise lacked a Sixth Amendment right to use tainted assets that were seized
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`pretrial to pay legal fees. 491 U.S. 600 (1989). The Monsanto Court reasoned that the
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`government could seize assets before trial that a defendant intended to use to pay for an
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`attorney of his or her choice, so long as probable cause existed “to believe that the property
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`will ultimately be proved forfeitable.” Id. at 615. See also id. at 607 (pre-trial restraint of
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`assets does not give rise to a Sixth Amendment violation so long as the seizure is “based
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`on a finding of probable cause to believe that the assets are forfeitable”).
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`As noted, under federal forfeiture law, probable cause to believe that an asset is
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`forfeitable has two parts: “[t]here must be probable cause to think (1) that the defendant
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`has committed an offense permitting forfeiture, and (2) that the property at issue has the
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`requisite connection to that crime.” Kaley, 517 U.S. at 323–24, 326 (citing § 853(a)).
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`Although the Monsanto Court “declined to consider ‘whether the Due Process Clause
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`requires a hearing’ to establish either or both of those aspects of forfeitability,” lower courts
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`since then have generally provided a hearing to any indicted defendant seeking to lift an
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`asset restraint to pay for a lawyer,” i.e., a Monsanto hearing. Kaley, 571 U.S. at 324.7
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`The Due Process Clause does not guarantee that any and every request for a
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`Monsanto hearing must be granted, however. United States v. Jones, 160 F.3d 641, 647
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`(10th Cir. 1998) (“Due process does not automatically require a hearing and a defendant
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`may not simply ask for one.”). The Ninth Circuit has found that in making a request for a
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`Monsanto hearing, a court must decide whether “the moving papers filed, including
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`affidavits, are sufficiently definite, specific, detailed and nonconjectural to enable the court
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`to conclude that a substantial claim is presented.” Unimex, 991 F.2d at 551; United States
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`v. Lindell, 766 Fed. Appx. 525, 528–29 (9th Cir. 2019) (rejecting defendants’ argument
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`that district court erred when it refused to immediately release