11th Circuit to Consider Whether Right to Counsel Is Lost When Assets Are Frozen

Atlanta, Ga. - For six years, Kerri Kaley worked at a subsidiary of Johnson & Johnson, selling the company's latest surgical innovations to hospitals. But she and about two dozen other salespeople of J&J's Ethicon Endosurgery got into trouble with federal authorities by selling inventory that hospitals no longer wanted on the gray market, an indictment charged.

Valid prescription medical devices, such as sutures, allegedly were bought by F&S Medical of Delray Beach, Fla., which turned around and dealt the products to other medical facilities.

Now the Cold Spring Harbor, N.Y., woman and her husband, Brian P. Kaley, are the poster children in an appeal pending before the 11th U.S. Circuit Court of Appeals on the legal standard for pre-trial seizure of a defendant's assets.

For years, the criminal defense bar has been arguing wholesale seizures of assets are unconstitutional because they strip defendants of their Sixth Amendment right to choose the counsel of their choice.

"The Kaleys simply want to use their own money to retain counsel of choice to defend them at trial," said one of their attorneys, Howard Srebnick of Black Srebnick Kornspan & Stumpf in Miami.

"The government is interfering by freezing their assets, including the equity in the home they purchased more than a decade ago, without giving the Kaleys an opportunity pre-trial to confront witnesses and present evidence to establish they have committed no crime."

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