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SCOTUS Hears Arguments: Can Gov't Freeze Money to Pay Lawyers?

By Jonathan R. Tung, Esq. on November 10, 2015 | Last updated on March 21, 2019

Today the U.S. Supreme Court will hear oral arguments for the case of Luis v. United States, a case of first impression for SCOTUS that asks probing questions about the role of government forfeiture of personal assets.

The legal issue at the core of Luis is this: Can prosecutors freeze all of the defendant's assets even if they are unrelated to any criminal activity and even if freezing them would hinder the defendant's ability to hire counsel?

A New Practice

The government practice of forfeiting personal property (split between criminal and civil forfeiture) is somewhat recent in this nation's history. The practice really only took hold in the 1970s, when Congress responded aggressively against organized crime and drug trafficking activities. At that time, federal statutes that allowed government forfeiture of personal property were triggered only after a conviction.

But by the time the 80s arrived, the government expanded its power to confiscate criminally tainted property even before a conviction. Since then, states' forfeiture statutes have expanded in lock-step with the increasing power of the federal government to seize assets. Also, state funding from asset freezes have exploded to levels higher than ever before.

Silva's Frozen Assets

Silva Luis and two other defendants were charged with running a health care-fraud scheme from 2006 to 2012 in which they allegedly bilked Medicare out of $45 million in payments. Much of the money was sent overseas and is difficult to trace and recover. So, prosecutors managed to secure a pre-trial order to freeze all of Silva's assets, including $15 million in clean assets.

Of course, there is no fundamental right to pay for one's defense lawyer with criminally illicit funds. SCOTUS made this explicitly clear in Kaley v. United States. But the order was based on a statute that would allow judges to freeze assets of "equivalent value."

Silva's lawyers argue that several million dollars of the frozen money is Silva's and should be set aside to pay for her defense. Thus, the federal government's legitimacy to freeze untainted assets is in question.

Fifth and Sixth Amendments

Luis's lawyer has argued that the government freeze on his client's assets is a violation of due process under the 5th Amendment and also a violation Silva's Sixth Amendment right to hire her counsel of choice. The Solicitor General has argued that assets need only be "forfeitable" in order for the government to order a legitimate freeze.

The ABA's President Paulette Brown submitted an amicus in which the organization expressed deep concerns over what it saw as a "profound expansion of the government's pretrial exercise of control over a defendant's assets," and further warned of "pervasive and uniquely harmful" results for the criminal justice system.

It's almost difficult to imagine that this issue is one of first impression for SCOTUS. This case is one to watch very closely.

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