Supreme Court Examines The Sixth Amendment Ramifications Of Pre-Conviction Asset Seizures

Legal Issues

from the and-the-prognosis-for-this-'right'-isn't-exactly-good dept

The Supreme Court is taking a swing at the Sixth Amendment and it looks like it may be worse off by the time the court’s finished with it.

At the center of the case is Sila Luis, who was indicted in 2012 of defrauding Medicare to the tune of $45 million. She has yet to be convicted of any crime, but the case has moved all the way to the Supreme Court because of pre-trial actions by the US government.

Apparently, the millions of dollars Luis allegedly siphoned from Medicare is long gone. So, the government has seized her lawfully-acquired assets ahead of the trial in order to guarantee it can collect fines and damages should it secure a conviction.

The problem is obvious: with all of her assets frozen, Luis cannot seek the best representation she can afford. She can only avail herself of legal representation willing to work for free or in hopes of her assets being released to her if she’s acquitted.

This is a problem for anyone who’s had their assets seized by the government. Challenging a forfeiture is difficult enough without the added hurdle of financing it with restricted means. The government, of course, doesn’t see any problem with seizing funds before obtaining a conviction. (Convictions in asset forfeiture cases are somewhat of a rarity, and in almost every state, the lack of a conviction is no impediment to seizing whatever property the government speculates could be tied to illegal activity.)

In asset forfeiture, it’s the property that’s considered “guilty.” In this particular case, the government doesn’t even dispute the legitimacy of the funds it’s taken from Luis. Instead, it claims it has the right to seize funds ahead of a conviction as a sort of down payment on expected fines and damages.

The oral arguments in front of the Supreme Court don’t bode well for people in Luis’s position. This summation of the justices’ responses to her legal rep comes from Amy Howe of the renowned SCOTUSblog.

Justices of all ideological stripes appeared unconvinced. Justice Elena Kagan told Srebnick that there is a “powerful intuition” to his argument, but “it seems that the distinction you’re making is one the Court explicitly rejected in” its 1989 ruling. Your case, she continued, “doesn’t seem to present any different circumstances.” Roberts was also skeptical, telling Srebnick that, “if you can freeze tainted assets without running afoul of the Sixth Amendment, I don’t understand why you can’t freeze untainted assets.”

Justice Samuel Alito seemed to agree. He asserted that, “as a matter of economics and common sense,” “money is fungible.” He described a hypothetical in which twin brothers rob a bank and steal $10,000, which they divide between the two of them. They also each receive $5,000 as a birthday present from a rich uncle. The first twin spends all of his money from the robbery but saves the birthday money, while the second one spends all of his birthday money but saves the money from the robbery. Under Luis’s position, Alito emphasized, the first brother could use his money to hire a lawyer, but the second one couldn’t. “What sense does that make?” Alito asked. Justice Anthony Kennedy chimed in, telling Srebnick: “The law that you want this Court to say is ‘spend the bank robbery money first.’”

The Court’s fear appears to be that if they agree with Luis’s argument, criminals will make sure they divest themselves of their ill-gotten gains before being arraigned. While this might be the case, the Court perhaps gives too much credit to the innate wiliness of criminals. Our nation’s prisons are full. Some of that can be traced to overzealous prosecution, the Drug War and a billion pages of obscure federal regulation. But some of that is due to the fact that many criminals are opportunists and, as such, are not particularly good at the whole “delayed gratification” thing.

But that’s really neither here nor there. The key to the defense’s argument is that the Sixth Amendment supposedly grants Americans the right to the “assistance of counsel.” This would include availing themselves of the best representation they can afford. The government stacks the deck by stripping certain defendants of their wealth before pursuing a conviction. But as the justices see it, the alternative is to let criminals spend “bad” money first and work toward beating the rap with their “good” money.

The justices didn’t completely side with the government, however. Justice Breyer, in particular, felt the government’s angle was just as questionable as Luis’s interpretation.

Now let’s try it with the facts here. If a defendant has some money, which maybe he will have to pay in a fine, what we’ll do is we’ll take all his money away before he’s been convicted beyond a reasonable doubt. Okay. That’s the difference in the propositions.

And I’m saying it’s pretty hard for me to think in a country which says that before he’s convicted, you have to release him on bail except in unusual circumstances, that nonetheless, you can take all his money away so he can’t hire a lawyer.

The government countered Breyer’s point by arguing that the specifics of this alleged crime led to a lawful seizure under clearly-defined statutes passed by Congress. Justice Kennedy, however, points out the specifics aren’t really all that specific.

But what is it that confines your rationale to a specific area? It seems to me that if the government prevails in this case, every State in the union, every locality could say that in the event of assault and battery, malicious ­ mischief, drunk ­­– an accident caused by drunk driving, any crime involving a bodily injury, that the government is entitled to restrain disposition of assets that might be used for medical care, for pain and suffering. And this would, in effect, prevent the private bar from –­­ from practicing law unless it did so on a contingent basis.

As the justices remind the government — and as is pointed out by the defense — the 1989 Supreme Court decision referenced constantly through the oral arguments (US v. Monsanto [not that one]) clearly specified that the government could seize tainted funds pre-trial. No such permission was given for untainted funds.

While the government has admitted the funds it’s seized are untainted, it also argues they are “fungible.” The government says it’s difficult to separate clean money from dirty money, and even if it could, leaving untainted assets laying around would just encourage defendants to stick it to The Man by loading up on high-priced lawyers.

After all, Justice Breyer, this is basically a zero-­sum game. Either there will be money available at the end of the case for the victims or the money will have been spent on lawyers.

The Supreme Court, at this point, seems unwilling to call an end to pre-conviction seizures — even of untainted funds. It apparently realizes the downside of siding with the government: the abuse of pre-trial asset seizures that could result in less-than-effective representation for accused parties. But it appears more inclined to allow the government to deal from the bottom of the deck on occasion, rather than accept the possibility that a few accused criminals may use this Sixth Amendment “loophole” to dodge fines and damages resulting from convictions.

While the Supreme Court has made a few nods towards the Fourth Amendment in recent months, it still has shown quite a bit of deference to the law enforcement point of view. The wins of Riley (warrants for cell phone searches) and Rodriguez (no prolongment of traffic stops for fishing expeditions) must be balanced against Heien (cops can use any “reasonable” justification for a traffic stop, even nonexistent laws) and Mullenix v. Luna (immunity in officer-involved-shooting upheld). Beneath the challenges to the government’s arguments, there’s a distinct undercurrent that hints at the Supreme Court’s willingness to let one innocent person be deprived of their right to counsel, rather than let thousands of criminals use “guilty” money to “purchase” their innocence.

Filed Under: asset seizure, pre-conviction asset seizure, sila luis, sixth amendment, supreme court