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

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


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  1. identicon
    Anonymous Coward, 13 Nov 2015 @ 3:49pm

    Justice at a price, makes me wonder who the real thieves are. I guess we only go down hill from here seeing all three branches are now rolling in the septic. Who cares if a few of them are innocent, string them all up, that will teach them a lesson.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 13 Nov 2015 @ 4:15pm

    I wonder how the ruling on this case will affect Dotcom's legal situation.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 13 Nov 2015 @ 4:23pm

    proposal

    Why must asset forfeiture be an all-or-nothing endeavor?

    I have a proposal. Instead of waging scorched-earth warfare against the accused as a strategy to force them into a quick plea-bargain & surrender of their right to a fair trial because they're penniless and have no other choice, why not set up some sort of "exemption" framework within the law that would leave defendants reasonable living expenses and legal costs out of their seized funds?

    I know, I know. Because the whole point of legal prosecution (as the government sees it) is to win --at all costs-- rather than to seek a fair fight.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 13 Nov 2015 @ 4:28pm

    The part I don't see mentioned well, or even recognized by the justices, is our system is SUPPOSED to be based on 'Innocent, until proven guilty." Why doesn't that matter anymore?

    reply to this | link to this | view in thread ]

  5. icon
    Uriel-238 (profile), 13 Nov 2015 @ 4:36pm

    Socialized legal assistance?

    Maybe the quality of lawyer you can hire shouldn't depend on your bankroll. Why, if I am poorer does my case deserve a less-qualified lawyer?

    It is not the intention of our people our our government for our society's laws to be so voluminous that they cannot be read, or so incoherent that they cannot be understood.

    When we can no longer require our law enforcement to know the laws they enforce, how can we require it of our people?

    To say that my representation should be limited by what I can afford is to say that I am unequal to those wealthier than I. If that is not the case, then let us stop pretending and then let us teach America's inequality to our first graders.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 13 Nov 2015 @ 4:38pm

    Wow, the SC has already ruled! They've declared that money itself is a person, with all of the same Constitutional rights as any other citizen. Furthermore, they've determined that money is a really laid-back dude who doesn't "get all uptight about shit like this" and is "you know, like, totally cool" with waiving those rights.

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  7. icon
    Daniel (profile), 13 Nov 2015 @ 4:53pm

    Re:

    I had wondered the same

    reply to this | link to this | view in thread ]

  8. identicon
    USG, 13 Nov 2015 @ 4:53pm

    Re: Socialized legal assistance?

    To say that my representation should be limited by what I can afford is to say that I am unequal to those wealthier than I.
    Failing to be rich is nothing but a deviant lifestyle choice, so live with it. This isn't a welfare state, so go out and buy your damn rights like the rest of us.

    I'd say more, but it's time for me to go suck the lifeforce out of a orphan and feast on his soul.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 13 Nov 2015 @ 4:56pm

    Re: Re:

    Exactly. The gov't already has infinite resources and the very system against defendants, why do they need this too, except to step on people that much harder?

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 13 Nov 2015 @ 5:08pm

    The justice system is rigged

    If you are part of the law enforcement side, it literally takes damning evidence and enough people to push it through to have any chance of justice. If it was anyone else, you are automatically assumed guilty and you have to prove otherwise while having your life ruined financially and even if you win, the arrest and trial will be held against you from now on.

    reply to this | link to this | view in thread ]

  11. identicon
    Quiet Lurcker, 13 Nov 2015 @ 5:43pm

    Re:

    The cynical answer is, "as little harm as possible", an answer predicated on the notion that there is a concerted effort by all involved, even indirectly, toward a preordained conclusion.

    I hope to $DEITY I'm wrong. I'm terrified I may at least be on the right track.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 13 Nov 2015 @ 5:46pm

    Re: The justice system is rigged

    I've been trying to remember not to call it the "justice system" anymore*, only the "legal system".

    _____
    * - I'm gonna go with option 3.
    http://alt-usage-english.org/anymore.html

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 13 Nov 2015 @ 5:53pm

    Re: Socialized legal assistance?

    Because the legal system was created by lawyers, for lawyers, should we be surprised that justice requires putting money in the pockets of the very people who created this system and serve as its gatekeepers and chief beneficiaries?

    reply to this | link to this | view in thread ]

  14. icon
    jimb (profile), 13 Nov 2015 @ 6:52pm

    innocent until proven guilty...

    It seems clear that the Court is basically going to reinforce what has been a truth about the United States justice system for many years. You are entitled to the best justice money can buy, unless the justice system seizes all your money, in which case good luck. Clearly this is designed to encourage criminals to either spend all their money or hide it in offshore havens where the government can't identify it and seize it, even when the money is the result of legal activities. Is this a program by the government to encourage the use of offshore secret bank accounts by anyone with money at all...?

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, 13 Nov 2015 @ 7:00pm

    I don't understand how there can even be a disagreement about this among normal people, let alone the freakin' SUPREME COURT. What exactly is so difficult to understand about "innocent until proven guilty"?

    The presumption of innocence is an international human right and the foundation of the American legal system. Taking someone's money before they are convicted of a crime is a very clear violation of that sacred principle! It greatly disturbs me to see that the majority of my nation's highest courtroom does not seem to see a problem with this corrupt, undemocratic and obviously unconstitutional practice.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 13 Nov 2015 @ 7:01pm

    Americans seem to have little to no rights when those in charge decide they get in their way of how they want things to happen.

    reply to this | link to this | view in thread ]

  17. icon
    That One Guy (profile), 13 Nov 2015 @ 7:42pm

    How to ensure a conviction is one easy step...

    If the government can claim money even they admit has nothing to do with criminal activity, then it becomes almost literally impossible to win in court against them. They charge you with a crime, steal all your money, and now you cannot afford to defend yourself, ensuring a conviction.

    That the matter has even reached this point shows the idea of 'Innocent until proven guilty' has been turned into nothing but a sick joke, and has been utterly inverted into 'Guilty unless you can prove your innocence'.

    reply to this | link to this | view in thread ]

  18. icon
    That One Guy (profile), 13 Nov 2015 @ 7:48pm

    Re:

    Because drugs!. And wars! And drug wars! Drugs are destroying the country, the only possible response is to utterly destroy the very foundations of justice to futility flail about trying to ineffectively combat them! And anyone who claims otherwise is clearly a criminal communist terrorist drug dealer!

    Drug war!

    reply to this | link to this | view in thread ]

  19. identicon
    Patrick, 13 Nov 2015 @ 9:52pm

    If one needed any more proof our justice system is a cruel joke who's primary concern is securing convictions, even if it means stacking deck hurting innocent people, well then you need look no further.

    reply to this | link to this | view in thread ]

  20. identicon
    Anonymous Coward, 13 Nov 2015 @ 10:31pm

    Re:

    It's kinda like a movie that's "based on a true story". The law is based on our Constitutional rights, but plenty of liberties have been taken.

    And no, that pun wasn't intentional. I just got lucky.

    reply to this | link to this | view in thread ]

  21. identicon
    David, 14 Nov 2015 @ 1:04am

    You know how to fix that?

    The government says [...] leaving untainted assets laying around would just encourage defendants to stick it to The Man by loading up on high-priced lawyers.

    Well, how about a "loser-pays-all" system coupled with fixed billable rates? "High-priced lawyers" are a bug, not a feature of the U.S. justice system. Once you take away the financial basis for the star-lawyer syndrome, you'll eventually get a higher correlation between crime and punishment rather than poverty and punishment.

    Everyone wins. And one argument for the "seize everything to save it from expensive lawyers in case of a loss" abomination, which in the current U.S. showmanship courtroom is a self-fulfilling prophesy, is gone.

    reply to this | link to this | view in thread ]

  22. icon
    Whatever (profile), 14 Nov 2015 @ 2:00am

    Re:

    Innocent until proven guilty applies to the person, not to the asset.

    Let's consider a simple case: Man robs the bank and take $10,000 dollars. He is arrested. Should he be allowed to keep the $10,000 and use it for legal fees, or does it get seized as basically "what was stolen"? The answer is generally simple, almost everyone can agree that the money needs to get seized.

    Slightly harder: Con man convinces people to give him money to "invest" and then doesn't do as he says. He is charged with fraud. Should the money they have given him be seized or should he be allowed to spend it to defend himself? Again, most people would agree the money needs to get locked up.

    Harder still: The same con man has used the money to buy a fancy home, cars, and expensive jewelry, having paid himself a salary that took all the money out of the company. Those assets are "personal", ie not company owned but bought by the individual with the funds collected by his fraudulent company. Should he be allowed to keep the assets, and perhaps sell some to fund a legal defense? Again, most people would say no, the assets should be seized.

    Now, the really hard one. The con man pays himself a huge salary, takes all the money to Vegas and bets it all on red on the roulette table and wins. He then takes the original amount and bets again and loses. He has broken even on roulette, but the money he kept isn't the original money, but money he won - he lost the original amount on the second bet. He then uses his winnings to buy the fancy house car, and jewels. Should those assets be allowed to be seized?

    Again, it's important to note that nobody is decided innocence of guilt, only assuring that the ill gotten gains are not used to finance a (failed) defense to the point where the is no longer an asset to deal with to satisfy a judgement. Allowing him to do so would essentially create a legal benefit for thieves and fraud artists, and encourage them to continue legal challenges and appeals to the very end, knowing that even in a losing battle, it's really someone else paying the tab.

    It's effectively what Kim Dotcom has been trying to do. A guy so concerned about his legal defense that he hasn't cut back on his lifestyle or any other expensive part of his life to fight the charges, and instead funded (a massive failure) of a political campaign. Yet he complains and wants more access to more funds for "defense". His goal appears to arrive in the US for trial at the point where he no longer has any funds left and the judgement would be moot. A win for the prosecution and a win for the civil litigants would be a hollow victory if he is allowed to spend everything he earned from Mega (and all that came from investing the Mega funds) disappears up a lawyers ass.

    The Surpreme Court is getting this one VERY right. The legal system is about a fair trial, allowing defendants to use the assets that they obtained by crime to fight prosecution wouldn't be at all fair.

    reply to this | link to this | view in thread ]

  23. identicon
    David, 14 Nov 2015 @ 2:02am

    Re: Re: Socialized legal assistance?

    You still haven't volunteered enough information for me to figure out which primaries you are running in.

    It used to be easier.

    reply to this | link to this | view in thread ]

  24. icon
    That One Guy (profile), 14 Nov 2015 @ 4:00am

    Missed a few lines there

    The Surpreme Court is getting this one VERY right. The legal system is about a fair trial, allowing defendants to use the assets that they obtained by crime to fight prosecution wouldn't be at all fair.

    In which case you should be against what the government is doing here, because that's not what's happening.

    (Even if it were, so what? The system is supposed to be 'Innocent until proven guilty' last I checked, so it shouldn't matter if someone has been accused of breaking the law, and it's claimed that the money they have is all from illegal actions, the money they have is still theirs, as they're still innocent until proven guilty. To treat them otherwise is to punish them as though they had been found guilty before the trial ever starts.

    Better a guilty person go free by using funds gained through illegal actions than an innocent man be locked up because his completely legal funds were taken from him.)

    '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.

    ...

    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 case has nothing to do with keeping someone from using money gained from illegal actions to defend themself, as even the government admits that the funds they're trying to seize were lawfully gained. Instead they're arguing that she shouldn't be able to use her lawfully gained money to defend herself, because they want to be able to seize it should they win and she has to pay out a fine.

    That eliminating her ability to hire the kind of defense that she'd need when facing federal prosecutors basically ensures that she will lose is a happy side-effect, a self-fulfilling prophesy if you will. They want the money locked up in case she loses, the fact that it's locked up ensures she loses, and would you look at that, she lost the case and now they can grab the money for good.

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  25. identicon
    Anonymous Coward, 14 Nov 2015 @ 4:29am

    surely the first thing to be considered is whether someone accused of a crime, but not yet found guilty, is capable of getting serious legal council and therefore a proper defense? no one should have to go to court without any chance of being able to defend themselves, should they? the way this reads is that regardless of what you have done, the government can whip you into court, using any and every means possible to try to get a conviction but you dont deserve to have any defense and you and will be prevented from getting that defender because the government says so and has bankrupted you to make sure! how the hell is that justice? seems to me another example of 'we want you to be guilty even if you are not but to save us having to actually work to prove it, we'll stop you from being able to defend yourself!' so much for 'everyone being equal under the law' and 'everyone is innocent unless proven to be guilty'!!

    reply to this | link to this | view in thread ]

  26. identicon
    Anonymous Coward, 14 Nov 2015 @ 5:19am

    Everyone is guilty until we say the "evidence" said otherwise

    reply to this | link to this | view in thread ]

  27. identicon
    Anonymous Coward, 14 Nov 2015 @ 6:08am

    Re: Missed a few lines there

    Not to mention this whole "the assets can be guilty even if the person isn't" is basically the justification for civil asset forfeiture, which is nothing less than a cash grab by law enforcement at all levels.

    Even when looking at a borderline asset, it is tyranny to leave the decision to the government. They are the party responsible for trying to deprive the defendant of their property and freedom. Why would they ever give the benefit of the doubt? The fact that this case made it to the SCOTUS means that such doubts are in short supply, if there ever was any.

    reply to this | link to this | view in thread ]

  28. identicon
    Coke Can Hair, 14 Nov 2015 @ 7:21am

    The Surpremes Sing Another Tune

    It has devolved to where laws exist as jobs programs for judges and lawyers in system where criminals direct the circus that can take decades to grind to the point where there is even a stage managed court action, whereas a lesser "evolved" society is able to adjudicate in a matter of a few with costs a million times less. Justice?

    reply to this | link to this | view in thread ]

  29. identicon
    Anonymous Coward, 14 Nov 2015 @ 7:33am

    Funny how this approach never applies to execs from:

    AIG, Bank of America, Citibank, General Motors, etc. etc. etc.

    Seize first litigate later? O.K. then by what legally objective standard are the persons who do or don't get this treatment, selected?

    And why isn't the state liable to the taxpayer for duty on those who AREN'T selected for this treatment? Or would this not have happened if she had perpetrated the fraud as a Corporation?

    No that can't be true. Corporations are people. Wait...

    reply to this | link to this | view in thread ]

  30. icon
    John Fenderson (profile), 14 Nov 2015 @ 8:09am

    Re: Re:

    "Innocent until proven guilty applies to the person, not to the asset."

    Yes, I'm aware of the legal theory. But the legal theory is insane. Assets cannot be innocent or guilty. Assets do not commit crimes.

    The legal fiction that you can assign guilt or innocence to things distorts the very notion of justice and makes no logical sense. That's the fundamental problem here.

    reply to this | link to this | view in thread ]

  31. icon
    Whatever (profile), 14 Nov 2015 @ 9:13am

    Re: Missed a few lines there

    Yet, do you not think that this is still in the people's best interest? IN a civil case, you could move for seizure before judgement, with the exact intent of avoiding having the assets liquidated before the judgement happens.

    Moreover, the key question is this: If Luis has spent her own money instead of the millions sucked off the medicare teat, would she in fact have any assets to start with? She apparently stiffed the government for 45 million, but has less than that in assets. She literally applying "spent the stolen money first" defense against the seizure, and SCOTUS ain't buying it.

    Essentially, she has funds for a defense that she should not have under normal circumstances. Thus, the seizure is valid.

    Remember, the law allows for a defense, but it doesn't extend to having an unlimited supply of money to do so. The legal minimum requirement is what you get when you have a public defender. Everything above that is a luxury. Leaving a defendant with a ton of money because they were busy spending out the stolen money first would encourage people to do the same - and to employ a defense that entirely depletes you assets an hour before judgement is read.

    reply to this | link to this | view in thread ]

  32. identicon
    Anonymous Coward, 14 Nov 2015 @ 9:42am

    Simple case

    A guy walks into a bar.

    He sticks a gun in the bartenders' face, and growls, “Give me all the cash in the till, pronto. Put it in a bag.”

    The bartender silently puts all the cash from the till into the bag. But being a savvy sort, he also slips in an exploding dye pack—you know, the exploding dye packs that bank tellers use when they get robbed. Oh yeah, and the bartender also presses a silent alarm button that summons the cops.

    After the guy leaves the bar, the cops swarm into the area. Never mind exactly how —maybe there's video surveillance— —maybe it's just the bartender's description— but the cops catch some guy: The guy they catch is black or hispanic, medium height, or a little bit taller, wearing either a t-shirt or a jacket, and driving either an older, red Cadillac or a newer black Lexus. Anyhow, the cops catch some guy.

    The cops search this guy they caught, incident to arrest. In his car, they find a cheap Saturday-night special revolver, and a paper bag.

    The bag contains one-hundred seventy-nine dollars and eighteen cents in purple cash.

    Exactly the amount taken in the robbery!

    The bartender identifies the guy they caught. “Yeah, that's him, I swear.”

    Now, should this guy be allowed to use that $179.18 to pay for a lawyer? It's a simple question. Should the guy be allowed to use the purple $179.18 to pay for a lawyer? Real simple question. Yes or no?

    reply to this | link to this | view in thread ]

  33. icon
    Uriel-238 (profile), 14 Nov 2015 @ 10:05am

    No case is that simple.

    I'm sure that's what the police say in court. I'm sure that's what the bartender is claiming. I'm sure that the bag full of purple money was right where they planted it.

    But that's still not to say he's dead-to-rights guilty, because there's always more to it.

    And to start acting as if he was guilty of a crime before he is convicted is to presume guilt before due process, which is a violation of a man's rights.

    If you don't care about preserving rights, go ahead and bind him up and shoot him in a field. From here it seems that's what you want to do.

    In a justice system that worked, his ability to mount a righteous defense wouldn't count on his assets. Also the Justice System wouldn't fear a robust defense warchest, which is essentially what the whole asset seizure set of laws implies: that a fancy enough lawyer can beat the system.

    In that case, the system's broken, and it is the responsibility of the government and the people to fix it. And not by sticking band-aid devices such as legalizing asset forfeiture to prevent them from buying a sweet defense.

    So no. And not a simple yes or no no, because things don't work like that in real life. The movies, maybe.

    reply to this | link to this | view in thread ]

  34. icon
    Uriel-238 (profile), 14 Nov 2015 @ 10:13am

    Re:

    I think the the fact that the SCOTUS justices cannot see how this is violation of fundamental Constitutional principles highlights exactly how immersed we can get in our own point of view.

    This is probably how the FISC rubber stamps so many warrants to look at civilian dick-pics, and how the hobby-lobby case went as it did.

    It's probably also how we became an extrajudicial torture state. People are so far removed from perspectives that will be impacted by their decisions that they can't see the other side. They can't consider how the same provision could be used against themselves.

    reply to this | link to this | view in thread ]

  35. icon
    Uriel-238 (profile), 14 Nov 2015 @ 10:16am

    "Legal system"

    I can't recommend anything better, but that implies we have a consistent and comprehensible body of laws.

    reply to this | link to this | view in thread ]

  36. identicon
    Anonymous Coward, 14 Nov 2015 @ 10:36am

    Re: Re: Missed a few lines there

    Essentially, she has funds for a defense that she should not have under normal circumstances. Thus, the seizure is valid.
    Again, this is declaring her guilty before going to trial. Repeating an irrelevant idea doesn't give it relevance. A counterargument that it's the money that's been declared guilty isn't even irrelevant, it's a mindless talking point crafted of equal parts syllogistic fallacy and bullshit.

    reply to this | link to this | view in thread ]

  37. identicon
    USG, 14 Nov 2015 @ 10:49am

    Re: Re: Re: Socialized legal assistance?

    Primaries are irrelevant. We are Corporatocracy. We have added your ideological and political distinctiveness to our own. Your party will adapt to service us. Resistance is futile.

    reply to this | link to this | view in thread ]

  38. identicon
    Anonymous Coward, 14 Nov 2015 @ 11:07am

    Re: "Legal system"

    Ah, finally, a chance to toss in my obligatory monthly Gödel Incompleteness Theorem(s) reference. Then again, when it comes to the law, it seems like inconsistency is a goal rather than an unavoidable flaw.

    reply to this | link to this | view in thread ]

  39. identicon
    Anonymous Coward, 14 Nov 2015 @ 11:20am

    Re: Simple case

    ... the cops catch some guy: The guy they catch is black or hispanic, medium height, or a little bit taller, wearing either a t-shirt or a jacket...
    Ah ha! It's a trick question: there won't be a trial, because the cops will have shot him in the face for "being brown while in possession of a waistband".

    reply to this | link to this | view in thread ]

  40. identicon
    Frobosh, 14 Nov 2015 @ 11:23am

    Presume for a moment...

    That the defendant is not guilty.

    Now, how does asset forfeiture look?

    reply to this | link to this | view in thread ]

  41. identicon
    Anonymous Coward, 14 Nov 2015 @ 12:37pm

    Re: Re: Simple case

    The guy they catch is black or hispanic
    Ah ha! It's a trick question
    Is NOT trick question. The woman who said the robber was asian later admitted that she was in the lady's room during the whole thing. It turns out she got the story second-hand from her companion after she came back from the restroom. And besides, she had also been in the bar for hours.

    It went down really fast. Most of the people who got a good look at the robber said they focused on the gun. “I didn't really look at his face—I was just looking at the gun the whole time—didn't want him to shoot me.” Some said it was a small chrome-plated revolver, others said it was a big black automatic. As I said, the gun they recovered in the yellow or gold Nissan was a cheap Saturday night special.

    It went down really, really fast.

    But the bartender ID'd the guy for sure. He was positive, “Yeah, I got a good look at the guy's face. It was him. I know it.”

    The surveillance video has been sent to the state crime lab..

    Do you let the guy use the purple $179.18 to pay for a lawyer? Or not?

    reply to this | link to this | view in thread ]

  42. identicon
    Rekrul, 14 Nov 2015 @ 1:11pm

    Re: Re: Missed a few lines there

    Remember, the law allows for a defense, but it doesn't extend to having an unlimited supply of money to do so. The legal minimum requirement is what you get when you have a public defender. Everything above that is a luxury. Leaving a defendant with a ton of money because they were busy spending out the stolen money first would encourage people to do the same - and to employ a defense that entirely depletes you assets an hour before judgement is read.

    Imagine if it was you on the receiving of the government's wrath. What's that you say? You'd never be in that position because you're not a criminal? Well suppose that the government mixes you up with someone who is wanted for conning people out of thousands of dollars. Things like that have happened.

    The authorities can't find any evidence, but based on your name and the statements of the victims, they conclude that you're just really good at covering your tracks and push ahead with the prosecution. Of course before they take you to court, they seize every penny you have. You get an overworked public defender while the government employs million-dollar lawyers.

    That's fair, right? After all, you're probably guilty.

    reply to this | link to this | view in thread ]

  43. identicon
    Rekrul, 14 Nov 2015 @ 1:22pm

    Re:

    Congratulations! You now have a perfect understanding of how the U.S. legal system works.

    reply to this | link to this | view in thread ]

  44. identicon
    Anonymous Coward, 14 Nov 2015 @ 2:35pm

    Re: Re:

    create a problem then offer a solution that gives you total control over a country amazing how often that works when people prefer to trust in their leaders to do them right instead of standing on guard for when they do not.

    reply to this | link to this | view in thread ]

  45. identicon
    Anonymous Coward, 14 Nov 2015 @ 2:38pm

    Re: Funny how this approach never applies to execs from:

    they pay off the DoJ with large denomination bribes

    reply to this | link to this | view in thread ]

  46. identicon
    Anonymous Coward, 14 Nov 2015 @ 2:40pm

    Re: Re: Re: Simple case

    it's not his money as it's evidence.

    I hope the woman in this instance burns in hell for what she did but taking her money to deprive her of her right of defense has horrible implications for everyone else.

    When the laws are not applied equally there are no laws effectively.

    reply to this | link to this | view in thread ]

  47. identicon
    Anonymous Coward, 14 Nov 2015 @ 3:03pm

    Re: Re: Re: Re: Simple case

    it's not his money as it's evidence.
    And in this simple case, what establishes the $179.18 as evidence is the fact that the cash is stained with purple from the exploding dye pack?

    If it's purple money, then it's evidence. That's the basic rule?

    If the cops recovered the same $179.18, but for some strange reason the dye pack hadn't exploded, or the dye hadn't managed to stain the money, then that $179.18 would not be evidence. Is that right?

    reply to this | link to this | view in thread ]

  48. identicon
    Techanon, 14 Nov 2015 @ 3:38pm

    Re: Re: Re: Simple case

    The purple money here is a red herring. The case in the article is about seizing 'clean assets'.

    reply to this | link to this | view in thread ]

  49. identicon
    tracyanne, 14 Nov 2015 @ 4:46pm

    Re: The Con man

    You're assuming that the man arrested is the "Con Man", and by definition, based on your assumption, is guilty until proven innocent.


    Innocent until proven guilty would assume the arrested person is innocent, and therefore any money they have is legally theirs, until it is proven, beyond reasonable doubt, in a court of law, that the person arrested for the crime is Guilty.

    reply to this | link to this | view in thread ]

  50. identicon
    Anonymous Coward, 14 Nov 2015 @ 5:08pm

    Re: Re: Re: Re: Simple case

    The purple money here is a red herring. The case in the article is about seizing 'clean assets'.
    CHIEF JUSTICE ROBERTS: Right. So what is the logic that says it doesn't violate the Sixth Amendment if it's tainted funds, but it does if it's untainted funds?

     

    (Chief Justice Robert's question is from the transcript of oral argument p.4.)

    reply to this | link to this | view in thread ]

  51. identicon
    alternatives(), 14 Nov 2015 @ 5:14pm

    $179.18 to pay for a lawyer

    Is that your rate for defending a case?

    Cuz where I'm from that won't get ya squat.

    blah blah public defender

    Here's the FUN part - the money seized needs its OWN lawyer....you won't get a PD or be able to pro-se the case for the assets.

    reply to this | link to this | view in thread ]

  52. identicon
    Anonymous Coward, 14 Nov 2015 @ 5:39pm

    Re: proposal

    I guess the government should bear the cost of these high-cost lawyers if they are going to seize untainted funds. They way the lawyer still gets paid, and in the event of a conviction, there is still money to be paid to the "victims." Everyone wins. It's only an hour or less of printing by BEP to pay for it.

    reply to this | link to this | view in thread ]

  53. icon
    That One Guy (profile), 14 Nov 2015 @ 6:47pm

    Re: Presume for a moment...

    Nonsense, everyone knows a mistake like that would never happen, if you're in court that means you're guilty, it's just a matter of determining the punishment.

    Besides, they claim that she's guilty, and that should be good enough for everyone, unless you're one of those heretics that believe that those in charge can make mistakes, which is clearly not correct.

    reply to this | link to this | view in thread ]

  54. icon
    That One Guy (profile), 14 Nov 2015 @ 7:31pm

    Re: Re: Missed a few lines there

    Yet, do you not think that this is still in the people's best interest?

    No, I do not.

    In the prosecutor's best interest? Absolutely.

    In the public's best interest? Absolutely not.

    Punishing someone before trial by hamstringing their ability to defend themself in court is not something anyone who cares for seeing justice done should support, as it takes the idea of 'Innocent until proven guilty' and turns it on it's head. No longer does someone have to be found guilty to be punished, now they are punished before the trial even starts, drastically increasing the chance that they will lose their case and be found guilty, whether they were or not.

    As I noted above, 'Better a guilty person go free by using funds gained through illegal actions than an innocent man be locked up because his completely legal funds were taken from him.'

    IN a civil case, you could move for seizure before judgement, with the exact intent of avoiding having the assets liquidated before the judgement happens.

    For assets related to the crime, which these are not, something even the government admits is the case.

    In the same hypothetical case, is the prosecution allowed to move for seizure of the entire bank account of the accused, even if they know and admit that said bank account is completely separate from any illegal actions, simply to ensure that should the accused be found guilty they can pay out any fines?

    After all, if they spend all their money and are found guilty, how are they supposed to pay the fine? Should they not be barred from using their own money for their defense in light of this, since clearly their ability to pay off a fine is far more important than their ability to mount an effective legal defense?

    Everything above that is a luxury.

    If you think having sufficient legal representation to defend yourself in court in a luxury, then have them switch. The prosecution gets the public defender, the defense gets the lawyers the prosecution would have brought to bear. The government's tough, I'm sure it could survive without the luxury of their lawyers, and get by fine with the public defender turned prosecutor.

    Luxury is a padded chair when a hard wooden one would do. Luxury is a fine meal when a simple one was available. Legal representation able to keep you out of jail unjustly is anything but a 'luxury', since it can mean the difference between going free, and being locked up, and last I checked 'freedom' is generally not considered a luxury.

    Leaving a defendant with a ton of money because they were busy spending out the stolen money first would encourage people to do the same - and to employ a defense that entirely depletes you assets an hour before judgement is read.

    If the prosecution is left unable to collect anything from the defendant because they spent all of their own money on their defense, too bad. It wasn't their money, and they don't get to lay claim to it to ensure that they can collect beforehand.

    Once more, with feeling, the system is supposedly 'Innocent until proven guilty', you don't get to treat someone as though they were guilty before trial even starts, and that includes not being able to bar them from paying for an adequate defense.

    reply to this | link to this | view in thread ]

  55. icon
    ChurchHatesTucker (profile), 14 Nov 2015 @ 7:48pm

    Y'know...

    I suspect that anyone caught, say, keying a Justice's car would not find the car a plaintiff in their case.

    reply to this | link to this | view in thread ]

  56. icon
    That One Guy (profile), 14 Nov 2015 @ 7:52pm

    Re: Re: Re: Re: Re: Simple case

    The former is related to a crime.

    The latter isn't.

    I don't agree that someone should be punished as though guilty by having their (supposedly) illegally gained funds locked away before trial(if for no other reason than the prosecution might be wrong, and the funds could be totally clean), but there's at least an argument that can be presented about not allowing someone to commit crimes and use the results to avoid punishment.

    That argument however goes right out the window when the funds have nothing to do with any illegal actions, even the prosecution admits it, and the only reason the prosecution wants to seize them is to ensure that the accused is able to pay any fines they would face should they be found guilty.

    The prosecution does not, or at the very least should not be able to lay claim to funds before trial even starts. They aren't owed the ability to collect the fines if the accused can't pay them, and if they accused spends all their money in their defense, tough. Until the guilty verdict is handed out, the money is still the property of the accused, and they should be able to spend it as they wish.

    reply to this | link to this | view in thread ]

  57. identicon
    Anonymous Coward, 14 Nov 2015 @ 9:15pm

    can't win for losing

    In one way here, the defendant (or, I guess, the defendant/plaintiff) is lucky, as the assets seized were intangibles and real property, rather than currency. (Even though the case centers on money being fungible -- go figure.) Had they been cash, they would have already been subject to the standard LE 'finder's fee,' which here in the bay Area seems to average around 15% to 20% -- though, as a recent spate of prosecutions revealed, can occasionally run as high as 100%, presumably dependent upon whether anyone is likely to complain.

    Last year, some friends of mine were awakened by the sound of a Big red Key being used to open their front door. Based primarily on a partnership two of them had some 25 years ago -- which ended with their being invited to take the next decade off as guests of the state -- some thirty-odd members of various departments and agencies took all three residents into custody and then proceeded to turn the house upside down and shake it until anything of value had rolled out. Essentially nothing of significance was found -- and certainly not the large-scale psychedelic lab expected.

    A year later, and one of the three accepted a year's probation for possession of a controlled substance for personal use, while another agreed not to contest the seizure of assorted prescription meds found in his room -- which actually belonged to his girlfriend, who had died of cancer a month earlier. All other charges were dropped.

    The state agreed to return the PCs and miscellaneous other items seized from the fellow whose girlfriend had died -- but when they went to do so, discovered they had already 'inadvertently' been sent to the shredder. When he went to reclaim the SUV they also seized, he was presented with a $50-a-day storage fee covering the 360 days since his arrest; supposedly that's still being hashed out by the court.

    The other two housemates, a couple, petitioned for return of an admittedly surprising amount of cash found -- or, at least, for the 82% of it that was logged into evidence. (What can I say? They both have deep-seated antipathy towards banks, for reasons both real and imagined.) Some sixty weeks after the raid, the judge ordered it returned. That was a couple of months ago; at the time, they were told the check "probably" would be cut by the end of the year. "You're lucky you don't live in Oakland," they were told. "Over there, restitution takes at *least* six months -- often longer."

    reply to this | link to this | view in thread ]

  58. icon
    PT (profile), 14 Nov 2015 @ 10:35pm

    Re: How to ensure a conviction is one easy step...

    Actually, it's "Guilty until you accept the plea bargain".

    reply to this | link to this | view in thread ]

  59. icon
    GEMont (profile), 15 Nov 2015 @ 10:27am

    The New American Way

    "...described a hypothetical in which twin brothers rob a bank and steal $10,000... first brother could use his money to hire a lawyer...."

    This entire "logic" states quite plainly that ;

    1.) "Innocent till proven guilty", no longer applies to Americans, and that the state can treat all Americans as if they were presumed guilty until they can prove their innocence, and that;

    2.) lawyers are what counts in determining guilt or innocence in American Courts, not evidence, so if you're poor, you're guilty, and if you're rich, you're not, regardless of any evidence that might be presented.

    Taken together, it is a plain language admittance that Justice has left the country, stage left.

    ----

    reply to this | link to this | view in thread ]

  60. identicon
    Anonymous Coward, 15 Nov 2015 @ 10:41am

    Re: Re: Re: Re: Re: Simple case

    The narrative for the theoretical case still needs to be modified a bit:

    1. The guy who's arrested happens to have just deposited his paycheck for $180 into his bank account. This is all the money he has to his name.

    2. The purple money wasn't found. Just a paper bag stained with purple dye.

    3. Can they seize the money in his bank account?

    My answer is that my comment about Godel (somewhere up there) wasn't entirely tongue-in-cheek: there will be cases and conditions that no law can address consistently and completely. The law can't be written to accommodate all possible situations, so answering the question might be determined by nothing more than how much of an authoritarian one happens to be.


    I think we're also dealing with two separate questions here:

    Should the government be able to seize clean assets if no tainted funds are found?

    If it's agreed that they can seize tainted funds, how do we draw the line between clean and dirty money? What's our Taint Metric?


    I guess we're also (sort of) looking at a third:

    Is the binary of innocent/guilty actually a continuum before a verdict is reached? (e.g., "This guy is almost certainly guilty. Probably 90% certainty.") As a follow-up, can we modify the legal system based on probabilities? (e.g., "Judge, I'm 90% sure he's guilty. He should only be allowed to spend 10% of his available assets on his defense.")

    reply to this | link to this | view in thread ]

  61. identicon
    Anonymous Coward, 15 Nov 2015 @ 8:28pm

    Re: Re: Re: Re: Re: Re: Simple case

    "The former is related to a crime.

    The latter isn't."

    In theory yes. In actual practice, the nature of money is such that it's a little more complex.

    If I rob a bank and you stop me before I do anything else, the money is seized. If I get to another bank and make a deposit, can you still seize it? Sure!

    But what happens if I stole 179.18, deposited onto a pre-paid credit card that already had $200 on it. With that $379.18 I buy something that costs $150. Did I spend the clean money or the stolen money? At that point it doesn't matter, the account would be seized.

    In the case at hand, the person is charged with milking the government for 45 million (which has all disappeared). Is any or all of that money in their personal account? Did they profit from the 45 million and end up with a million as a result of "new money"? Would that person have a million if they had not been living off the public teat?

    Like I said, the judges are seeing it correctly. Taking WITHOUT context, it looks punitive. Taken in context, it's normal, legal, and perfectly reasonable.

    reply to this | link to this | view in thread ]

  62. identicon
    Anonymous Coward, 16 Nov 2015 @ 1:38am

    Re: Re: Re: Missed a few lines there

    Imagine if it was you on the receiving of the government's wrath. What's that you say? You'd never be in that position because you're not a criminal? Well suppose that the government mixes you up with someone who is wanted for conning people out of thousands of dollars. Things like that have happened.

    This is exactly the scenario that Whatever is banking on, and it's a common rhetoric among copyright troll supporters. Incorrect copyright enforcement would never happen, all evidence gathered by plaintiffs is unquestionably accurate despite all signs pointing to the contrary. They don't care about oversteps in enforcement (or, for that matter, whether the enforcement has nabbed the actual perpetrator), because it'd never happen to them. Until it does, that is.

    reply to this | link to this | view in thread ]

  63. icon
    Uriel-238 (profile), 16 Nov 2015 @ 1:39am

    "Taken in context, it's normal, legal, and perfectly reasonable."

    Only if you are certain that he did it.

    And you cannot be without a trial.

    The whole point of the trial is to determine whether the crime was done by the accused.

    Once you decide that the trial is to determine whether or not you can pin the crime on the accused, then you're no longer seeking justice. You're seeking to get a guy you've already decided is guilty.

    So no.

    You seize anything before the trial, that's presumption of guilt.

    It's legal according to federal law, but so is extrajudicial detention and interrogation. So are drone strikes against civilians. So we've a chain of evidence here that sometimes what's legal in the US isn't necessarily what is right or good or just.

    reply to this | link to this | view in thread ]

  64. icon
    That One Guy (profile), 16 Nov 2015 @ 2:53am

    Re: Re: Re: Re: Re: Re: Re: Simple case

    And now here's a twist for you to consider, hopefully illustrating just why pre-trial seizure of funds is such a problem:

    Someone else robbed the bank, but due to a mix-up you are the one charged with the crime. Maybe you look like the bank robber, maybe you were just in the wrong place at the wrong time. Either way, now you're the one facing charges, and due to pre-trial seizure of all your funds(not just an amount matching what the bank claims was stolen, all of it), you have no way to pay for a defense, leaving you with an overworked, and under-prepared public defender.

    To the surprise of no-one, the combination of those two things leads you to lose your trial where you might have been able to succeed had you had access to your own money and been able to hire a lawyer.

    If you're lucky, you're looking at being fined heavily, along with dealing with a nice black mark on your record that I'm sure won't impact you at all(because really, who hasn't been found guilty of bank robbery?) Not so lucky, you're going to be sitting in a cell for a while on top of the above.

    Pre-trial punishment, of which barring someone from paying for their own defense absolutely is, is anything but just and right, even if it might be 'legal'.

    reply to this | link to this | view in thread ]

  65. identicon
    Anonymous Coward, 16 Nov 2015 @ 6:53am

    I understand the prosecution's position- really and truly. But this is the thing that bothers me:

    If you know you can't beat effective counsel, should you be pursuing it in the first place?

    Quibbling over letting crooks get off for affording high powered counsel means they're tacitly acknowledging that the possibility of conviction in that case is tied more to the quality of defense representation than the sufficiency of the prosecution's argument or evidence. In a situation between two defendants- one of average means and one of such riches that even asset forfeiture won't kill his choice of legal representation- it's still going to boil down to penalizing someone for not being wealthy.

    To me, it seems more important that cases are fought based on merit rather than the policy concerns expressed by the government here.

    reply to this | link to this | view in thread ]

  66. identicon
    Anonymous Coward, 16 Nov 2015 @ 7:07am

    Re: Re: Re: Missed a few lines there

    "You get an overworked public defender while the government employs million-dollar lawyers."

    While DOJ positions can pay a pretty penny, I wouldn't classify them as "million-dollar lawyers."

    reply to this | link to this | view in thread ]

  67. icon
    nasch (profile), 16 Nov 2015 @ 11:23am

    Re: Re: Missed a few lines there

    If this was really to keep the accused from spending all the money to avoid having it seized, they should let her access however much of it she wants to in order to pay for a defense. The government gets insurance, and the accused gets to mount a vigorous defense. I'm not crazy about it but it would be an improvement.

    That ignores the debate about whether the fungibility of money means legal assets can be seized.

    reply to this | link to this | view in thread ]

  68. icon
    Gwiz (profile), 16 Nov 2015 @ 11:45am

    Re: Re:

    Let's consider a simple case: Man robs the bank and take $10,000 dollars. He is arrested. Should he be allowed to keep the $10,000 and use it for legal fees, or does it get seized as basically "what was stolen"? The answer is generally simple, almost everyone can agree that the money needs to get seized.


    So why not a system where the assets can be seized like they are now, but are held intact in some sort of escrow account? Physical items could be warehoused and real property could be placed under a title hold. The accused cannot access them, but neither can the government. If the government fails to secure a conviction, then the assets are returned in toto since they cannot be "ill-begotten gains" if no crime was committed in the first place.

    reply to this | link to this | view in thread ]

  69. icon
    nasch (profile), 16 Nov 2015 @ 12:15pm

    Re: Re: Re:

    The accused cannot access them, but neither can the government.

    That still assumes that the government is correct that the money was ill-gotten. They don't have to prove anything before taking it. This should only be even potentially acceptable if the defendant can access the money for the purpose of mounting a defense.

    reply to this | link to this | view in thread ]

  70. identicon
    Anonymous Coward, 16 Nov 2015 @ 1:33pm

    Re: Re:

    "Let's consider a simple case: Man robs the bank and take $10,000 dollars. He is arrested. Should he be allowed to keep the $10,000 and use it for legal fees, or does it get seized as basically "what was stolen"? The answer is generally simple, almost everyone can agree that the money needs to get seized."


    Has it been proven that the man has robbed the bank in court beyond a reasonable doubt? if not how do we know the 10,000 in his account wasn't earned from a legit source. If you can't prove it isn't his do we just go on the accusation to justify taking his 10,000?

    reply to this | link to this | view in thread ]

  71. icon
    Geno0wl (profile), 17 Nov 2015 @ 6:56am

    Jail for high crimes

    This would be less of a issue if "justice" was more likely to be served for people doing white collar crimes.
    AKA if they really did steal 45 million then they, and anybody who knowingly took money from them, should go to JAIL for DECADES.
    But because this is a "white collar crime", we are soft on that issue and even if convicted they will likely only less than 8 years.

    reply to this | link to this | view in thread ]


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