Supreme Court Says Government Can't Take Your Money And Lock You Out Of Your Choice In Representation

from the the-Sixth-Amendment-gets-a-helpful-nudge dept

This decision was handed down by the Supreme Court more than a week ago, but it's worth reporting. Late last year, the Court decided to take a look at an issue related to asset forfeiture and the implications it has for the Sixth Amendment.

In this case, the defendant, Sila Luis, argued that the government's seizure of her assets -- pre-conviction -- denied her the right to defend herself fully against its charges. She could still use an attorney, but it would have to be one appointed to her or one willing to work for deferred compensation (in the hopes that assets would eventually be returned).

The problem here isn't a small one. The government has the power to seize assets pre-conviction using nothing more than a grand jury's indictment as the basis. This is done to provide some sort of assurance that the accused can compensate those wronged (as well as pay any fines, fees, etc. associated with the conviction) when the trial is concluded.

But this assumes the government will win its case, even before it heads to trial. And, by freezing/seizing funds, the government can increase the chances of a decision in its favor by limiting the defendant's choice of representation.

The government doesn't mind playing with a stacked deck and it justifies this hobbling of defendants by pointing out that earned cash is almost impossible to separate from cash acquired through criminal means. It's correct, of course, but it makes this assertion before a verdict has been reached -- presuming both the defendant and their money to be guilty.

The government -- along with the dissenting justices -- argue that allowing defendants to pay for representation out of funds on hand will only encourage criminals to spend ill-gotten gains faster in hopes of denying sought retribution while availing itself of the most expensive defense lawyers they can afford. While there undoubtedly is a chance something like that will happen, the alternative -- seriously diminishing defendants' representation options -- is pretty much a violation of their Sixth Amendment rights.

The Supreme Court -- in a 5-3 decision -- noted that the seizure of untainted assets is a violation of Sixth Amendment rights when it prevents defendants from seeking the best possible representation. It's somewhat of a limited win, as it relies on the specifics of this case, where seized assets were deemed by the government to be "untainted." That didn't stop it from seizing them, though, as it was holding them for expected future repatriation when Luis was found guilty. That it did so before even going to trial is where the problem lies.

[T]he nature of the competing interests argues against this kind of court order. On the one side we find, as we have previously explained, a Sixth Amendment right to assistance of counsel that is a fundamental constituent of due process of law. And that right includes “the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire.” The order at issue in this case would seriously undermine that constitutional right.

On the other side we find interests that include the Government’s contingent interest in securing its punishment of choice (namely, criminal forfeiture) as well as the victims’ interest in securing restitution (notably, from funds belonging to the defendant, not the victims). While these interests are important, to deny the Government the order it requests will not inevitably undermine them, for, at least sometimes, the defendant may possess other assets—say, “tainted” property—that might be used for forfeitures and restitution.. Nor do the interests in obtaining payment of a criminal forfeiture or restitution order enjoy constitutional protection. Rather, despite their importance, compared to the right to counsel of choice, these interests would seem to lie somewhat further from the heart of a fair, effective criminal justice system.
It seems to be a very obvious conclusion. As legal blog Grand Jury Target points out, the point at which the assets are seized is far in advance of the guilty verdict the government believes it will obtain.
There is a very real and very important difference between seizing assets that are tainted and assets that are not tainted when the seizure happens before trial: At that point, the government has proven nothing. It has merely run the false “gauntlet” of a grand jury. Before a fact-finder has heard the case, the defendant should have every opportunity to hire her counsel of choice to defend against the indictment.
As Charles Pierce noted at Esquire, this decision is one the Supreme Court shouldn't even have had to reach.
On Wednesday, the Supreme Court did a thing that my every instinct tells me that the Supreme Court shouldn't have to do. But apparently, the United States, a country with a Bill of Rights that you can buy at the gift shoppe on your way out, needed clarification on the subject of whether or not you can pauperize a criminal defendant as a way of making sure this person's Sixth Amendment right to counsel is a sad and tattered joke.
The dissenting opinions seem to believe a sad and tattered joke is better than the alternative: criminal defendants blowing through "guilty money" while socking away the legit stuff in order to mount a better defense in the future. The dissent envisions a world where the government wins every case, so it makes no difference whether it seizes the money pre- or post-conviction, just so long as no one accused of anything avails themselves of the best defense possible.


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  • icon
    That One Guy (profile), 11 Apr 2016 @ 11:31am

    Time to update the saying

    The dissenting opinions seem to believe a sad and tattered joke is better than the alternative: criminal defendants blowing through "guilty money" while socking away the legit stuff in order to mount a better defense in the future. The dissent envisions a world where the government wins every case, so it makes no difference whether it seizes the money pre- or post-conviction, just so long as no one accused of anything avails themselves of the best defense possible.

    "Better 99 innocent people be stripped of their ability to adequately defend themselves in court, resulting in wrongful guilty convictions, than 1 guilty person use their ill-gotten gains to defend themself in court and thereby avoid a guilty verdict."

    That's pretty much what the government and the dissenting judges are arguing for, that an accusation of guilt pre-trial is more than enough justification to punish someone not just once but twice, first by seizing their funds, and second in removing their ability to defend themself by doing so. Thankfully for all sanity seems to have prevailed among the majority of SC judges this time around, I just wish it hadn't been so close a call.

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

  • icon
    ChurchHatesTucker (profile), 11 Apr 2016 @ 1:12pm

    The Frak?

    allowing defendants to pay for representation out of funds on hand will only encourage criminals to spend ill-gotten gains faster in hopes of denying sought retribution while availing itself of the most expensive defense lawyers they can afford.

    Oh, you want to mount a vigorous defense? You're robbing the victims!

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

  • identicon
    Quiet Lurcker, 11 Apr 2016 @ 1:19pm

    And in other news....

    ...Kim Dotcom's lawyers - and man other lawyers nationwide - are reviewing their own asset forfeiture cases in light of this new ruling.

    Experts predict that this might just be the beginning of the end of asset forfeiture, at least in its present form.

    Back to you in the studios.

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

    • identicon
      Anonymous Coward, 11 Apr 2016 @ 8:15pm

      Re: And in other news....

      I was thinking the same thing. I hope Kim Dotcom and his lawyers are able to use this in his own case. Whether you like or hate him everyone should be able to see what's been done to him is just wrong and hurts everyone if it's allowed to continue.

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

  • identicon
    Anonymous Coward, 11 Apr 2016 @ 1:56pm

    Well....

    Remember, all that is necessary is a warrant to seize anything. Indictment from a Grand Jury is really non-sequitor.

    However, I think it is pretty clear that to seize someone's money, then deny them state funded legal counsel because they make too much, and not even leave enough behind to allow already established estates to minimally operate and feed families is a type of villainy that speaks right to the core of these problems.

    The US Government is more willing to corrupt itself, crush the poor and innocent, and the ideals of Liberty than to ever think it should obey the restrictions that "The People" have shackled them with the Bill of Rights.

    Government has been and will always be civilizations greatest enemy! Not even war has cause as much death, destruction, and tyranny as mans government constructs!

    If you must have a government, keep it in shackles so that they do not take them off and place them on you instead! For life has a simple truth, those with might, make the right... no matter how wrong or evil they are!

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

    • identicon
      Wendy Cockcroft, 12 Apr 2016 @ 7:32am

      Re: Well....

      Wherever people are gathered together, there will be rules to ensure harmonious relationships. It is the enforcement of those rules that creates a government, however loosely defined.

      Government should be of the people, by the people, for the people. These days it's of, by, and for the corporations and the people are letting them get away with it because they're trained like Pavlov's dogs to salivate when the dog whistle is blown. The minute we let go of identity politics we'll get back on top.

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

  • identicon
    Anonymous Coward, 11 Apr 2016 @ 2:11pm

    Odd that nobody is arguing that, since money is fungible, the defendant might still be required to pay back the "tainted sum" out of "untainted monies" they otherwise have. Many court judgements are 'nondischargeable' via bankruptcy.

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

    • identicon
      Jonathan Lam, 12 Apr 2016 @ 9:37am

      Re: Stingray is a stealth

      In cutting off the communication, it is a steal that government can intercept any fund that looks suspicious. besides, did you ever they must give receipts of the loot. Something you did not know, they got rich. So, who is deciding the "tainted sum" or not? It is The law enforcement not the court. Is it the due process of the law?

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

  • icon
    Dave Cortright (profile), 11 Apr 2016 @ 2:32pm

    Why would a defense lawyer (or ANYONE) get to keep stolen assets?

    IANAL, but I thought there were already laws out there to prevent stolen assets from being kept by a third party. For example:

    Possession of stolen goods is a crime in which an individual has.. acquired stolen goods in some way other than they themselves having stolen them.

    ...if an individual... knew they were stolen, then the individual is typically charged with... [a crime.] If the individual did not know the goods were stolen, then they are returned to the owner and the individual is not prosecuted...


    So what's everyone getting all worked up over? If the guy is found guilty, then the lawyer has to give the money back.

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

    • identicon
      Anonymous Coward, 11 Apr 2016 @ 9:59pm

      Re: Why would a defense lawyer (or ANYONE) get to keep stolen assets?

      No. We're talking about money that was NOT stolen.

      Imagine you have $20,000 in a bank account. Then you're accused of stealing $30,000. The government wants to be able to take that $20,000 that they know perfectly well was there before the theft, so they can pay back the theft victim. And they want to be able to do this before the trial.

      If you're found guilty, they can force you to use that money to pay restitution. But, according to this case, they can't take the money before the trial. (If they were accusing you of opening the bank account with the stolen money, THEN they could seize the account before the trial.)

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

      • icon
        Dave Cortright (profile), 11 Apr 2016 @ 10:06pm

        Re: Why would a defense lawyer (or ANYONE) get to keep stolen assets?

        OK, so basically the supreme court just said, "have you heard of due process? Yeah, well that still a thing we do around here. Innocent until proven guilty and all."

        My point is the govt has no argument in saying that if they can't seize before, then the money might be spent if he is eventually found guilty. Even if it's spent, it would now be known stolen money that could be recovered via possession of stolen property laws.

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

        • icon
          M. Alan Thomas II (profile), 12 Apr 2016 @ 10:50pm

          Re: Re: Why would a defense lawyer (or ANYONE) get to keep stolen assets?

          Some state laws allow the return of property if the possessor did not know it was stolen, but federal law does not. More generally, I'm under the impression that those statutes apply (or are intended to apply) to goods and not cash, but I could be wrong about that.

          Plenty of people spend it all and then never repay court judgements, although they can certainly be forced to resell anything they bought with the money. The Bernie Madoff scandal resulted in net losses in the billions despite being able to recover some of the money paid out during the final years of the scheme: https://en.wikipedia.org/wiki/Bernard_Madoff#Size_of_loss_to_investors

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

  • identicon
    Anonymous Coward, 11 Apr 2016 @ 3:26pm

    Someone tell Kim Dotcom (Megaupload founder) about this.

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

  • identicon
    Anonymous Coward, 11 Apr 2016 @ 5:02pm

    I imagine that is news that Kim Dotcom is going to want to hear at the least. It has been part of the basis of his arguments for getting the money he's been robbed of through government legal methods without him having to have gone to trial to prove guilt or innocence.

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

  • identicon
    Theoden, 11 Apr 2016 @ 5:09pm

    Very depressed now...

    "Supreme Court Says Government Can't Take Your Money And Lock You Out Of Your Choice In Representation"

    I thought Citizens United had been overturned...

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

  • identicon
    Brad, 12 Apr 2016 @ 6:14am

    I think the other thing here is the Government making claims that they are seizing the assets "for the victims restitution".

    How much asset forfeiture funds go to actual victims? 5% 10%? Where does the rest go? And that question, and the clear financial incentives to pervert the course of justice (by the government and its agents) should weigh very, very heavily on the discussion.

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

  • icon
    WDS (profile), 12 Apr 2016 @ 8:11am

    Tainted versus Non-tainted

    The government's problem here is that they admitted that some of the money was non-tainted. They won't make that mistake again. Now instead of trying to defend yourself against the crime with a public defender, you will be trying to get a ruling that a portion of the money wasn't tainted without being able to pay for a lawyer.

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

  • icon
    M. Alan Thomas II (profile), 12 Apr 2016 @ 10:52pm

    The dissent envisions a world where the government wins every case . . .
    . . . because if it got its way, they would.

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

  • icon
    Joe (profile), 1 Aug 2016 @ 11:24pm

    Home seizures

    Looking for any advice in the situation :


    I understand your concern about them filing a case against me but one battle at a time and the first should be the property return to my family.

    I do have a major concern though i will be in the ukraine for awhile having more surgeries. If the prosecutor does file charges against me i am hoping there will not be an arrest warrant when i enter the
    united states. I will be bringing Valentina my wife and Alice my daughter into the united states for the first time. We have been working on my wife's visa for a year now and shortly we will have our interview at the
    United States Embassy in Kiev and she will get her visa for united sates citizenship. My daughter Alice was born 5 weeks ago.

    Whomever is handling the case against me didn't meet the dead lines for a seizure notice and an extension. We must take advantage of this opportunity.

    Last October the MICHIGAN SENATE passed legislation on the law enforcemnt restricting abuse wouldnt happen from them seizing property. Out of the united states Michigan received a D- grade for abuse in forteitures !!!

    ***I would like a response from you that you understand what i want accomplished immediately. Meaning i want no delay in setting these requests in motion.

    You must contact the people holding these items and simply say someone is coming to get them. They have no recourse because they didn't follow protocol and you can explain that to them….PERIOD !!
    Kody and my mother will pick the items up and the 3 cars will be taken away by a towing service.

    They are basically holding mine and my families belongings hostage.
    I will not let this matter go unaddressed and them pirating the house and taking everything i worked for over 40 years is not going to be acceptable !!!
    Their seizure was imposed with pure profit in mind !!!! Well over $200,000 in items and house damage.

    I want to see the original warrant application on both search warrants also.

    After we were detained and my MOTHERS house was being ripped apart they some how got a second search warrant within minutes and basically took the Chevell and Jaguar.


    The Fourth Amendment states the warrants be detailed


    First on the search warrant:

    General Reasonableness:

    Overlaying all the rules is a requirement that officers executing the search warrant act reasonably.

    -refusal tho show search warrant even though the resident asked for it

    - I never saw any search warrant paper work:


    -Cannot be held in hand cuffs outside with no food, water or bathroom.

    -Kody was outside in 80 degrees temperatures for 8 hours with no bathroom water or food

    *in many federal and state courts the court excluded evidence the officers found during a search on a finding that a the conducted the search warrant unreasonable.

    Seizure Issues

    The fourth amendment of the Constitution requires that a warrant include a detailed description of the place officers will search and the evidence they seize.

    The warrant has to be specific enough that an officer with no connection to the case would know whereto search and what to collect.

    Also the officers must also confine their inspections to the areas that possibly could contain the relevant evidence and anything not specially related to the case are not to be touched or taken.

    *Also the damage to the house was excessive and destructive and a civil suit should be filed for damages ($30,000) and lets not forget they started the house on fire and ran a gas generator in the house with three dogs in gages in the house which can be consider animal cruelty. when they ran generator everyone went outside because of the fumes from the generator but they left the dogs in their ages in the house !!!!!!
    While the fire department had protective breathing gear on.

    **Government (state and federal) are required to send written notice to interested parties, such notice shall be sent in a manner of no more than 60 days after the date of seizure.
    If before the 60 days period expires the Government does not file a civil judicial forfeiture action but does obtain a criminal indictment containing an allegation that the property is subject to forfeiture.


    **If the government does not send a notice of seizure of property in accordance with a 60 day notice and no extension of time has been granted the government shall return all properties
    to that person without prejudice to the right of the government not to commerce a forfeiture proceeding at a later day.




    Burden of Proof

    In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any any property

    *The burden of proof is on the government to establish by a PREPONDERANCE OF EVIDENCE that the property is subject to forfeiture.

    If the court finds that the forfeiture is grossly disproportion to the offense it shall reduce or climate the forfeiture as necessary to a avoid a
    VIOLATION OF THE EXCESSIVE SEIZURE CLAUSE OF THR 8 TH AMENDANT OF THE CONSTITUTION.

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

  • icon
    Joe (profile), 1 Aug 2016 @ 11:46pm

    Home seizures

    I would appreciate any insight on the situation this is the letter I wrote my attorney just recently.



    I understand your concern about them filing a case against me but one battle at a time and the first should be the property return to my family.

    I do have a major concern though i will be in the ukraine for awhile having more surgeries. If the prosecutor does file charges against me i am hoping there will not be an arrest warrant when i enter the
    united states. I will be bringing Valentina my wife and Alice my daughter into the united states for the first time. We have been working on my wife's visa for a year now and shortly we will have our interview at the
    United States Embassy in Kiev and she will get her visa for united sates citizenship. My daughter Alice was born 5 weeks ago.

    Whomever is handling the case against me didn't meet the dead lines for a seizure notice and an extension. We must take advantage of this opportunity.

    Last October the MICHIGAN SENATE passed legislation on the law enforcemnt restricting abuse wouldnt happen from them seizing property. Out of the united states Michigan received a D- grade for abuse in forteitures !!!

    ***I would like a response from you that you understand what i want accomplished immediately. Meaning i want no delay in setting these requests in motion.

    You must contact the people holding these items and simply say someone is coming to get them. They have no recourse because they didn't follow protocol and you can explain that to them….PERIOD !!
    Kody and my mother will pick the items up and the 3 cars will be taken away by a towing service.

    They are basically holding mine and my families belongings hostage.
    I will not let this matter go unaddressed and them pirating the house and taking everything i worked for over 40 years is not going to be acceptable !!!
    Their seizure was imposed with pure profit in mind !!!! Well over $200,000 in items and house damage.

    I want to see the original warrant application on both search warrants also.

    After we were detained and my MOTHERS house was being ripped apart they some how got a second search warrant within minutes and basically took the Chevell and Jaguar.


    The Fourth Amendment states the warrants be detailed


    First on the search warrant:

    General Reasonableness:

    Overlaying all the rules is a requirement that officers executing the search warrant act reasonably.

    -refusal tho show search warrant even though the resident asked for it

    - I never saw any search warrant paper work:


    -Cannot be held in hand cuffs outside with no food, water or bathroom.

    -Kody was outside in 80 degrees temperatures for 8 hours with no bathroom water or food

    *in many federal and state courts the court excluded evidence the officers found during a search on a finding that a the conducted the search warrant unreasonable.

    Seizure Issues

    The fourth amendment of the Constitution requires that a warrant include a detailed description of the place officers will search and the evidence they seize.

    The warrant has to be specific enough that an officer with no connection to the case would know whereto search and what to collect.

    Also the officers must also confine their inspections to the areas that possibly could contain the relevant evidence and anything not specially related to the case are not to be touched or taken.

    *Also the damage to the house was excessive and destructive and a civil suit should be filed for damages ($30,000) and lets not forget they started the house on fire and ran a gas generator in the house with three dogs in gages in the house which can be consider animal cruelty. when they ran generator everyone went outside because of the fumes from the generator but they left the dogs in their ages in the house !!!!!!
    While the fire department had protective breathing gear on.

    **Government (state and federal) are required to send written notice to interested parties, such notice shall be sent in a manner of no more than 60 days after the date of seizure.
    If before the 60 days period expires the Government does not file a civil judicial forfeiture action but does obtain a criminal indictment containing an allegation that the property is subject to forfeiture.


    **If the government does not send a notice of seizure of property in accordance with a 60 day notice and no extension of time has been granted the government shall return all properties
    to that person without prejudice to the right of the government not to commerce a forfeiture proceeding at a later day.




    Burden of Proof

    In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any any property

    *The burden of proof is on the government to establish by a PREPONDERANCE OF EVIDENCE that the property is subject to forfeiture.

    If the court finds that the forfeiture is grossly disproportion to the offense it shall reduce or climate the forfeiture as necessary to a avoid a
    VIOLATION OF THE EXCESSIVE SEIZURE CLAUSE OF THR 8 TH AMENDANT OF THE CONSTITUTION.

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

  • identicon
    linda, 17 Oct 2016 @ 2:56am

    For me, I can lock up my Facebook, WhatsApp, Clash of Clans, Messenger, Gallery and other important apps which may leak your privacy with LEO Privacy. And I can also customize my lock mode which allows me to lock different apps under different circumstances. CM is also a good choice, but I think it isn´t smart enough~ https://goo.gl/BCKwGq

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


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