Supreme Court

SCOTUS Delivers Big Win for Criminal Defendant in 6th Amendment Case, Rejects Pre-Trial Freezing of Non-Tainted Assets

The Supreme Court issues a 5-3 opinion in Luis v. United States.

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Credit: Library of Congress

Today the U.S. Supreme Court delivered a significant victory both for property rights and for the 6th Amendment right to counsel in "all criminal prosecutions." By a vote of 5-3 in the case of Luis v. United States, the Supreme Court held that the federal government's efforts to freeze the non-tainted assets of a criminal defendant before trial violated that defendant's constitutional rights. "The defendant in this case," the Court observed, "has a Sixth Amendment right to use her own 'innocent' property to pay a reasonable fee for the assistance of counsel."

The dispute in Luis v. United States began in 2012 when Sila Luis was indicted in Florida on charges of defrauding Medicare of upwards of $40 million. The federal prosecutor in her case sought and obtained a pre-trial order freezing her assets. The reason this matter ended up before the Supreme Court is that the prosecutor sought to freeze not only her "tainted" assets, meaning those assets that can be arguably traced back to the alleged underlying crime, but the prosecutor also sought to freeze Luis' undisputedly legitimate assets, which amount to some $15 million that cannot be connected in any way to any alleged criminal activity.

Sila Luis has not been convicted of any crime connected to this matter and her case centered on why the Sixth Amendment protects her right to use her wholly legitimate assets to mount her legal defense. The federal government took the opposite position, maintaining that the Sixth Amendment should not stand in the prosecutor's path. In the government's view, because all of Luis' assets could potentially be subject to forfeiture if she is ultimately convicted, federal prosecutors should not be prevented from freezing all of her "forfeitable" assets before she goes on trial.

Today the Supreme Court vindicated Luis' rights and rejected the federal government's position. "The Government cannot, and does not, deny Luis' right to be represented by a qualified attorney whom she chooses and can afford," the Court said. "But the Government would undermine the value of that right by taking from Luis the ability to use the funds she needs to pay for her chosen attorney." The property at issue in this case, the Court noted, "is not loot, contraband, or otherwise 'tainted.' It belongs to the defendant." Furthermore, the Court noted, "to permit the Government to freeze Luis' untainted assets would unleash a principle of constitutional law that would have no obvious stopping place."

Today's 5-3 decision divided along unusual lines. Justice Stephen Breyer, joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Sonia Sotomayor, voted against the federal government and in favor of Sila Luis' 6th Amendment rights. Justice Clarence Thomas concurred in that judgment, though he wrote a separate opinion whose "reasoning rests strictly on the Sixth Amendment's text and common-law backdrop." Those five justices comprised the majority. Writing in dissent, Justice Anthony Kennedy sided with the government, joined by Justice Samuel Alito. Justice Elena Kagan filed an additional solo dissent of her own.

The Supreme Court's opinion in Luis v. United States is available here.

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  1. The wise latina came down on the correct side again. A pleasant surprise.

    1. She has been consistently good on these sorts of issues.

        1. Based on this logic, shouldn’t Kagan find in favor of the plaintiff on the grounds that *all* pre-trial asset freezes should be unconstitutional because the government hasn’t yet proven that this money was tainted so they shouldn’t be allowed to freeze assets without first proving those assets were illegitimately gained?

          1. This is my read as well, and there shouldnt be any dissents at all.

          2. I think this just affirms Kagan as being what we all thought she was. A complete and utter statist.

            1. Her master’s thesis amounted to ‘The reason the communist party did not succeed in the US because it didn’t have the right people in charge’.

              Need I say more?

          3. She implies that she would have, IF Luis had been asking that question. Luis’ attorneys conceded that the government can freeze “tainted” assets under a previous decision, U.S. v. Monsanto, and that ties the court’s hands a bit.

            “But the correctness of Monsanto is not at issue today. Petitioner Sila Luis has not asked this Court either to overrule or modify that decision; she argues only that it does not answer the question presented here. And because Luis takes Monsanto as a given, the Court must do so as well.”

            Read ever so slightly between the lines there, and you get “somebody bring us a case that argues Monsanto was incorrectly decided so we can overrule it.”

        2. If I’m reading that right, it speaks to my point below – namely, that none of the assets are “tainted” until someone as been convicted. But why not vote for the plaintiff while writing a broader opinion than the majority? I ask that as someone who doesn’t fully understand how the Supreme Court works.

          1. Her dissent is incoherent because she makes several great points that should logically lead you to conclude that all pre-trial asset freezes are wrong and then determines that there should be no restrictions on any asset freezes.

            1. Her dissent is incoherent because she makes several great points that should logically lead you to conclude that all pre-trial asset freezes are wrong and then determines that there should be no restrictions on any asset freezes.

              Her arguments only lead you to conclude that if you don’t believe the state has the power to freeze untainted assets.

              1. That does seem to be the conclusion she reached, but it does not seem to follow with how she said she got there.

          2. Largely, SCOTUS tries to only narrowly address the specific issue before them. For good or ill, the ideology leans heavily against broad and sweeping decisions.

        3. Yeah, this is reading more like a separate opinion concurring with the majority, instead of a dissent.

        4. Judging from that snippet, Kagan’s dissent would more appropriately be a concurrence.

        5. She’s saying that the potentially ill gotten gains allow for the freedom to amass legitimate money because money is fungible. Thus all should be effectively regarded as ‘fair game’

    2. Sotomayor is the liberal on the Court that libertarians can respect. On policing issues (particularly on the 4th amendment), also 5th and 6th Amendment issues she’s fantastic. She’s the sort of Justice you actually want to see from the Democraps, instead of Kagan or Garland who have almost no redeeming qualities about them.

    3. The wise latina came down on the correct side again. A thoroughly shocking surprise.

      FIFY

  2. The federal government took the opposite position, maintaining that the Sixth Amendment should not stand in the prosecutor’s path

    Holy shit. Pretty ballsy to argue that the government shouldn’t be limited by the Supreme Law of the Land, the primary purpose of which is to limit the power of the government.

    1. I noticed that, too. But then I remembered that the Constitution is not a suicide pact and that it was written like 100 years ago in Proto-Indo-European.

    2. But the Obama administration is totes awesome and so dreamy. I mean, he’s a constitutional scholar and I’m sure he would appoint people that understand and respect the constitution as much as he does.

      1. oh but he DOES appoing people who respect the Constitutioin just as much as he does… which is not much at all.

    3. Mr./Mrs. Machine.

      Go back and look at every argument this administration has presented to the SC. Every one of them is of this likeness. Every one.

      This is the guy who called up the SC and ‘asked’ them not to hear certain cases. He is a banana republic dictator wannabe. There was never a time when that was not glaringly obvious.

  3. What an odd split. I mean, I guess conservative justices had to struggle between their supposed love of property rights and their definite love of law enforcement, and the liberal justices had to decide between their supposed kinship to civil liberties and their definite affinity for the state.

    1. Not surprised by Alito. Kennedy is a little surprising (almost would have expected him and Roberts swapped.)

      Thomas isn’t surprising either, and Scalia would have joined him.

      Kagan’s is weird, and borne of allegiance to stare decisis.

    2. Read Kagan’s dissent. She basically argues that pre-trial asset freezes are wrong because no money has yet been proven to be tainted and then she inexplicably finds against the petitioner anyway.

      1. That tells me that the preservation of our civil liberties rests on whims of idiots.

        1. And has been for quite a while.

        2. If Hillary becomes president, and she almost certainly will, kiss both the First and Second Amendments goodbye.

          So basically, it’s just about all over for us even as a remnant of a free country.

      2. Inexplicably. Heh, heh.

  4. Kagan’s dissent is odd. It appears to read “I wanted to also overrule this other case, but since the majority won’t, I’m forced to rule the opposite way that I’d like thanks to stare decisis.

    Thomas’s concurrence is strong. Scalia presumably would have joined it.

    1. Justice “New Professionalism” Scalia would probably have been Alito.

      1. I disagree. He has certainly been willing to give too much deference to police officers, and too much emphasis on “big” liberties i.e. those that the Federal govt should step in and prevent states or cities from abridging, and “little” liberties where the Fed shouldn’t get involved (see Lawrence v Texas).

        But, for those rights that are clearly delineated in the Bill of Rights (9A not withstanding), he has been ok. I think Alito is the caracature conservative that everyone thinks Scalia was.

        1. Scalia’s response would likely be to rule that the government indeed can’t freeze untainted assets, but baring compelling evidence (which as a practical matter is impossible for the victim to produce) to the contrary, there is not proof any of the assets in question are actually untainted, so we should rely on the prosecutor’s discretion in this case. If he abuses his discretion, the voters can vote him out of office (even though everyone knows they won’t).

          Scalia was very good at convincing himself that 2 + 2 is actually 5 when it came to police and prosecutorial overreach.

          1. Case in point, just before he died, during oral arugments for Hurst v. Florida, Scalia was basically arguing that a sentencing hearing isn’t considered part of a trial, and when it was pointed out that there’s clear precedence that it is, his response was basically NAH-NAH-NAH-NAH-I-CAN’T-HEAR-YOU!!!

            1. Edit: I mean Betterman v. Montana, not Hurst v. Florida

        2. Don’t forget Scalia is also the turd who argued the state can execute a factually innocent defendant as long as they followed proper procedure on the way to wrongfully convicting him.

  5. has a Sixth Amendment right to use her own ‘innocent’ property to pay a reasonable fee for the assistance of counsel

    Isn’t all property innocent until proven guilty?

    1. Only police officers are innocent until proven guilty. Everyone and everything else is guilty. Period. That’s why it is in the interest of the government to steal their property and deprive them of the council of their choosing, because that council might be able to help the guilty party go free.

      /what police and prosecutors really believe

    2. Isn’t all property innocent until proven guilty?

    3. yes, and too bad government goons won’t honour that premise when it comes to “civil asset forfeiture”, which is not civil but barbaric, nor is it forfeiture but theft outright under colour of law. Perhaps this case will help establish the principle that until an asset is designated, on reasonbale grounds, as “tainted” (in other words, at least a clear charge is made upon defendant) government mayn’t seize it. Just cause a pastor has $14K in his car, declares he is travelling to a newrby state to purchase a van for his church through Craigslist, the coppers in a state along the way can’t seize it by claiming, on ZERO evidence, it is somehow “tainted”…. in that case, they did not even put forward any plausible “fault” against the cash, they simply declared “he MUST be up to something bad, NO ONE travels with that much cash….. unless he’s up to something bad”. Last I knew, they never had got taht money back. One of thousands of similar cases. Perhaps someone will take this case, draw that priinciple out of it, and use it in a much needed case to END “civil asset forfeiture”. Its illegal as can be, yet done daily all across the nation.

  6. Non-taint(ed)? Where’s the fun in that? Paging Urkobold.

  7. “But the Government would undermine the value of that right by taking from Luis the ability to use the funds she needs to pay for her chosen attorney.”

    That’s some interesting language. How much of a logical judicial leap does it take to say that the value of the right to counsel is undermined by other financial restrictions? Haven’t read the opinions so maybe that is put to rest. And there’s certainly voluminous case law on effectiveness of counsel. Just seems like that sentence pegs the right directly to $$$ available.

    1. I might not be reading your statement correctly, but is your concern that the court admitted that people with money get a better chance at justice than the poor?

      1. I see that as part of the claim of the court…. though a side issue it does figure in to the decistion… since the rich do get better representation, depriving them of their money is not fair. They’re too rich to get the public defender, but can ‘t access their wealth cause gummint stole it so they don’t get the justice they deserve and can afford. I’ve known of quite a few cases where this was the situation. Eligibility for the public defender rests on net worth and income… the fact that the gummit have seized that makes no difference for eligibility. Yet it is not availble to them to USE for their legal representation. SCOTUS got this one right…. mostly.

  8. IMO, until the government proves a crime, all of the money belongs to the defendant and the government has no claim to it or to freeze it.

    If you’re not going to go all-in but maintain that there is a difference between tainted and untainted money, then the fungibility argument of the dissent is more compelling.

    The money is either all untainted because no taint has been proven or all tainted because of fungibility. There’s no either or here.

    1. That’s what Kagan was arguing. But I’m not sure why she came down on the all-frozen side after making the case that it’s not tainted until there’s a guilty verdict.

      1. Because she believes Monsanto compels that result, as far as I can tell.

        1. Exactly that. She implies she’d like to overturn Monsanto but there has to be somebody asking the court to do that first.

    2. I could see an argument about freezing ill gotten gains before someone moves them out of the country and out of the reach of government , but honestly, where does the US’s reach end anymore.

      1. How do you know that they are “ill gotten” before there’s been a conviction?

        1. I don’t think anything should be frozen in modern times. In the past when money was physical and could be hidden I could see an argument for holding it until after the trial. That would also assume a lot of pre-trial evidence before seizing the property.

          1. only hold til after the trial IF there is compelling evidence that what is being held is the result of the crimninal activity. Rob the gold stage, get caught with a pile of gold matching the description of what was taken, sure, seize it and let the trial sort it out. Then distribute accordinghy. But to seize the chest of gold apparently taken from the stagecoach, THEN seize all his other assets not related to that supposed heist? Not fair. And I think that’s what is at the root of this case.

  9. For a guy who we’re frequently told by the media is supposedly a stalwart of liberty, Kennedy sure does have a strange hostility to individual property and assets.

    1. Property rights aren’t, like, real rights, man.

  10. Her dissent is incoherent because she makes several great points that should logically lead you to conclude that all pre-trial asset freezes are wrong and then determines that there should be no restrictions on any asset freezes.

    ALL UR ASSET ARE BELONG TO US

    Love,

    The Government

    1. The government owns all your money and therefore the stuff your money is used to buy. It has their name on all the bills.

      1. This is what people like Tony actually believe.

  11. “The defendant in this case has a Sixth Amendment right to use her own ‘innocent’ property to pay a reasonable fee for the assistance of counsel.”

    But the defendant already has access to counsel via the PDs. She’s not being deprived of her right to a plea deal.

    1. And if the PD is the sister-in-law of the prosecutor, I don’t see how any reasonable person could misconstrue that as a conflict of interest.

    2. Why should a defendant have to take a plea deal when a well paid competent defense attorney can win a not guilty verdict?

    3. to get the public defender, one has to be below certain income level. When one is wealthy, even when gummint seize and hold your assets, one is too wealthy to qualify for the public defender. Gummint seizing her bucks, and likely also tapping her income as it comes in, she still HAS it, disqualifying her for public defenders, but since she cannot ACCESS it she cannot use it for her defense. Very common government move. Lock up the assets, put the squeeze on the defendant, they will be more likely to crumble, They’re not after true justice at all, haven’t been for at least a ceitnry. After assets (money to fill the public teat). and that ever so wonderful win. They could not care less about the accused. Thousands of times a year, they pull this one off. Seize the assets right after seizing the arse….. lock them both up.

  12. “The reason this matter ended up before the Supreme Court is that the prosecutor sought to freeze not only her “tainted” assets, meaning those assets that can be arguably traced back to the alleged underlying crime, but the prosecutor also sought to freeze Luis’ undisputedly legitimate assets, which amount to some $15 million that cannot be connected in any way to any alleged criminal activity.”

    Three voted in favor of this aggression?

    Interesting that.

    ‘It could happen to you’ is a powerful, under used message.

    https://www.youtube.com/watch?v=aCFjnhALP44

  13. The government would prefer that defendants must rely upon public defenders rather than highly skilled criminal defense attorneys.

    1. to qualify for the public defender, one must be poor… unfortunatly when gummint seizes your assets and income, they are still YOURS, despite the fact you do not have control of them. Thus, you are too wealthy to get the PD, but too cash poor to arrange for your defense. Its a Catch 22 game, the feds are masters at it, and use it all the time in similar situations. You have too much to get the PD, but nothing available for your defense. THIS is the wrong the court saw…. so, don’t seize stuff that would not be forfeit if convicted.

  14. I read the opinions, and something stood out to me. In Kennedy’s dissent, he remarks that when “probable cause” has been established then the funds should be able to be frozen. However, at one time he indicates it is probable cause that the defendent’s assets will be forfeitable, NOT probably cause that a crime was committed.

    For any lawyers here, isn’t that a significant issue? In other words, Kennedy would have it that as long as there is going to be a trial, regardless of the evidence present; and as long as the govt can show that, if convicted, there is probable cause that the assets in question would be forfeitable, then the govt can freeze those assets.

    Thomas’ concurrence, as usual, was the best argument against this. He may not be completely “libertarian”, but from the Federal government perspective, he is a Constitutionalist of the first order.

  15. The Nine SCOTUS Justices alignments:
    Assumptions
    1. 1 judge per alignment, for fun, even though several may all seem to be the same alignment
    2. Still using Scalia, since a replacement hasn’t been approved yet

    Clarence Thomas: Lawful Good
    Antonin Scalia:
    John Roberts: Chaotic Neutral
    Samuel Alito: Lawful Neutral
    Anthony Kennedy:
    Sonya Sotomayor:
    Elena Kagan
    Stephen Breyer: Neutral. SInce he is a robot programmed by the DNC, he has no freewill therefore, just like animals is truly neutral.
    Ruth Bader Ginsburg: Chaotic Evil. Do I need say anymore?

  16. The Nine SCOTUS Justices alignments:
    Assumptions
    1. 1 judge per alignment, for fun, even though several may all seem to be the same alignment
    2. Still using Scalia, since a replacement hasn’t been approved yet

    Clarence Thomas: Lawful Good
    Antonin Scalia:
    John Roberts: Chaotic Neutral
    Samuel Alito: Lawful Neutral
    Anthony Kennedy:
    Sonya Sotomayor:
    Elena Kagan
    Stephen Breyer: Neutral. SInce he is a robot programmed by the DNC, he has no freewill therefore, just like animals is truly neutral.
    Ruth Bader Ginsburg: Chaotic Evil. Do I need say anymore?

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    Clik This Link inYour Browser
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  18. Kagan’s reasoning is faulty, and not just in concluding that *all* rather than *no* assets should be subject to seizure.

    Establishing guilt or innocence of the accused may be completely unrelated to establishing whether or not assets are “tainted”.

    The Mona Lisa is stolen, and later turns up in Donald Trump’s penthouse. There is the question of whether or not The Donald stole it– but that is completely separate from whether the painting found is the authentic Mona Lisa. If it is authentic, then guilt or innocence notwithstanding, the asset gets seized. “Taint” is a separate matter, subject to separate process. Trump certainly can’t claim it as his asset to sell and raise a legal defense fund.

    There may be lots of cases where the question of whether assets are tainted is joined at the hip with the question of the accused’s guilt. But that is certainly not always the case, and Kagan’s glaring error is to suggest that is always should be.

    1. But in that case he can’t claim it as an asset regardless, because everybody knows who owns the Mona Lisa and it’s not Donald Trump. U.S. law is pretty damn clear what happens with recovered stolen property as long as the theft is recent enough to procecute; You’d have to have a situation where it’s unclear if the accused is guilty and if the property is ill-gotten but for different reasons.

    2. But that is certainly not always the case

      I think a distinction needs to be made between facially wrongful possession of stolen assets (as in your example) and statutorily wrongful possession of proceeds from criminal activity.

      The Mona Lisa gets returned to its rightful owner. Alleged drug money gets put into the government’s coffers.

      1. and in this case, the aledged drug money is not the ONLY money gummint steal. They go for all of it, whether related to the ilegal activity or not. And THIS is what the court says is not right. SUre, seize the money in the accounts where it looks like the medicare fraud landed it. That might not be rightly hers, but the fruits of her theft. But cannot touch other assets clearly not connected to the alledged crime.

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  20. Wouldn’t the easy away around this just be to impose a tax? Say, a 100% tax on the assets of all criminal defendants who elect to use the court to adjudicate their cases. I can’t really envision anybody of any consequence who would seriously oppose this.

  21. Seems like the government got it’s head handed to it, a seemingly deserved fate.

  22. This is VERY good news. I’ve known of quite a number of federal cases of late where the defendants, qustionably accused, had ALL assets seized, and were unable to mount a suitable defense. FedGov have two things to their advantage: unlimited time (they can drag a case on until the defendant is dead if they want to) and unlimited resources. Running low on legal funds? Simply get more… from you and I. By seizing a defendant’s assets, defendant is often forced to cop a false plea, settle for lousey counsel, etc. In other words, as in this case, defendant is set at a serous disadvantage. Not fair, not the intended consequences of the Constitution. Justice delayed is justice denied. I hope this sets a strong precedent.

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