Should the Government be Able to Freeze Assets Before Trial?

U.S. Supreme Court Case: Luis v. United States 

By Patrick Noaker, November 11, 2015

shutterstock_23521183Yesterday, the U.S. Supreme Court heard arguments in a case where the Court will decide whether the freezing of a criminal defendant’s legitimate, untainted assets (those not traceable to a criminal offense), that are needed to retain counsel, violates the U.S. Constitution. In Luis v. United States, Sila Luis ran a home health care and a physical therapy business in Florida. By all accounts, Luis’ companies were very successful. In 2012, the government charged Luis with Medicare fraud, claiming that she had paid for referrals and that she had overbilled for services in the amount of $45M. Prior to any trial on the criminal charges, the government froze all of Luis’ assets, even those assets that were completely unrelated to the Medicare payments made to Luis’ companies. As a result, Luis could not retain an attorney to represent her to defend the criminal charges.

When Luis requested the Court to release some of the untainted money to her so that she could retain an attorney, the Court refused. Luis appeals, claiming that this action violated her right to counsel   The Sixth Amendment to the U.S. Constitution reads, in part:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . and to have the Assistance of Counsel for his defence.

The Supreme court has held that the right to have the assistance of counsel includes, if a defendant can afford it, the right to assistance of counsel of the defendant’s choosing.[i] With that said, the Court has also held that the Sixth Amendment does not guarantee the right to spend another person’s money on defense counsel of choice. Last year, the Supreme Court held that the government could use forfeiture statutes to freeze assets that were traceable to the alleged criminal conduct charged, before the criminal trial – even if the money is to be used to hire counsel.[ii]

The Luis case appears to be a case that is right in the middle of the Supreme Court’s rulings on the Sixth Amendment right to counsel and rulings on the government’s right to pretrial seizure of assets.

In this case, the right to assistance of counsel should prevail. Guaranteeing a fair criminal justice system should take priority over the government’s desire to seize property before the trial. Otherwise, the government will have the power to freeze assets before trial, manipulate the criminal trial by preventing the defendant from hiring counsel, and then deposit the proceeds from those frozen assets into the government’s bank accounts. This approach has too much potential for abuse. (See Minnesota Must End Policing for Profit.)  It is better policy to consistently rule in favor of a fairer criminal justice system.

About the Author:

Patrick Noaker is an attorney with the Noaker Law Firm LLC who aggressively represents clients in the courtroom, and has presented civil and criminal cases to judges and juries across the U.S. for the past 24 years. Patrick is a former Death Penalty attorney who represents clients in serious criminal cases. Patrick has also handled hundreds of clergy sexual abuse cases in Minnesota and across the United States. Patrick can be reached at his office: 333 Washington Avenue N. # 300, Minneapolis, Minnesota 55401, (612) 839-1080,, @Noakerlaw.

[i] United States v. Gonzalez-Lopez, 548 U.S. 140, 147 – 150 (2006).

[ii] Kaley v. United States, 571 U.S.___, 134 S. Ct. 1090, 1095 – 1105 (2014).

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