<< "Vindicated" Former Death Row Inmate Actually Did It | Main | News Scan >>

Forfeiture and Paying Defense Counsel

Today the U.S. Supreme Court decided Luis v. United States, No. 14-419.  Justice Breyer's plurality opinion begins:

A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See 18 U. S. C. §1345. Those assets include: (1) property "obtained as a result of " the crime, (2) property "traceable" to the crime, and (3) other "property of equivalent value." §1345(a)(2). In this case, the Government has obtained a court order that freezes assets belonging to the third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her from paying her lawyer. She claims that insofar as it does so, it violates her Sixth Amendment "right . . . to have the Assistance of Counsel for [her] defence." We agree.
Justice Thomas concurred in this result, making the decision 5-3.
The plurality opinion was joined by Chief Justice Roberts, Justice Ginsburg, and Justice Sotomayor.  It is a largely policy-oriented approach.  The first factor considered is a balancing of competing interests.  See p. 12. 

Justice Thomas's concurrence begins:

I agree with the plurality that a pretrial freeze of untainted assets violates a criminal defendant's Sixth Amendment right to counsel of choice. But I do not agree with the plurality's balancing approach. Rather, my reasoning rests strictly on the Sixth Amendment's text and common-law backdrop.
I doubt that this is a case where the late Justice Scalia's absence changed anything.  He probably would have agreed with Justice Thomas.

Both the plurality and the concurrence distinguish two 1989 precedents, Caplin & Drysdale and Monsanto.  These cases involve property that is forfeitable because the specific property is the fruits of crime or contraband.  Property that is legitimately owned but forfeitable as a substitute for illegitimate but dissipated assets is distinguishable.

Justice Kennedy, joined by Justice Alito, does not think this situation is distinguishable.  It should not matter which assets a crook spends first.

Justice Kagan also thinks Monsanto controls. She doubts it was correctly decided, but Luis did not ask for it to be overruled.

Even though the Court is fractured in this case, the rule seems fairly clear.  In practice, actually tracing the assets may prove difficult, though.

Leave a comment

Monthly Archives