The Sixth Amendment right to counsel in this country is constitutionally sacrosanct.


It has long been popularly believed that every person in America has an undeniable right to retain the counsel of their choice; that the Government does not have either the power or authority to interfere with that right.


But in the modern era the Government has managed to place restrictions on the right to counsel in certain cases.


Freezing Assets Prior to Trial


For example, 18 U.S.C. § 1345, sometimes referred to as the fraud injunction statute, allows a federal judge, upon the motion of the government to issue an injunction enjoining a defendant charged with a banking or health care fraud violation from either attempting to dispose, or actually disposing of property, obtained as a result of his or her fraud-related conduct. The purpose of this amendment, which was part of the Crime Control Act of 1990, was to prevent individuals charged with certain criminal frauds from disposing of their ill-gotten gains and turning it into legal tender. In other words, a district court has the authority to “freeze the fruits of the fraud” in certain specified cases.


18 U.S.C. § 1345 permits a district court to freeze, before trial, certain assets of a defendant charged with either a federal banking or health care law violation.  These assets include: (1) property “obtained as a result of” the crime; (2) property “traceable” to the crime; and (3) other “property of equivalent value” owned by the defendant.


Government Moves to Freeze Untainted, Legitimate Assets, Preventing Ability to Hire Lawyer


And this brings us to the interesting case of Sila Luis who, in October 2012, was indicted by a federal grand jury in the Southern District of Florida for paying kickbacks, conspiring to commit fraud and engaging in a litany of other crimes related to health care. The Government charged that Luis had unlawfully obtained roughly $45 million through her fraudulent conduct, most of which had been spent by the time she was indicted.


Luis had $2 million in untainted funds. This was undisputed. She planned to use these funds to retain legal counsel to represent her against the fraud charges. This was also undisputed.


But none of it set very well with federal prosecutors. They knew the untainted funds could be used by the defendant to retain an attorney and help fund her defense, rather than be available to pay restitution and penalties in the future, should Ms. Sila be convicted.


Believing that it had more than enough evidence to convict Luis, the Government decided to go after the $2 million before trial (and before it could be spent on attorney fees) under § 1345 in order to preserve it for forfeiture upon conviction.


District Court Freezes Assets, No Right to Use Funds for Lawyer


The district court agreed with the Government, issuing an order prohibiting Luis from “dissipating, or otherwise disposing of … assets, real or personal … up to the equivalent value of the proceeds of the Federal health care fraud ($45 million).”


Both the Government and the district court knew, and conceded, that the $2 million had not been obtained unlawfully and that Luis planned to use the money exclusively to hire an attorney to defend her against the Government’s charges. Despite this awareness, the district court stated in its order that “there is no Sixth Amendment right to use untainted, substitute assets to hire counsel.”


Luis appealed the order to the Eleventh Circuit Court of Appeals.


In May 2014, the appeals court in an unpublished decision upheld the district court’s order.


Supreme Court Hears Case


Luis sought a writ of certiorari before the U.S. Supreme Court. She raised the sole question of “whether the pretrial restraint of a criminal defendant’s legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments.”


Restraint of Legitimate, Untainted Assets Violates Sixth Amendment Right to Counsel


On March 30, 2016, in a forceful opinion, the Supreme Court held that any “restraint on legitimate, untainted assets” needed to retain counsel of choice violates the Sixth Amendment.


The Court emphasized that the $2 million belonged “to the defendant, pure and simple” and this fact made it different “from a robber’s loot, a drug seller’s cocaine, a burglar’s tools, or other property associated with the planning, implementing, or concealing of a crime.” It said the latter tainted assets may be subject to seizure prior to trial but not a defendant’s assets which are “free and clear.”


This case is also intriguing because of its vote absent Justice Scalia’s input, an avowed “constitutional originalist.”


Chief Justice Roberts and Justices Ginsburg, Sotomayor, Breyer and Thomas comprised the plurality opinion while Justices Alito, Kennedy and Kagan formed the dissent.


Justice Thomas Opines Unlimited Power to Seize Assets Would Shock the Framers


Justice Thomas’s concurring opinion was even more forceful and demanding than the actual majority opinion. He said granting the Government “an unlimited power to freeze a defendant’s potentially forfeitable assets in advance of trial would eviscerate the Sixth Amendment’s original meaning and purpose” and “would have shocked the Framers.”


Justices Kennedy and Alito, joining in dissent, were not pleased with either the plurality or Justice Thomas.


“The plurality and JUSTICE THOMAS find in the Sixth Amendment a right of criminal defendants to pay for an attorney with funds that are forfeitable upon conviction so long as those funds are not derived from the crime charged. That unprecedented holding rewards criminals who hurry to spend, conceal, or launder stolen property by assuring them that they may use their own funds to pay for an attorney after they have dissipated the proceeds of their crime. It matters not, under today’s ruling, that the defendant’s remaining assets must be preserved if the victim or the Government is to recover for the property wrongfully taken.”


It our firm belief that any assets honestly and legitimately earned belong to the individual defendant until or unless he or she is convicted of a crime, at which time all their funds and property, under the current state of law, are subject to forfeiture for restitution. To freeze honest money, thus preventing legal counsel of one’s choice and a proper defense, is tantamount to overriding the presumption of innocence in criminal cases.  The government should keep its hands off of an individual’s property until a proper finding has been made in a court of law.