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Can the Government Put a Price Tag On Your Right to Choose Your Lawyer?
When, if ever, can the government effectively prevent a criminal defendant from using their legitimate assets to hire a lawyer? That’s the fundamental question that the Supreme Court confronts in Luis v. United States—a question that implicates the integrity of the criminal justice system. The Court should squarely hold that the government cannot “freeze” legitimate assets a defendant needs to hire the advocate he or she believes will best represent them at trial, simply because there is probable cause to believe that the defendant has committed a crime.
In 2012, the federal government charged Sila Luis with conspiracy to commit Medicare fraud. The scope of the alleged fraud was staggering—over $45 million, stemming from claims for home health services that were neither medically necessary nor actually performed. The government invoked the Fraud Injunction Act, a federal statute that authorizes a “restraining order” against assets when a person is “alienating or disposing of property, or intends to alienate or dispose of property” that is “obtained from” or “traceable to” certain federal offenses.
In such cases, § 1345(a)(2)(B) permits a court to prohibit the use of either tainted property “or property of equivalent value” before trial in order to ensure that sufficient assets are available to satisfy any judgment. But rather than just freeze the allegedly tainted property, the federal government asked the district court below to freeze all of Luis’s assets, including those that were not even allegedly obtained through fraud. The district court did so.
It is highly questionable whether the Fraud injunction Act authorizes the restraint of all of Luis’s assets. As an amicus brief filed by Americans for Forfeiture Reform points out, the relevant statutory provisions are written in the present tense, strongly suggesting that the statute is designed “to stop fraudulent conduct before or while it is happening.”
The district court, however, concluded that Luis “has alienated or disposed of property, and unless enjoined could continue to alienate or dispose of property,” without any evidence that she either was presently doing so or intended to do so in the future.
Further, to freeze Luis’s property under § 1345(a)(2), the district court had to identify the property presently held by Luis that was “obtained from” or “traceable to” Luis’s alleged fraud. The district court did not analyze Luis’s current holdings. Instead, the district court focused only on the fact that Luis’s alleged health care offenses “resulted in $45 million of improper Medicare benefits being paid,” and imposed a $45 million freeze on all of her property, including $15 million of concededly legitimate assets. True, the district court could have concluded that $15 million was “property of equivalent value,” but not without identifying the presently-held tainted property that it was equivalent to. Nonetheless, Luis’s assets were frozen.
Luis then requested that the court release untainted assets that she could use to retain a lawyer. The request was refused. The district court’s reasoning, simply stated, was that money is fungible—as an alleged bank robber is not entitled to use money that he is said to have stolen to pay his lawyer, neither should he be able to spend the bank’s money and then use other money at hand to pay his lawyer.
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