Luis v. United States: Pretrial Freezing of Legitimately Gained Assets Ruled a Violation of the Sixth Amendment

By: Zach Evans

Research & Writing Editor,  American Journal of Trial Advocacy

Defendant Sila Luis has been charged with massive Medicare fraud to the tune of nearly $45 million. Luis was quick to spend her allegedly ill-gotten gains and now has $2 million in remaining assets. A Florida district court issued a pretrial order freezing Luis’s assets, including those untainted by her alleged criminal activity. The Eleventh Circuit affirmed the order. The Supreme Court vacated and remanded the Eleventh Circuit’s opinion on Wednesday, March 30, 2016, ruling in favor of defendant Sila Luis in a 5-3 plurality opinion.

Justice Breyer, in a plurality opinion joined by Chief Justice Roberts, Jr., and Justices Ginsburg and Sotomayor, addressed the applicable federal statute that allows pretrial freezing of assets including “(1) property ‘obtained as a result of ‘ the crime, (2) property ‘traceable’ to the crime, and (3), as relevant here, other ‘property of equivalent value.’

The Supreme Court consistently regards the Sixth Amendment right to counsel as fundamental in nature. This right to counsel guarantees a defendant “a fair opportunity to secure counsel of his own choice, that he can afford to hire.” The Government did not argued against Luis’s right to representation by a qualified attorney. However, Justice Breyer stated the pretrial freeze of assets untainted by crime undermined Luis’s Sixth Amendment right to choice of counsel by taking away the necessary funds to hire such counsel.  The federal statutory provision regarding “property of equivalent value” is thus unconstitutional to the extent it prevents the fundamental right to counsel of choice.

Justice Thomas, in a concurring opinion, employed a strict textual analysis of the Sixth Amendment rather than a balancing approach. Justice Thomas echoed precedent that “the right to select counsel of one’s choice is . . . the root meaning of the Sixth Amendment right to counsel.”

Justice Kennedy, joined by Justice Alito, dissented from this “unprecedented” holding of the Court, arguing it “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.” The dissent specifically emphasized the fungible quality of the alleged fraud proceeds and posed a hypothetical. If a thief steals $1 million and wins $1 million in the lottery, the thief will likely now spend the theft proceeds, leaving lottery winnings available for use in hiring an attorney. Justice Kennedy argued the plurality and Justice Thomas ignored important precedential decisions allowing pretrial asset freezes, namely United States v. Monsanto and Caplin & Drysdale v. United States.

Justice Kagan found the Monsanto precedent to be “a troubling decision,” yet dissented from the plurality on a procedural basis because Luis did not asked the Court to overrule or modify Monsanto.

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