August 30, 2015

The United States Supreme Court

It’s no secret that President Obama and his Democratic Party want to restrict the Second Amendment right to keep and bear arms.

In addition, First Amendment religious-freedoms protections have been challenged by Obamacare.

And freedom of speech? That’s just fine as long as it lines up with the “same-sex marriage” social agenda.

Now, a case is posing a challenge to the Fifth Amendment’s property rights and due process protections along with the Sixth Amendment’s assurance of counsel for those accused of crimes.

The U.S. Supreme Court now is posed with the question: Does the government have the right to charge you with a crime and then seize your bank accounts, checkbook, savings and other assets so that you cannot afford to hire a lawyer to defend yourself?

The Rutherford Institute has filed a friend-of-the-court brief arguing that the nation’s Founders – who wrote the Fifth and Sixth Amendments – would be horrified by the idea.

“It is Dangerous to be Right when the Government is Wrong,” explains the new American case for personal freedom, by Judge Andrew Napolitano.

“If the government can arbitrarily freeze, seize or lay claim to your property (money, land or possessions) under government asset forfeiture schemes, you have no true rights,” said constitutional attorney John W. Whitehead, president of the Rutherford Institute.

“Protecting their property from governmental abuse was just as vital to the Founding Fathers as preserving their lives and liberties, hence the Fifth Amendment.”

Whitehead said that what makes the current case so critical is “that if the government is allowed to freeze a person’s untainted – i.e., legitimate – assets, the government can essentially render them penniless and unable to hire an attorney of their choosing in order to preserve their life and liberty, which renders the Sixth Amendment utterly useless.”

The government routinely confiscates the proceeds of proven illegal activity, such as drug money.

But the new case challenges the government’s decision to take away funds that were not alleged to be part of any criminal activity. Not as a fine; just confiscation.

A second friend-of-the-court brief, filed by Michael Connelly of the United States Justice Foundation and William J. Olson, Herbert W. Titus and others of William J. Olson, P.C., frames the dispute.

“In violation of the Fifth Amendment, the district court improperly seized assets of the petitioner over which the government has no valid, current property interest, denying her the right to retain counsel of choice to fight for her rights in violation of the Sixth Amendment.”

The filing continues: “As Congress and the courts have cooperated in the vast expansion of federal asset forfeiture powers, federal prosecutors have been given tools that no one in government should have – powers which put the American people in fear not of punishment for crime, but in fear of the exercise of arbitrary power by their own government.”

The case arose during a suspected Medicare fraud case in which the government froze $45 million in assets belonging to Sila Luis, who runs health-care businesses in Florida.

She was indicted three years ago for alleged schemes to pay illegal kickbacks for patient referrals and to bill Medicare for unnecessary services.

The government claimed the businesses received about $45 million in Medicare reimbursements and sought to recover the full amount in the criminal prosecution.

But Rutherford said the businesses also earned at least $15 million in untainted funds from sources other than Medicare – and the government moved to take those funds as well.

Attorneys for Luis objected, saying the government’s decision to deprive her of her own funds too violated the Sixth Amendment. Her right to due process, they contend, would be violated by such a move.

The case is pending before the Supreme Court.

The Rutherford Institute argued in its brief that the Constitution’s Sixth Amendment provides the accused the right “to have the assistance of counsel for his defense.”

“When Congress ratified the Sixth Amendment, they understood the constitutional right to counsel as the right to counsel a defendant could afford to retain. This was evidence because the right to appointed counsel had not yet been recognized as fundamental in all criminal cases,” the brief explains.

The brief says the “forfeiture at issue here is fundamentally inconsistent with the Founding Fathers’ understanding that criminal defendants had a right to choose any counsel they could afford.”

“By depriving petitioner of legitimate and untainted funds, the forfeiture prevents her from securing chosen counsel by making it impossible for her to pay that counsel.”

The Sixth Amendment “has always encompassed the core right of securing one’s counsel of choice at one’s own expense,” the brief says.

“If fact, it was the only understanding at the time it was ratified. The idea that the government could trample on this fundamental right with a tool that was despised by the Founders is inconceivable,” Rutherford said.

One year ago, the Supreme Court affirmed that defendants do not have a right to a hearing where they can plead for permission to use the money that the government alleges is tainted. In the case, the government said it was targeting the unconnected funds because the defendant “already has spent the ill-gotten gains on luxury items and travel.”

Rutherford argued that if the case is not reversed, the Sixth Amendment requirement for due process, specifically the right to counsel, will be blown apart.

“The government asks this court to endorse an abusive practice the Founders explicitly rejected and which contradicts their understanding of the limited seizures the government could undertake prior to a finding of guilt,” the brief contends. “In so doing, the forfeiture improperly undermines petitioners’ Sixth Amendment right to counsel of her choosing.”

The filing by USJF and Olson contends the government’s claims are based “exclusively on hearsay and a finding of mere ‘probable cause.’”

“Demonstrating no reluctance to assert highly aggressive statutory interpretations, as well as positions that impair petitioner’s rights protected by the U.S. Constitution at each turn, the government seeks every possible advantage over petitioner,” the brief states.

“The government claims that its only objective is to protect the government’s financial interests, but those interests are at best speculative future interests. The only certain effect of the government’s strategy is to facilitate the prosecutor’s quest for conviction through the crippling of petitioner in her ability to defend herself from federal criminal charges.”

Such a strategy, the brief explains, “should send shivers down the backs of the justices on this court, who are tasked with guarding the rights of the people against this government’s headline pursuit of powers typifying those of a totalitarian police state.”

The inequities are obvious, the brief says.

“Under the government’s theory, the prosecution would continue to be free to employ all the assets it needs to build a case against petitioner, while petitioner would be denied full use of her untainted assets for her defense. … If the prosecution, with the assistance of the court, is allowed to exercise the type of broad authority to tie up a criminal defendant’s untainted assets, [the law] will present an open invitation to an ever more powerful federal government to deprive defendants in criminal cases of counsel of their choice, in violation of the Sixth Amendment.”

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