[Natsu]

This isn't about civil asset forfeiture or drugs at all. I can sympathize with requiring that you be found guilty of something before taking all your stuff, but this isn't even about that. And even if it were, a public defender's office that could take on that kind of case to help you get your money back when you're innocent would help stop abuse of it.

What this case is actually about is someone who allegedly defrauded Medicare. The state froze their assets so they could get back the stolen money after trial (it's frozen, not forfeit, so they have to find him guilty).

His lawyer (who is not a public defender, incidentally) argues that he had a lot of assets before the alleged fraud. But the response to that is that is that it's not really fair to let someone defraud Medicare and then declare their assets not subject to a freeze because they've spent all the stolen money. All that really does is incentivize thieves to spend the stolen money first and what good does that rule do? If you have $5,000, steal another $5,000, and then spend $5,000, why can't the state freeze your $5,000 whether you spent the stolen or non-stolen money? Is it really fair to let you hire a high-price lawyer that others could only dream of when the bulk of your funds come from fraud? Why does it matter which money they spent first?

You can find all this and more in the transcript of the oral argument: http://www.supremecourt.gov/oral_arguments/argument_transcri...

[vinceguidry]

While true, this argument falls flat when you realize the limitations. If I made millions legally, then why in the world would I decide to start making all subsequent money illegally? Wouldn't it be much better to just keep milking my legal cash cow?

The government doesn't seem to be limiting their purview to just the money that was supposedly illicitly gained. They're freezing all moneys that could conceivable by subject to a fine. It's not just the $5000, but everything. That's extremely problematic from a rights standpoint.

[Natsu]

> If I made millions legally, then why in the world would I decide to start making all subsequent money illegally?

I would suggest you pose that question to this guy: https://en.wikipedia.org/wiki/Bernard_Madoff

> They're freezing all moneys that could conceivable by subject to a fine. It's not just the $5000, but everything. That's extremely problematic from a rights standpoint.

From what I read, it's only freezing what's necessary to pay them back. That's not a public defender defending him in the oral arguments. So this is only problematic as far as your Sixth Amendment right to counsel goes as long as you allow the public defenders to be ineffective and expect people to be able to get better lawyers with more money, leaving those with less money less able to defend their legal rights.

Now it's fair to say that the government seizing money in other contexts, like civil asset forfeiture, is problematic. It's just not something this case is about.

[vinceguidry]

Are we reading about the same case?

> charges of operating a complicated scheme that allegedly defrauded Medicare of upwards of $40 million.

> federal government moved to freeze not only her “tainted” assets, meaning those assets that can be arguably traced back to the alleged underlying crime; but the federal government also moved to freeze Luis’ undisputedly legitimate assets, which amount to some $15 million that cannot be connected in any way to any alleged criminal activity.

> Luis v. United States raises significant questions about both the scope of the Sixth Amendment and the reach of federal asset forfeiture law.

> According to the federal government, because all of Luis’ assets could be subject to forfeiture if she is ultimately convicted, federal prosecutors should not be stopped from freezing all of her “forfeitable” assets before she goes on trial.

[Natsu]

Yes, we are. The thing is that they've got to freeze $40M+ which probably is everything after what he spent.

The reason for this is that money is fungible. I can choose to spend from stolen assets or my original assets. Thus, it makes no sense to think of some as "tainted" and other funds as "untainted" which is something you will also see the justices question in oral argument. There's no sense in rewarding someone for spending the stolen money first, which is the only thing the rule being proposed would accomplish.

That's the same reason they've repeatedly rejected the idea, as also is mentioned repeatedly in oral argument by both the liberal (Kagan) and conservative members of the Supreme Court.

[vinceguidry]

You're mixing things up here.

Certainly if she is convicted, then they can take her for everything. But she hasn't been convicted yet, she's just been charged. They're not 'rewarding' her for spending stolen money first, because in the case of a conviction they're going to take her everything and throw her in jail to boot.

And it's not necessarily true that assets, even monetary ones, are fungible and that you can spend from either pool at whim. My father has to separate his business and personal bank accounts for tax reasons. Criminals have to launder money, this was illustrated to hilarious effect in Breaking Bad. When you're dealing with large amounts of money, people pay more attention.

[Natsu]

They're not "taking" the money, they're preventing her from spending it--freezing sufficient assets to pay them back. In this case, she apparently does still have enough to pay a high-priced attorney.

They're freezing up to $45M to pay back the amount allegedly defrauded from Medicare: http://www.csmonitor.com/USA/Justice/2015/0514/If-a-defendan...

It would reward people for spending stolen money first if only the stolen money itself could be frozen, rather than simply allowing them to freeze the amount stolen, whatever accounts they might have to freeze to do so. That's the simple, logical consequence of separating the accused person's funds in the way that's being requested by petitioner. You spend stolen money and your regular assets can't be frozen, but if you spend your own money, the stolen money can't be. That simply rewards one for spending the stolen money and not their existing assets by privileging the others from being frozen.

Thus many of the justices, from Kagan to Alito, question how petitioner's request makes any sense.

Finally, although I realize you never said it was, due to the Breaking Bad reference, I feel compelled to continue to point out that this case does not involve drugs. Instead, it involves allegations that "bribes and kickbacks were paid to prospective patients who agreed to sign up for home health care they did not need or never received" in a scheme to defraud Medicare.

The law has a substitution rule that lets them freeze sufficient funds to recover the amount taken by fraud. Prior precedent allows this. Petitioner claims a violation of their Sixth Amendment rights.

It's hard for me to see why someone with a very expensive attorney can even make this case. Just how expensive an attorney does one need before their Sixth Amendment right is satisfied?