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Can the Government Freeze Untainted Assets that the Defendant Will Use to Hire Counsel?

When arrested for a crime, a criminal defendant, before going to his/her criminal proceeding, has fundamental rights that are constitutionally protected. The Fifth and Sixth Amendment provide that all criminal defendants have a right to counsel, and if they cannot afford one, an attorney must be provided by the state, especially when conviction could lead to a loss of freedom. Being able to choose one’s counsel is a fundamental right, because as a criminal defendant, there is a trusting relationship that must be built between the defendant and his attorney. Many times, having funds equate to having excellent counsel, as there have been numerous reports and statistics that point to the potential ineffective assistance of public defenders who are overworked and have too many clients to keep track of.

The Freezing of Assets of a Criminal Defendant

When a criminal defendant has been charged for a financial or white collar crime, usually it is the defendant’s funds, upon arrest, that are frozen by the government. The concept behind freezing the assets is that the assets are the evidence of a crime themselves and that no criminal defendant should be able to use funds from a crime for his/her defense or additional perks related to the felony. The Supreme Court has decided to pick up a significant case that will determine whether funds that are unconnected to the crime may or may not be frozen and, thus, inaccessible to the defendant to pay for counsel.

Tainted Assets Can Be Frozen and Inaccessible to Defendants

The Supreme Court has already found last term that tainted assets could be frozen and inaccessible from use by the defendant, as well as forfeited once a conviction was passed. In the case, Kaley v. United States, the question at issue was whether a grand jury indictment (which is a proceeding that decides whether there is enough evidence to support a criminal proceeding against the defendant) was enough to freeze the alleged “tainted” assets from use by the defendant. The issue at the center this term is whether undisputedly untainted assets may be unfrozen and accessible to the defendant.

The Supreme Court to Take on Case Regarding “Undisputedly Untainted Assets”

The case at the center of this debate took place in Florida and is known as Luis v. United States. The case centers around Medicare fraud in Florida where the government froze $45 million of Luis’s assets to make sure that the money could be used for restitution and/or damages once the case had been determined. Luis argues that a portion of the assets is unrelated to the fraud and should be accessible to Luis to be able to pay for her hired counsel. In this case, there are over 750 boxes worth of evidence for discovery; counsel with extensive experience in these types of complicated, financial issues should be guaranteed if the defendant can pay, rather than forcing the defendant to keep a court-appointed attorney who may give ineffective assistance due to the complexity, nature, and time-consuming aspects of the case.

What about “Innocent Until Proven Guilty”?

Also, the freezing of assets, whether tainted or untainted, is an action taken by the government before the defendant has been convicted. Many believe that this an affront to the Constitution’s mantra of “innocent until proven guilty.”

Experienced Criminal Defense Attorney in Fort Lauderdale

It is important to speak with an experienced criminal defense attorney like Kevin J. Kulik if you or a loved one has been arrested for a crime. Contact Kevin J. Kulik today for a free and confidential consultation in the Fort Lauderdale area.

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