Reference no: EM133195282
Federal Forfeiture Laws and the Right to Legal Counsel
Under the 6th Amendment
Learning Objective 1: Identify your 6th Amendment rights
Learning Objective 2: Learning the state of federal forfeiture laws;
Learning Objective 3: Knowing how implementation of the law can lead to differing results;
Learning Objective 4: Understanding the role of the public in protecting individual freedoms.
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Overview on the Law
The Sixth Amendment
The 6th Amendment sets forth citizen's rights relating to criminal prosecution, and the U.S. Supreme Court has applied the protection of this amendment to the states through the Due Process Clause of the 14th Amendment.
The 6th Amendment establishes a number of rights of the defendant in a criminal trial, including the right to assistance of counsel (see Gideon v. Wainwright (1963)).
To better enable federal enforcement agencies to fight organized crime, drug cartels and terrorist groups, Congress passed various anti-money laundering and forfeiture laws, including the RICO Act of 1970 and the U.S. Patriot Act of 2001. The idea of the forfeiture laws was to disrupt the criminal activity by confiscating the assets that potentially could have been used to benefit the individual or organization, such as hiring very expensive but very good defense counsel.
While confiscating or freezing the alleged wrongdoer's assets in the illegal activity has been fairly well established, what about freezing the assets of a defendant who has not been convicted of any crime and can prove the source of funds used for his or her criminal defense came from legal sources that have nothing to do with the alleged illegal activities?
In Luis v. United States, defendant Sila Luis was indicated in Florida on charges of operating a complicated scheme that alleged Medicare fraud of upwards of $40M. The federal prosecutor sought and obtained a pretrial court order freezing her assets. The court order was unusual in that it not only freezes her "tainted" assets but also her undisputedly legitimate assets, which amounted to "$15M that can not be connected in any way to any alleged criminal activity." Luis wanted access to these funds to pay for her criminal defense. This case is now before the U.S. Supreme Court.
On another front, police departments around the country have been using federal and state forfeiture laws as a fundraising tool to supplement their department budgets; similar to how cities have been using the issuance of traffic ticket as a revenue generator for the city coffers.
Police target out of state drivers for traffic stops to inspect their vehicles for contraband. In the process, the police will confiscate cash in the possession of the car occupants. If the owner of the cash wants their money back, they will have to hire an attorney to fight the case in local court where the money was taken.
Should the government be allowed to freeze all your assets once you have been accused (but not convict) of a crime to prevent you from hiring counsel of your choice to mount a rigorous legal defense? Who gets to decide? Should the police be allowed to stop cars from out of the area looking for contraband and confiscate any cash they find. Why or why not? Who gets to decide whether the forfeiture is valid? How is this any different from the highway robbers in the Wild West? Explain.
"Search and Seizure" is a legal term used to describe a law enforcement agent's search or examination of a person's home, vehicle, vehicle or place of business to find evidence that a crime has been committed, and to seize any evidence of the crime found.
The Fourth Amendment of the U.S. Constitution provides that "the right of the people are to secure in their persons, house, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The ultimate goal of this provision is to protect people's right to privacy and freedom from unreasonable intrusions by the government. The law does not prohibit all searches and seizures, only those by the government that is deemed to be unreasonable under the law. What this means is that law enforcement agents need "probable cause" and a "warrant", in most cases, to search your person or belongings. If there is no probable cause and you are searched illegally, then any evidence collected from the search will be excluded from evidence at trial under the Exclusionary Rule and the fruit of the poisonous tree doctrine. The purpose is to protect the people from being abused by a powerful government or by powerful people in government who abuse their powers.
There are strict rules that government agents (e.g., the police) must follow to search you and to seize evidence of a crime. The right to privacy is not specifically mentioned in the U.S. Constitution, but over the years the courts have interpreted the 4th Amendment to protect privacy in many situations. Application of the 4th Amendment is balancing the rights of the individual against the needs of the society.
One of the challenges for poor people is that they often cannot afford to bank accounts or other financial services. Either the requirements for a bank account are too high (e.g., minimum balances), there is no bank branch in their neighborhood, or some other restrictions that make opening a bank account impractical for them.