Now
Feds trying to deny 2 more constitutional rights, Fight on to stop government grab of money
needed for legal defense, by Bob Unruh, 8/29/15
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.
“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.”
http://www.wnd.com/2015/08/now-feds-targeting-2-more-constitutional-rights/
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