Tomorrow, the Supreme Court will hear oral argument in Luis v. United States. Our firm filed an amicus curiae brief on the merits supporting Ms. Luis' challenge to the government's pretrial seizure of her assets unrelated to the charges against her, depriving her of the opportunity to hire private counsel to defend herself against federal charges.

The government claims the seizure was authorized by 18 U.S.C. § 1345 - the federal Fraud Injunction Statute - which allows pre-trial seizure of assets for certain types of cases (here, alleged Medicare Fraud). The government believes it may seize assets that have no connection to the alleged crime, called "untainted" assets. Ms. Luis had requested a pre-trial hearing at which the government would be required to prove that the seized assets were connected to the alleged illegal conduct, but the district court refused to grant such a request, and the U.S. Circuit Court of Appeals for the Eleventh Circuit agreed.

This was actually the second brief we filed in support of Luis. Last year, on November 26, 2014, we filed an amicus brief in support of her successful petition for certiorari seeking Supreme Court review.

Our amicus brief on the merits was filed on August 28, 2015. We argued that the federal government had no right to seize "untainted" assets. First, the statute in question only authorizes a temporary restraint on untainted assets, until the court can distinguish between tainted and untainted assets. The statute does not allow the assets to be frozen during the pendency of the trial without a hearing. Depriving a defendant of assets would prevent her from retaining legal counsel of her choice, violating her right to counsel under the Sixth Amendment - a right on which hangs the integrity of the criminal justice system.

We explained that to seize assets, the government is required to demonstrate that it has a superior property interest in the assets to be seized, and does not require the defendant to prove anything.

We also pointed out that the decision of the court of appeals affirming the freezing of Ms. Luis' assets, relied exclusively upon three prior Supreme Court cases, none of which even addressed the issue of the government's claimed authority to seize untainted assets under 18 U.S.C. § 1345. Those prior Supreme Court cases all involved criminal forfeitures under 21 U.S.C. § 853(e), and no untainted assets were seized in any of those cases.

We further argued that asset forfeiture is disfavored in the law, and that the modern criminal justice system - which has created procedures resulting in a dramatic increase in criminal forfeiture judgments - operates oppressively against the People of the United States.

Finally, we stressed that the Sixth Amendment guarantee of the right to have the assistance of counsel in all criminal prosecutions, like all the rights spelled out in the 1791 federal Bill of Rights, protects a preexisting right - the right to counsel in criminal cases. This important right - absolutely essential to accord Ms. Luis a fair trial - requires giving her a fair opportunity to secure defense counsel of her choice. It is not enough, for example, to provide a defendant with a public defender, or other attorney chosen at the unreviewable discretion of a government.

If prosecutors, with the assistance of courts, are allowed to tie up a criminal defendant's untainted assets, 18 U.S.C. § 1345 would present an open invitation to a powerful federal government to deprive defendants in criminal cases of counsel of their choice, in violation of the Sixth Amendment, and ultimately to the undermining of the entire federal criminal justice system.

Our brief was filed on behalf of the United States Justice Foundation, Downsize DC Foundation, DownsizeDC.org, Gun Owners Foundation, Gun Owners of America, Inc., The Lincoln Institute, Abraham Lincoln Foundation, Institute on the Constitution, and Conservative Legal Defense and Education Fund.