Last week on March 30, 2016 the U.S. Supreme Court rendered a decision that significantly helps white collar defendants defend themselves against the Department of Justice (“DOJ”), Securities and Exchange Commission (“SEC”), Internal Revenue Service or whatever agency might be prosecuting them. The Supreme Court held that the Sixth Amendment to the U.S. Constitution requires that a defendant must have access to his or her funds that are not tainted by criminal conduct to pay for the defense costs of a lawyer of his or her choosing. Please click here to read a copy of this decision.
Prior case holdings allowed the government to restrict a defendant’s access to “untainted” or “innocent” assets in an amount sufficient to offset against what the government agency alleged it could expect to obtain after conviction and forfeiture proceedings. Stated differently, at the inception of a case the government would deprive a defendant from using his “clean” or “untainted” money which resulted in a defendant not being able to hire a skilled defense team of his choosing. Before a defendant’s case even began, he was placed in a position of defeat. This forced defendants to borrow money from family to defend them or otherwise be defended by an over-worked Federal Defender.
Undoubtedly there will be extensive litigation over the interpretation over what a “reasonable fee for the assistance of counsel” means as that term was used by the Supreme Court. Also, it is important to remember that “untainted” means that a defendant will not be able to use the money he has from selling cocaine or from liquidating his “burglar tools”. This too will undoubtedly be subject to great litigation going forward as well. However, being able to cite to a Supreme Court case that relies upon the Sixth Amendment is a great strategic arrow to have in a defense attorney’s quiver when we now make our emergency motions to set aside government restraining orders that froze our clients’ assets. Previously we were making these arguments but did not have the power of a Supreme Court case directly on point.