Amicus Curiae Brief — Luis v. United States, 135 S. Ct. 2798 (2015) (No. 14-419)

No. 14-419 so

In The SEP 25 2015

Supreme Court of the Gnited State se cen

SILA LUIS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF THE RUTHERFORD INSTITUTE,

AMICUS CURIAE IN SUPPORT OF PETITIONER

Anand Agneshwar John W. Whitehead

Counsel of Record Douglas R. McKusick

ARNOLD & PORTER LLP THE RUTHERFORD INSTITUTE

399 Park Avenue 923 Gardens Boulevard

New York, NY 10022 Charlottesville, VA 22901

(212) 715-1000 (434) 978-3888

‘anand.agneshwar@aporter.com

Carl S. Nadler

Anna K. Thompson

Emily M. May

ARNOLD & PORTER LLP

555 Twelfth Street, N.W.

Washington, D.C. 20004

(202) 942-5000

Counsel for Amicus Curiae

Lasery of

Lew Lieety

I. The Founders’ Explicitly Rejected

Forfeiture of Untainted Assets ...................000008

rn sssansesunsscccscesoass

B. In Personam Forfeitures .................cccccccccceeeceees

Il. The Forfeiture Here Improperly

Undermines the Historic Sixth

Amendment Right to Counsel That a

Criminal Defendant Could Afford .......................

TTT a incdicdcinebsicenisitincinnsonesersnneseseversescnses

CASES

Alexander v. United States,

508 U.S. 544 (1993)..............csecerseressseeess

Austin v. United States,

509 U.S. 6GOZ (1993) ............ccccceeereereeeereeeers

Betts v. Brady,

ee ae Ge GE ccrcenscsenecevscccesasnesnctessens

Bigelow v. Forrest,

Fe es Se GD veseccenesisenscsnnnecemsanensnasenee

C.J. Hendry Co. v. Moore,

SE a Be CP creticnececsecnsensessszcnscenscess

Calero-Toledo v. Pearson Yacht Leasing Co.,

GD Bs Ca Ce cccccnsccccsscntencnsccsssoemenes

Gideon v. Wainwright,

372 U.S. 336 (1963)...................cccsssessereees

Holden v. Hardy,

BE Ds Ge GD cece ccenseccncorecsscenscsosscenese

Johnson v. Zerbst,

Be Ce GI Ge cevecccssccsscescsccnevessoscssenes

Kaley v. United States,

134 S. Ct. 1090 (2014) ............ccescsceeeeneees

Miller uv. United States,

ed is I ID ceccnccncessncessusiasvenecnssonvectn

Powell v. Alabama,

gg 8 SEES eae meer 11

The Palmyra, 25 U.S. (12 Wheat.) 1 (1827)....... 5, 6,7

United States v. 92 Buena Vista Ave., Rumson,

eg EG Ce Te eR cccetentcneresimieeinesemenrennsinin 5

United States v. Bajakajian,

ia tasnieusiiiisinitiiaintindibendiomeistianiied 5

United States v. Grande,

620 F.2d 1026 (4th Cir. 1980) .............. eee eeeeeeees 6

STATUTES

Ee 7

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I CPOE iiiaisiictinciainstiinisitebisiictinigilibidesimiinipitigiabaeiaiaies 1

ee NIE ciaciiccscchiciitesisiiniiiisiraiindeimanbiiiianieiaieiiiiiai 8

Be I iieciceiipsiicshscniiiidseeniennintiiintnincebininisiiclinisaiein 8

ee iitnticncsinarninencinninsitiencniniiaieein 12

ee i icisiciteriieneiinsinctninemnictninniaiinniinin 7,12

ee le I iaiateicsitninieinimniinitainisilineniscanadbinestiinidiidl 8

ic a ID citcsinsninesrintninsniiianiomisiaciiinientbiniiiniaii 8

a ila aaa 8

ll 8

Sh Des SI Gtr tncsenccnesncnmsecurmnsneniscnanis 8,9

OTHER AUTHORITIES

W. Beaney, The Right to Counsel in American

SITET thstintsilibtnitiniiinteiemiabaiatieniiadia 10, 11,12

Black’s Law Dictionary (10th ed. 2014)................. 3,4

J. Bishop, New Commentaries on the Criminal

US 0 ee seeneee 6, 7,8

J. Kent, Commentaries on American Law (5th

A Re cineinsadideetisencinntntcnicsmniatimasennsnidinetsantinnsi 7,9

F. Pollock & F. Maitland, The History of

English Law (2d ed. 1898) ............2..cccccccceceeeeeeess 10

Terrance G. Reed, On the Importance of Being

Civil: Constitutional Limitations on Civil

Forfeiture, 39 N.Y.L. Sch. L. Rev. 255

icine aaah iranian 5

David J. Taube, Civil Forfeiture, 30 Am. Crim.

=< 5 | SEE eR ener senmeneee 4

J. Tomkovicz, The Right to the Assistance of

in T aed en Ne ee 10, 12

INTEREST OF AMICUS!

The Rutherford Institute is an international

nonprofit civil liberties organization headquartered

in Charlottesville, Virginia. Founded in 1982 by its

President, John W. Whitehead, the Institute

specializes in pro bono legal representation for

individuals whose civil liberties are threatened and

in educating the public about constitutional and

human rights issues.

The Rutherford Institute is interested in this

case because it is committed to ensuring the

continued vitality of the Sixth Amendment’s core

guarantee to a criminal defendant’s counsel of choice

and believes that the Government’s abusive

forfeiture tactics seriously undermine this right.

SUMMARY OF THE ARGUMENT

The Government brought a civil action under

18 U.S.C. $1345 to freeze Petitioner's assets,

including assets entirely unrelated to her alleged

crime and which were legitimately obtained. In this

i No counsel for a party authored this brief in whole

or in part, and no party or counsel for a party made a

monetary contribution intended to fund the preparation

or submission of this brief. No one other than amicus

curiae, its members, or its counsel] made a monetary

contribution to the preparation or submission of this

brief. Letters from the parties consenting to the filing of

amicus briefs have been filed with the Clerk of the Court.

amicus brief, the Institute focuses on how the

drafters of the Constitution understood civil

forfeitures and its relationship to a criminal

defendant's Sixth Amendment right to choose

counsel. That history demonstrates that the

Founding Fathers would have viewed the seizure

here—of a person’s untainted and legitimate

assets—a constitutional anathema.

First, the Government’s seizure of legitimate,

untainted assets is akin to the in personam

forfeitures the Founding Fathers rejected in Article

III of the Constitution. The First Congress banned

these forfeitures because they were unduly harsh

and unnecessary, and prohibited them for all federal

crimes.

Second, the forfeiture at issue here is

inconsistent with the Founding’ Fathers’

understanding of the Sixth Amendment right to

counsel. When Congress ratified that Amendment,

the country recognized only a right to counsel that a

defendant could afford. Though the courts later

expanded the Sixth Amendment to include the right

to appointed counsel, see, e.g., Gideon v. Wainwright,

372 U.S. 335 (1963), this expansion did not subvert

the original intent of the Founding Fathers.

Allowing the Government to execute a pretrial

seizure of legitimate and untainted funds

undermines that basic right by denying Petitioner

her right to a counsel she could afford had the

Government not seized her legitimate assets.

ARGUMENT

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. In so doing, the forfeiture

improperly undermines Petitioners Sixth

Amendment right to counsel of her choosing.

L The Founders Explicitly Rejected

Forfeiture of Untainted Assets

The Government advocates for an in personam

civil forfeiture: ome based on the defendant’s

potential liability rather than on any taint

attributable to the seized funds themselves. But the

Constitution explicitly bans in personam forfeitures

for treason, and the First Congress explicitly

prohibited such forfeitures for all federal crimes.

Forfeiture is “(t]he loss of a right, privilege, or

property because of a crime, breach of obligation, or

neglect of duty.” Black’s Law Dictionary 765 (10th

ed. 2014). Civil forfeiture,? the process the

Government used here to deprive Petitioner of her

untainted assets, has been understood as a

“proceeding brought by the government against

property that either facilitated a crime or was

2 By contrast, criminal forfeiture is “(aj

governmental proceeding brought against a person to

seize property as punishment for the person’s criminal

behavior.” Black’s Law Dictionary 765 (10th ed. 2014).

acquired as a result of criminal activity.” See id.; see

also David J. Taube, Civil Forfeiture, 30 Am. Crim.

L. Rev. 1025, 1025 (1993).

Historically, England recognized three types

of forfeitures: (1) deodand (the forfeiture of property

that caused the death of a subject of the Crown), (2)

forfeiture after conviction for a felony or treason, and

(3) statutory forfeiture of certain offending property.

See Austin v. United States, 509 U.S. 602, 611

(1993); Calero-Toledo v. Pearson Yacht Leasing Co.,

416 U.S. 663, 680-83 (1974).

A. In Rem Forfeitures

Like the seizure of tainted assets this Court

approved in Kaley v. United States, 134 S. Ct. 1090

(2014), English in rem forfeitures—including

deodand and statutory forfeiture—centered on the

character of the offending property, such as assets

that the defendant had used in violation of the

customs and revenues laws. See Calero-Toledo, 416

U.S. at 681-82; C.J. Hendry Co. v. Moore, 318 U.S.

133, 137-38 (1943).5

This sort of in rem forfeiture took root in the

United States, see Austin, 509 U.S. at 613, based on

8 For example, violation of the Navigation Acts of

1660 (which required the shipping of most commodities

via English vessels) resulted in a forfeiture of the

offending goods and the vessel transporting them. See,

e.g., Austin, 509 U.S. at 612.

“the fiction that the action was directed against

‘guilty property, rather than against the offender

himself.” United States v. Bajakajian, 524 U.S. 321,

330 (1998). Though the Founding Fathers

considered in rem forfeitures as necessary “to guard

the revenue laws from abuse,” early American

forfeiture statutes sharply limited the scope of the

forfeiture to the offending cargo or the transporting

ship. Reed, supra, at 258.5

B. In Personam Forfeitures

Unlike in rem forfeitures based on the tainted

nature of the seized assets themselves, the forfeiture

at issue here is in personam, Le., it is based on

Petitioner's potential liability if convicted of

Medicare fraud.

When the Founders drafted the Constitution,

English law recognized forfeitures after conviction

for a felony or treason based on the individual’s

adjudicated guilt rather than on the property’s taint.

See The Palmyra, 25 U.S. (12 Wheat.) 1, 14 (1827)

‘ Terrance G. Reed, On the Importance of Being

Civil: Constitutional Limitations on Civil Forfeiture, 39

N.Y.L. Sch. L. Rev. 255, 257-58 (1994) (internal quotation

marks and citation omitted).

5 Subsequent statutes involved the seizure and

forfeiture of distilleries and related property used in the

course of defrauding the United States of tax revenues

from alcoholic beverages sales. United States v. 92 Buena

Vista Ave., Rumson, N.J., 507 U.S. 111, 120 (1993)

(plurality).

(Story, J.). Indeed, English law historically defined

“felony” as “an offense which occasions a total

forfeiture of either lands or goods or both.” United

States v. Grande, 620 F.2d 1026, 1038 (4th Cir.

1980).

When a defendant was convicted of a felony or

treason, his “blood was corrupted” so that nothing

could pass to the next generation by inheritance. 1

J. Bishop, New Commentaries on the Criminal Law

585 (8th ed. 1892) (“When a man has committed

against the community a wrong so flagrant as to

unfit him to be a member of it, the corruption of

blood isolates him, so that he cannot exercise the

rights violated; and the forfeiture puts back what the

community had given him.”).®

In personam forfeitures served to punish

felons and traitors for violating the law and was

rooted in the belief that these individuals did not

deserve to own property. Austin, 509 U.S. at 612; ef.

The Palmyra, 25 U.S. at 14 (“It is well known, that

at the common law, in many cases of felonies, the

party forfeited his goods and chattels to the crown.

The forfeiture did not, strictly speaking, attach in

rem; but it was a part, or at least a consequence, of

the judgment of consequence "). These

6 See Calero-Toledo, 416 U.S. at 682 (“The basis for

these forfeitures was that a breach of the criminal law

was an offense to the King’s peace, which was felt to

justify denial of the right to own property.”).

forfeitures issued only after an adjudication of guilt.

See The Palmyra, 25 US. at 14 (“[N]o right to the

goods and chattels of the felon could be acquired by

the crown by the mere commission of the offence; but

the right attached only by the conviction of the

offender.”).’

Public opinion in early America condemned

these forfeitures as unduly harsh, especially given

the effect on innocent relatives. See Bishop, supra,

at 585; J. Kent, Commentaries on American Law 385

(5th ed. 1844) (“[T)he tendency of public opinion has

been to condemn forfeiture of property, at least in

cases of felony, as being an unnecessary and hard

punishment of the felon’s posterity.”).

Crucially, the Founding Fathers rejected the

English tradition of in personam forfeitures: the

Constitution explicitly banned forfeitures for

treason. U.S. Const. art. III, § 3, cl. 2 (“The Congress

shall have Power to declare the Punishment of

Treason, but no Attainder of Treason shall work

Corruption of Blood, or Forfeiture except during the

Life of the Person Attainted.”), And the First

Congress abolished in personam forfeitures for all

federal crimes. Act of Apr. 30, 1790, ch. 9, § 24, 1

Stat. 117 (“[NJo conviction or judgment shall

' See also id. (“The necessary result was, that in

every case where the crown sought to recover such goods

and chattels, it was indispensable to establish its right by

producing the record of the judgment of conviction.”).

work corruption of blood, or any forfeiture of estate

”); see Bishop, supra, at 585-86. Congress

reenacted this ban several times.®

8 See Rev. Stat. § 5326 (1875); Act of Mar. 4, 1909,

ch. 321, § 341, 35 Stat. 1159; Act of June 25, 1948, ch.

645, § 3563, 62 Stat. 837, codified at 18 U.S.C. § 3563

(1982 ed.); repealed effective Nov. 1, 1987, Pub. L. 98-473,

98 Stat. 1987.

Congress departed from its strict ban on in

personam forfeitures only once before 1970. The

Confiscation Act of 1862 authorized the seizure of

Confederate soldiers’ property. See Act of July 17, 1862,

ch. 195, § 5, 12 Stat. 589. But the Act was adopted

against the Civil War backdrop, and even then, was

limited to soldiers’ life estates. See generally Bigelow v.

Forrest, 76 U.S. 339 (1869) (strictly construing the act);

Miller v. United States, 78 U.S. 268 (1870) (upholding the

act under Congress’s war powers).

In 1970, Congress resurrected the in personam

forfeiture penalty for select organized crime and major

drug trafficking offenses. See Organized Crime Control

Act of 1970, 18 U.S.C. § 1963, and Comprehensive Drug

Abuse Prevention and Control Act of 1970, 21 U.S.C. §

848(a). But Congress adopted this novel approach

because earlier attempts to combat organized crime were

not successful. Alexander v. United States, 509 U.S. 544,

561-62 (1993) (Kennedy, J., dissenting). Congress

therefore determined that “an attack must be made on

their source of economic power itself, and the attack must

take place on all available fronts.” S. Rep. No. 91-617, at

79 (1969). In doing so, Congress acknowledged that they

In choosing to adopt the English tradition of

in rem forfeitures but to reject those based on in

personam liability, the Founding Fathers plainly

rejected the seizure of entirely untainted assets at

issue in this case. The seizure at issue here, like the

in personam forfeitures the Founding Fathers

rejected, is “an unnecessary and hard punishment of

the felon’s posterity,” Kent, supra, at 385, especially

since the Government imposed the forfeiture even

before an adjudication whether Petitioner is or is not

a felon.

Il. The Forfeiture Here Improperly

Undermines the Historic Sixth

Amendment Right to Counsel That a

Criminal Defendant Could Afford

The Sixth Amendment provides: “In all

criminal prosecutions, the accused shall enjoy the

right to have the assistance of counsel for his

defense.” U.S. Const. amend. VI.

The idea that a court could prevent a

defendant from using his own untainted assets to

retain counsel is belied by the historical development

of the Sixth Amendment. England historically

prohibited counsel for criminal defendants in serious

were departing from centuries of precedent: “[C]riminal

forfeiture represents an innovative attempt to call on

our common law heritage to meet an essentially modern

problem.” Jd.

10

criminal cases. 1 F Pollock & F. Maitland, The

History of English Law 211 (2d ed. 1898). English

lawmakers perceived this prohibition as necessary to

maintain peace and order. See J. Tomkovicz, The

Right to the Assistance of Counsel 3-4 (2002).

Moreover, the common law did not subscribe to a

presumption of innocence, and the assistance of

counsel was perceived as an impediment to efficient

prosecution and punishment. Id. at 4.

Against this backdrop, the Founders of this

country began to reject England’s common law rule

even before ratification of the Sixth Amendment.

See Holden v. Hardy, 169 U.S. 366, 386 (1898)

(“Even before the adoption of the constitution, much

had been done towards mitigating the severity of the

common law, particularly in the administration of its

criminal branch. [Tlo the credit of her American

colonies, let it be said that so oppressive a doctrine

[denying the assistance of counsel] had never

obtained a foothold there.”). Most colonies enacted

early statutes that recognized a right to counsel of

choice. See Beaney, supra, at 14-18, 25. After the

Revolution, many states enacted’ similar

constitutional provisions “intended to do away with

9 This practice began to slowly change before the

American Revolution, but did not include the right to

retain counsel in all cases. W. Beaney, The Right to

Counsel in American Courts 8-11 (1955).

11

the rules that denied representation, in whole or in

part, by counsel in criminal prosecutions.” Betts v.

Brady, 316 U.S. 455, 466 (1942); see also Beaney,

supra, at 18-22, 25.

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 evident because the

right to appointed counsel had not yet been

recognized as fundamental in all criminal cases. See

generally Gideon, 372 U.S. 335 (overruling Betts).'°

Congress’s contemporaneous actions confirm

this original understanding. First, Congress

enacted a law just before the passage of the Sixth

Amendment, providing that in federal court, “the

parties may plead and manage their own causes

personally or by the assistance of such counsel or

10 In the last half century, the Sixth Amendment has

been expanded to encompass a right to appointed counsel

for indigent defendants. Cf. Powell v. Alabama, 287 US.

45, 71 (1932) (“{I)n a capital case, where the defendant is

unable to employ counsel, and is incapable adequately of

making his own defense because of ignorance, feeble-

mindedness, illiteracy, or the like, it is the duty of the

court, whether requested or not, to assign counsel for him

as a necessary requisite of due process of law ”);

Johnson v. Zerbst, 304 U.S. 458, 468-69 (1938) (requiring

appointment of counsel for all federal! criminal defendants

who could not afford a lawyer); Gideon, 372 U.S. at 344-

45 (extending a criminal defendant's federal

constitutional right to counsel to state court).

12

attorneys at law as by the rules of the said court

shall be permitted to manage and conduct causes

therein.” Judiciary Act of 1789, ch. 20, § 35, 1 Stat.

73; see Beaney, supra, at 27-28. Second, several

months before the Sixth Amendment was ratified,

Congress enacted legislation to permit “le]very

person who is indicted of treason or other capital

crime [ ] be allowed to make his full defense by

counsel learned in the law.” Act of Apr. 30, 1790, ch.

9, 1 Stat. 118. The Act further provided that upon

the defendant’s request, the court must immediately

“assign to him counsel.” Jd. This limited

statutory right to appointed counsel would have been

superfluous if the Sixth Amendment right to counsel

already included this guarantee. See Tomkovicz,

supra, at 20.

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. In 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

13

the Founders is inconceivable. The historical context

cuts directly against the Government’s position in

this case.

CONCLUSION

For the reasons set forth above, the decision

below should be reversed.

Respectfully submitted,

Anand Agneshwar

Counsel of Record

ARNOLD & PORTER LLP

399 Park Avenue

New York, New York 10022

(212) 715-1000

anand.agneshwar@aporter.com

Carl S. Nadler

Anna K. Thompson

Emily M. May

ARNOLD & PORTER LLP

555 Twelfth Street, N.W.

Washington, D.C. 20004

(202) 942-5000

14

John W. Whitehead

Douglas R. McKusick

THE RUTHERFORD INSTITUTE

923 Gardens Blvd.

Charlottesville, Virginia 22901

(434) 978-3888

Counsel for Amicus Curiae The

Rutherford Institute

Dated: August 25, 2015