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Federal Forfeiture Laws and the Right to Legal Counsel
Under the 6th Amendment
Learning Objectives
- Identify your 6th Amendment rights
- Learning the state of federal forfeiture laws;
- Knowing how implementation of the law can lead to differing results;
- Understanding the role of the public in protecting individual freedoms.
Guidelines
- Write at least 150 words.
- The majority of your post must be original words, thoughts and ideas.
- Identify the source of all information that you use.
- All posts must be typed in the discussion Canvas message box, not attached as a document.
- Do not use one paragraph, separate into short paragraphs.
- Points will be deducted if guidelines are not followed.
Note: See grading rubrics for weekly discussions
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.
Assignment
Please read or watch the following:
- https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United_States (Links to an external site.);
- https://www.youtube.com/watch?v=3kEpZWGgJks (Links to an external site.)
- https://www.youtube.com/watch?v=rJd4Q4u5cqU (Links to an external site.)
- https://reason.com/2016/03/23/appeals-court-rejects-cops-hunch-based-t/ (Links to an external site.)
Discussion Assignment
After reading the articles, discuss what do you think about government agencies using its powers under the law to search and seize properties of private citizens. Is this a good thing or a bad thing. Where should we draw the line? What about the rights of the poor who are unable to hire lawyers to get their property back. Explain.
Marriage is a Contract
What Does Love Have to Do With It?
Learning Objectives
Knowing what is a contractUnderstanding marriage is a contractEvaluating marriage’s role in a societyContrasting the value of marriage versus making money.
Guidelines
Write at least 150 words.The majority of your post must be original words, thoughts and ideas.Identify the source of all information that you use.All posts must be typed in the discussion Canvas message box, not attached as a document.Do not use one paragraph, separate into short paragraphs.Points will be deducted if guidelines are not followed.
Note: See grading rubrics for weekly discussions
Overview
Marriage is a contract between two people who have agreed to join together into an economic unit by living together, pooling their resources and their efforts towards a common objective, such as raising a family. The concept of marriage has existed in all cultures throughout history. Marriage is a special type of partnership with special benefits. :-)Each party comes into the marriage relationship whole, separate and autonomous. Neither party loses who they are as a human being when they get married. When Brad Pitt and Angelina Jolie became a couple, the Hollywood media called them “Brangelina” as though the two of them had merged into a single entity. When they were together, married or living together, they remained two separate and autonomous individuals who had their own lives, separate careers and responsibilities. They just happened to be living together, sharing their lives with one another. Brad and Angelina remained whole and autonomous even after their divorce.Many societies tend to view the roles of the male/husband/father/son as more important than female/wife/mother/daughter. This is simply not true. The male and female roles are equally important to the function and preservation of the human race. Father may bring home the bacon, but it is mother who anchors the family unit. Mother gives birth to the children and generally has primary responsibility for raising the children and maintaining the home. What good is bringing home the bacon if there is no home to bring it to. Is making money more important than the continuation of the human race?Did you know that a “prenuptial agreement” is a contract for divorce? A prenuptial agreement sets the terms and conditions for the separation of the parties’ assets in the event they desire to terminate their marriage contract. Couples generally enter into a prenup when one partner has more assets that s/he wants to protect in the event of a divorce.Marriage is supposed to be forever, but what happens when the couple decide things are not working and want out? An example of this would be what happened to former Sir Paul McCartney and his marriage to Heather Mills when their marriage ended acrimoniously. He wanted it to last forever, but forever is a long time and it really doesn’t exist.What are the expectations and preconceived ideas of what is marriage that each person brings to the marriage? What are the expectations of each party? What are they willing to exchange to have their expectations fulfilled?The prenup only addresses the assets that each party brings into the marriage and the use of these assets during the marriage. When the couple gets divorce, the assets that are acquired during the marriage are divided between the parties.
Reading Assignment
Marriage is a Business Contract Part I.docx Marriage is a Business Contract Part II.docx Download Marriage is a Business Contract Part II.docxMarriage is a Business Contract Part III.docx Download Marriage is a Business Contract Part III.docx https://en.wikipedia.org/wiki/List_of_most_expensive_divorces (Links to an external site.)https://wealthygorilla.com/most-expensive-divorces/ (Links to an external site.)
Discussion Assignment
After reading the assigned articles, what are your thoughts on the divorce settlements. Do you believe the spouse got too much, too little, or just the right amount in their divorce settlement. Explain why or why not. If you use any external research, please provide the source that you referred to or cited.
Marriage is a Business Contract, Part III
When the Marriage Fails
“They were so much in love, … it was love at first sight, … it was a match made in heaven, … they
married and they lived happily ever after, …. Love and marriage are wonderful themes of love
stories that warms our hearts. We can’t seem to get enough love and romance. We love [no pun
intended] to immerse ourselves in popular romance novels, movies, plays, poetry and love songs.
But when the music stops playing and the honeymoon is over, what happens? What happens when
the couple stops communicating and stop sharing themselves with each other? When the separation
and the strain of marriage becomes too great, couples file for divorce to terminate their marriage.
If marriage is not a contract, then why do we need to file for a divorce? Why do the courts treat
divorce as the dissolution of a business relationship? Why do we need a divorce decree or papers to
show that we are no longer legally married?
In a divorce, the properties acquired during marriage are divided between the husband and wife. For
example, one gets the car and the other gets the house. If only one spouse is working or if there is a
disparity in earning power between the couple, the other spouse may get alimony. If there are
underaged children from the marriage, there are child support and child custody issues to be
resolved.
Many marriages fail because the couple doesn’t realize the marriage is a business contract. Divorce is
the legal process to disentangled the marriage business relationship. When the married couple decide
to divorce and they cannot agree on the separate of property, the courts will authorize the division of
the assets. In the United States, the general rule is that all property acquired during marriage belong
to the couple. In California, property acquired during marriage belong to the couple jointly as
community property.
A party can intentionally or unintentionally converted his/her separate property into community
property. When a party’s action(s) makes it appear that s/he intend to convert the separate property
into community property, it is called transmutation.
Couples can mutually agree on how to divide their properties and memorialize this in a marriage
settlement agreement. If the parties cannot agree on who to divide the marriage assets, the court will
do it for them.
Examples of divorce settlements include Jeff Bezos giving his wife, MacKenzie Bezos $38 billion,
Rupert Murdock giving his wife Anna $1.7 billion, Bernie Ecclestone giving his wife Slavica $1.2
billion, Tiger Wood giving Elin Nordegren $710 million, and Mel Gibson giving his wife Robyn More
Gibson $425 million.
Although not as common, Women have also given a part of their fortune to their spouses: Madonna
giving Guy Ritchie $92 million, Roseanne Barr giving Tom Arnold $50 million, Kirstie Alley giving
Parker Stevenson $6 million, Britney Spears (even though she had a prenuptial agreement) paying
Kevin Federline $20,000 per month in child support, and the list goes on and on.
Some will argue the unfairness of the situation that the non-income earning or less-income earning
spouse should get half of everything acquired during the marriage, especially when the income
producing spouse did all the work and earned all the money through his/her skills and hard work.
Why should the other spouse get have half of everything just because s/he was in the right place at
the right time and having the good fortune to be married to the primary income earner?
The answer is because marriage is a business contract. The parties agreed to join forces and pool their
resources for a common purpose or objective. They agreed to embark on a joint venture together.
This agreement was expressed or implied. The parties agreed that one party would support the other
while s/he worked to become a successful artist, doctor, lawyer, professional athletic, musician, etc.
The support can come in many forms, including emotional, financial and physical support, taking
care of the family unit, etc.
Since marriage is a business contract, have you ever openly and honestly discussed the terms and
conditions of your marriage business arrangement with your future spouse? Did yo ever say that “I
will quit my career ad support you through medical or law school, raise your children and support
you until you are making back bucks, and then I want half of everything you make for the rest of
your life?” If not, then when your spouse is finally making the big bucks and decides to trade you in
for a younger model, what do you say, that we had married for love?”
To avoid having to split the family assets 50/50, some have suggested that the couple should have
signed a prenuptial agreement before marriage. A prenuptial agreement is a contract for divorce. It
states that if the parties were to divorce at some later date, this is how the family assets are to be
divided.
If you had treated the marriage as a business arrangement, then you would have made sure that you
understand what you were getting yourself into before getting married. Open communications and
understanding of your spouse and yourself leads to less divorces and healthier marriages. We express
our expectations in business contracts, so why don’t we do the same for marriage contracts.
By know each other’s true intentions for getting married, we begin to understand the dynamics of th
marriage contract. We learn what is important to each of us and why. This will result in a fuller and
more meaningful marriage relationship.
© 2008 and 2021 Dennis Wong, Esq.
