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Right to counsel may not include right to pay counsel

In a case currently pending before the U.S. Supreme Court, the government has argued that its interests in obtaining recovery of government funds obtained through fraud takes precedence over the Sixth Amendment right to counsel. If the Supreme Court takes the case, North Carolina criminal defendants may find themselves without the ability to pay for the counsel that the Sixth Amendment gives them the right to retain.

The owner of two healthcare companies is accused of paying bribes to patients to sign up for care they did not need or did not receive. At the same time as the criminal indictment, the government filed a civil action to freeze all of the defendant's assets up to $45 million, the total amount of allegedly fraudulent payments received. Because the defendant's net worth was less than $45 million, the asset freeze left her broke and unable to afford counsel.

The trial judge concluded that civil forfeiture laws allowed the government to freeze tainted funds received as a result of the fraud scheme as well as untainted assets from other sources that could later be used to substitute for the tainted funds if the defendant was eventually convicted of fraud. The Court of Appeals upheld the judge's decision, and the defendant appealed to the Supreme Court.

The case highlights the government's aggressive use of civil forfeiture statutes as a tactic in prosecuting fraud cases. The government claims the primary interest is preserving assets so that funds can be recovered in the event of a guilty verdict. The defendant claims that the Sixth Amendment's guarantee to counsel protects her right to retain untainted assets to hire a lawyer for her defense. A decision in favor of the government could result in more criminal defendants accepting plea agreements, assuming that without effective counsel, the chances of acquittal are slim.

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