Can the Government Freeze Assets I Need to Hire an Attorney ? 

frozen asset

In order to answer this question, it is important to recognize that under forfeiture law, there are two broad categories of assets: tainted and untainted assets.

What are tainted assets?

Tainted assets refer to assets that are in some way linked to the crime: either it can be “traced” to a crime, or was an “instrumentality” of the crime.  For an example of the former, If Bernie Madoff used the profits of his pyramid scheme to purchase a life insurance policy, that policy is now tainted because it can be “traced” back to the illegal pyramid scheme.  For an example of the latter, if a bank robber were to use his Mustang as a getaway vehicle, that Mustang is now also tainted because it was an “instrumentality” of the bank robbery.

If you were convicted of a crime, all tainted assets would be forfeited to the United States.  Before you are convicted of a crime, the government can apply for a restraining order to “freeze” your tainted assets, in order to preserve those assets for forfeiture upon conviction. The government only needs to show probable cause that you are guilty of a crime, and that the assets are in some way linked to the crime.

What are untainted assets?

Untainted assets simply mean assets that have no connection to the crime.  For example, if Bernie kept all of his legitimate earnings (such as his salary) in a separate bank account, then those funds would be untainted because they are not in any way connected to his pyramid scheme.

If you were convicted of a crime, untainted assets can still be forfeited to the United States, if the tainted assets are not enough to cover the forfeiture judgment.

What assets can the Government freeze before trial?  And what if I need those assets to hire an attorney?

For tainted assets, the government is always permitted to freeze tainted assets before trial. If the government proves that there is probable cause to believe your assets were the proceeds of a crime, or were used during a crime, then those assets can be frozen by court order. This is true even if you may need the (allegedly tainted) assets to hire an attorney.

As to untainted assets, the circuit courts of appeals are divided regarding whether the government can freeze those assets at all.  The Fourth Circuit is one of the jurisdictions that permits pretrial restraint of untainted assets.  However, in Luis v. United States, No. 14-419 (2016), the Supreme Court held that untainted assets needed to hire an attorney must be exempt from pretrial restraint so that the defendant can hire counsel of his or her choice.


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