Earlier this year, in Luis v. United States,1 the Supreme Court attempted to clarify the extent to which, prior to trial, the government can seek to freeze property that it claims likely will ultimately be subject to forfeiture. In a plurality opinion, Justices Stephen Breyer, Ruth Bader Ginsburg, John Roberts, and Sonia Sotomayor—joined by Justice Clarence Thomas concurring in the judgment—held that property untainted by the crime charged may not be frozen if it prevents a criminal defendant from paying her lawyer a reasonable fee.2 The Supreme Court’s decision helps to shed light on the limits to the, at times, seemingly limitless breadth of the forfeiture laws; but it raises a series of questions with which courts will now have to grapple.

Decision in ‘Luis’

The opinions of the plurality and principal dissent describe the facts of the case. In October 2012, a federal grand jury charged Sila Luis with paying kickbacks, conspiring to commit health-care fraud, and engaging in other crimes related to health care.3 The government alleged that Luis used her health care companies to defraud Medicare by billing for services that were not medically necessary or actually provided, resulting in the payment of $45 million in improper Medicare benefits to those companies. The day of Luis’ indictment, the government initiated a civil action to freeze her assets before her criminal trial, including funds that were not directly traceable to the alleged criminal activity, referred to as substitute property, that was equivalent to the value of the proceeds of her alleged crimes.4

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