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May 6, 2016

Luis v. United States and a Right to Counsel for the Rich

The Sixth Amendment, which the Supreme Court has for over half a century interpreted to afford indigent criminal defendants a right to a lawyer at government expense, now also provides wealthy defendants something: protection from the government’s freezing their untainted assets (as opposed to those traceable to, or proceeds of, crime) to prevent retaining counsel of their choice. As principled—and protective of the Sixth Amendment—as this distinction may be, it reinforces something much more pernicious: there is now effectively a right of the rich to be free from impoverishment by the government, to protect their Sixth Amendment right to retain counsel of their choosing, while the identical Amendment does not provide an indigent defendant access to an actual lawyer of anyone’s choice.

Luis v. United States, was quite simple: federal law permits pre-trial freezing of certain criminal defendants’ assets that are proceeds of the crime, traceable to the crime, or of equal value to either of the first categories. Ms. Luis allegedly obtained $45 million through health care-related fraud, but when indicted had only $2 million, which the government agreed was neither proceeds of nor traceable to the fraud. Freezing these funds, to satisfy what the government contended would be restitution upon conviction, would preclude her hiring counsel of her choice. If the Sixth Amendment truly conferred a right to hire counsel of one’s choice, then did it also prevent the government from vitiating this right by freezing all one’s resources with which to pay counsel? Yes, the Court found, although not for any reason that commanded a majority.

Given the essential fungibility of money, the distinction between freezing financial assets that are proceeds of criminal activity, or even arguably such, and those equivalent in amount but conceded to be untainted may be a bit hazy. But it is this distinction between the characterizations “tainted” and “untainted” assets (or what’s “mine,” i.e., the defendant’s, versus what’s “yours,” i.e., the Government’s, in Justice Breyer’s language for the plurality), as opposed to simply “forfeitable” assets (Justice Kennedy’s terminology for the dissenters) that divides the four member plurality from the three dissenters. Justice Thomas’ concurrence in the judgment, based on a plain meaning interpretation of the term “right to the assistance of counsel,” that must have meant to the Framers a right not to have the government seize all one’s resources because the only counsel available “back in the day” was one you hired, and 17th and 18th century understandings of “forfeiture” were exclusively post-conviction, is a paean to the late Justice Scalia (cited five times by name). Whatever the merits of the tainted/untainted as opposed to forfeitable characterizations, after Luis v. United States, it’s crystal clear the government may no longer seek to freeze assets that can’t be traced to criminal activity, even if they would be all that’s left to ensure adequate resources are available for forfeiture after conviction, if doing so would preclude a rich defendant from hiring counsel of her choice.

Of course, this choice is not limited to wealthy defendants, but one—like the choice to sleep under the bridges of Paris, beg in the streets, or steal bread—that the law in its majesty equally forbids the rich and the poor, though it stands in stark contrast to the right of an indigent criminal defendant to actually have a genuine, living, breathing lawyer of anyone’s choice. As the Court held in Rothgery v. Gillespie County, 554 U.S. 191, 213 (2008), even the attachment of the right to counsel by appearance before a judicial officer in a criminal proceeding does not then give an indigent defendant a right to a lawyer. Whether even a delay of six months to obtain representation by a lawyer would harm this right is a nice, but unreached, question. (The Court’s studied avoidance of this question ensures indigent defendants often receive counsel so late that their rights are not effectively protected, as detailed in 2014 by the Sixth Amendment Center.)

Both the plurality and the principal dissent in Luis are only too quick to point out the parade of horribles facing such affluent defendants: they would have to “fall back on overworked and underpaid public defenders.” (Breyer, J., Slip. Op. at 15.) Of course, “[g]iven the large volume of defendants in the criminal justice system who rely on public representation, it would be troubling to suggest that a defendant who might be represented by a public defender will receive inadequate representation.” (Kennedy, J., Slip Op. 14.) Yet this is exactly what the Brennan Center report, that Justice Kennedy himself cites, states: Inadequate funding means public defenders “are simply unable to provide clients with their constitutional right to counsel, effectively making Gideon an unfunded mandate at a time when public defenders are needed most.”

A wealthy defendant cannot constitutionally be converted into an indigent one, with the attendant disabling effects for her defense, yet an indigent defendant not only has no right to access the sort of preventive, proactive litigation that retained counsel can provide, but cannot even rely on having the right to counsel made real—with an actual lawyer—until what may be sometime after having appeared in court. Just one more way the rich really are different, even when they are charged with a crime.

Professor David Siegel

March 18, 2016

Drumpf ™?

TV host John Oliver made waves recently when he launched a campaign on his HBO show Last Week Tonight to “Make Donald Drumpf Again,” a reference to the Republican presidential frontrunner’s less-than-sonorous historic family name. As part of that 21-minute skit, which has been watched an astounding 21 million times on YouTube in just a few days, the host claimed to have filed for trademark protection for the term DRUMPF. Did he? Can he?

Yes, and maybe. The application for the mark, now available on the USPTO website as Serial No. 86921166, shows that he did file an intent-to-use federal service mark application for DRUMPF in connection with, “Provision of a website featuring multimedia content.” Or, strictly speaking, a New York-based Delaware company called Drumpf Industries, LLC (dutifully formed a few weeks ago) filed it. So, yes, Oliver is on file. Were he serious about registering, however, the application faces a few challenges, any one of which might be raised by a trademark examiner (or even Mr. Trump himself, should it ultimately be approved by the Trademark Office).

First, Section 2(a) of the Trademark Act forbids another from registering a mark which “falsely suggest[s] a connection with persons, living or dead.” This raises the interesting question of whether DRUMPF falsely connects with Trump. Before the show aired, the answer would almost certainly be, no. Back then, no one had heard the term let alone associated it with the candidate. Now, however, each one of the more than 21 million viewers of the YouTube clip and the show, and all the members of the greater public that learned of the name through other media outlets, associate DRUMPF with Trump. Indeed, that was the very design of the thing. The more important question, though, is whether it is a “false” connection. I would argue no, it is not. It is a connection created by a comedian expressing himself. The public connects the term with Mr. Oliver’s tirade as much (if not more) than Trump. In that regard, it is a perfectly accurate connection made by a comedian making fun of a political candidate. No one, in short, thinks (falsely) that Trump himself is connected to the filing. He is just (truly) connected to Oliver’s joke.

Second, Section 2(c) of the Trademark Act prevents registration of “a name . . . identifying a particular living individual except by his written consent.” Assuming that Trump did not and will not consent, the question in this case becomes whether it identifies him. Again, before the show aired, almost unequivocally, no. But Oliver’s goal is to use it as a form of identification for Trump. So, do we credit that goal and count it as a form of identification, or do we look at whether Trump himself uses it self-referentially? The Trademark Office examination manual explains, “Section 2(c) applies not only to full names, but also . . . nicknames, if there is evidence that the name identifies a specific living individual who is publicly connected with the business in which the mark is used, or who is so well known that such a connection would be assumed.” Is, then, this “nickname” publicly connected to Trump, or is he so well known that it would be assumed? We’ll have to see how the USPTO responds, but again I would argue no, it is publicly connected to a comedian’s ironic depiction of Trump, not to the particular living individual himself. And while Trump might be famous, the name DRUMPF is essentially a parody and few would assume that he identifies with it.

Third, Section 2(e)(4) of the Trademark Act bars registration of any mark which “is primarily merely a surname” (i.e., a last name). These objections are notoriously hard to overcome and generally at the discretion of an examiner. Is DRUMPF likely to be perceived as a last name by the “purchasing public” (which, in this case, would be users of the claimed website)? Unfortunately for Oliver, the answer here might be, yes. The difference between this analysis and the above is that we now don’t care whether it is associated with Trump, but just whether it is thought of as a last name in general. And, again thanks to Oliver’s own popularity and messaging, anyone who cares enough to visit the DRUMPF site would almost by necessity perceive DRUMPF to be a last name. (Incidentally, one could write an entire law review article on the separate, interesting issues relating to the URL and cybersquatting , but that will have to wait for another time).

Finally, under Section 1(b) of the Trademark Act, any applicant swears under oath that they have a good faith “bona fide intention” to use the applied-for mark in commerce in connection with the services listed in the application. Here, that is provision of a multimedia website. While usually not an issue at the outset with intent-to-use applications, Oliver (or, really Drumpf Industries) would eventually have to show bona fide use of the mark as claimed through a screen-shot or the like. The problem right now is that the site is hardly “multimedia”—it is a static page where you can buy a hat or link to a Google Chrome extension that converts the name Trump into Drumpf. Oliver could certainly (if he really cared enough) place some multimedia content on the site before filing his screen-shot, but technically he would need to have had the intent to do so at the time of filing the application. So, to truly avoid this sort of challenge, he will need to demonstrate through some evidence that as of a few weeks ago, Drumpf Industries (whatever that is) intended to build a true multimedia site.

So, will Oliver’s (I mean, Drumpf Industries’) mark ultimately make it through examination? It seems the Trademark Office (which will certainly be following this one closely) could make life pretty hard on the application if it wanted to. But, of course, would anyone even care at that point?

Peter J. Karol