(Slip Opinion) OCTOBER TERM, 2015 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

LUIS v. UNITED STATES 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE ELEVENTH CIRCUIT 

No. 14–419. Argued November 10, 2015—Decided March 30, 2016 

A federal statute provides that a court may freeze before trial certain 

assets belonging to a defendant accused of violations of federal health

care or banking laws. Those assets include (1) property “obtained as 

a result of ” the crime, (2) property “traceable” to the crime, and (3),

as relevant here, other “property of equivalent value.” 18 U. S. C. 

§1345(a)(2). The Government has charged petitioner Luis with 

fraudulently obtaining nearly $45 million through crimes related to

health care. In order to preserve the $2 million remaining in Luis’ 

possession for payment of restitution and other criminal penalties,

the Government secured a pretrial order prohibiting Luis from dissipating her assets, including assets unrelated to her alleged crimes.

Though the District Court recognized that the order might prevent 

Luis from obtaining counsel of her choice, it held that the Sixth

Amendment did not give her the right to use her own untainted funds 

for that purpose. The Eleventh Circuit affirmed. 

Held: The judgment is vacated, and the case is remanded. 

564 Fed. Appx. 493, vacated and remanded. 

JUSTICE BREYER, joined by THE CHIEF JUSTICE, JUSTICE GINSBURG, 

and JUSTICE SOTOMAYOR, concluded that the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates 

the Sixth Amendment. The nature and importance of the constitutional right taken together with the nature of the assets lead to this

conclusion. Pp. 3–16.

(a) The Sixth Amendment right to counsel grants a defendant “a

fair opportunity to secure counsel of his own choice,” Powell v. Alabama, 287 U. S. 45, 53, that he “can afford to hire,” Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 624. This Court has 
 

 

 

 

2 LUIS v. UNITED STATES 

Syllabus 

consistently referred to the right to counsel of choice as “fundamental.” Pp. 3–5.

(b) While the Government does not deny Luis’ fundamental right to

be represented by a qualified attorney whom she chooses and can afford to hire, it would nonetheless undermine the value of that right 

by taking from Luis the ability to use funds she needs to pay for her 

chosen attorney. The Government attempts to justify this consequence by pointing out that there are important interests on the other side of the legal equation. It wishes to guarantee that funds will

be available later to help pay for statutory penalties and restitution,

for example. The Government further argues that two previous cases

from this Court, Caplin & Drysdale, supra, at 619, and United States 

v. Monsanto, 491 U. S. 600, 615, support the issuance of a restraining

order in this case. However, the nature of the assets at issue here 

differs from the assets at issue in those earlier cases. And that distinction makes a difference. Pp. 5–16.

(1) Here, the property is untainted, i.e., it belongs to Luis. As described in Caplin & Drysdale and Monsanto, the Government may

well be able to freeze before trial “tainted” assets—e.g., loot, contraband, or property otherwise associated with the planning, implementing, or concealing of a crime. As a matter of property law, the 

defendant’s ownership interest in such property is imperfect. For example, a different federal statute provides that title to property used 

to commit a crime (or otherwise “traceable” to a crime) passes to the

Government at the instant the crime is planned or committed. See 

21 U. S. C. §853(c). But here, the Government seeks to impose restrictions upon Luis’ untainted property without any showing of any 

equivalent governmental interest in that property. Pp. 5–10.

(2) This distinction does not by itself answer the constitutional

question because the law of property may allow a person without a

present interest in a piece of property to impose restrictions upon a 

current owner, say, to prevent waste. However, insofar as innocent 

funds are needed to obtain counsel of choice, the Sixth Amendment 

prohibits the court order sought here.

Three basic considerations lead to this conclusion. First, the nature of the competing interests argues against this kind of court order. On the one side is a fundamental Sixth Amendment right to assistance of counsel. On the other side is the Government’s interest in 

securing its punishment of choice, as well as the victim’s interest in 

securing restitution. These latter interests are important, but—

compared to the right to counsel—they seem to lie somewhat further

from the heart of a fair, effective criminal justice system. Second, 

relevant, common-law legal tradition offers virtually no significant

support for the Government’s position and in fact argues to the con-
 

 

Cite as: 578 U. S. ____ (2016) 3 

Syllabus 

trary. Indeed, there appears to be no decision of this Court authorizing unfettered, pretrial forfeiture of the defendant’s own “innocent” 

property. Third, as a practical matter, accepting the Government’s

position could erode the right to counsel considerably. It would, in 

fact, unleash a principle of constitutional law with no obvious stopping place, as Congress could write more statutes authorizing restraints in other cases involving illegal behavior that come with steep 

financial consequences. These defendants, often rendered indigent, 

would fall back upon publicly paid counsel, including overworked and 

underpaid public defenders. The upshot is a substantial risk that accepting the Government’s views would render less effective the basic

right the Sixth Amendment seeks to protect. Pp. 11–15. 

(3) The constitutional line between a criminal defendant’s tainted funds and innocent funds needed to pay for counsel should prove 

workable. Money may be fungible, but courts, which use tracing

rules in cases of, e.g., fraud and pension rights, have experience separating tainted assets from untainted assets, just as they have experience determining how much money is needed to cover the costs of a 

lawyer. Pp. 15–16. 

JUSTICE THOMAS concluded that the rule that a pretrial freeze of 

untainted assets violates a defendant’s Sixth Amendment right to 

counsel of choice rests strictly on the Sixth Amendment’s text and

common-law backdrop. Pp. 1–12. 

(a) The Sixth Amendment abolished the common-law rule that

generally prohibited representation in felony cases. “The right to select counsel of one’s choice” is thus “the root meaning” of the Sixth

Amendment right to counsel. United States v. Gonzalez-Lopez, 548 

U. S. 140, 147–148. Constitutional rights protect the necessary prerequisites for their exercise. As a result, the Sixth Amendment denies the Government unchecked power to freeze a defendant’s assets 

before trial simply to secure potential forfeiture upon conviction. Unless the right to counsel protects the right to use lawfully owned 

property to pay for an attorney, the right to counsel—originally understood to protect only the right to hire counsel of choice—would be 

meaningless. Without pretrial protection for at least some of a defendant’s assets, the Government could nullify the right to counsel of 

choice, eviscerating the Sixth Amendment’s original meaning and 

purpose. The modern, judicially created right to governmentappointed counsel does not obviate these concerns. Pp. 1–5.

(b) History confirms this textual understanding. The common-law 

forfeiture tradition provides an administrable rule for the Sixth 

Amendment’s protection: A criminal defendant’s untainted assets are

protected from government interference before trial and judgment, 

but his tainted assets may be seized before trial as contraband or 
 

4 LUIS v. UNITED STATES 

Syllabus 

through a separate in rem proceeding. Reading the Sixth Amendment to track the historical line between tainted and untainted assets avoids case-by-case adjudication and ensures that the original 

meaning of the right to counsel does real work. Here, the incursion of 

the pretrial asset freeze into untainted assets, for which there is no

historical tradition, violates the Sixth Amendment. Pp. 5–9.

(c) This conclusion leaves no room for an atextual balancing analysis. Pp. 9–12.

BREYER, J., announced the judgment of the Court and delivered an

opinion, in which ROBERTS, C. J., and GINSBURG and SOTOMAYOR, JJ., 

joined. THOMAS, J., filed an opinion concurring in the judgment. KENNEDY, J., filed a dissenting opinion, in which ALITO, J., joined. KAGAN, 

J., filed a dissenting opinion. 
 

 

_________________ 

_________________ 

Cite as: 578 U. S. ____ (2016) 1 

Opinion of BREYER, J. 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 14–419 

SILA LUIS, PETITIONER v. UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT
 

[March 30, 2016]

 JUSTICE BREYER announced the judgment of the Court

and delivered an opinion in which THE CHIEF JUSTICE, 

JUSTICE GINSBURG, and JUSTICE SOTOMAYOR join. 

A federal statute provides that a court may freeze before 

trial certain assets belonging to a criminal defendant 

accused of violations of federal health care or banking 

laws. See 18 U. S. C. §1345. Those assets include: (1) 

property “obtained as a result of ” the crime, (2) property

“traceable” to the crime, and (3) other “property of equivalent value.” §1345(a)(2). In this case, the Government has 

obtained a court order that freezes assets belonging to the 

third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her from

paying her lawyer. She claims that insofar as it does so, it 

violates her Sixth Amendment “right . . . to have the Assistance of Counsel for [her] defence.” We agree. 

I 

In October 2012, a federal grand jury charged the petitioner, Sila Luis, with paying kickbacks, conspiring to 

commit fraud, and engaging in other crimes all related to

health care. See §1349; §371; 42 U. S. C. §1320a– 
 

2 LUIS v. UNITED STATES 

Opinion of BREYER, J. 

7b(b)(2)(A). The Government claimed that Luis had 

fraudulently obtained close to $45 million, almost all of 

which she had already spent. Believing it would convict

Luis of the crimes charged, and hoping to preserve the $2 

million remaining in Luis’ possession for payment of restitution and other criminal penalties (often referred to as

criminal forfeitures, which can include innocent—not just

tainted—assets, a point of critical importance here), the 

Government sought a pretrial order prohibiting Luis from

dissipating her assets. See 18 U. S. C. §1345(a)(2). And 

the District Court ultimately issued an order prohibiting 

her from “dissipating, or otherwise disposing of . . . assets, 

real or personal . . . up to the equivalent value of the proceeds of the Federal health care fraud ($45 million).” App.

to Pet. for Cert. A–6. 

The Government and Luis agree that this court order

will prevent Luis from using her own untainted funds, i.e., 

funds not connected with the crime, to hire counsel to 

defend her in her criminal case. See App. 161 (stipulating

“that an unquantified amount of revenue not connected to

the indictment [had] flowed into some of the accounts” 

subject to the restraining order); ibid. (similarly stipulating that Luis used “revenue not connected to the indictment” to pay for real property that she possessed). Although the District Court recognized that the order might

prevent Luis from obtaining counsel of her choice, it held

“that there is no Sixth Amendment right to use untainted,

substitute assets to hire counsel.” 966 F. Supp. 2d 1321, 

1334 (SD Fla. 2013). 

The Eleventh Circuit upheld the District Court. See 564 

Fed. Appx. 493, 494 (2014) ( per curiam) (referring to, e.g., 

Kaley v. United States, 571 U. S. ___ (2014); Caplin & 

Drysdale, Chartered v. United States, 491 U. S. 617, 631 

(1989); United States v. Monsanto, 491 U. S. 600, 616 

(1989)). We granted Luis’ petition for certiorari. 
 

 

Cite as: 578 U. S. ____ (2016) 3 

Opinion of BREYER, J. 

II 

The question presented is “[w]hether the pretrial restraint of a criminal defendant’s legitimate, untainted

assets (those not traceable to a criminal offense) needed to 

retain counsel of choice violates the Fifth and Sixth 

Amendments.” Pet. for Cert. ii. We see no reasonable way 

to interpret the relevant statutes to avoid answering this

constitutional question. Cf. Monsanto, supra, at 614. 

Hence, we answer it, and our answer is that the pretrial 

restraint of legitimate, untainted assets needed to retain 

counsel of choice violates the Sixth Amendment. The 

nature and importance of the constitutional right taken 

together with the nature of the assets lead us to this

conclusion. 

A 

No one doubts the fundamental character of a criminal 

defendant’s Sixth Amendment right to the “Assistance of

Counsel.” In Gideon v. Wainwright, 372 U. S. 335 (1963), 

the Court explained: 

“‘The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard

by counsel. Even the intelligent and educated layman 

has small and sometimes no skill in the science of law. 

If charged with crime, he is incapable, generally, of 

determining for himself whether the indictment is

good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put 

on trial without a proper charge, and convicted upon 

incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill 

and knowledge adequately to prepare his defense,

even though he have a perfect one. He requires the 

guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty,

he faces the danger of conviction because he does not 
 

4 LUIS v. UNITED STATES 

Opinion of BREYER, J. 

know how to establish his innocence.’” Id., at 344– 

345 (quoting Powell v. Alabama, 287 U. S. 45, 68–69 

(1932)). 

It is consequently not surprising: first, that this Court’s 

opinions often refer to the right to counsel as “fundamental,” id., at 68; see Grosjean v. American Press Co., 297 

U. S. 233, 243–244 (1936) (similar); Johnson v. Zerbst, 304 

U. S. 458, 462–463 (1938) (similar); second, that commentators describe the right as a “great engin[e] by which an

innocent man can make the truth of his innocence visible,” 

Amar, Sixth Amendment First Principles, 84 Geo. L. J. 

641, 643 (1996); see Herring v. New York, 422 U. S. 853, 

862 (1975); third, that we have understood the right to

require that the Government provide counsel for an indigent defendant accused of all but the least serious crimes, 

see Gideon, supra, at 344; and fourth, that we have considered the wrongful deprivation of the right to counsel a

“structural” error that so “affec[ts] the framework within

which the trial proceeds” that courts may not even ask 

whether the error harmed the defendant. United States v. 

Gonzalez-Lopez, 548 U. S. 140, 148 (2006) (internal quotation marks omitted); see id., at 150. 

Given the necessarily close working relationship between lawyer and client, the need for confidence, and the 

critical importance of trust, neither is it surprising that

the Court has held that the Sixth Amendment grants a

defendant “a fair opportunity to secure counsel of his own

choice.” Powell, supra, at 53; see Gonzalez-Lopez, supra, 

at 150 (describing “these myriad aspects of representation”). This “fair opportunity” for the defendant to secure 

counsel of choice has limits. A defendant has no right, for 

example, to an attorney who is not a member of the bar, or 

who has a conflict of interest due to a relationship with an

opposing party. See Wheat v. United States, 486 U. S. 153, 

159 (1988). And an indigent defendant, while entitled to 
 

Cite as: 578 U. S. ____ (2016) 5 

Opinion of BREYER, J. 

adequate representation, has no right to have the Government pay for his preferred representational choice. See 

Caplin & Drysdale, 491 U. S., at 624. 

We nonetheless emphasize that the constitutional right 

at issue here is fundamental: “[T]he Sixth Amendment 

guarantees a defendant the right to be represented by an

otherwise qualified attorney whom that defendant can

afford to hire.” Ibid. 

B 

The Government cannot, and does not, deny Luis’ right 

to be represented by a qualified attorney whom she chooses 

and can afford. But the Government would undermine 

the value of that right by taking from Luis the ability to 

use the funds she needs to pay for her chosen attorney.

The Government points out that, while freezing the funds

may have this consequence, there are important interests 

on the other side of the legal equation: It wishes to guarantee that those funds will be available later to help pay 

for statutory penalties (including forfeiture of untainted 

assets) and restitution, should it secure convictions. And 

it points to two cases from this Court, Caplin & Drysdale, 

supra, at 619, and Monsanto, 491 U. S., at 615, which, in 

the Government’s view, hold that the Sixth Amendment 

does not pose an obstacle to its doing so here. In our view, 

however, the nature of the assets at issue here differs from 

the assets at issue in those earlier cases. And that distinction makes a difference. 

1 

The relevant difference consists of the fact that the 

property here is untainted; i.e., it belongs to the defendant, pure and simple. In this respect it differs from a

robber’s loot, a drug seller’s cocaine, a burglar’s tools, or 

other property associated with the planning, implementing, or concealing of a crime. The Government may well 
 

 

 

6 LUIS v. UNITED STATES 

Opinion of BREYER, J. 

be able to freeze, perhaps to seize, assets of the latter, 

“tainted” kind before trial. As a matter of property law 

the defendant’s ownership interest is imperfect. The 

robber’s loot belongs to the victim, not to the defendant.

See Telegraph Co. v. Davenport, 97 U. S. 369, 372 (1878) 

(“The great principle that no one can be deprived of his

property without his assent, except by the processes of the

law, requires . . . that the property wrongfully transferred 

or stolen should be restored to its rightful owner”). The 

cocaine is contraband, long considered forfeitable to the 

Government wherever found. See, e.g., 21 U. S. C. §881(a) 

(“[Controlled substances] shall be subject to forfeiture to 

the United States and no property right shall exist in

them”); Carroll v. United States, 267 U. S. 132, 159 (1925) 

(describing the seizure of “contraband forfeitable property”). And title to property used to commit a crime (or 

otherwise “traceable” to a crime) often passes to the Government at the instant the crime is planned or committed. 

See, e.g., §853(c) (providing that the Government’s ownership interest in such property relates back to the time of 

the crime).

The property at issue here, however, is not loot, contraband, or otherwise “tainted.” It belongs to the defendant.

That fact undermines the Government’s reliance upon

precedent, for both Caplin & Drysdale and Monsanto 

relied critically upon the fact that the property at issue 

was “tainted,” and that title to the property therefore had 

passed from the defendant to the Government before the 

court issued its order freezing (or otherwise disposing of ) 

the assets. 

In Caplin & Drysdale, the Court considered a postconviction forfeiture that took from a convicted defendant 

funds he would have used to pay his lawyer. The Court 

held that the forfeiture was constitutional. In doing so,

however, it emphasized that the forfeiture statute at issue 

provided that “‘[a]ll right, title, and interest in property 
 

 

Cite as: 578 U. S. ____ (2016) 7 

Opinion of BREYER, J. 

[constituting or derived from any proceeds obtained from

the crime] vests in the United States upon the commission 

of the act giving rise to [the] forfeiture.’” 491 U. S., at 625, 

n. 4 (quoting §853(c)) (emphasis added). It added that the 

law had “long-recognized” as “lawful” the “practice of

vesting title to any forfeitable asset[s] in the United

State[s] at the time of the crim[e].” Id., at 627. It pointed

out that the defendant did not “claim, as a general proposition, that the [vesting] provision is unconstitutional, or

that Congress cannot, as a general matter, vest title to 

assets derived from the crime in the Government, as of the 

date of the criminal act in question.” Id., at 627–628. 

And, given the vesting language, the Court explained that

the defendant “did not hold good title” to the property. Id., 

at 627. The Court therefore concluded that “[t]here is no

constitutional principle that gives one person [namely, the 

defendant] the right to give another’s [namely, the Government’s] property to a third party,” namely, the lawyer. 

Id., at 628.

 In Monsanto, the Court considered a pretrial restraining 

order that prevented a not-yet-convicted defendant from 

using certain assets to pay for his lawyer. The defendant 

argued that, given this difference, Caplin & Drysdale’s 

conclusion should not apply. The Court noted, however, 

that the property at issue was forfeitable under the same 

statute that was at issue in Caplin & Drysdale. See Monsanto, supra, at 614. And, as in Caplin & Drysdale, the 

application of that statute to Monsanto’s case concerned 

only the pretrial restraint of assets that were traceable to 

the crime, see 491 U. S., at 602–603; thus, the statute 

passed title to those funds at the time the crime was committed (i.e., before the trial), see §853(c). The Court said 

that Caplin & Drysdale had already “weigh[ed] . . . th[e] 

very interests” at issue. Monsanto, supra, at 616. And it 

“rel[ied] on” its “conclusion” in Caplin & Drysdale to dispose of, and to reject, the defendant’s “similar constitu­
 

 

8 LUIS v. UNITED STATES 

Opinion of BREYER, J. 

tional claims.” 491 U. S., at 614. 

JUSTICE KENNEDY prefers to read Caplin & Drysdale 

and Monsanto broadly, as holding that “the Government,

having established probable cause to believe that Luis’ 

substitute [i.e., innocent] assets will be forfeitable upon

conviction, should be permitted to obtain a restraining

order barring her from spending those funds prior to

trial.” Post, at 6–7 (dissenting opinion). In other words, 

he believes that those cases stand for the proposition that

property—whether tainted or untainted—is subject to

pretrial restraint, so long as the property might someday

be subject to forfeiture. But this reading asks too much of 

our precedents. For one thing, as discussed, Caplin & 

Drysdale and Monsanto involved the restraint only of 

tainted assets, and thus we had no occasion to opine in

those cases about the constitutionality of pretrial restraints of other, untainted assets. 

For another thing, JUSTICE KENNEDY’s broad rule ignores the statutory background against which Caplin & 

Drysdale and Monsanto were decided. The Court in those 

cases referenced §853(c) more than a dozen times. And it 

acknowledged that whether property is “forfeitable” or 

subject to pretrial restraint under Congress’ scheme is a

nuanced inquiry that very much depends on who has the 

superior interest in the property at issue. See Caplin & 

Drysdale, supra, at 626–628; Monsanto, 491 U. S., at 616. 

We see this in, for example, §853(e)(1), which explicitly 

authorizes restraining orders or injunctions against “property described in subsection (a) of this section” (i.e., tainted 

assets). We see this too in §853(e)(1)(B), which requires 

the Government—in certain circumstances—to give “notice to persons appearing to have an interest in the property and opportunity for hearing” before obtaining a restraining order against such property. We see this in 

§853(c), which allows “bona fide purchaser[s] for value” to 

keep property that would otherwise be subject to forfei­
Cite as: 578 U. S. ____ (2016) 9 

Opinion of BREYER, J. 

ture. And we see this in §853(n)(6)(A), which exempts 

certain property from forfeiture when a third party can

show a vested interest in the property that is “superior” to

that of the Government. 

The distinction that we have discussed is thus an important one, not a technicality. It is the difference between what is yours and what is mine. In Caplin & Drysdale and Monsanto, the Government wanted to impose 

restrictions upon (or seize) property that the Government

had probable cause to believe was the proceeds of, or 

traceable to, a crime. See Monsanto, supra, at 615. The 

relevant statute said that the Government took title to 

those tainted assets as of the time of the crime. See 

§853(c). And the defendants in those cases consequently 

had to concede that the disputed property was in an important sense the Government’s at the time the court

imposed the restrictions. See Caplin & Drysdale, supra, 

at 619–620; Monsanto, supra, at 602–603. 

This is not to say that the Government “owned” the

tainted property outright (in the sense that it could take 

possession of the property even before obtaining a conviction). See post, at 7–10 (KENNEDY, J., dissenting). Rather, 

it is to say that the Government even before trial had a

“substantial” interest in the tainted property sufficient to

justify the property’s pretrial restraint. See Caplin & 

Drysdale, supra, at 627 (“[T]he property rights given the 

Government by virtue of [§853(c)’s relation-back provision] 

are more substantial than petitioner acknowledges”); 

United States v. Stowell, 133 U. S. 1, 19 (1890) (“As soon 

as [the possessor of the forfeitable asset committed the

violation] . . . , the forfeiture . . . took effect, and (though

needing judicial condemnation to perfect it) operated from 

that time as a statutory conveyance to the United States of 

all right, title and interest then remaining in the [possessor]; and was as valid and effectual, against all the world, 

as a recorded deed” (emphasis added)). 
 

 

 

10 LUIS v. UNITED STATES 

Opinion of BREYER, J. 

If we analogize to bankruptcy law, the Government, by 

application of §853(c)’s relation-back provision, became 

something like a secured creditor with a lien on the defendant’s tainted assets superior to that of most any other 

party. See 4 Collier on Bankruptcy ¶506.03[1] (16th ed.

2015). For this reason, §853(c) has operated in our cases 

as a significant limitation on criminal defendants’ property rights in such assets—even before conviction. See 

Monsanto, supra, at 613 (“Permitting a defendant to use 

[tainted] assets for his private purposes that, under this

[relation-back] provision, will become the property of the 

United States if a conviction occurs cannot be sanctioned”); cf. Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 326 (1999) (noting 

that the Court had previously authorized injunctions 

against the further dissipation of property where, among 

other things, “the creditor (the Government) asserted an

equitable lien on the property”). 

Here, by contrast, the Government seeks to impose 

restrictions upon Luis’ untainted property without any

showing of any equivalent governmental interest in that

property. Again, if this were a bankruptcy case, the Government would be at most an unsecured creditor. Although such creditors someday might collect from a debtor’s general assets, they cannot be said to have any present claim to, or interest in, the debtor’s property. See id., 

at 330 (“[B]efore judgment . . . an unsecured creditor has 

no rights at law or in equity in the property of his debtor”); 

see also 5 Collier on Bankruptcy ¶541.05[1][b] (“[G]eneral 

unsecured creditor[s]” have “no specific property interest 

in the goods held or sold by the debtor”). The competing

property interests in the tainted- and untainted-asset

contexts therefore are not “exactly the same.” Post, at 2 

(KAGAN, J., dissenting). At least regarding her untainted 

assets, Luis can at this point reasonably claim that the 

property is still “mine,” free and clear. 
 

Cite as: 578 U. S. ____ (2016) 11 

Opinion of BREYER, J. 

2 

This distinction between (1) what is primarily “mine”

(the defendant’s) and (2) what is primarily “yours” (the

Government’s) does not by itself answer the constitutional 

question posed, for the law of property sometimes allows a 

person without a present interest in a piece of property to 

impose restrictions upon a current owner, say, to prevent 

waste. A holder of a reversionary interest, for example, 

can prevent the owner of a life estate from wasting the 

property. See, e.g., Peterson v. Ferrell, 127 N. C. 169, 170, 

37 S. E. 189, 190 (1900). Those who later may become 

beneficiaries of a trust are sometimes able to prevent the 

trustee from dissipating the trust’s assets. See, e.g., Kollock v. Webb, 113 Ga. 762, 769, 39 S. E. 339, 343 (1901).

And holders of a contingent, future executory interest in

property (an interest that might become possessory at 

some point down the road) can, in limited circumstances,

enjoin the activities of the current owner. See, e.g., Dees v. 

Cheuvronts, 240 Ill. 486, 491, 88 N. E. 1011, 1012 (1909) 

(“[E]quity w[ill] interfere . . . only when it is made to appear that the contingency . . . is reasonably certain to

happen, and the waste is . . . wanton and conscienceless”). 

The Government here seeks a somewhat analogous order, 

i.e., an order that will preserve Luis’ untainted assets so 

that they will be available to cover the costs of forfeiture 

and restitution if she is convicted, and if the court later 

determines that her tainted assets are insufficient or 

otherwise unavailable. 

The Government finds statutory authority for its request in language authorizing a court to enjoin a criminal 

defendant from, for example, disposing of innocent “property of equivalent value” to that of tainted property. 18 

U. S. C. §1345(a)(2)(B)(i). But Luis needs some portion of 

those same funds to pay for the lawyer of her choice. 

Thus, the legal conflict arises. And, in our view, insofar as 

innocent (i.e., untainted) funds are needed to obtain coun­
 

12 LUIS v. UNITED STATES 

Opinion of BREYER, J. 

sel of choice, we believe that the Sixth Amendment prohibits the court order that the Government seeks. 

Three basic considerations lead us to this conclusion. 

First, the nature of the competing interests argues against 

this kind of court order. On the one side we find, as we 

have previously explained, supra, at 3–5, a Sixth Amendment right to assistance of counsel that is a fundamental 

constituent of due process of law, see Powell, 287 U. S., 

at 68–69. And that right includes “the right to be represented by an otherwise qualified attorney whom that 

defendant can afford to hire.” Caplin & Drysdale, 491 

U. S., at 624. The order at issue in this case would seriously undermine that constitutional right.

On the other side we find interests that include the 

Government’s contingent interest in securing its punishment of choice (namely, criminal forfeiture) as well as the 

victims’ interest in securing restitution (notably, from 

funds belonging to the defendant, not the victims). While 

these interests are important, to deny the Government the 

order it requests will not inevitably undermine them, for, 

at least sometimes, the defendant may possess other 

assets—say, “tainted” property—that might be used for

forfeitures and restitution. Cf. Gonzalez-Lopez, 548 U. S., 

at 148 (“Deprivation of the right” to counsel of the defendant’s choice “is ‘complete’ when the defendant is erroneously prevented from being represented by the lawyer he

wants”). Nor do the interests in obtaining payment of a

criminal forfeiture or restitution order enjoy constitutional 

protection. Rather, despite their importance, compared to 

the right to counsel of choice, these interests would seem

to lie somewhat further from the heart of a fair, effective 

criminal justice system.

Second, relevant legal tradition offers virtually no significant support for the Government’s position. Rather, 

tradition argues to the contrary. Describing the 18thcentury English legal world (which recognized only a 
Cite as: 578 U. S. ____ (2016) 13 

Opinion of BREYER, J. 

limited right to counsel), Blackstone wrote that “only”

those “goods and chattels” that “a man has at the time of 

conviction shall be forfeited.” 4 W. Blackstone, Commentaries on the Laws of England 388 (1765) (emphasis

added); see 1 J. Chitty, Practical Treatise on the Criminal 

Law 737 (1816) (“[T]he party indicted may sell any of [his

property] . . . to assist him in preparing for his defense on 

the trial”).

Describing the common law as understood in 19thcentury America (which recognized a broader right to

counsel), Justice Story wrote: 

“It is well known, that at the common law, in many

cases of felonies, the party forfeited his goods and 

chattels to the crown. The forfeiture . . . was a part,

or at least a consequence, of the judgment of conviction. It is plain from this statement, that no right to

the goods and chattels of the felon could be acquired 

by the crown by the mere commission of the offense;

but the right attached only by the conviction of the offender. . . . In the contemplation of the common law,

the offender’s right was not divested until the conviction.” The Palmyra, 12 Wheat. 1, 14 (1827). 

See generally Powell, supra, at 60–61 (describing the scope 

of the right to counsel in 18th-century Britain and colonial 

America).

As we have explained, supra, at 6–10, cases such as 

Caplin & Drysdale and Monsanto permit the Government

to freeze a defendant’s assets pretrial, but the opinions in

those cases highlight the fact that the property at issue 

was “tainted,” i.e., it did not belong entirely to the defendant. We have found no decision of this Court authorizing 

unfettered, pretrial forfeiture of the defendant’s own 

“innocent” property—property with no connection to the

charged crime. Nor do we see any grounds for distinguishing the historic preference against preconviction forfei-
 

14 LUIS v. UNITED STATES 

Opinion of BREYER, J. 

tures from the preconviction restraint at issue here. As far 

as Luis’ Sixth Amendment right to counsel of choice is

concerned, a restraining order might as well be a forfeiture; that is, the restraint itself suffices to completely deny

this constitutional right. See Gonzalez-Lopez, supra, at 

148. 

Third, as a practical matter, to accept the Government’s

position could well erode the right to counsel to a considerably greater extent than we have so far indicated. To 

permit the Government to freeze Luis’ untainted assets

would unleash a principle of constitutional law that would 

have no obvious stopping place. The statutory provision

before us authorizing the present restraining order refers

only to “banking law violation[s]” and “Federal health care 

offense[s].” 18 U. S. C. §1345(a)(2). But, in the Government’s view, Congress could write more statutes authorizing pretrial restraints in cases involving other illegal

behavior—after all, a broad range of such behavior can

lead to postconviction forfeiture of untainted assets. See, 

e.g., §1963(m) (providing for forfeiture of innocent, substitute assets for any violation of the Racketeer Influenced

and Corrupt Organizations Act).

Moreover, the financial consequences of a criminal 

conviction are steep. Even beyond the forfeiture itself, 

criminal fines can be high, and restitution orders expensive. See, e.g., §1344 ($1 million fine for bank fraud); 

§3571 (mail and wire fraud fines of up to $250,000 for 

individuals and $500,000 for organizations); United States 

v. Gushlak, 728 F. 3d 184, 187, 203 (CA2 2013) ($17.5 

million restitution award against an individual defendant 

in a fraud-on-the-market case); FTC v. Trudeau, 662 F. 3d 

947, 949 (CA7 2011) ($37.6 million remedial sanction for 

fraud). How are defendants whose innocent assets are 

frozen in cases like these supposed to pay for a lawyer—

particularly if they lack “tainted assets” because they are

innocent, a class of defendants whom the right to counsel 
 

Cite as: 578 U. S. ____ (2016) 15 

Opinion of BREYER, J. 

certainly seeks to protect? See Powell, 287 U. S., at 69; 

Amar, 84 Geo. L. J., at 643 (“[T]he Sixth Amendment is

generally designed to elicit truth and protect innocence”). 

These defendants, rendered indigent, would fall back

upon publicly paid counsel, including overworked and 

underpaid public defenders. As the Department of Justice

explains, only 27 percent of county-based public defender 

offices have sufficient attorneys to meet nationally recommended caseload standards. Dept. of Justice, Bureau 

of Justice Statistics, D. Farole & L. Langton, Census of 

Public Defender Offices, 2007: County-based and Local 

Public Defender Offices, 2007, p. 10 (Sept. 2010). And as 

one amicus points out, “[m]any federal public defender 

organizations and lawyers appointed under the Criminal

Justice Act serve numerous clients and have only limited 

resources.” Brief for New York Council of Defense Lawyers 11. The upshot is a substantial risk that accepting the Government’s views would—by increasing the

government-paid-defender workload—render less effective 

the basic right the Sixth Amendment seeks to protect. 

3 

We add that the constitutional line we have drawn 

should prove workable. That line distinguishes between a 

criminal defendant’s (1) tainted funds and (2) innocent

funds needed to pay for counsel. We concede, as JUSTICE 

KENNEDY points out, post, at 12–13, that money is fungible; and sometimes it will be difficult to say whether a

particular bank account contains tainted or untainted 

funds. But the law has tracing rules that help courts 

implement the kind of distinction we require in this case. 

With the help of those rules, the victim of a robbery, for

example, will likely obtain the car that the robber used 

stolen money to buy. See, e.g., 1 G. Palmer, Law of Restitution §2.14, p. 175 (1978) (“tracing” permits a claim 

against “an asset which is traceable to or the product of ” 
 

 

 

 

 

16 LUIS v. UNITED STATES 

Opinion of BREYER, J. 

tainted funds); 4 A. Scott, Law of Trusts §518, pp. 3309–3314 

(1956) (describing the tracing rules governing commingled

accounts). And those rules will likely also prevent Luis 

from benefiting from many of the money transfers and 

purchases JUSTICE KENNEDY describes. See post, at 12–13. 

Courts use tracing rules in cases involving fraud, pension rights, bankruptcy, trusts, etc. See, e.g., Montanile v. 

Board of Trustees of Nat. Elevator Industry Health Benefit 

Plan, 577 U. S. ___, ___–___ (2016) (slip op., at 8–9). They 

consequently have experience separating tainted assets

from untainted assets, just as they have experience determining how much money is needed to cover the costs of 

a lawyer. See, e.g., 18 U. S. C. §1345(b) (“The court shall 

proceed as soon as practicable to the hearing and determination of [actions to freeze a defendant’s tainted or untainted assets]”); 28 U. S. C. §2412(d) (courts must determine reasonable attorneys’ fees under the Equal Access to 

Justice Act); see also Kaley, 571 U. S., at ___, and n. 3 (slip 

op., at 3, and n. 3) (“Since Monsanto, the lower courts have 

generally provided a hearing. . . . [to determine] whether 

probable cause exists to believe that the assets in dispute 

are traceable . . . to the crime charged in the indictment”).

We therefore see little reason to worry, as JUSTICE 

KENNEDY seems to, that defendants will “be allowed to 

circumvent [the usual forfeiture rules] by using . . . funds

to pay for a high, or even the highest, priced defense team

[they] can find.” Post, at 7. 

* * * 

For the reasons stated, we conclude that the defendant 

in this case has a Sixth Amendment right to use her own

“innocent” property to pay a reasonable fee for the assistance of counsel. On the assumptions made here, the 

District Court’s order prevents Luis from exercising that

right. We consequently vacate the judgment of the Court

of Appeals and remand the case for further proceedings. 

It is so ordered. 
Opinion of BREYER, J. 

 

 

Cite as: 578 U. S. ____ (2016) 17 

Appendix to opinion of BREYER, J. 

APPENDIX 

Title 18 U. S. C. §1345 provides: 

“(a)(1) If a person is—

“(A) violating or about to violate this chapter or section

287, 371 (insofar as such violation involves a conspiracy to

defraud the United States or any agency thereof), or 1001 

of this title; 

“(B) committing or about to commit a banking law violation (as defined in section 3322(d) of this title); or 

“(C) committing or about to commit a Federal health 

care offense; 

“the Attorney General may commence a civil action in any

Federal court to enjoin such violation. 

“(2) If a person is alienating or disposing of property, or 

intends to alienate or dispose of property, obtained as a 

result of a banking law violation (as defined in section 

3322(d) of this title) or a Federal health care offense or 

property which is traceable to such violation, the Attorney

General may commence a civil action in any Federal 

court— 

“(A) to enjoin such alienation or disposition of property; 

or 

“(B) for a restraining order to—

“(i) prohibit any person from withdrawing, transferring, removing, dissipating, or disposing of any such property or property of equivalent value; and

“(ii) appoint a temporary receiver to administer such

restraining order. 

“(3) A permanent or temporary injunction or restraining

order shall be granted without bond. 

“(b) The court shall proceed as soon as practicable to the 
 

Opinion of BREYER, J. 

18 LUIS v. UNITED STATES 

Appendix to opinion of BREYER, J. 

hearing and determination of such an action, and may, at

any time before final determination, enter such a restraining order or prohibition, or take such other action, as is

warranted to prevent a continuing and substantial injury 

to the United States or to any person or class of persons 

for whose protection the action is brought. A proceeding

under this section is governed by the Federal Rules of 

Civil Procedure, except that, if an indictment has been 

returned against the respondent, discovery is governed by

the Federal Rules of Criminal Procedure.” 
_________________ 

_________________ 

 

 


 

Cite as: 578 U. S. ____ (2016) 1 

THOMAS, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

No. 14–419 

SILA LUIS, PETITIONER v. UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT
 

[March 30, 2016]

 JUSTICE THOMAS, concurring in the judgment. 

I agree with the plurality that a pretrial freeze of untainted assets violates a criminal defendant’s Sixth 

Amendment right to counsel of choice. But I do not agree 

with the plurality’s balancing approach. Rather, my

reasoning rests strictly on the Sixth Amendment’s text

and common-law backdrop.

The Sixth Amendment provides important limits on the 

Government’s power to freeze a criminal defendant’s

forfeitable assets before trial. And, constitutional rights 

necessarily protect the prerequisites for their exercise.

The right “to have the Assistance of Counsel,” U. S. Const., 

Amdt. 6, thus implies the right to use lawfully owned 

property to pay for an attorney. Otherwise the right to

counsel—originally understood to protect only the right to 

hire counsel of choice—would be meaningless. History 

confirms this textual understanding. The common law 

limited pretrial asset restraints to tainted assets. Both 

this textual understanding and history establish that the

Sixth Amendment prevents the Government from freezing 

untainted assets in order to secure a potential forfeiture.

The freeze here accordingly violates the Constitution. 

I 

The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the 
 

2 LUIS v. UNITED STATES 

THOMAS, J., concurring in judgment 

Assistance of Counsel for his defence.” As originally understood, this right guaranteed a defendant the right “to 

employ a lawyer to assist in his defense.” Scott v. Illinois, 

440 U. S. 367, 370 (1979). The common law permitted

counsel to represent defendants charged with misdemeanors, but not felonies other than treason. W. Beaney, The 

Right to Counsel in American Courts 8–9 (1955). The 

Sixth Amendment abolished the rule prohibiting representation in felony cases, but was “not aimed to compel the 

State to provide counsel for a defendant.” Betts v. Brady, 

316 U. S. 455, 466 (1942), overruled by Gideon v. Wainwright, 372 U. S. 335 (1963); see Beaney, supra, at 27–36. 

“The right to select counsel of one’s choice” is thus “the

root meaning” of the Sixth Amendment right to counsel. 

United States v. Gonzalez-Lopez, 548 U. S. 140, 147–148 

(2006).

The Sixth Amendment denies the Government unchecked power to freeze a defendant’s assets before trial

simply to secure potential forfeiture upon conviction. If 

that bare expectancy of criminal punishment gave the 

Government such power, then a defendant’s right to counsel of choice would be meaningless, because retaining an

attorney requires resources. The law has long recognized 

that the “[a]uthorization of an act also authorizes a necessary predicate act.” A. Scalia & B. Garner, Reading Law: 

The Interpretation of Legal Texts 192 (2012) (discussing

the “predicate-act canon”). As Thomas Cooley put it with 

respect to Government powers, “where a general power is 

conferred or duty enjoined, every particular power necessary for the exercise of the one, or the performance of the 

other, is also conferred.” Constitutional Limitations 63 

(1868); see 1 J. Kent, Commentaries on American Law 464

(13th ed. 1884) (“[W]henever a power is given by a statute, 

everything necessary to the making of it effectual or requisite to attain the end is implied”). This logic equally

applies to individual rights. After all, many rights are 
Cite as: 578 U. S. ____ (2016) 3 

THOMAS, J., concurring in judgment 

powers reserved to the People rather than delegated to the

Government. Cf. U. S. Const., Amdt. 10 (“The powers not

delegated to the United States by the Constitution, nor 

prohibited by it to the States, are reserved to the States 

respectively, or to the people”). 

Constitutional rights thus implicitly protect those closely 

related acts necessary to their exercise. “There comes a 

point . . . at which the regulation of action intimately and

unavoidably connected with [a right] is a regulation of [the 

right] itself.” Hill v. Colorado, 530 U. S. 703, 745 (2000) 

(Scalia, J., dissenting). The right to keep and bear arms, 

for example, “implies a corresponding right to obtain the 

bullets necessary to use them,” Jackson v. City and County 

of San Francisco, 746 F. 3d 953, 967 (CA9 2014) (internal quotation marks omitted), and “to acquire and maintain proficiency in their use,” Ezell v. Chicago, 651 F. 3d 

684, 704 (CA7 2011). See District of Columbia v. Heller, 

554 U. S. 570, 617–618 (2008) (citing T. Cooley, General 

Principles of Constitutional Law 271 (2d ed. 1891) (discussing the implicit right to train with weapons)); United 

States v. Miller, 307 U. S. 174, 180 (1939) (citing 1 H.

Osgood, The American Colonies in the 17th Century 499

(1904) (discussing the implicit right to possess ammunition)); Andrews v. State, 50 Tenn. 165, 178 (1871) (discussing both rights). Without protection for these closely

related rights, the Second Amendment would be toothless. 

Likewise, the First Amendment “right to speak would be 

largely ineffective if it did not include the right to engage

in financial transactions that are the incidents of its exercise.” McConnell v. Federal Election Comm’n, 540 U. S. 

93, 252 (2003) (Scalia, J., concurring in part, concurring in

judgment in part, and dissenting in part).

The same goes for the Sixth Amendment and the financial resources required to obtain a lawyer. Without constitutional protection for at least some of a defendant’s assets, the Government could nullify the right to counsel of 
 

 

4 LUIS v. UNITED STATES 

THOMAS, J., concurring in judgment 

choice. As the plurality says, an unlimited power to freeze

assets before trial “would unleash a principle of constitutional law that would have no obvious stopping place.” 

Ante, at 14; cf. McCulloch v. Maryland, 4 Wheat. 316, 431 

(1819) (“[T]he power to tax involves the power to destroy” 

and that “power to destroy may defeat and render useless 

the power to create”). Unless the right to counsel also 

protects the prerequisite right to use one’s financial resources for an attorney, I doubt that the Framers would

have gone through the trouble of adopting such a flimsy 

“parchment barrie[r].” The Federalist No. 48, p. 308 (C.

Rossiter ed. 1961) (J. Madison).

An unlimited power to freeze a defendant’s potentially

forfeitable assets in advance of trial would eviscerate the 

Sixth Amendment’s original meaning and purpose. At 

English common law, forfeiture of all real and personal 

property was a standard punishment for felonies. See 4 

W. Blackstone, Commentaries on the Laws of England 95 

(1769) (Blackstone). That harsh penalty never caught on 

in America. See Calero-Toledo v. Pearson Yacht Leasing 

Co., 416 U. S. 663, 682–683 (1974). The First Congress 

banned it. See Crimes Act of 1790, §24, 1 Stat. 117 (“[N]o 

conviction or judgment for any of the offences aforesaid, 

shall work corruption of blood, or any forfeiture of estate”). 

But the Constitution did not. See Art. III, §3, cl. 2 (“[N]o

Attainder of Treason shall work Corruption of Blood, or 

Forfeiture except during the Life of the Person attainted”).

If the Government’s mere expectancy of a total forfeiture 

upon conviction were sufficient to justify a complete pretrial asset freeze, then Congress could render the right to

counsel a nullity in felony cases. That would have shocked 

the Framers. As discussed, before adoption of the Sixth 

Amendment, felony cases (not misdemeanors) were precisely when the common law denied defendants the right

to counsel. See supra, at ___. With an unlimited power to

freeze assets before trial, the Government could well 
 

Cite as: 578 U. S. ____ (2016) 5 

THOMAS, J., concurring in judgment 

revive the common-law felony rule that the Sixth Amendment was designed to abolish.

The modern, judicially created right to Governmentappointed counsel does not obviate these concerns. As 

understood in 1791, the Sixth Amendment protected a

defendant’s right to retain an attorney he could afford. It 

is thus no answer, as the principal dissent replies, that 

defendants rendered indigent by a pretrial asset freeze 

can resort to public defenders. Post, at 14 (opinion of 

KENNEDY, J.). The dissent’s approach nullifies the original understanding of the right to counsel. To ensure that 

the right to counsel has meaning, the Sixth Amendment 

limits the assets the Government may freeze before trial

to secure eventual forfeiture. 

II 

The longstanding rule against restraining a criminal

defendant’s untainted property before conviction guarantees a meaningful right to counsel. The common-law 

forfeiture tradition provides the limits of this Sixth

Amendment guarantee. That tradition draws a clear line 

between tainted and untainted assets. The only alternative to this common-law reading is case-by-case adjudication to determine which freezes are “legitimate” and which 

are an “abuse of . . . power.” McCulloch, 4 Wheat., at 430. 

This piecemeal approach seems woefully inadequate. 

Such questions of degree are “unfit for the judicial department.” Ibid. But see Caplin & Drysdale, Chartered v. 

United States, 491 U. S. 617, 635 (1989) (stating in dicta 

that “[c]ases involving particular abuses can be dealt with

individually . . . when (and if) any such cases arise”). 

Fortunately the common law drew a clear line between

tainted and untainted assets. 

Pretrial freezes of untainted forfeitable assets did not 

emerge until the late 20th century. “‘[T]he lack of historical precedent’” for the asset freeze here is “‘[p]erhaps the 
 

6 LUIS v. UNITED STATES 

THOMAS, J., concurring in judgment 

most telling indication of a severe constitutional problem.’” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 505–506 (2010) (quoting 

Free Enterprise Fund v. Public Company Accounting 

Oversight Bd., 537 F. 3d 667, 699 (CADC 2008) (Kavanaugh, J., dissenting)). Indeed, blanket asset freezes 

are so tempting that the Government’s “prolonged reticence would be amazing if [they] were not understood to

be constitutionally proscribed.” Plaut v. Spendthrift 

Farm, Inc., 514 U. S. 211, 230 (1995); see Printz v. United 

States, 521 U. S. 898, 907–908 (1997) (reasoning that the

lack of early federal statutes commandeering state executive officers “suggests an assumed absence of such power”

given “the attractiveness of that course to Congress”).

The common law prohibited pretrial freezes of criminal 

defendants’ untainted assets. As the plurality notes, ante, 

at 13, for in personam criminal forfeitures like that at 

issue here, any interference with a defendant’s property 

traditionally required a conviction. Forfeiture was “a part, 

or at least a consequence, of the judgment of conviction.” 

The Palmyra, 12 Wheat. 1, 14 (1827) (Story, J.). The 

defendant’s “property cannot be touched before . . . the

forfeiture is completed.” 1 J. Chitty, A Practical Treatise

on the Criminal Law 737 (5th ed. 1847). This rule applied

equally “to money as well as specific chattels.” Id., at 736. 

And it was not limited to full-blown physical seizures. 

Although the defendant’s goods could be appraised and 

inventoried before trial, he remained free to “sell any of

them for his own support in prison, or that of his family, or 

to assist him in preparing for his defence on the trial.” Id., 

at 737 (emphasis added). Blackstone likewise agreed that 

a defendant “may bona fide sell any of his chattels, real or

personal, for the sustenance of himself and family between

the [offense] and conviction.” 4 Blackstone 380; see Fleetwood’s Case, 8 Co. Rep. 171a, 171b, 77 Eng. Rep. 731, 732

(K. B. 1611) (endorsing this rule). At most, a court could 
 

Cite as: 578 U. S. ____ (2016) 7 

THOMAS, J., concurring in judgment 

unwind prejudgment fraudulent transfers after conviction.

4 Blackstone 381; see Jones v. Ashurt, Skin. 357, 357–358, 

90 Eng. Rep. 159 (K. B. 1693) (unwinding a fraudulent

sale after conviction because it was designed to defeat

forfeiture). Numerous English authorities confirm these

common-law principles. Chitty, supra, at 736–737 (collecting sources).

The common law did permit the Government, however,

to seize tainted assets before trial. For example, “seizure 

of the res has long been considered a prerequisite to the 

initiation of in rem forfeiture proceedings.” United States 

v. James Daniel Good Real Property, 510 U. S. 43, 57 

(1993) (emphasis added); see The Brig Ann, 9 Cranch 289, 

291 (1815) (Story, J.). But such forfeitures were traditionally “fixed . . . by determining what property has been 

‘tainted’ by unlawful use.” Austin v. United States, 509 

U. S. 602, 627 (1993) (Scalia, J., concurring in part and 

concurring in judgment). So the civil in rem forfeiture 

tradition tracks the tainted-untainted line. It provides no 

support for the asset freeze here. 

There is a similarly well-established Fourth Amendment tradition of seizing contraband and stolen goods 

before trial based only on probable cause. See Carroll v. 

United States, 267 U. S. 132, 149–152 (1925) (discussing 

this history); Boyd v. United States, 116 U. S. 616, 623– 

624 (1886) (same). Tainted assets fall within this tradition because they are the fruits or instrumentalities of

crime. So the Government may freeze tainted assets 

before trial based on probable cause to believe that they

are forfeitable. See United States v. Monsanto, 491 U. S. 

600, 602–603, 615–616 (1989). Nevertheless, our precedents require “a nexus . . . between the item to be seized

and criminal behavior.” Warden, Md. Penitentiary v. 

Hayden, 387 U. S. 294, 307 (1967). Untainted assets 

almost never have such a nexus. The only exception is

that some property that is evidence of crime might techni-
 

 

8 LUIS v. UNITED STATES 

THOMAS, J., concurring in judgment 

cally qualify as “untainted” but nevertheless has a nexus 

to criminal behavior. See ibid. Thus, untainted assets do 

not fall within the Fourth Amendment tradition either. 

It is certainly the case that some early American statutes did provide for civil forfeiture of untainted substitute

property. See Registry Act, §12, 1 Stat. 293 (providing for 

forfeiture of a ship or “the value thereof ”); Collection Act

of July 31, 1789, §22, 1 Stat. 42 (similar for goods); United 

States v. Bajakajian, 524 U. S. 321, 341 (1998) (collecting 

statutes). These statutes grew out of a broader “sixcentury-long tradition of in personam customs fines equal 

to one, two, three, or even four times the value of the 

goods at issue.” Id., at 345–346 (KENNEDY, J., dissenting).

But this long tradition of in personam customs fines 

does not contradict the general rule against pretrial seizures of untainted property. These fines’ in personam

status strongly suggests that the Government did not 

collect them by seizing property at the outset of litigation. 

As described, that process was traditionally required for 

in rem forfeiture of tainted assets. See supra, at ___. 

There appears to be scant historical evidence, however,

that forfeiture ever involved seizure of untainted assets 

before trial and judgment, except in limited circumstances

not relevant here. Such summary procedures were reserved for collecting taxes and seizures during war. See 

Phillips v. Commissioner, 283 U. S. 589, 595 (1931); Miller 

v. United States, 11 Wall. 268, 304–306 (1871). The Government’s right of action in tax and custom-fine cases may

have been the same—“a civil action of debt.” Bajakajian, 

supra, at 343, n. 18; Stockwell v. United States, 13 Wall. 

531, 543 (1871); Adams v. Woods, 2 Cranch 336, 341 

(1805). Even so, nothing suggests trial and judgment were

expendable. See Miller, supra, at 304–305 (stating in

dicta that confiscating Confederate property through 

in rem proceedings would have raised Fifth and Sixth

Amendment concerns had they not been a war measure). 
 

 

 

Cite as: 578 U. S. ____ (2016) 9 

THOMAS, J., concurring in judgment 

The common law thus offers an administrable line: A 

criminal defendant’s untainted assets are protected from

Government interference before trial and judgment. His 

tainted assets, by contrast, may be seized before trial as 

contraband or through a separate in rem proceeding.

Reading the Sixth Amendment to track the historical line 

between tainted and untainted assets makes good sense.

It avoids case-by-case adjudication, and ensures that the

original meaning of the right to counsel does real work.

The asset freeze here infringes the right to counsel because it “is so broad that it differs not only in degree, but 

in kind, from its historical antecedents.” James Daniel 

Good, supra, at 82 (THOMAS, J., concurring in part and 

dissenting in part).

The dissenters object that, before trial, a defendant has

an identical property interest in tainted and untainted 

assets. See post, at 8–9 (opinion of KENNEDY, J.); post, at 

2 (opinion of KAGAN, J.). Perhaps so. I need not take a 

position on the matter. Either way, that fact is irrelevant.

Because the pretrial asset freeze here crosses into untainted assets, for which there is no historical tradition, it 

is unconstitutional. Any such incursion violates the Sixth 

Amendment. 

III 

Since the asset freeze here violates the Sixth Amendment, the plurality correctly concludes that the judgment 

below must be reversed. But I cannot go further and 

endorse the plurality’s atextual balancing analysis. The 

Sixth Amendment guarantees the right to counsel of 

choice. As discussed, a pretrial freeze of untainted assets

infringes that right. This conclusion leaves no room for 

balancing. Moreover, I have no idea whether, “compared

to the right to counsel of choice,” the Government’s interests in securing forfeiture and restitution lie “further from

the heart of a fair, effective criminal justice system.” Ante, 
 

 

 

10 LUIS v. UNITED STATES 

THOMAS, J., concurring in judgment 

at 12. Judges are not well suited to strike the right “balance” between those incommensurable interests. Nor do I 

think it is our role to do so. The People, through ratification, have already weighed the policy tradeoffs that constitutional rights entail. See Heller, 554 U. S., at 634–635. 

Those tradeoffs are thus not for us to reevaluate. “The 

very enumeration of the right” to counsel of choice denies

us “the power to decide . . . whether the right is really 

worth insisting upon.” Id., at 634. Such judicial balancing 

“do[es] violence” to the constitutional design. Crawford v. 

Washington, 541 U. S. 36, 67–68 (2004). And it is out of 

step with our interpretive tradition. See Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L. J. 943, 

949–952 (1987) (noting that balancing did not appear in

the Court’s constitutional analysis until the mid-20th 

century).

The plurality’s balancing analysis also casts doubt on

the constitutionality of incidental burdens on the right to

counsel. For the most part, the Court’s precedents hold 

that a generally applicable law placing only an incidental

burden on a constitutional right does not violate that 

right. See R. A. V. v. St. Paul, 505 U. S. 377, 389–390 

(1992) (explaining that content-neutral laws do not violate

the First Amendment simply because they incidentally

burden expressive conduct); Employment Div., Dept. of 

Human Resources of Ore. v. Smith, 494 U. S. 872, 878–882 

(1990) (likewise for religion-neutral laws that burden 

religious exercise). 

Criminal-procedure rights tend to follow the normal 

incidental-burden rule. The Constitution does not 

“forbi[d] every government-imposed choice in the criminal 

process that has the effect of discouraging the exercise of 

constitutional rights.” Chaffin v. Stynchcombe, 412 U. S. 

17, 30 (1973). The threat of more severe charges if a

defendant refuses to plead guilty does not violate his right 

to trial. See Bordenkircher v. Hayes, 434 U. S. 357, 365 
 

 

Cite as: 578 U. S. ____ (2016) 11 

THOMAS, J., concurring in judgment 

(1978). And, in my view, prosecutorial arguments that 

raise the “cost” of remaining silent do not violate a defendant’s right against self-incrimination (at least as a matter 

of original meaning). See Mitchell v. United States, 526 

U. S. 314, 342–343 (1999) (THOMAS, J., dissenting); id., at 

331–336 (Scalia, J., dissenting). 

The Sixth Amendment arguably works the same way.

“[A] defendant may not insist on representation by an

attorney he cannot afford.” Wheat v. United States, 486 

U. S. 153, 159 (1988). The Constitution perhaps guarantees only a “freedom of counsel” akin to the First Amendment freedoms of speech and religion that also “depen[d] 

in part on one’s financial wherewithal.” Caplin & Drysdale, 491 U. S., at 628. Numerous laws make it more 

difficult for defendants to retain a lawyer. But that fact 

alone does not create a Sixth Amendment problem. For 

instance, criminal defendants must still pay taxes even 

though “these financial levies may deprive them of resources that could be used to hire an attorney.” Id., at 

631–632. So I lean toward the principal dissent’s view 

that incidental burdens on the right to counsel of choice 

would not violate the Sixth Amendment. See post, at 5–6, 

11–12 (opinion of KENNEDY, J.).

On the other hand, the Court has said that the right to

counsel guarantees defendants “a fair opportunity to 

secure counsel of [their] choice.” Powell v. Alabama, 287 

U. S. 45, 52–53 (1932) (emphasis added). The state court 

in Powell denied the defendants such an opportunity, the

Court held, by moving to trial so quickly (six days after 

indictment) that the defendants had no chance to communicate with family or otherwise arrange for representation. Ibid. The schedule in Powell was not designed to

block counsel, which suggests the usual incidental-burden 

rule might be inapt in the Sixth Amendment context. 

leave the question open because this case does not require 

an answer. 

I 
 

12 LUIS v. UNITED STATES 

THOMAS, J., concurring in judgment 

The asset freeze here is not merely an incidental burden

on the right to counsel of choice; it targets a defendant’s 

assets, which are necessary to exercise that right, simply

to secure forfeiture upon conviction. The prospect of that

criminal punishment, however, is precisely why the Constitution guarantees a right to counsel. The Sixth 

Amendment does not permit the Government’s bare expectancy of forfeiture to void that right. When the potential

of a conviction is the only basis for interfering with a 

defendant’s assets before trial, the Constitution requires

the Government to respect the longstanding common-law 

protection for a defendant’s untainted property.

For these reasons, I concur only in the judgment. 
 

_________________ 

_________________ 

 

 

 

 

 

 

 

 

 

 

 


 


 


 

Cite as: 578 U. S. ____ (2016) 1 

KENNEDY, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 14–419 

SILA LUIS, PETITIONER v. UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
 

APPEALS FOR THE ELEVENTH CIRCUIT
 

[March 30, 2016]
 

JUSTICE KENNEDY, with whom JUSTICE ALITO joins, 

dissenting. 

The plurality and JUSTICE THOMAS find in the Sixth 

Amendment a right of criminal defendants to pay for an

attorney with funds that are forfeitable upon conviction so

long as those funds are not derived from the crime alleged.

That unprecedented holding rewards criminals who hurry

to spend, conceal, or launder stolen property by assuring

them that they may use their own funds to pay for an 

attorney after they have dissipated the proceeds of their

crime. It matters not, under today’s ruling, that the defendant’s remaining assets must be preserved if the victim

or the Government is to recover for the property wrongfully taken. By granting a defendant a constitutional

right to hire an attorney with assets needed to make a

property-crime victim whole, the plurality and JUSTICE 

THOMAS ignore this Court’s precedents and distort the

Sixth Amendment right to counsel.

The result reached today makes little sense in cases

that involve fungible assets preceded by fraud, embezzlement, or other theft. An example illustrates the point.

Assume a thief steals $1 million and then wins another $1 

million in a lottery. After putting the sums in separate

accounts, he or she spends $1 million. If the thief spends

his or her lottery winnings, the Government can restrain

the stolen funds in their entirety. The thief has no right to 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2 LUIS v. UNITED STATES 

KENNEDY, J., dissenting 

use those funds to pay for an attorney. Yet if the thief 

heeds today’s decision, he or she will spend the stolen

money first; for if the thief is apprehended, the $1 million

won in the lottery can be used for an attorney. This result 

is not required by the Constitution.

The plurality reaches its conclusion by weighing a defendant’s Sixth Amendment right to counsel of choice 

against the Government’s interest in preventing the dissipation of assets forfeitable upon conviction. In so doing, 

it—like JUSTICE THOMAS—sweeps aside the decisions in 

Caplin & Drysdale, Chartered v. United States, 491 U. S. 

617 (1989), and United States v. Monsanto, 491 U. S. 600 

(1989), both of which make clear that a defendant has no

Sixth Amendment right to spend forfeitable assets (or 

assets that will be forfeitable) on an attorney. The principle the Court adopted in those cases applies with equal

force here. Rather than apply that principle, however, the

plurality and concurrence adopt a rule found nowhere in

the Constitution or this Court’s precedents—that the

Sixth Amendment protects a person’s right to spend otherwise forfeitable assets on an attorney so long as those

assets are not related to or the direct proceeds of the

charged crime. Ante, at 1 (plurality opinion); ante, at 1 

(THOMAS, J., concurring in judgment). The reasoning in 

these separate opinions is incorrect, and requires this 

respectful dissent. 

I 

This case arises from petitioner Sila Luis’ indictment for 

conspiring to commit health care fraud against the United

States. The Government alleges that, as part of her illegal

scheme, Luis used her health care companies to defraud

Medicare by billing for services that were not medically

necessary or actually provided. The charged crimes, the

Government maintains, resulted in the payment of $45

million in improper Medicare benefits to Luis’ companies. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 


 

Cite as: 578 U. S. ____ (2016) 3 

KENNEDY, J., dissenting 

The same day Luis was indicted, the Government initiated a civil action under 18 U. S. C. §1345 to restrain Luis’ 

assets before her criminal trial, including substitute property of an amount equivalent to the value of the proceeds

of her alleged crimes. To establish its entitlement to a 

restraining order, the Government showed that Luis and

her co-conspirators were dissipating the illegally obtained 

assets. In particular, they were transferring money involved in the scheme to various individuals and entities, 

including shell corporations owned by Luis’ family members. As part of this process, Luis opened and closed well

over 40 bank accounts and withdrew large amounts of

cash to hide the conspiracy’s proceeds. Luis personally

received almost $4.5 million in funds and used at least 

some of that money to purchase luxury items, real estate,

and automobiles, and to travel. Based on this and other 

evidence, the District Court entered an order prohibiting

Luis from spending up to $45 million of her assets.

Before the Court of Appeals for the Eleventh Circuit,

Luis argued that the Sixth Amendment required that she

be allowed to spend the restrained substitute assets on an 

attorney. The Court of Appeals disagreed, concluding that 

“[t]he arguments made by Luis . . . are foreclosed by the

United States Supreme Court decisions in . . . Caplin & 

Drysdale [and] Monsanto.” 564 Fed. Appx. 493, 494 (2014) 

( per curiam). In my view the Court of Appeals was correct, and its judgment should be affirmed. 

II
 

A
 

In Caplin & Drysdale, a law firm had represented a 

defendant charged with running a massive drugdistribution scheme. The defendant pleaded guilty and

agreed to forfeit his assets. The law firm then sought to

recover a portion of the forfeited assets for its legal fees.

The firm argued that, when a defendant needs forfeitable 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4 LUIS v. UNITED STATES 

KENNEDY, J., dissenting 

assets to pay for an attorney, the forfeiture of those assets

violates the defendant’s Sixth Amendment right to be

represented by his counsel of choice.

The Court rejected the firm’s argument. The Sixth 

Amendment, the Court explained, “guarantees defendants

in criminal cases the right to adequate representation, but

those who do not have the means to hire their own lawyers

have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts.” 

Caplin & Drysdale, 491 U. S., at 624. As for the right to 

choose one’s own attorney, the Court observed that “nothing in [the forfeiture statute] prevents a defendant from

hiring the attorney of his choice, or disqualifies any attorney from serving as a defendant’s counsel.” Id., at 625. 

Even defendants who possess “nothing but assets the 

Government seeks to have forfeited . . . may be able to find

lawyers willing to represent them, hoping that their fees

will be paid in the event of acquittal, or via some other

means that a defendant might come by in the future.” 

Ibid. The burden imposed by forfeiture law, the Court

concluded, is thus “a limited one.” Ibid. 

Caplin & Drysdale also repudiated the firm’s contention

that the Government has only a modest interest in forfeitable assets that may be used to retain an attorney. In 

light of the importance of separating criminals from their

ill-gotten gains and providing restitution to victims of 

crime, the Court found “a strong governmental interest in

obtaining full recovery of all forfeitable assets, an interest

that overrides any Sixth Amendment interest in permitting criminals to use assets adjudged forfeitable to pay for

their defense.” Id., at 631. 

The same day the Court decided Caplin & Drysdale it 

decided Monsanto, which addressed the pretrial restraint 

of a defendant’s assets “where the defendant seeks to use 

those assets to pay an attorney.” 491 U. S., at 602. The 

Court rejected the notion that there is a meaningful dis-
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cite as: 578 U. S. ____ (2016) 5 

KENNEDY, J., dissenting 

tinction, for Sixth Amendment purposes, between the 

restraint of assets before trial and the forfeiture of assets 

after trial: “[I]f the Government may, post-trial, forbid the

use of forfeited assets to pay an attorney, then surely no

constitutional violation occurs when, after probable cause

is adequately established, the Government obtains an 

order barring a defendant from frustrating that end by

dissipating his assets prior to trial.” Id., at 616. The 

Court noted, moreover, that “it would be odd to conclude 

that the Government may not restrain property . . . in [a 

defendant’s] possession, based on a finding of probable

cause, when we have held that (under appropriate circumstances), the Government may restrain persons where 

there is a finding of probable cause.” Id., at 615–616. 

When a defendant himself can be restrained pretrial,

there is “no constitutional infirmity” in a similar pretrial

restraint of a defendant’s property “to protect its ‘appearance’ at trial and protect the community’s interest in full 

recovery of any ill-gotten gains.” Id., at 616. 

B 

The principle the Court announced in Caplin & Drysdale and Monsanto controls the result here. Those cases 

establish that a pretrial restraint of assets forfeitable 

upon conviction does not contravene the Sixth Amendment

even when the defendant possesses no other funds with

which to pay for an attorney. The restraint itself does not 

prevent a defendant from seeking to convince his or her

counsel of choice to take on the representation without

advance payment. See Caplin & Drysdale, 491 U. S., at 

625. It does not disqualify any attorney the defendant

might want. Ibid. And it does not prevent a defendant

from borrowing funds to pay for an attorney who is otherwise too expensive. To be sure, a pretrial restraint may

make it difficult for a defendant to secure counsel who 

insists that high defense costs be paid in advance. That 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6 LUIS v. UNITED STATES 

KENNEDY, J., dissenting 

difficulty, however, does not result in a Sixth Amendment 

violation any more than high taxes or other government

exactions that impose a similar burden. See, e.g., id., at 

631–632 (“Criminal defendants . . . are not exempted from

federal, state, and local taxation simply because these

financial levies may deprive them of resources that could

be used to hire an attorney”).

The pretrial restraint in Monsanto was no more burdensome than the pretrial restraint at issue here. Luis, like 

the defendant in Monsanto, was not barred from obtaining

the assistance of any particular attorney. She was free to 

seek lawyers willing to represent her in the hopes that

their fees would be paid at some future point. In short, 

§1345’s authorization of a pretrial restraint of substitute

assets places no greater burden on a defendant like Luis

than the forfeiture and pretrial restraint statute placed on

the defendant in Monsanto. 

In addition, the Government has the same “strong . . . 

interest in obtaining full recovery of all forfeitable assets”

here as it did in Caplin & Drysdale and Monsanto. See 

Caplin & Drysdale, supra, at 631. If Luis is convicted, 

the Government has a right to recover Luis’ substitute 

assets—the money she kept for herself while spending the 

taxpayer dollars she is accused of stealing. Just as the 

Government has an interest in ensuring Luis’ presence at

trial—an interest that can justify a defendant’s pretrial

detention—so too does the Government have an interest in 

ensuring the availability of her substitute assets after 

trial, an interest that can justify pretrial restraint.

One need look no further than the Court’s concluding 

words in Monsanto to know the proper result here: “[N]o 

constitutional violation occurs when, after probable cause

[to believe that a defendant’s assets will be forfeitable] is

adequately established, the Government obtains an order

barring a defendant from . . . dissipating his assets prior to

trial.” 491 U. S., at 616. The Government, having estab-
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cite as: 578 U. S. ____ (2016) 7 

KENNEDY, J., dissenting 

lished probable cause to believe that Luis’ substitute 

assets will be forfeitable upon conviction, should be permitted to obtain a restraining order barring her from 

spending those funds prior to trial. Luis should not be 

allowed to circumvent that restraint by using the funds to

pay for a high, or even the highest, priced defense team

she can find. 

III 

The plurality maintains that Caplin & Drysdale and 

Monsanto do not apply because “the nature of the assets at

issue here differs from the assets at issue in those earlier 

cases.” Ante, at 5. According to the plurality, the property

here “belongs to the defendant, pure and simple.” Ibid. It 

states that, while “title to property used to commit a crime 

. . . often passes to the Government at the instant the

crime is planned or committed,” title to Luis’ untainted 

property has not passed to the Government. Ante, at 6. 

“That fact,” the plurality concludes, “undermines the 

Government’s reliance upon precedent, for both Caplin & 

Drysdale and Monsanto relied critically upon the fact that

the property at issue was ‘tainted,’ and that title to the 

property therefore had passed from the defendant to the

Government before the court issued its order freezing (or

otherwise disposing of) the assets.” Ibid. 

These conclusions depend upon a key premise: The

Government owns tainted assets before a defendant is 

convicted. That premise is quite incorrect, for the common

law and this Court’s precedents establish that the opposite

is true. The Government does not own property subject to

forfeiture, whether tainted or untainted, until the Government wins a judgment of forfeiture or the defendant is

convicted. As Blackstone noted with emphasis, “goods and

chattels are forfeited by conviction.” 4 W. Blackstone, 

Commentaries on the Laws of England 380 (1769) (Blackstone). Justice Story likewise observed that “no right to 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

8 LUIS v. UNITED STATES 

KENNEDY, J., dissenting 

the goods and chattels of the felon could be acquired by the

crown by the mere commission of the offence; but the right

attached only by the conviction of the offender.” The 

Palmyra, 12 Wheat. 1, 14 (1827); ibid. (“In the contemplation of the common law, the offender’s right was not devested until the conviction”).

These authorities demonstrate that Caplin & Drysdale 

and Monsanto cannot be distinguished based on “the 

nature of the assets at issue.” Title to the assets in those 

cases did not pass from the defendant to the Government

until conviction. As a result, the assets restrained before 

conviction in Monsanto were on the same footing as the

assets restrained here: There was probable cause to believe that the assets would belong to the Government upon 

conviction. But when the court issued its restraining 

order, they did not. The Government had no greater

ownership interest in Monsanto’s tainted assets than it

has in Luis’ substitute assets. 

The plurality seeks to avoid this conclusion by relying

on the relation-back doctrine. In its view the doctrine 

gives the Government title to tainted assets upon the

commission of a crime rather than upon conviction or

judgment of forfeiture. Even assuming, as this reasoning

does, that the relation-back doctrine applies only to tainted 

assets—but see United States v. McHan, 345 F. 3d 262, 

270–272 (CA4 2003)—the doctrine does not do the work

the plurality’s analysis requires.

The relation-back doctrine, which is incorporated in 

some forfeiture statutes, see, e.g., 21 U. S. C. §853(c), has 

its origins in the common law. Under this legal construct, 

the Government’s title to certain types of forfeitable property relates back to the time at which the defendant committed the crime giving rise to the forfeiture. See 4 Blackstone 375 (“forfeiture [of real estates] relates backwards to

the time of the treason committed; so as to avoid all intermediate sales and incumbrances”); United States v. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cite as: 578 U. S. ____ (2016) 9 

KENNEDY, J., dissenting 

Parcel of Rumson, N. J., Land, 507 U. S. 111, 125 (1993) 

(plurality opinion). The doctrine’s purpose is to prevent

defendants from avoiding forfeiture by transferring their

property to third parties. The doctrine, however, does not 

alter the time at which title to forfeitable property passes

to the Government. Title is transferred only when a conviction is obtained or the assets are otherwise forfeited; it 

is only once this precondition is met that relation back to

the time of the offense is permitted. See ibid. (The relation-back doctrine’s “fictional and retroactive vesting” is 

“not self-executing”); id., at 132 (Scalia, J., concurring in

judgment) (“The relation-back rule applies only in cases

where the Government’s title has been consummated by

seizure, suit, and judgment, or decree of condemnation,

whereupon the doctrine of relation carries back the title to 

the commission of the offense” (internal quotation marks,

brackets, and citations omitted)); United States v. Grundy, 

3 Cranch 337, 350–351 (1806) (Marshall, C. J., opinion for

the Court) (a forfeitable asset does not “ves[t] in the government until some legal step shall be taken for the assertion of its right”); 4 Blackstone 375 (“But, though after

attainder the forfeiture relates back to the time of the 

treason committed, yet it does not take effect unless an

attainder be had”). In short, forfeitable property does not 

belong to the Government in any sense before judgment or

conviction. Cf. ante, at 9 (plurality opinion). Until the 

Government wins a judgment or conviction, “someone else

owns the property.” Parcel of Rumson, supra, at 127. 

The plurality is correct to note that Caplin & Drysdale 

discussed the relation-back provision in the forfeiture 

statute at issue. The Caplin & Drysdale Court did not do 

so, however, to suggest that forfeitable assets can be restrained only when the assets are tainted. Rather, the 

Court referred to the provision to rebut the law firm’s

argument that the United States has less of an interest in 

forfeitable property than robbery victims have in their 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

10 LUIS v. UNITED STATES 

KENNEDY, J., dissenting 

stolen property. 491 U. S., at 627–628. More to the point, 

central to the Court’s decision was its observation that, 

because the Government obtained “title to [the defendant’s] assets upon conviction,” it would be “peculiar” to 

hold that the Sixth Amendment still gave the defendant

the right to pay his attorney with those assets. Id., at 628. 

Monsanto reinforced that view, holding that the pretrial

restraint of assets—money to which the Government does

not yet have title—is permissible even when the defendant

wants to use those assets to pay for counsel. 491 U. S., at 

616. True, the assets in Caplin & Drysdale and Monsanto 

happened to be derived from the criminal activity alleged;

but the Court’s reasoning in those cases was based on the

Government’s entitlement to recoup money from criminals

who have profited from their crimes, not on tracing or

identifying the actual assets connected to the crime. For 

this reason, the principle the Court announced in those

cases applies whenever the Government obtains (or will

obtain) title to assets upon conviction. Nothing in either 

case depended on the assets being tainted or justifies 

refusing to apply the rule from those cases here.

The plurality makes much of various statutory provisions that, in its view, give the United States a superior

interest before trial in tainted assets but not untainted 

ones. See ante, at 8–9. That view, however, turns not on 

any reasoning specific to the Sixth Amendment but rather 

on Congress’ differential treatment of tainted versus 

untainted assets. The plurality makes no attempt to 

explain why Congress’ decision in §1345 to permit the

pretrial restraint of substitute assets is not also relevant

to its analysis. More to the point, Congress’ statutory

treatment of property is irrelevant to a Sixth Amendment 

analysis. The protections afforded by the Sixth Amendment should not turn on congressional whims.

The plurality’s concern over the implications of the 

Government’s position appears animated by a hypothetical 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cite as: 578 U. S. ____ (2016) 11 

KENNEDY, J., dissenting 

future case where a defendant’s assets are restrained not 

to return stolen funds but, for example, to pay a fine. That 

case, however, is not the case before the Court. Section 

1345 authorizes pretrial restraints to preserve substitute

assets, not to provide for fines greater than the amounts

stolen. The holdings in Caplin & Drysdale and Monsanto, 

and what should be the holding today, thus, do not address the result in a case involving a fine. The governmental interests at stake when a fine is at issue are quite

separate and distinct from the interests implicated here.

This case implicates the Government’s interest in preventing the dissipation, transfer, and concealment of stolen

funds, as well as its interest in preserving for victims any

funds that remain. Those interests justify, in cases like

this one, the pretrial restraint of substitute assets. 

IV 

The principle the plurality and JUSTICE THOMAS announce today—that a defendant has a right to pay for an

attorney with forfeitable assets so long as those assets are

not related to or the direct proceeds of the crime alleged—

has far-reaching implications. There is no clear explanation why this principle does not extend to the exercise of

other constitutional rights. “If defendants have a right to

spend forfeitable assets on attorney’s fees, why not on

exercises of the right to speak, practice one’s religion, or 

travel?” Caplin & Drysdale, 491 U. S., at 628. Nor does 

either opinion provide any way to distinguish between the

restraint at issue here and other governmental interferences with a defendant’s assets. If the restraint of Luis’ 

assets violates the Sixth Amendment, could the same be 

said of any imposition on a criminal defendant’s assets? 

Cf. id., at 631 (“[S]eizures of assets to secure potential tax

liabilities . . . may impair a defendant’s ability to retain 

counsel . . . [y]et these assessments have been upheld 

against constitutional attack”). If a defendant is fined in a 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

12 LUIS v. UNITED STATES 

KENNEDY, J., dissenting 

prior matter, is the Government barred from collecting the

fine if it will leave the defendant unable to afford a particular attorney in a current case? No explanation is provided for what, if any, limits there are on the invented

exemption for attorney’s fees. 

The result today also creates arbitrary distinctions 

between defendants. Money, after all, is fungible. There

is no difference between a defendant who has preserved

his or her own assets by spending stolen money and a

defendant who has spent his or her own assets and 

preserved stolen cash instead. Yet the plurality and 

concurrence—for different reasons—find in the Sixth 

Amendment the rule that greater protection is given to the

defendant who, by spending, laundering, exporting, or 

concealing stolen money first, preserves his or her remaining funds for use on an attorney.

The true winners today are sophisticated criminals who

know how to make criminal proceeds look untainted. 

They do so every day. They “buy cashier’s checks, money

orders, nonbank wire transfers, prepaid debit cards, and

traveler’s checks to use instead of cash for purchases or

bank deposits.” Dept. of Treasury, National Money Laundering Risk Assessment 2015, p. 3. They structure their

transactions to avoid triggering recordkeeping and reporting requirements. Ibid. And they open bank accounts in

other people’s names and through shell companies, all to

disguise the origins of their funds. Ibid. 

The facts of this case illustrate the measures one might

take to conceal or dispose of ill-gotten gains. In declarations relied on by the District Court, the Federal Bureau of

Investigation (FBI) Special Agent investigating the case

explained that “Luis transferred monies or caused the

transfer of monies received from Medicare to . . . family

members and companies owned by family members,” 

including $1,471,000 to her husband, and over a million

dollars to her children and former daughter-in-law. App. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cite as: 578 U. S. ____ (2016) 13 

KENNEDY, J., dissenting 

72–73. She also “used Medicare monies for foreign travel,”

including approximately 31 trips to Mexico, “where she 

owns several properties and has numerous bank accounts.” Id., at 73. She “transferred Medicare monies 

overseas through international wire transfers to Mexico.” 

Ibid. And the Government was “able to trace Medicare 

proceeds going into [all but one of the] bank account[s]

owned by Defendant Luis and/or her companies listed in

the Court’s” temporary restraining order. Id., at 74. No 

doubt Luis would have enjoyed her travel and expenditures even more had she known that, were her alleged

wrongs discovered, a majority of the Justices would insist

that she be allowed to pay her chosen legal team at the

price they set rather than repay her victim.

Notwithstanding that the Government established 

probable cause to believe that Luis committed numerous

crimes and used the proceeds of those crimes to line her

and her family’s pockets, the plurality and JUSTICE 

THOMAS reward Luis’ decision to spend the money she is

accused of stealing rather than her own. They allow Luis

to bankroll her private attorneys as well as “the best and

most industrious investigators, experts, paralegals, and

law clerks” money can buy—a legal defense team Luis

claims she cannot otherwise afford. See Corrected Motion 

to Modify the Restraining Order in No. 12–Civ–23588,

p. 13 (SD Fla., Nov. 16, 2012). The Sixth Amendment does 

not provide such an unfettered right to counsel of choice.

It is well settled that the right to counsel of choice is

limited in important respects. A defendant cannot demand a lawyer who is not a member of the bar. Wheat v. 

United States, 486 U. S. 153, 159 (1988). Nor may a defendant insist on an attorney who has a conflict of interest. Id., at 159, 164. And, as quite relevant here, “a defendant may not insist on representation by an attorney

he cannot afford.” Id., at 159. As noted earlier, “those 

who do not have the means to hire their own lawyers have 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

14 LUIS v. UNITED STATES 

KENNEDY, J., dissenting 

no cognizable complaint so long as they are adequately

represented by attorneys appointed by the courts.” Caplin 

& Drysdale, 491 U. S., at 624. As a result of the District 

Court’s order, Luis simply cannot afford the legal team she

desires unless they are willing to represent her without

advance payment. For Sixth Amendment purposes, the

only question here is whether Luis’ right to adequate 

representation is protected. That question is not before 

the Court. Neither Luis nor the plurality nor JUSTICE 

THOMAS suggests that Luis will receive inadequate representation if she is not able to use the restrained funds. 

And this is for good reason. Given 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. See 

generally T. Giovanni & R. Patel, Gideon at 50: Three 

Reforms to Revive the Right to Counsel 1 (2013), online at

http://www.brennancenter.org/sites/default/files/publications/

Gideon_Report_040913.pdf (as last visited Mar. 28, 2016).

Since Luis cannot afford the legal team she desires, and

because there is no indication that she will receive inadequate representation as a result, she does not have a 

cognizable Sixth Amendment complaint.

The plurality does warn that accepting the Government’s position “would—by increasing the governmentpaid-defender workload—render less effective the basic 

right the Sixth Amendment seeks to protect.” Ante, at 15. 

Public-defender offices, the plurality suggests, already

lack sufficient attorneys to meet nationally recommended

caseload standards. Ibid. But concerns about the caseloads of public-defender offices do not justify a constitutional command to treat a defendant accused of committing a lucrative crime differently than a defendant who is

indigent from the outset. The Constitution does not require victims of property crimes to fund subsidies for 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cite as: 578 U. S. ____ (2016) 15 

KENNEDY, J., dissenting 

members of the private defense bar.

Because the rule announced today is anchored in the

Sixth Amendment, moreover, it will frustrate not only the 

Federal Government’s use of §1345 but also the States’ 

administration of their forfeiture schemes. Like the Federal Government, States also face criminals who engage in 

money laundering through extensive enterprises that 

extend to other States and beyond. Where a defendant 

has put stolen money beyond a State’s reach, a State 

should not be precluded from freezing the assets the defendant has in hand. The obstacle that now stands in the 

States’ way is not found in the Constitution. It is of the 

Court’s making.

Finally, the plurality posits that its decision “should 

prove workable” because courts “have experience separating tainted assets from untainted assets, just as they have

experience determining how much money is needed to 

cover the costs of a lawyer.” Ante, at 15–16. Neither of 

these assurances is adequate.

As to the first, the plurality cites a number of sources for

the proposition that courts have rules that allow them to

implement the distinction it adopts. Ibid. Those rules, 

however, demonstrate the illogic of the conclusion that

there is a meaningful difference between the actual dollars

stolen and the dollars of equivalent value in a defendant’s 

bank account. The plurality appears to agree that, if a 

defendant is indicted for stealing $1 million, the Government can obtain an order preventing the defendant from

spending the $1 million he or she is believed to have stolen. The situation gets more complicated, however, when

the defendant deposits the stolen $1 million into an account that already has $1 million. If the defendant then 

spends $1 million from the account, it cannot be determined with certainty whether the money spent was stolen

money rather than money the defendant already had. The 

question arises, then, whether the Government can re-
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

16 LUIS v. UNITED STATES 

KENNEDY, J., dissenting 

strain the remaining million.

One of the treatises on which the plurality relies answers that question. The opinion cites A. Scott’s Law of 

Trusts to support the claim that “the law has tracing rules

that help courts implement the kind of distinction . . . 

require[d] in this case.” Ante, at 15–16. The treatise says

that, if a “wrongdoer has mingled misappropriated money

with his own money and later makes withdrawals from

the mingled fund,” assuming the withdrawals do not 

result in a zero balance, a person who has an interest in 

the misappropriated money can recover it from the 

amount remaining in the account. 4 A. Scott, Law of 

Trusts §518, pp. 3309–3310 (1956). Based on this rule, 

one would expect the plurality to agree that, in the above 

hypothetical, the Government could restrain up to the full

amount of the stolen funds—that is, the full $1 million— 

without having to establish whether the $1 million the

defendant spent was stolen money or not. If that is so, it 

is hard to see why its opinion treats as different a situation where the defendant has two bank accounts—one 

with the $1 million from before the crime and one with the 

stolen $1 million. If the defendant spends the money in

the latter account, the Government should be allowed to 

freeze the money in the former account in the same way it

could if the defendant spent the money out of a single,

commingled account. The Sixth Amendment provides no

justification for the decision to mandate different treatment in these all-but-identical situations. 

The plurality sees “little reason to worry” about defendants circumventing forfeiture because courts can use rules

like the tracing rule discussed above. Ante, at 16. It also 

asserts that these rules “will likely . . . prevent Luis from

benefiting from many of [her] money transfers and purchases.” Ibid. That proposition is doubtful where, as here,

“a lot of money was taken out in cash from the defendant’s

bank accounts” because “[y]ou can’t trace cash.” App. 155. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cite as: 578 U. S. ____ (2016) 17 

KENNEDY, J., dissenting 

Even were that not the case, this assertion fails to appreciate that it takes time to trace tainted assets. As the FBI 

agent testified, at the time of the hearing both the tracing

and the FBI’s analysis were “still ongoing.” Ibid. The 

whole purpose of a pretrial restraint under §1345 is to

maintain the status quo in cases, like this one, where a

defendant is accused of committing crimes that involve

fungible property, e.g., a banking law violation or a federal 

health care offense. The plurality’s approach serves to

benefit the most sophisticated of criminals whose web of

transfers and concealment will take the longest to unravel. For if the Government cannot establish at the 

outset that every dollar subject to restraint is derived from

the crime alleged, the defendant can spend that money on

whatever defense team he or she desires. 

Of equal concern is the assertion that a defendant’s 

right to counsel of choice is limited to only those attorneys

who charge a “reasonable fee.” Ante, at 16. If Luis has a 

right to use the restrained substitute assets to pay for the

counsel of her choice, then why can she not hire the most

expensive legal team she can afford? In the plurality’s 

view, the reason Luis can use the restrained funds for an 

attorney is because they are still hers. But if that is so, 

then she should be able to use all $2 million of her remaining assets to pay for a lawyer. The plurality’s willingness

to curtail the very right it recognizes reflects the need to

preserve substitute assets from further dissipation. 

* * * 

Today’s ruling abandons the principle established in 

Caplin & Drysdale and Monsanto. In its place is an approach that creates perverse incentives and provides

protection for defendants who spend stolen money rather

than their own. 

In my respectful view this is incorrect, and the judgment

of the Court of Appeals should be affirmed. 
_________________ 

_________________ 

 


 

Cite as: 578 U. S. ____ (2016) 1 

KAGAN, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 14–419 

SILA LUIS, PETITIONER v. UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT
 

[March 30, 2016]

 JUSTICE KAGAN, dissenting. 

 I find United States v. Monsanto, 491 U. S. 600 (1989), a 

troubling decision. It is one thing to hold, as this Court

did in Caplin & Drysdale, Chartered v. United States, 491 

U. S. 617 (1989), that a convicted felon has no Sixth 

Amendment right to pay his lawyer with funds adjudged

forfeitable. Following conviction, such assets belong to the 

Government, and “[t]here is no constitutional principle 

that gives one person the right to give another’s property

to a third party.” Id., at 628. But it is quite another thing

to say that the Government may, prior to trial, freeze 

assets that a defendant needs to hire an attorney, based 

on nothing more than “probable cause to believe that the

property will ultimately be proved forfeitable.” Monsanto, 

491 U. S., at 615. At that time, “the presumption of innocence still applies,” and the Government’s interest in the 

assets is wholly contingent on future judgments of conviction and forfeiture. Kaley v. United States, 571 U. S. ___, 

___ (2014) (slip op., at 6). I am not altogether convinced 

that, in this decidedly different circumstance, the Government’s interest in recovering the proceeds of crime

ought to trump the defendant’s (often highly consequential) right to retain counsel of choice. 

But the correctness of Monsanto is not at issue today.

Petitioner Sila Luis has not asked this Court either to 

overrule or to modify that decision; she argues only that it 
 

 

2 LUIS v. UNITED STATES 

KAGAN, J., dissenting 

does not answer the question presented here. And because Luis takes Monsanto as a given, the Court must do 

so as well. 

On that basis, I agree with the principal dissent that 

Monsanto controls this case. See ante, at 5–7 (opinion of 

KENNEDY, J.). Because the Government has established 

probable cause to believe that it will eventually recover 

Luis’s assets, she has no right to use them to pay an attorney. See Monsanto, 491 U. S., at 616 (“[N]o constitutional violation occurs when, after probable cause is adequately established, the Government obtains an order 

barring a defendant from . . . dissipating his assets prior to

trial”).

The plurality reaches a contrary result only by differentiating between the direct fruits of criminal activity and

substitute assets that become subject to forfeiture when

the defendant has run through those proceeds. See ante, 

at 5–6. But as the principal dissent shows, the Government’s and the defendant’s respective legal interests in 

those two kinds of property, prior to a judgment of guilt, 

are exactly the same: The defendant maintains ownership 

of either type, with the Government holding only a contingent interest. See ante, at 7–10. Indeed, the plurality’s

use of the word “tainted,” to describe assets at the preconviction stage, makes an unwarranted assumption

about the defendant’s guilt. See ante, at 5 (characterizing 

such assets as, for example, “robber’s loot”). Because the 

Government has not yet shown that the defendant committed the crime charged, it also has not shown that allegedly tainted assets are actually so. 

And given that money is fungible, the plurality’s approach leads to utterly arbitrary distinctions as among 

criminal defendants who are in fact guilty. See ante, at 12 

(opinion of KENNEDY, J.). The thief who immediately 

dissipates his ill-gotten gains and thereby preserves his 

other assets is no more deserving of chosen counsel than 
Cite as: 578 U. S. ____ (2016) 3 

KAGAN, J., dissenting 

the one who spends those two pots of money in reverse

order. Yet the plurality would enable only the first defendant, and not the second, to hire the lawyer he wants. 

I cannot believe the Sixth Amendment draws that irrational line, much as I sympathize with the plurality’s 

effort to cabin Monsanto. Accordingly, I would affirm the

judgment below.