1 (Slip Opinion) OCTOBER TERM, 2015

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 co urt 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 preser ve the $2 million remaining in Luis’ possession for payment of restitut ion and other criminal penalties, the Government secured a pretrial order prohibiting Luis from dissi

pating her assets, including assets unrelated to her alleged crimes. Though the District Court recogniz ed that the order might prevent Luis from obtaining counsel of he r 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.

J USTICE B REYER , joined by T HE C HIEF J USTICE , J USTICE G INSBURG

, and J USTICE S OTOMAYOR , concluded that the pretrial restraint of le

gitimate, untainted assets needed to retain counsel of choice violates

the Sixth Amendment. The nature and importance of the constitu

tional 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. Ala

bama , 287 U. S. 45, 53, that he “can afford to hire,” Caplin & Drysdale, Chartered v. United States , 491 U. S. 617, 624. This Court has2 LUIS v. UNITED STATES

Syllabus

consistently referred to the right to counsel of choice as “fundamen

tal.” Pp. 3–5.

(b) While the Government does not deny Luis’ fundamental right to be represented by a qualified atto rney whom she chooses and can af

ford 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 conse

quence by pointing out that there are important interests on the oth

er 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 furthe r 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 na ture of the assets at issue here
differs from the assets at issue in those earlier cases. And that dis

tinction makes a difference. Pp. 5–16. (1) Here, the property is untainted, i.e. , it belongs to Luis. As de

scribed in Caplin & Drysdale and Monsanto

, the Government may
well be able to freeze before trial “tainted” assets— e.g. , loot, contra

band, or property othe rwise associated with the planning, imple

menting, or concealing of a crime. As a matter of property law, the defendant’s ownership interest in such property is imperfect. For ex

ample, a different federal statute prov ides 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 re

strictions upon Luis’ untainted pr operty 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 proper ty may allow a person without a present interest in a piece of proper ty 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 na

ture of the competing interests argu es against this kind of court or

der. On the one side is a fundam ental Sixth Amendment right to as

sistance 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 la tter interests are important, but— compared to the right to counsel—t hey seem to lie somewhat further from the heart of a fair, effectiv e 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

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

Syllabus

trary. Indeed, there appe ars to be no decision of this Court authoriz

ing 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 co unsel considerably. It would, in fact, unleash a principle of constitu tional law with no obvious stop

ping place, as Congress could writ e more statutes authorizing re

straints 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 upsh ot is a substantial risk that ac

cepting the Government’s views woul d render less effective the basic right the Sixth Amendment seeks to protect. Pp. 11–15. (3) The constitutional line be tween a criminal defendant’s taint

ed 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 sepa

rating tainted assets from untainted assets, just as they have experi

ence determining how much money is needed to cover the costs of a lawyer. Pp. 15–16.

J USTICE T HOMAS 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 se

lect counsel of one’s choice” is t hus “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 pre

requisites for their exercise. As a result, the Sixth Amendment de

nies the Government unchecked powe r to freeze a defendant’s assets before trial simply to secure potential forfeiture upon conviction. Un

less the right to counsel protects the right to use lawfully owned property to pay for an attorney, the right to counsel—originally un

derstood to protect only the right to hire counsel of choice—would be meaningless. Without pretri al protection for at least some of a de

fendant’s assets, the Government could nullify the right to counsel of choice, eviscerating the Sixth Am endment’s origin al meaning andpurpose. 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 interfer ence before trial and judgment, but his tainted assets may be seized before trial as contraband or4 LUIS v. UNITED STATES

Syllabus

through a separate in rem proceeding. Reading the Sixth Amend

ment to track the historical line between tainted and untainted as

sets avoids case-by-case adjudicati on and ensures that the original meaning of the right to counsel does real work. Here, the incursion of the pretrial asset freeze into untaint ed 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 analy

sis. Pp. 9–12.

B REYER

, J., announced the judgment of the Court and delivered an opinion, in which R OBERTS

, C. J., and G INSBURG and S OTOMAYOR , JJ., joined. T HOMAS

, J., filed an opinion concurring in the judgment. K EN

NEDY , J., filed a dissenting opinion, in which A LITO

, J., joined. K AGAN

, J., filed a dissenting opinion._________________

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

Opinion of B REYER

, J.

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested tonotify 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]

J USTICE B REYER announced the judgment of the Court and delivered an opinion in which T HE C HIEF J USTICE

, J USTICE G INSBURG , and J USTICE S OTOMAYOR join.
A federal statute provides that a court may freeze before trial certain assets belong ing 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 thethird 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, itviolates 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 B REYER

, 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 $2million 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 prope rty 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.3 Cite as: 578 U. S. ____ (2016)

Opinion of B REYER

, 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 isgood 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 uponincompetent 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 theguiding 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 not4 LUIS v. UNITED STATES

Opinion of B REYER

, 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’sopinions 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 to5 Cite as: 578 U. S. ____ (2016)

Opinion of B REYER

, J.

adequate representation, has no right to have the Government pay for his preferred re presentational 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 interestson the other side of the legal equation: It wishes to guarantee that those funds will be available later to help pay for statutory penalties (includi ng 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 co caine, a burglar’s tools, orother property associated with the planning, implementing, or concealing of a crime. The Government may well6 LUIS v. UNITED STATES

Opinion of B REYER

, 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 vi ctim, 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, ex cept 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 (orotherwise “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 t ook 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 property7 Cite as: 578 U. S. ____ (2016)

Opinion of B REYER

, 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 pointedout that the defendant did not “claim, as a general proposition, that the [vesting] prov ision 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, thedefendant] 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 Mon

santo

, 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 statutepassed 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 constitu­8 LUIS v. UNITED STATES

Opinion of B REYER

, J.

tional claims.” 491 U. S., at 614.

J USTICE K ENNEDY 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 inthose cases about the constitutionality of pretrial restraints of other, untainted assets. For another thing, J USTICE K ENNEDY ’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 pr operty 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 explicitlyauthorizes 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 requiresthe Government—in certain circumstances—to give “notice to persons appearing to have an interest in the property and opportunity for hear ing” 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 othe rwise be subject to forfei­9 Cite as: 578 U. S. ____ (2016)

Opinion of B REYER

, 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 th e Government took title to
those tainted assets as of the time of the crime. See §853(c). And the defendants in those cases consequentlyhad 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 takepossession of the property even before obtaining a conviction). See post , at 7–10 (K ENNEDY

, 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 fo rfeitable 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 ofall 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 B REYER

, J.

If we analogize to bankruptcy law, the Government, by application of §853(c)’s relation-back provision, becamesomething 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—e ven 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. Alli

ance 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 (t he Government) asserted an equitable lien on the property”). Here, by contrast, the Government seeks to impose restrictions upon Luis’ un tainted property without any showing of any equivalent gove rnmental interest in thatproperty. Again, if this were a bankruptcy case, the Government would be at most an unsecured creditor. Although such creditors someda y 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 (K AGAN

, J., dissenting). At least regarding her untainted assets, Luis can at this point reasonably claim that the property is still “mine,” free and clear.11 Cite as: 578 U. S. ____ (2016)

Opinion of B REYER

, 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. , Kol

lock 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 criminaldefendant 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 coun­12 LUIS v. UNITED STATES

Opinion of B REYER

, 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 intere st in securing its punishment of choice (namely, crimi nal 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’ wh en 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 traditi on offers virtually no significant support for the Govern ment’s position. Rather,tradition argues to the contrary. Describing the 18thcentury English legal world (which recognized only a13 Cite as: 578 U. S. ____ (2016)

Opinion of B REYER

, 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 18t h-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 forfeitu re of the defendant’s own “innocent” property—property with no connection to thecharged crime. Nor do we see any grounds for distinguishing the historic preference against preconviction forfei

-14 LUIS v. UNITED STATES

Opinion of B REYER

, 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’sposition could well erode the right to counsel to a considerably greater extent than we have so far indicated. To permit the Government to fr eeze Luis’ untainted assets would unleash a principle of constitutional law that would have no obvious stopping place. The statutory provision before us authorizing the pres ent restraining order refers only to “banking law violation[s]” and “Federal health careoffense[s].” 18 U. S. C. §1345(a)(2). But, in the Government’s view, Congress could wr ite 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 counsel15 Cite as: 578 U. S. ____ (2016)

Opinion of B REYER

, 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 defenderoffices 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 c lients 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 wo rkload—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 J USTICE
K ENNEDY 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 B REYER

, 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 J USTICE K ENNEDY 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 assetsfrom untainted assets, just as they have experience determining how much money is ne eded to cover the costs of a lawyer. See, e.g. , 18 U. S. C. §1345(b) (“The court shallproceed 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 believ e that the assets in dispute are traceable . . . to the crime charged in the indictment”). We therefore see little reason to worry, as J USTICE K ENNEDY 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 B REYER

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

Appendix to opinion of B REYER

, 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 theOpinion of B REYER

, J. 18 LUIS v. UNITED STATES

Appendix to opinion of B REYER

, J.

hearing and determination of such an action, and may, at any time before final determi nation, 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.”_________________

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

T HOMAS

, 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]

J USTICE T HOMAS , concurring in the judgment.
I agree with the plurality that a pretrial freeze of un

tainted 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 fr eeze a criminal defendant’s
forfeitable assets before trial. And, constitutional rights necessarily protect the prere quisites 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 restrain ts to tainted assets. Both this textual understanding and history establish that the Sixth Amendment prevents th e 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 prose

cutions, the accused shall enjoy the right . . . to have the2 LUIS v. UNITED STATES

T HOMAS

, J., concurring in judgment

Assistance of Counsel for his defence.” As originally un

derstood, 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 defend ants charged with misdemean

ors, 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 represen

tation 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. Wain

wright , 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 un

checked power to freeze a defe ndant’s assets before trial simply to secure potential forf eiture upon conviction. If that bare expectancy of criminal punishment gave the Government such power, then a defendant’s right to coun

sel 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 neces

sary 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 neces

sary 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 ma king of it effectual or req

uisite to attain the end is implied”). This logic equally applies to individual rights. After all, many rights are3 Cite as: 578 U. S. ____ (2016)

T HOMAS

, 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 thei r 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 main

tain 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) (dis

cussing 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 ammuni

tion)); Andrews v. State , 50 Tenn. 165, 178 (1871) (discuss

ing both rights). Without protection for these closely related rights, the Second Amendment would be toothless. Likewise, the First Amendmen t “right to speak would be largely ineffective if it did no t include the right to engage
in financial transactions that are the incidents of its exer

cise.” 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 finan

cial resources required to obtain a lawyer. Without consti

tutional protection for at least some of a defendant’s as

sets, the Government could nu llify the right to counsel of4 LUIS v. UNITED STATES

T HOMAS

, J., concurring in judgment

choice. As the plurality says, an unlimited power to freeze
assets before trial “would unl eash a principle of constitu

tional 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 invo lves 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 re

sources 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 punish ment 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 pre

trial 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 pre

cisely 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 well5 Cite as: 578 U. S. ____ (2016)

T HOMAS

, J., concurring in judgment

revive the common-law felony rule that the Sixth Amend

ment was designed to abolish. The modern, judicially cre ated right to Governmentappointed counsel does not obviate these concerns. As understood in 1791, the Sixth Amendment protected a defendant’s right to retain an a ttorney 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

K ENNEDY , J.). The dissent’s approach nullifies the origi

nal 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 guaran

tees 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 alterna

tive to this common-law read ing is case-by-case adjudica

tion 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 de

partment.” 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 histori

cal precedent’ ” for the asset freeze here is “ ‘[p]erhaps the6 LUIS v. UNITED STATES

T HOMAS

, J., concurring in judgment

most telling indication of a severe constitutional prob

lem.’ ” Free Enterprise Fund v. Public Company Account

ing 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) (Ka

vanaugh, J., dissenting)). Indeed, blanket asset freezes are so tempting that the Go vernment’s “prolonged reti

cence 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 statut es commandeering state execu

tive 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 convicti on. 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 re mained 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 Fleet

wood’s Case , 8 Co. Rep. 171a, 171b, 77 Eng. Rep. 731, 732 (K. B. 1611) (endorsing this rule). At most, a court could7 Cite as: 578 U. S. ____ (2016)

T HOMAS

, 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 (collect

ing 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 tradition

ally “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 Amend

ment 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 tradi

tion 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 prece

dents 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

T HOMAS

, 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 stat

utes 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 “six

century-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 (K ENNEDY , J., dissenting). But this long tradition of in personam customs fines does not contradict the general rule against pretrial sei

zures 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 su mmary procedures were re

served 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 Gov

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

T HOMAS

, J., concurring in judgment

The common law thus offers an administrable line: A criminal defendant’s untainted assets are protected from
Government interference befo re trial and judgment. His tainted assets, by contrast, ma y 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 be

cause it “is so broad that it differs not only in degree, but in kind, from its historical antecedents.” James Daniel
Good

, supra, at 82 (T HOMAS , 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 K ENNEDY , J.); post , at 2 (opinion of K AGAN , J.). Perhaps so. I need not take a position on the matter. Either way, that fact is irrelevant. Because the pretrial asset fr eeze here crosses into un

tainted 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 Amend

ment, 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 ch oice,” the Government’s inter

ests in securing forfeiture and restitution lie “further from the heart of a fair, effective criminal justice system.” Ante

,10 LUIS v. UNITED STATES

T HOMAS

, J., concurring in judgment

at 12. Judges are not well suited to strike the right “bal

ance” between those incommensurable interests. Nor do I think it is our role to do so. The People, through ratifica

tion, have already weighed the po licy tradeoffs that consti

tutional 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, Con

stitutional 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-imp osed 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 guilt y does not violate his right
to trial. See Bordenkircher v. Hayes , 434 U. S. 357, 36511 Cite as: 578 U. S. ____ (2016)

T HOMAS

, J., concurring in judgment

(1978). And, in my view, pr osecutorial arguments that raise the “cost” of remaining silent do not violate a defend

ant’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) (T HOMAS , 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 guaran

tees only a “freedom of counsel” akin to the First Amend

ment freedoms of speech and re ligion 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 re

sources 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 th e right to counsel of choice

would not violate the Sixth Amendment. See post , at 5–6, 11–12 (opinion of K ENNEDY , 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 com

municate with family or otherwise arrange for representa

tion. 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. I12 LUIS v. UNITED STATES

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, 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 conv iction. The prospect of that criminal punishment, however, is precisely why the Con

stitution guarantees a right to counsel. The Sixth Amendment does not permit the Government’s bare expec

tancy of forfeiture to void that right. When the potential of a conviction is the only basis for interfering with a

defendant’s assets before tri al, 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._________________

_________________ 1 Cite as: 578 U. S. ____ (20 16 )

K ENNEDY

, J. , dissenting



## SUPREME COURT OF THE UNITED STATES

No. 14

– 419

SILA LUIS, PETITIONER v. UNITED STATES

O N WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[ March 30, 2016 ]

J USTICE K ENNEDY , with whom J USTICE A LITO joins, dissenting.
The plurality and J USTICE T HOMAS 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 d e

fendant’s remaining assets must be preserved if the victim or the Government is to recover for the property wrong

fully 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 J USTICE
T HOMAS 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, embezzl e

ment, 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 to2 LUIS v. UNITED STATES

K ENNEDY

, 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 d e

fendant’s Sixth Amendment right to counsel of choice against the Government’s interest in preventing the diss i

pation of assets forfeitable upon conviction. In so doing,

it—like J USTICE T HOMAS

— 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 Amendme nt right to spend forfeitable assets (or assets that will be forfeitable) on an attorney. The princ i

ple 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 ot h

erwise forfeitable assets on an attorney so long as those assets are not related to or the direct proceeds of the charged crime. An te, at 1 (plurality opinion); a nte, at 1 (T HOMAS

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

K ENNEDY

, J. , dissenting

The same day Luis was indicted, the Government init i

ated a civil action under 18 U. S. C. § 1345 to restrain Luis ’

assets before her c riminal trial, including substitute pro p

erty 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 ille gally obtained assets. In particular, they were transferring money i n

volved in the scheme to various individuals and entities, including shell corporations owned by Luis’ family me m

bers. As part of this process, Luis opened and closed well

over 40 bank a ccounts 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 re strained 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 co r

rect, and its judgment should be affirmed.

II
A

In Caplin & Drysdale , a law firm had represented a defendant charged with running a massive drug

distribution scheme. The defendant pleaded gui lty 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 forfeitable4 LUIS v. UNITED STATES

K ENNEDY

, J. , dissenting

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

violate s 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 ad e

quately 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 C ourt observed that “ not h

ing in [the forfeiture statute] prevents a defendant from hiring the attorney of his choice, or disqualifies an y attor

ney from serving as a d efendant’s counsel.” Id. , at 625.
Even d efendants who possess “ nothing but assets the
Gov ernment 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 forfei table 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 permi t

ting criminals to use assets adjudged forfeitable to pay for
their defe nse.” 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 di s

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

K ENNEDY

, 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 dissipati ng his assets prior to trial.” Id.

, at 616. The
Cour t 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 circu m

stances), the Government may restr ain 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 ‘appea r

ance’ a t 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 & Dry sdale and Monsanto controls the result here. Those cases establish that a pretrial restraint of asset s 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 othe r

wise 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. That6 LUIS v. UNITED STATES

K ENNEDY

, 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 resource s that could be used to hire an attorney” ). The pretrial restraint in Monsanto was no more burde n

some 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 s ubstitute 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 doll ars 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 substi tute 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 as sets prior to
trial.” 491 U. S. , at 616. The Government, having esta b

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

K ENNEDY

, J. , dissenting

lished probable cause to believ e that Luis’ substitute assets will be forfeitable upon conviction, should be pe r

mitted 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 f or 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 n ature 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 proper ty 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 Go v

ernment 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,
Comm entaries on the Laws of England 380 (1769) (Blac k

stone). Justice Story likewise observed that “no right to8 LUIS v. UNITED STATES

K ENNEDY

, 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 convict ion of the offender.” The Palmyra

, 12 Wheat. 1, 14 (1827); ibid. (“In the contempl a

tion of the common law, the offender’s right was not d e

vested 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

ass ets restrained here: There was probable cause to b e

lieve 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 c onviction 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,

2 70

– 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 pro p

erty relates back to the time at which the defendant co m

mitted the crime giving rise to the forfeiture. See 4 Blac k

stone 375 (“forfeiture [of real estates] relates backwards to the time of the treason committed; so as to avoid all i n

termediate sales and incumbrances”); United States v.9 Cite as: 578 U. S. ____ (2016)

K ENNEDY

, 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 c o n

viction 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 rel a

tion- back doctrine’s “fictional and retroactive vesting” is
“not self -exec uting”); 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 go v

e rnment until some legal step shall be taken for the asse r

tion 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 sho rt, forfeitable property does not belong to the Government in any sense before judgment or

conviction. Cf. a nte, 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 r e

strained 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 their10 LUIS v. UNITED STATES

K ENNEDY

, J. , dissenting

stolen property. 491 U. S., at 627

– 628. More to th e point, central to the Court’s decision was its observation that,

because the G overnment obtained “title to [the defen d

ant’s] assets upon conviction,” it would be “peculiar” to hold that the Sixth Amendment still gave the defendant the right to pay his at torney with those assets

. Id., at 628

. Monsanto reinforced that view, holding that the pretrial

restrain t of assets

— money to which the G overnment 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 G overnment 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 prov i

sions 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 Amen d

ment should not turn on congressional whims. The plurality’s concern over the implications of the Government’s position appears animated by a hypothetical11 Cite as: 578 U. S. ____ (2016)

K ENNEDY

, 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 a d

dress the result in a case involving a fine. The gover n

mental 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 preven t

ing the dissipation, transfer, and concealment of stolen
funds , as we ll 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 pri nciple the plurality and J USTICE T HOMAS a n

nounce today

— that a defendant has a righ t 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 explan a

tion why this principle does not extend to the exercise of

othe r 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 a ny way to distinguish between the

restraint at issue here and other g overnmental interfe r

ences 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 defen dant is fined in a12 LUIS v. UNITED STATES

K ENNEDY

, J. , dissenting

prior matter, is the Government barred from collecting the
fine if it will leave the defendant unable to afford a parti c

ular attorney in a current case ? No explanation is pro

vided for what, if any, limits there are on the invented

exe mption 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
defenda nt 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, exportin g, or concealing stolen money first, preserves his or her remai n

ing 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 Lau n

dering Risk Assessment 2015, p. 3. They structure their

transactions to avoid triggering recordkeeping and repor t

ing 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 declar a

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

K ENNEDY

, J. , dissenting

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

includ ing approximately 31 trips to Mexico, “where she owns several properties and has numerous bank a c

counts.” 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 expend i

tures 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 J USTICE
T HOMAS 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 Restrainin g 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 de

mand a lawyer who is not a member of the bar. Wheat v. United States , 486 U. S. 153, 159 (1988). Nor may a d e

fendant insist on an attorney who has a conflict of inte r

est. Id., at 159, 164. And, as quite relevant here, “a d e

fendant 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 have14 LUIS v. UNITED STATES

K ENNEDY

, J. , dissenting

no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts.” Capl in & 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 wh ether Luis’ right to adequate representation is protected. That question is not before the Court. Neither Luis nor the plurality nor J USTICE
T HOMAS suggests that Luis will receive inadequate repr e

sentation 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 re presentation. 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 inad e

quate representation as a result, she does not have a cognizable Sixth Amendment complaint. The plurality does warn that accepting the Gover n

ment’s position “would

— by increasing the government

paid

- 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 me et nationally recommended

caseload standards. Ibid. But concerns about the cas e

loads of public

- defender offices do not justify a constit u

tional command to treat a defendant accused of commi t

ting a lucrative crime differently than a defendant who is indig ent from the outset. The Constitution does not r e

quire victims of property crimes to fund subsidies for15 Cite as: 578 U. S. ____ (2016)

K ENNEDY

, 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

Fede ral Government’s use of § 1345 but also the States ’
administration of their forfeiture schemes. Like the Fe d

eral Government, States also face criminals who engage in money laundering through extensive enterprises that extend to other States and beyond. Wh ere a defendant has put stolen money beyond a State’s reach, a State should not be precluded from freezing the assets the d e

fendant 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, t he plurality posits that its decision “should prove workable” because courts “have experience separa t

ing 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 milli on, the Gover n

ment can obtain an order preventing the defendant from spending the $1 million he or she is believed to have st o

len. The situation gets more complicated, however, when the defendant deposits the stolen $1 million into an a c

count that already has $1 million. If the defendant then spends $1 million from the account, it cannot be dete r

mined with certainty whether the money spent was stolen money rather than money the defendant already had. The question arises, then, whether the Government can r e

-16 LUIS v. UNITED STATES

K ENNEDY

, J. , dissenting

strain the remaining million. One of the treatises on which the plurality relies a n

swers 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.” A nte, 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

– 331 0 (1956) . Based on this rule, one would expect the plurality to agree that, in the above hypothetic al, 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 situ a

tion 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 trea t

ment in these all

- but

- identical situations. The plurality sees “little reason to worry” about defen d

ants 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 pu r

chases.” 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. 155.17 Cite as: 578 U. S. ____ (2016)

K ENNEDY

, J. , dissenting

Even were that not the case, this a ssertion fails to appr e

ciate 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 mo st sophisticated of criminals whose web of transfers and concealment will take the longest to un

ravel. 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 1 6 . 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 remai n

ing 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 dissi pation.

* * *
Today’s ruling abandons the principle established in Caplin & Drysdale and Monsanto. In its place is an a p

proach 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._________________

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

K

AGAN

, 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]

J USTICE K AGAN , 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 conv icted felon has no Sixth Amendment right to pay his lawyer with funds adjudged forfeitable. Following convicti on, such assets belong to the Government, and “[t]here is no constitutional principle that gives one person the righ t 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 inno

cence still applies,” and the Government’s interest in the assets is wholly contingent on future judgments of convic

tion and forfeiture. Kaley v. United States , 571 U. S. ___, ___ (2014) (slip op., at 6). I am not altogether convinced that, in this decidedly diffe rent circumstance, the Gov

ernment’s interest in recovering the proceeds of crime ought to trump the defendant’s (often highly consequen

tial) 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 deci sion; she argues only that it2 LUIS v. UNITED STATES

K

AGAN

, J., dissenting

does not answer the question presented here. And be

cause 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

K ENNEDY , 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 at

torney. See Monsanto , 491 U. S., at 616 (“[N]o constitu

tional violation occurs when, after probable cause is ade

quately established, the Government obtains an order barring a defendant from . . . dissipating his assets prior to trial”). The plurality reaches a contrary result only by differen

tiating between the direct frui ts 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 Govern

ment’s and the defendant’s re spective 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 contin

gent interest. See ante, at 7–10. Indeed, the plurality’s use of the word “tainted,” to describe assets at the pre

conviction 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 com

mitted the crime charged, it also has not shown that alleg

edly tainted assets are actually so. And given that money is fungible, the plurality’s ap

proach leads to utterly arbitrary distinctions as among criminal defendants who are in fact guilty. See ante , at 12 (opinion of K ENNEDY , J.). The thief who immediately dissipates his ill-gotten gains and thereby preserves his

other assets is no more dese rving of chosen counsel than3 Cite as: 578 U. S. ____ (2016)

K

AGAN

, J., dissenting

the one who spends those two pots of money in reverse order. Yet the plurality would enable only the first de

fendant, and not the second, to hire the lawyer he wants.

I cannot believe the Sixth Amendment draws that irra

tional line, much as I sympathize with the plurality’s
effort to cabin Monsanto . Accordingly, I would affirm the judgment below.