(Slip Opinion)

OCTOBER TERM, 2015

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES
Syllabus

LUIS v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 14–419.

Argued November 10, 2015—Decided March 30, 2016

A federal statute provides that a court may freeze before trial certain
assets belonging to a defendant accused of violations of federal health
care or banking laws. Those assets include (1) property “obtained as
a result of ” the crime, (2) property “traceable” to the crime, and (3),
as relevant here, other “property of equivalent value.” 18 U. S. C.
§1345(a)(2). The Government has charged petitioner Luis with
fraudulently obtaining nearly $45 million through crimes related to
health care. In order to preserve the $2 million remaining in Luis’
possession for payment of restitution and other criminal penalties,
the Government secured a pretrial order prohibiting Luis from dissipating her assets, including assets unrelated to her alleged crimes.
Though the District Court recognized that the order might prevent
Luis from obtaining counsel of her choice, it held that the Sixth
Amendment did not give her the right to use her own untainted funds
for that purpose. The Eleventh Circuit affirmed.
Held: The judgment is vacated, and the case is remanded.
564 Fed. Appx. 493, vacated and remanded.
JUSTICE BREYER, joined by THE CHIEF JUSTICE, JUSTICE GINSBURG,
and JUSTICE SOTOMAYOR, concluded that the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates
the Sixth Amendment. The nature and importance of the constitutional right taken together with the nature of the assets lead to this
conclusion. Pp. 3–16.
(a) The Sixth Amendment right to counsel grants a defendant “a
fair opportunity to secure counsel of his own choice,” Powell v. Alabama, 287 U. S. 45, 53, that he “can afford to hire,” Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 624. This Court has

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LUIS v. UNITED STATES
Syllabus
consistently referred to the right to counsel of choice as “fundamental.” Pp. 3–5.
(b) While the Government does not deny Luis’ fundamental right to
be represented by a qualified attorney whom she chooses and can afford to hire, it would nonetheless undermine the value of that right
by taking from Luis the ability to use funds she needs to pay for her
chosen attorney. The Government attempts to justify this consequence by pointing out that there are important interests on the other side of the legal equation. It wishes to guarantee that funds will
be available later to help pay for statutory penalties and restitution,
for example. The Government further argues that two previous cases
from this Court, Caplin & Drysdale, supra, at 619, and United States
v. Monsanto, 491 U. S. 600, 615, support the issuance of a restraining
order in this case. However, the nature of the assets at issue here
differs from the assets at issue in those earlier cases. And that distinction makes a difference. Pp. 5–16.
(1) Here, the property is untainted, i.e., it belongs to Luis. As described in Caplin & Drysdale and Monsanto, the Government may
well be able to freeze before trial “tainted” assets—e.g., loot, contraband, or property otherwise associated with the planning, implementing, or concealing of a crime. As a matter of property law, the
defendant’s ownership interest in such property is imperfect. For example, a different federal statute provides that title to property used
to commit a crime (or otherwise “traceable” to a crime) passes to the
Government at the instant the crime is planned or committed. See
21 U. S. C. §853(c). But here, the Government seeks to impose restrictions upon Luis’ untainted property without any showing of any
equivalent governmental interest in that property. Pp. 5–10.
(2) This distinction does not by itself answer the constitutional
question because the law of property may allow a person without a
present interest in a piece of property to impose restrictions upon a
current owner, say, to prevent waste. However, insofar as innocent
funds are needed to obtain counsel of choice, the Sixth Amendment
prohibits the court order sought here.
Three basic considerations lead to this conclusion. First, the nature of the competing interests argues against this kind of court order. On the one side is a fundamental Sixth Amendment right to assistance of counsel. On the other side is the Government’s interest in
securing its punishment of choice, as well as the victim’s interest in
securing restitution. These latter interests are important, but—
compared to the right to counsel—they seem to lie somewhat further
from the heart of a fair, effective criminal justice system. Second,
relevant, common-law legal tradition offers virtually no significant
support for the Government’s position and in fact argues to the con-

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3

Syllabus
trary. Indeed, there appears to be no decision of this Court authorizing unfettered, pretrial forfeiture of the defendant’s own “innocent”
property. Third, as a practical matter, accepting the Government’s
position could erode the right to counsel considerably. It would, in
fact, unleash a principle of constitutional law with no obvious stopping place, as Congress could write more statutes authorizing restraints in other cases involving illegal behavior that come with steep
financial consequences. These defendants, often rendered indigent,
would fall back upon publicly paid counsel, including overworked and
underpaid public defenders. The upshot is a substantial risk that accepting the Government’s views would render less effective the basic
right the Sixth Amendment seeks to protect. Pp. 11–15.
(3) The constitutional line between a criminal defendant’s tainted funds and innocent funds needed to pay for counsel should prove
workable. Money may be fungible, but courts, which use tracing
rules in cases of, e.g., fraud and pension rights, have experience separating tainted assets from untainted assets, just as they have experience determining how much money is needed to cover the costs of a
lawyer. Pp. 15–16.
JUSTICE THOMAS concluded that the rule that a pretrial freeze of
untainted assets violates a defendant’s Sixth Amendment right to
counsel of choice rests strictly on the Sixth Amendment’s text and
common-law backdrop. Pp. 1–12.
(a) The Sixth Amendment abolished the common-law rule that
generally prohibited representation in felony cases. “The right to select counsel of one’s choice” is thus “the root meaning” of the Sixth
Amendment right to counsel. United States v. Gonzalez-Lopez, 548
U. S. 140, 147–148. Constitutional rights protect the necessary prerequisites for their exercise. As a result, the Sixth Amendment denies the Government unchecked power to freeze a defendant’s assets
before trial simply to secure potential forfeiture upon conviction. Unless the right to counsel protects the right to use lawfully owned
property to pay for an attorney, the right to counsel—originally understood to protect only the right to hire counsel of choice—would be
meaningless. Without pretrial protection for at least some of a defendant’s assets, the Government could nullify the right to counsel of
choice, eviscerating the Sixth Amendment’s original meaning and
purpose.
The modern, judicially created right to governmentappointed counsel does not obviate these concerns. Pp. 1–5.
(b) History confirms this textual understanding. The common-law
forfeiture tradition provides an administrable rule for the Sixth
Amendment’s protection: A criminal defendant’s untainted assets are
protected from government interference before trial and judgment,
but his tainted assets may be seized before trial as contraband or

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LUIS v. UNITED STATES
Syllabus

through a separate in rem proceeding. Reading the Sixth Amendment to track the historical line between tainted and untainted assets avoids case-by-case adjudication and ensures that the original
meaning of the right to counsel does real work. Here, the incursion of
the pretrial asset freeze into untainted assets, for which there is no
historical tradition, violates the Sixth Amendment. Pp. 5–9.
(c) This conclusion leaves no room for an atextual balancing analysis. Pp. 9–12.
BREYER, J., announced the judgment of the Court and delivered an
opinion, in which ROBERTS, C. J., and GINSBURG and SOTOMAYOR, JJ.,
joined. THOMAS, J., filed an opinion concurring in the judgment. KENNEDY, J., filed a dissenting opinion, in which ALITO, J., joined. KAGAN,
J., filed a dissenting opinion.

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Opinion of BREYER, J.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 14–419
_________________

SILA LUIS, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT

[March 30, 2016]


JUSTICE BREYER announced the judgment of the Court
and delivered an opinion in which THE CHIEF JUSTICE,
JUSTICE GINSBURG, and JUSTICE SOTOMAYOR join.
A federal statute provides that a court may freeze before
trial certain assets belonging to a criminal defendant
accused of violations of federal health care or banking
laws. See 18 U. S. C. §1345. Those assets include: (1)
property “obtained as a result of ” the crime, (2) property
“traceable” to the crime, and (3) other “property of equiva­
lent value.” §1345(a)(2). In this case, the Government has
obtained a court order that freezes assets belonging to the
third category of property, namely, property that is un­
tainted by the crime, and that belongs fully to the defend­
ant. That order, the defendant says, prevents her from
paying her lawyer. She claims that insofar as it does so, it
violates her Sixth Amendment “right . . . to have the As­
sistance of Counsel for [her] defence.” We agree.
I
In October 2012, a federal grand jury charged the peti­
tioner, 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–

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Opinion of BREYER, J.

7b(b)(2)(A). The Government claimed that Luis had
fraudulently obtained close to $45 million, almost all of
which she had already spent. Believing it would convict
Luis of the crimes charged, and hoping to preserve the $2
million remaining in Luis’ possession for payment of resti­
tution 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 pro­
ceeds 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 stipulat­
ing that Luis used “revenue not connected to the indict­
ment” to pay for real property that she possessed). Al­
though 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.

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Opinion of BREYER, J.

II
The question presented is “[w]hether the pretrial re­
straint 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 lit­
tle avail if it did not comprehend the right to be heard
by counsel. Even the intelligent and educated layman
has small and sometimes no skill in the science of law.
If charged with crime, he is incapable, generally, of
determining for himself whether the indictment is
good or bad. He is unfamiliar with the rules of evi­
dence. Left without the aid of counsel he may be put
on trial without a proper charge, and convicted upon
incompetent evidence, or evidence irrelevant to the is­
sue or otherwise inadmissible. He lacks both the skill
and knowledge adequately to prepare his defense,
even though he have a perfect one. He requires the
guiding hand of counsel at every step in the proceed­
ings against him. Without it, though he be not guilty,
he faces the danger of conviction because he does not

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LUIS v. UNITED STATES
Opinion of BREYER, J.

know how to establish his innocence.’ ” Id., at 344–
345 (quoting Powell v. Alabama, 287 U. S. 45, 68–69
(1932)).
It is consequently not surprising: first, that this Court’s
opinions often refer to the right to counsel as “fundamen­
tal,” 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 commen­
tators 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 indi­
gent defendant accused of all but the least serious crimes,
see Gideon, supra, at 344; and fourth, that we have con­
sidered 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 quota­
tion marks omitted); see id., at 150.
Given the necessarily close working relationship be­
tween 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 representa­
tion”). This “fair opportunity” for the defendant to secure
counsel of choice has limits. A defendant has no right, for
example, to an attorney who is not a member of the bar, or
who has a conflict of interest due to a relationship with an
opposing party. See Wheat v. United States, 486 U. S. 153,
159 (1988). And an indigent defendant, while entitled to

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Opinion of BREYER, J.

adequate representation, has no right to have the Gov­
ernment pay for his preferred representational choice. See
Caplin & Drysdale, 491 U. S., at 624.
We nonetheless emphasize that the constitutional right
at issue here is fundamental: “[T]he Sixth Amendment
guarantees a defendant the right to be represented by an
otherwise qualified attorney whom that defendant can
afford to hire.” Ibid.
B
The Government cannot, and does not, deny Luis’ right
to be represented by a qualified attorney whom she chooses
and can afford. But the Government would undermine
the value of that right by taking from Luis the ability to
use the funds she needs to pay for her chosen attorney.
The Government points out that, while freezing the funds
may have this consequence, there are important interests
on the other side of the legal equation: It wishes to guar­
antee that those funds will be available later to help pay
for statutory penalties (including forfeiture of untainted
assets) and restitution, should it secure convictions. And
it points to two cases from this Court, Caplin & Drysdale,
supra, at 619, and Monsanto, 491 U. S., at 615, which, in
the Government’s view, hold that the Sixth Amendment
does not pose an obstacle to its doing so here. In our view,
however, the nature of the assets at issue here differs from
the assets at issue in those earlier cases. And that distinc­
tion makes a difference.
1
The relevant difference consists of the fact that the
property here is untainted; i.e., it belongs to the defend­
ant, pure and simple. In this respect it differs from a
robber’s loot, a drug seller’s cocaine, a burglar’s tools, or
other property associated with the planning, implement­
ing, or concealing of a crime. The Government may well

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LUIS v. UNITED STATES
Opinion of BREYER, J.

be able to freeze, perhaps to seize, assets of the latter,
“tainted” kind before trial. As a matter of property law
the defendant’s ownership interest is imperfect. The
robber’s loot belongs to the victim, not to the defendant.
See Telegraph Co. v. Davenport, 97 U. S. 369, 372 (1878)
(“The great principle that no one can be deprived of his
property without his assent, except by the processes of the
law, requires . . . that the property wrongfully transferred
or stolen should be restored to its rightful owner”). The
cocaine is contraband, long considered forfeitable to the
Government wherever found. See, e.g., 21 U. S. C. §881(a)
(“[Controlled substances] shall be subject to forfeiture to
the United States and no property right shall exist in
them”); Carroll v. United States, 267 U. S. 132, 159 (1925)
(describing the seizure of “contraband forfeitable prop­
erty”). And title to property used to commit a crime (or
otherwise “traceable” to a crime) often passes to the Gov­
ernment at the instant the crime is planned or committed.
See, e.g., §853(c) (providing that the Government’s owner­
ship interest in such property relates back to the time of
the crime).
The property at issue here, however, is not loot, contra­
band, or otherwise “tainted.” It belongs to the defendant.
That fact undermines the Government’s reliance upon
precedent, for both Caplin & Drysdale and Monsanto
relied critically upon the fact that the property at issue
was “tainted,” and that title to the property therefore had
passed from the defendant to the Government before the
court issued its order freezing (or otherwise disposing of )
the assets.
In Caplin & Drysdale, the Court considered a postconviction forfeiture that took from a convicted defendant
funds he would have used to pay his lawyer. The Court
held that the forfeiture was constitutional. In doing so,
however, it emphasized that the forfeiture statute at issue
provided that “ ‘[a]ll right, title, and interest in property

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Opinion of BREYER, J.

[constituting or derived from any proceeds obtained from
the crime] vests in the United States upon the commission
of the act giving rise to [the] forfeiture.’ ” 491 U. S., at 625,
n. 4 (quoting §853(c)) (emphasis added). It added that the
law had “long-recognized” as “lawful” the “practice of
vesting title to any forfeitable asset[s] in the United
State[s] at the time of the crim[e].” Id., at 627. It pointed
out that the defendant did not “claim, as a general propo­
sition, that the [vesting] provision is unconstitutional, or
that Congress cannot, as a general matter, vest title to
assets derived from the crime in the Government, as of the
date of the criminal act in question.” Id., at 627–628.
And, given the vesting language, the Court explained that
the defendant “did not hold good title” to the property. Id.,
at 627. The Court therefore concluded that “[t]here is no
constitutional principle that gives one person [namely, the
defendant] the right to give another’s [namely, the Gov­
ernment’s] property to a third party,” namely, the lawyer.
Id., at 628.
In Monsanto, the Court considered a pretrial restraining
order that prevented a not-yet-convicted defendant from
using certain assets to pay for his lawyer. The defendant
argued that, given this difference, Caplin & Drysdale’s
conclusion should not apply. The Court noted, however,
that the property at issue was forfeitable under the same
statute that was at issue in Caplin & Drysdale. See Monsanto, supra, at 614. And, as in Caplin & Drysdale, the
application of that statute to Monsanto’s case concerned
only the pretrial restraint of assets that were traceable to
the crime, see 491 U. S., at 602–603; thus, the statute
passed title to those funds at the time the crime was com­
mitted (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 dis­
pose of, and to reject, the defendant’s “similar constitu­

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LUIS v. UNITED STATES
Opinion of BREYER, J.

tional claims.” 491 U. S., at 614.
JUSTICE KENNEDY prefers to read Caplin & Drysdale
and Monsanto broadly, as holding that “the Government,
having established probable cause to believe that Luis’
substitute [i.e., innocent] assets will be forfeitable upon
conviction, should be permitted to obtain a restraining
order barring her from spending those funds prior to
trial.” Post, at 6–7 (dissenting opinion). In other words,
he believes that those cases stand for the proposition that
property—whether tainted or untainted—is subject to
pretrial restraint, so long as the property might someday
be subject to forfeiture. But this reading asks too much of
our precedents. For one thing, as discussed, Caplin &
Drysdale and Monsanto involved the restraint only of
tainted assets, and thus we had no occasion to opine in
those cases about the constitutionality of pretrial re­
straints of other, untainted assets.
For another thing, JUSTICE KENNEDY’s broad rule ig­
nores the statutory background against which Caplin &
Drysdale and Monsanto were decided. The Court in those
cases referenced §853(c) more than a dozen times. And it
acknowledged that whether property is “forfeitable” or
subject to pretrial restraint under Congress’ scheme is a
nuanced inquiry that very much depends on who has the
superior interest in the property at issue. See Caplin &
Drysdale, supra, at 626–628; Monsanto, 491 U. S., at 616.
We see this in, for example, §853(e)(1), which explicitly
authorizes restraining orders or injunctions against “prop­
erty described in subsection (a) of this section” (i.e., tainted
assets). We see this too in §853(e)(1)(B), which requires
the Government—in certain circumstances—to give “no­
tice to persons appearing to have an interest in the prop­
erty and opportunity for hearing” before obtaining a re­
straining order against such property. We see this in
§853(c), which allows “bona fide purchaser[s] for value” to
keep property that would otherwise be subject to forfei­

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9

Opinion of BREYER, J.

ture. And we see this in §853(n)(6)(A), which exempts
certain property from forfeiture when a third party can
show a vested interest in the property that is “superior” to
that of the Government.
The distinction that we have discussed is thus an im­
portant one, not a technicality. It is the difference be­
tween what is yours and what is mine. In Caplin & Drysdale and Monsanto, the Government wanted to impose
restrictions upon (or seize) property that the Government
had probable cause to believe was the proceeds of, or
traceable to, a crime. See Monsanto, supra, at 615. The
relevant statute said that the Government took title to
those tainted assets as of the time of the crime. See
§853(c). And the defendants in those cases consequently
had to concede that the disputed property was in an im­
portant sense the Government’s at the time the court
imposed the restrictions. See Caplin & Drysdale, supra,
at 619–620; Monsanto, supra, at 602–603.
This is not to say that the Government “owned” the
tainted property outright (in the sense that it could take
possession of the property even before obtaining a convic­
tion). See post, at 7–10 (KENNEDY, J., dissenting). Rather,
it is to say that the Government even before trial had a
“substantial” interest in the tainted property sufficient to
justify the property’s pretrial restraint. See Caplin &
Drysdale, supra, at 627 (“[T]he property rights given the
Government by virtue of [§853(c)’s relation-back provision]
are more substantial than petitioner acknowledges”);
United States v. Stowell, 133 U. S. 1, 19 (1890) (“As soon
as [the possessor of the forfeitable asset committed the
violation] . . . , the forfeiture . . . took effect, and (though
needing judicial condemnation to perfect it) operated from
that time as a statutory conveyance to the United States of
all right, title and interest then remaining in the [posses­
sor]; and was as valid and effectual, against all the world,
as a recorded deed” (emphasis added)).

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Opinion of BREYER, J.

If we analogize to bankruptcy law, the Government, by
application of §853(c)’s relation-back provision, became
something like a secured creditor with a lien on the de­
fendant’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’ prop­
erty rights in such assets—even before conviction. See
Monsanto, supra, at 613 (“Permitting a defendant to use
[tainted] assets for his private purposes that, under this
[relation-back] provision, will become the property of the
United States if a conviction occurs cannot be sanc­
tioned”); cf. Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc., 527 U. S. 308, 326 (1999) (noting
that the Court had previously authorized injunctions
against the further dissipation of property where, among
other things, “the creditor (the Government) asserted an
equitable lien on the property”).
Here, by contrast, the Government seeks to impose
restrictions upon Luis’ untainted property without any
showing of any equivalent governmental interest in that
property. Again, if this were a bankruptcy case, the Gov­
ernment would be at most an unsecured creditor. Al­
though such creditors someday might collect from a debt­
or’s general assets, they cannot be said to have any pre­
sent claim to, or interest in, the debtor’s property. See id.,
at 330 (“[B]efore judgment . . . an unsecured creditor has
no rights at law or in equity in the property of his debtor”);
see also 5 Collier on Bankruptcy ¶541.05[1][b] (“[G]eneral
unsecured creditor[s]” have “no specific property interest
in the goods held or sold by the debtor”). The competing
property interests in the tainted- and untainted-asset
contexts therefore are not “exactly the same.” Post, at 2
(KAGAN, J., dissenting). At least regarding her untainted
assets, Luis can at this point reasonably claim that the
property is still “mine,” free and clear.

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Opinion of BREYER, J.

2
This distinction between (1) what is primarily “mine”
(the defendant’s) and (2) what is primarily “yours” (the
Government’s) does not by itself answer the constitutional
question posed, for the law of property sometimes allows a
person without a present interest in a piece of property to
impose restrictions upon a current owner, say, to prevent
waste. A holder of a reversionary interest, for example,
can prevent the owner of a life estate from wasting the
property. See, e.g., Peterson v. Ferrell, 127 N. C. 169, 170,
37 S. E. 189, 190 (1900). Those who later may become
beneficiaries of a trust are sometimes able to prevent the
trustee from dissipating the trust’s assets. See, e.g., Kollock v. Webb, 113 Ga. 762, 769, 39 S. E. 339, 343 (1901).
And holders of a contingent, future executory interest in
property (an interest that might become possessory at
some point down the road) can, in limited circumstances,
enjoin the activities of the current owner. See, e.g., Dees v.
Cheuvronts, 240 Ill. 486, 491, 88 N. E. 1011, 1012 (1909)
(“[E]quity w[ill] interfere . . . only when it is made to ap­
pear 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 re­
quest in language authorizing a court to enjoin a criminal
defendant from, for example, disposing of innocent “prop­
erty of equivalent value” to that of tainted property. 18
U. S. C. §1345(a)(2)(B)(i). But Luis needs some portion of
those same funds to pay for the lawyer of her choice.
Thus, the legal conflict arises. And, in our view, insofar as
innocent (i.e., untainted) funds are needed to obtain coun­

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LUIS v. UNITED STATES
Opinion of BREYER, J.

sel of choice, we believe that the Sixth Amendment prohib­
its 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 Amend­
ment 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 repre­
sented 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 seri­
ously undermine that constitutional right.
On the other side we find interests that include the
Government’s contingent interest in securing its punish­
ment of choice (namely, criminal forfeiture) as well as the
victims’ interest in securing restitution (notably, from
funds belonging to the defendant, not the victims). While
these interests are important, to deny the Government the
order it requests will not inevitably undermine them, for,
at least sometimes, the defendant may possess other
assets—say, “tainted” property—that might be used for
forfeitures and restitution. Cf. Gonzalez-Lopez, 548 U. S.,
at 148 (“Deprivation of the right” to counsel of the defend­
ant’s choice “is ‘complete’ when the defendant is errone­
ously prevented from being represented by the lawyer he
wants”). Nor do the interests in obtaining payment of a
criminal forfeiture or restitution order enjoy constitutional
protection. Rather, despite their importance, compared to
the right to counsel of choice, these interests would seem
to lie somewhat further from the heart of a fair, effective
criminal justice system.
Second, relevant legal tradition offers virtually no sig­
nificant support for the Government’s position. Rather,
tradition argues to the contrary. Describing the 18th­
century English legal world (which recognized only a

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13

Opinion of BREYER, J.

limited right to counsel), Blackstone wrote that “only”
those “goods and chattels” that “a man has at the time of
conviction shall be forfeited.” 4 W. Blackstone, Commen­
taries 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 19th­
century 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 convic­
tion. 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 of­
fender. . . . In the contemplation of the common law,
the offender’s right was not divested until the convic­
tion.” The Palmyra, 12 Wheat. 1, 14 (1827).
See generally Powell, supra, at 60–61 (describing the scope
of the right to counsel in 18th-century Britain and colonial
America).
As we have explained, supra, at 6–10, cases such as
Caplin & Drysdale and Monsanto permit the Government
to freeze a defendant’s assets pretrial, but the opinions in
those cases highlight the fact that the property at issue
was “tainted,” i.e., it did not belong entirely to the defend­
ant. We have found no decision of this Court authorizing
unfettered, pretrial forfeiture of the defendant’s own
“innocent” property—property with no connection to the
charged crime. Nor do we see any grounds for distinguish­
ing the historic preference against preconviction forfei-

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LUIS v. UNITED STATES
Opinion of BREYER, J.

tures from the preconviction restraint at issue here. As far
as Luis’ Sixth Amendment right to counsel of choice is
concerned, a restraining order might as well be a forfei­
ture; that is, the restraint itself suffices to completely deny
this constitutional right. See Gonzalez-Lopez, supra, at
148.
Third, as a practical matter, to accept the Government’s
position could well erode the right to counsel to a consid­
erably greater extent than we have so far indicated. To
permit the Government to freeze Luis’ untainted assets
would unleash a principle of constitutional law that would
have no obvious stopping place. The statutory provision
before us authorizing the present restraining order refers
only to “banking law violation[s]” and “Federal health care
offense[s].” 18 U. S. C. §1345(a)(2). But, in the Govern­
ment’s view, Congress could write more statutes authoriz­
ing 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, substi­
tute 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 expen­
sive. See, e.g., §1344 ($1 million fine for bank fraud);
§3571 (mail and wire fraud fines of up to $250,000 for
individuals and $500,000 for organizations); United States
v. Gushlak, 728 F. 3d 184, 187, 203 (CA2 2013) ($17.5
million restitution award against an individual defendant
in a fraud-on-the-market case); FTC v. Trudeau, 662 F. 3d
947, 949 (CA7 2011) ($37.6 million remedial sanction for
fraud). How are defendants whose innocent assets are
frozen in cases like these supposed to pay for a lawyer—
particularly if they lack “tainted assets” because they are
innocent, a class of defendants whom the right to counsel

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15

Opinion of BREYER, J.

certainly seeks to protect? See Powell, 287 U. S., at 69;
Amar, 84 Geo. L. J., at 643 (“[T]he Sixth Amendment is
generally designed to elicit truth and protect innocence”).
These defendants, rendered indigent, would fall back
upon publicly paid counsel, including overworked and
underpaid public defenders. As the Department of Justice
explains, only 27 percent of county-based public defender
offices have sufficient attorneys to meet nationally rec­
ommended caseload standards. Dept. of Justice, Bureau
of Justice Statistics, D. Farole & L. Langton, Census of
Public Defender Offices, 2007: County-based and Local
Public Defender Offices, 2007, p. 10 (Sept. 2010). And as
one amicus points out, “[m]any federal public defender
organizations and lawyers appointed under the Criminal
Justice Act serve numerous clients and have only limited
resources.” Brief for New York Council of Defense Law­
yers 11. The upshot is a substantial risk that accepting the Government’s views would—by increasing the
government-paid-defender workload—render less effective
the basic right the Sixth Amendment seeks to protect.
3
We add that the constitutional line we have drawn
should prove workable. That line distinguishes between a
criminal defendant’s (1) tainted funds and (2) innocent
funds needed to pay for counsel. We concede, as JUSTICE
KENNEDY points out, post, at 12–13, that money is fungi­
ble; 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 Resti­
tution §2.14, p. 175 (1978) (“tracing” permits a claim
against “an asset which is traceable to or the product of ”

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LUIS v. UNITED STATES
Opinion of BREYER, J.

tainted funds); 4 A. Scott, Law of Trusts §518, pp. 3309–3314
(1956) (describing the tracing rules governing commingled
accounts). And those rules will likely also prevent Luis
from benefiting from many of the money transfers and
purchases JUSTICE KENNEDY describes. See post, at 12–13.
Courts use tracing rules in cases involving fraud, pen­
sion rights, bankruptcy, trusts, etc. See, e.g., Montanile v.
Board of Trustees of Nat. Elevator Industry Health Benefit
Plan, 577 U. S. ___, ___–___ (2016) (slip op., at 8–9). They
consequently have experience separating tainted assets
from untainted assets, just as they have experience de­
termining how much money is needed to cover the costs of
a lawyer. See, e.g., 18 U. S. C. §1345(b) (“The court shall
proceed as soon as practicable to the hearing and determi­
nation of [actions to freeze a defendant’s tainted or un­
tainted assets]”); 28 U. S. C. §2412(d) (courts must deter­
mine reasonable attorneys’ fees under the Equal Access to
Justice Act); see also Kaley, 571 U. S., at ___, and n. 3 (slip
op., at 3, and n. 3) (“Since Monsanto, the lower courts have
generally provided a hearing. . . . [to determine] whether
probable cause exists to believe that the assets in dispute
are traceable . . . to the crime charged in the indictment”).
We therefore see little reason to worry, as JUSTICE
KENNEDY seems to, that defendants will “be allowed to
circumvent [the usual forfeiture rules] by using . . . funds
to pay for a high, or even the highest, priced defense team
[they] can find.” Post, at 7.
*
*
*
For the reasons stated, we conclude that the defendant
in this case has a Sixth Amendment right to use her own
“innocent” property to pay a reasonable fee for the assis­
tance 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.

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17

, J. , J.
Opinion
of BREYER
Appendix
to opinion
of BREYER

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 viola­
tion (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, transfer­
ring, removing, dissipating, or disposing of any such prop­
erty or property of equivalent value; and
“(ii) appoint a temporary receiver to administer such
restraining order.
“(3) A permanent or temporary injunction or restraining
order shall be granted without bond.
“(b) The court shall proceed as soon as practicable to the

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LUIS v. UNITED STATES
, J. , J.
Opinion
of BREYER
Appendix
to opinion
of BREYER

hearing and determination of such an action, and may, at
any time before final determination, enter such a restrain­
ing 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.”

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1

THOMAS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

No. 14–419
_________________

SILA LUIS, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT


[March 30, 2016]



JUSTICE THOMAS, concurring in the judgment.
I agree with the plurality that a pretrial freeze of untainted assets violates a criminal defendant’s Sixth
Amendment right to counsel of choice. But I do not agree
with the plurality’s balancing approach. Rather, my
reasoning rests strictly on the Sixth Amendment’s text
and common-law backdrop.
The Sixth Amendment provides important limits on the
Government’s power to freeze a criminal defendant’s
forfeitable assets before trial. And, constitutional rights
necessarily protect the prerequisites for their exercise.
The right “to have the Assistance of Counsel,” U. S. Const.,
Amdt. 6, thus implies the right to use lawfully owned
property to pay for an attorney. Otherwise the right to
counsel—originally understood to protect only the right to
hire counsel of choice—would be meaningless. History
confirms this textual understanding. The common law
limited pretrial asset restraints to tainted assets. Both
this textual understanding and history establish that the
Sixth Amendment prevents the Government from freezing
untainted assets in order to secure a potential forfeiture.
The freeze here accordingly violates the Constitution.
I
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the

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LUIS v. UNITED STATES
THOMAS, J., concurring in judgment

Assistance of Counsel for his defence.” As originally understood, this right guaranteed a defendant the right “to
employ a lawyer to assist in his defense.” Scott v. Illinois,
440 U. S. 367, 370 (1979). The common law permitted
counsel to represent defendants charged with misdemeanors, but not felonies other than treason. W. Beaney, The
Right to Counsel in American Courts 8–9 (1955). The
Sixth Amendment abolished the rule prohibiting representation in felony cases, but was “not aimed to compel the
State to provide counsel for a defendant.” Betts v. Brady,
316 U. S. 455, 466 (1942), overruled by Gideon v. Wainwright, 372 U. S. 335 (1963); see Beaney, supra, at 27–36.
“The right to select counsel of one’s choice” is thus “the
root meaning” of the Sixth Amendment right to counsel.
United States v. Gonzalez-Lopez, 548 U. S. 140, 147–148
(2006).
The Sixth Amendment denies the Government unchecked power to freeze a defendant’s assets before trial
simply to secure potential forfeiture upon conviction. If
that bare expectancy of criminal punishment gave the
Government such power, then a defendant’s right to counsel of choice would be meaningless, because retaining an
attorney requires resources. The law has long recognized
that the “[a]uthorization of an act also authorizes a necessary predicate act.” A. Scalia & B. Garner, Reading Law:
The Interpretation of Legal Texts 192 (2012) (discussing
the “predicate-act canon”). As Thomas Cooley put it with
respect to Government powers, “where a general power is
conferred or duty enjoined, every particular power necessary for the exercise of the one, or the performance of the
other, is also conferred.” Constitutional Limitations 63
(1868); see 1 J. Kent, Commentaries on American Law 464
(13th ed. 1884) (“[W]henever a power is given by a statute,
everything necessary to the making of it effectual or requisite to attain the end is implied”). This logic equally
applies to individual rights. After all, many rights are

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3

THOMAS, J., concurring in judgment

powers reserved to the People rather than delegated to the
Government. Cf. U. S. Const., Amdt. 10 (“The powers not
delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people”).
Constitutional rights thus implicitly protect those closely
related acts necessary to their exercise. “There comes a
point . . . at which the regulation of action intimately and
unavoidably connected with [a right] is a regulation of [the
right] itself.” Hill v. Colorado, 530 U. S. 703, 745 (2000)
(Scalia, J., dissenting). The right to keep and bear arms,
for example, “implies a corresponding right to obtain the
bullets necessary to use them,” Jackson v. City and County
of San Francisco, 746 F. 3d 953, 967 (CA9 2014) (internal quotation marks omitted), and “to acquire and maintain proficiency in their use,” Ezell v. Chicago, 651 F. 3d
684, 704 (CA7 2011). See District of Columbia v. Heller,
554 U. S. 570, 617–618 (2008) (citing T. Cooley, General
Principles of Constitutional Law 271 (2d ed. 1891) (discussing the implicit right to train with weapons)); United
States v. Miller, 307 U. S. 174, 180 (1939) (citing 1 H.
Osgood, The American Colonies in the 17th Century 499
(1904) (discussing the implicit right to possess ammunition)); Andrews v. State, 50 Tenn. 165, 178 (1871) (discussing both rights). Without protection for these closely
related rights, the Second Amendment would be toothless.
Likewise, the First Amendment “right to speak would be
largely ineffective if it did not include the right to engage
in financial transactions that are the incidents of its exercise.” McConnell v. Federal Election Comm’n, 540 U. S.
93, 252 (2003) (Scalia, J., concurring in part, concurring in
judgment in part, and dissenting in part).
The same goes for the Sixth Amendment and the financial resources required to obtain a lawyer. Without constitutional protection for at least some of a defendant’s assets, the Government could nullify the right to counsel of

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LUIS v. UNITED STATES
THOMAS, J., concurring in judgment

choice. As the plurality says, an unlimited power to freeze
assets before trial “would unleash a principle of constitutional law that would have no obvious stopping place.”
Ante, at 14; cf. McCulloch v. Maryland, 4 Wheat. 316, 431
(1819) (“[T]he power to tax involves the power to destroy”
and that “power to destroy may defeat and render useless
the power to create”). Unless the right to counsel also
protects the prerequisite right to use one’s financial resources for an attorney, I doubt that the Framers would
have gone through the trouble of adopting such a flimsy
“parchment barrie[r].” The Federalist No. 48, p. 308 (C.
Rossiter ed. 1961) (J. Madison).
An unlimited power to freeze a defendant’s potentially
forfeitable assets in advance of trial would eviscerate the
Sixth Amendment’s original meaning and purpose. At
English common law, forfeiture of all real and personal
property was a standard punishment for felonies. See 4
W. Blackstone, Commentaries on the Laws of England 95
(1769) (Blackstone). That harsh penalty never caught on
in America. See Calero-Toledo v. Pearson Yacht Leasing
Co., 416 U. S. 663, 682–683 (1974). The First Congress
banned it. See Crimes Act of 1790, §24, 1 Stat. 117 (“[N]o
conviction or judgment for any of the offences aforesaid,
shall work corruption of blood, or any forfeiture of estate”).
But the Constitution did not. See Art. III, §3, cl. 2 (“[N]o
Attainder of Treason shall work Corruption of Blood, or
Forfeiture except during the Life of the Person attainted”).
If the Government’s mere expectancy of a total forfeiture
upon conviction were sufficient to justify a complete pretrial asset freeze, then Congress could render the right to
counsel a nullity in felony cases. That would have shocked
the Framers. As discussed, before adoption of the Sixth
Amendment, felony cases (not misdemeanors) were precisely when the common law denied defendants the right
to counsel. See supra, at ___. With an unlimited power to
freeze assets before trial, the Government could well

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5

THOMAS, J., concurring in judgment

revive the common-law felony rule that the Sixth Amendment was designed to abolish.
The modern, judicially created right to Governmentappointed counsel does not obviate these concerns. As
understood in 1791, the Sixth Amendment protected a
defendant’s right to retain an attorney he could afford. It
is thus no answer, as the principal dissent replies, that
defendants rendered indigent by a pretrial asset freeze
can resort to public defenders. Post, at 14 (opinion of
KENNEDY, J.). The dissent’s approach nullifies the original understanding of the right to counsel. To ensure that
the right to counsel has meaning, the Sixth Amendment
limits the assets the Government may freeze before trial
to secure eventual forfeiture.
II
The longstanding rule against restraining a criminal
defendant’s untainted property before conviction guarantees a meaningful right to counsel. The common-law
forfeiture tradition provides the limits of this Sixth
Amendment guarantee. That tradition draws a clear line
between tainted and untainted assets. The only alternative to this common-law reading is case-by-case adjudication to determine which freezes are “legitimate” and which
are an “abuse of . . . power.” McCulloch, 4 Wheat., at 430.
This piecemeal approach seems woefully inadequate.
Such questions of degree are “unfit for the judicial department.” Ibid. But see Caplin & Drysdale, Chartered v.
United States, 491 U. S. 617, 635 (1989) (stating in dicta
that “[c]ases involving particular abuses can be dealt with
individually . . . when (and if) any such cases arise”).
Fortunately the common law drew a clear line between
tainted and untainted assets.
Pretrial freezes of untainted forfeitable assets did not
emerge until the late 20th century. “ ‘[T]he lack of historical precedent’ ” for the asset freeze here is “ ‘[p]erhaps the

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LUIS v. UNITED STATES
THOMAS, J., concurring in judgment

most telling indication of a severe constitutional problem.’ ” Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 505–506 (2010) (quoting
Free Enterprise Fund v. Public Company Accounting
Oversight Bd., 537 F. 3d 667, 699 (CADC 2008) (Kavanaugh, J., dissenting)). Indeed, blanket asset freezes
are so tempting that the Government’s “prolonged reticence would be amazing if [they] were not understood to
be constitutionally proscribed.”
Plaut v. Spendthrift
Farm, Inc., 514 U. S. 211, 230 (1995); see Printz v. United
States, 521 U. S. 898, 907–908 (1997) (reasoning that the
lack of early federal statutes commandeering state executive officers “suggests an assumed absence of such power”
given “the attractiveness of that course to Congress”).
The common law prohibited pretrial freezes of criminal
defendants’ untainted assets. As the plurality notes, ante,
at 13, for in personam criminal forfeitures like that at
issue here, any interference with a defendant’s property
traditionally required a conviction. Forfeiture was “a part,
or at least a consequence, of the judgment of conviction.”
The Palmyra, 12 Wheat. 1, 14 (1827) (Story, J.). The
defendant’s “property cannot be touched before . . . the
forfeiture is completed.” 1 J. Chitty, A Practical Treatise
on the Criminal Law 737 (5th ed. 1847). This rule applied
equally “to money as well as specific chattels.” Id., at 736.
And it was not limited to full-blown physical seizures.
Although the defendant’s goods could be appraised and
inventoried before trial, he remained free to “sell any of
them for his own support in prison, or that of his family, or
to assist him in preparing for his defence on the trial.” Id.,
at 737 (emphasis added). Blackstone likewise agreed that
a defendant “may bona fide sell any of his chattels, real or
personal, for the sustenance of himself and family between
the [offense] and conviction.” 4 Blackstone 380; see Fleetwood’s Case, 8 Co. Rep. 171a, 171b, 77 Eng. Rep. 731, 732
(K. B. 1611) (endorsing this rule). At most, a court could

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7

THOMAS, J., concurring in judgment

unwind prejudgment fraudulent transfers after conviction.
4 Blackstone 381; see Jones v. Ashurt, Skin. 357, 357–358,
90 Eng. Rep. 159 (K. B. 1693) (unwinding a fraudulent
sale after conviction because it was designed to defeat
forfeiture). Numerous English authorities confirm these
common-law principles. Chitty, supra, at 736–737 (collecting sources).
The common law did permit the Government, however,
to seize tainted assets before trial. For example, “seizure
of the res has long been considered a prerequisite to the
initiation of in rem forfeiture proceedings.” United States
v. James Daniel Good Real Property, 510 U. S. 43, 57
(1993) (emphasis added); see The Brig Ann, 9 Cranch 289,
291 (1815) (Story, J.). But such forfeitures were traditionally “fixed . . . by determining what property has been
‘tainted’ by unlawful use.” Austin v. United States, 509
U. S. 602, 627 (1993) (Scalia, J., concurring in part and
concurring in judgment). So the civil in rem forfeiture
tradition tracks the tainted-untainted line. It provides no
support for the asset freeze here.
There is a similarly well-established Fourth Amendment tradition of seizing contraband and stolen goods
before trial based only on probable cause. See Carroll v.
United States, 267 U. S. 132, 149–152 (1925) (discussing
this history); Boyd v. United States, 116 U. S. 616, 623–
624 (1886) (same). Tainted assets fall within this tradition because they are the fruits or instrumentalities of
crime. So the Government may freeze tainted assets
before trial based on probable cause to believe that they
are forfeitable. See United States v. Monsanto, 491 U. S.
600, 602–603, 615–616 (1989). Nevertheless, our precedents require “a nexus . . . between the item to be seized
and criminal behavior.” Warden, Md. Penitentiary v.
Hayden, 387 U. S. 294, 307 (1967). Untainted assets
almost never have such a nexus. The only exception is
that some property that is evidence of crime might techni-

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LUIS v. UNITED STATES
THOMAS, J., concurring in judgment

cally qualify as “untainted” but nevertheless has a nexus
to criminal behavior. See ibid. Thus, untainted assets do
not fall within the Fourth Amendment tradition either.
It is certainly the case that some early American statutes did provide for civil forfeiture of untainted substitute
property. See Registry Act, §12, 1 Stat. 293 (providing for
forfeiture of a ship or “the value thereof ”); Collection Act
of July 31, 1789, §22, 1 Stat. 42 (similar for goods); United
States v. Bajakajian, 524 U. S. 321, 341 (1998) (collecting
statutes). These statutes grew out of a broader “sixcentury-long tradition of in personam customs fines equal
to one, two, three, or even four times the value of the
goods at issue.” Id., at 345–346 (KENNEDY, J., dissenting).
But this long tradition of in personam customs fines
does not contradict the general rule against pretrial seizures of untainted property. These fines’ in personam
status strongly suggests that the Government did not
collect them by seizing property at the outset of litigation.
As described, that process was traditionally required for
in rem forfeiture of tainted assets. See supra, at ___.
There appears to be scant historical evidence, however,
that forfeiture ever involved seizure of untainted assets
before trial and judgment, except in limited circumstances
not relevant here. Such summary procedures were reserved for collecting taxes and seizures during war. See
Phillips v. Commissioner, 283 U. S. 589, 595 (1931); Miller
v. United States, 11 Wall. 268, 304–306 (1871). The Government’s right of action in tax and custom-fine cases may
have been the same—“a civil action of debt.” Bajakajian,
supra, at 343, n. 18; Stockwell v. United States, 13 Wall.
531, 543 (1871); Adams v. Woods, 2 Cranch 336, 341
(1805). Even so, nothing suggests trial and judgment were
expendable. See Miller, supra, at 304–305 (stating in
dicta that confiscating Confederate property through
in rem proceedings would have raised Fifth and Sixth
Amendment concerns had they not been a war measure).

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9

THOMAS, J., concurring in judgment

The common law thus offers an administrable line: A
criminal defendant’s untainted assets are protected from
Government interference before trial and judgment. His
tainted assets, by contrast, may be seized before trial as
contraband or through a separate in rem proceeding.
Reading the Sixth Amendment to track the historical line
between tainted and untainted assets makes good sense.
It avoids case-by-case adjudication, and ensures that the
original meaning of the right to counsel does real work.
The asset freeze here infringes the right to counsel because it “is so broad that it differs not only in degree, but
in kind, from its historical antecedents.” James Daniel
Good, supra, at 82 (THOMAS, J., concurring in part and
dissenting in part).
The dissenters object that, before trial, a defendant has
an identical property interest in tainted and untainted
assets. See post, at 8–9 (opinion of KENNEDY, J.); post, at
2 (opinion of KAGAN, J.). Perhaps so. I need not take a
position on the matter. Either way, that fact is irrelevant.
Because the pretrial asset freeze here crosses into untainted assets, for which there is no historical tradition, it
is unconstitutional. Any such incursion violates the Sixth
Amendment.
III
Since the asset freeze here violates the Sixth Amendment, the plurality correctly concludes that the judgment
below must be reversed. But I cannot go further and
endorse the plurality’s atextual balancing analysis. The
Sixth Amendment guarantees the right to counsel of
choice. As discussed, a pretrial freeze of untainted assets
infringes that right. This conclusion leaves no room for
balancing. Moreover, I have no idea whether, “compared
to the right to counsel of choice,” the Government’s interests in securing forfeiture and restitution lie “further from
the heart of a fair, effective criminal justice system.” Ante,

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THOMAS, J., concurring in judgment

at 12. Judges are not well suited to strike the right “balance” between those incommensurable interests. Nor do I
think it is our role to do so. The People, through ratification, have already weighed the policy tradeoffs that constitutional rights entail. See Heller, 554 U. S., at 634–635.
Those tradeoffs are thus not for us to reevaluate. “The
very enumeration of the right” to counsel of choice denies
us “the power to decide . . . whether the right is really
worth insisting upon.” Id., at 634. Such judicial balancing
“do[es] violence” to the constitutional design. Crawford v.
Washington, 541 U. S. 36, 67–68 (2004). And it is out of
step with our interpretive tradition. See Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L. J. 943,
949–952 (1987) (noting that balancing did not appear in
the Court’s constitutional analysis until the mid-20th
century).
The plurality’s balancing analysis also casts doubt on
the constitutionality of incidental burdens on the right to
counsel. For the most part, the Court’s precedents hold
that a generally applicable law placing only an incidental
burden on a constitutional right does not violate that
right. See R. A. V. v. St. Paul, 505 U. S. 377, 389–390
(1992) (explaining that content-neutral laws do not violate
the First Amendment simply because they incidentally
burden expressive conduct); Employment Div., Dept. of
Human Resources of Ore. v. Smith, 494 U. S. 872, 878–882
(1990) (likewise for religion-neutral laws that burden
religious exercise).
Criminal-procedure rights tend to follow the normal
incidental-burden rule.
The Constitution does not
“forbi[d] every government-imposed choice in the criminal
process that has the effect of discouraging the exercise of
constitutional rights.” Chaffin v. Stynchcombe, 412 U. S.
17, 30 (1973). The threat of more severe charges if a
defendant refuses to plead guilty does not violate his right
to trial. See Bordenkircher v. Hayes, 434 U. S. 357, 365

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THOMAS, J., concurring in judgment

(1978). And, in my view, prosecutorial arguments that
raise the “cost” of remaining silent do not violate a defendant’s right against self-incrimination (at least as a matter
of original meaning). See Mitchell v. United States, 526
U. S. 314, 342–343 (1999) (THOMAS, J., dissenting); id., at
331–336 (Scalia, J., dissenting).
The Sixth Amendment arguably works the same way.
“[A] defendant may not insist on representation by an
attorney he cannot afford.” Wheat v. United States, 486
U. S. 153, 159 (1988). The Constitution perhaps guarantees only a “freedom of counsel” akin to the First Amendment freedoms of speech and religion that also “depen[d]
in part on one’s financial wherewithal.” Caplin & Drysdale, 491 U. S., at 628. Numerous laws make it more
difficult for defendants to retain a lawyer. But that fact
alone does not create a Sixth Amendment problem. For
instance, criminal defendants must still pay taxes even
though “these financial levies may deprive them of resources that could be used to hire an attorney.” Id., at
631–632. So I lean toward the principal dissent’s view
that incidental burdens on the right to counsel of choice
would not violate the Sixth Amendment. See post, at 5–6,
11–12 (opinion of KENNEDY, J.).
On the other hand, the Court has said that the right to
counsel guarantees defendants “a fair opportunity to
secure counsel of [their] choice.” Powell v. Alabama, 287
U. S. 45, 52–53 (1932) (emphasis added). The state court
in Powell denied the defendants such an opportunity, the
Court held, by moving to trial so quickly (six days after
indictment) that the defendants had no chance to communicate with family or otherwise arrange for representation. Ibid. The schedule in Powell was not designed to
block counsel, which suggests the usual incidental-burden
rule might be inapt in the Sixth Amendment context. I
leave the question open because this case does not require
an answer.

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THOMAS, J., concurring in judgment

The asset freeze here is not merely an incidental burden
on the right to counsel of choice; it targets a defendant’s
assets, which are necessary to exercise that right, simply
to secure forfeiture upon conviction. The prospect of that
criminal punishment, however, is precisely why the Constitution guarantees a right to counsel.
The Sixth
Amendment does not permit the Government’s bare expectancy of forfeiture to void that right. When the potential
of a conviction is the only basis for interfering with a
defendant’s assets before trial, the Constitution requires
the Government to respect the longstanding common-law
protection for a defendant’s untainted property.
For these reasons, I concur only in the judgment.

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KENNEDY, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 14–419
_________________

SILA LUIS, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF


APPEALS FOR THE ELEVENTH CIRCUIT


[March 30, 2016]



JUSTICE KENNEDY, with whom JUSTICE ALITO joins,
dissenting.
The plurality and JUSTICE THOMAS find in the Sixth
Amendment a right of criminal defendants to pay for an
attorney with funds that are forfeitable upon conviction so
long as those funds are not derived from the crime alleged.
That unprecedented holding rewards criminals who hurry
to spend, conceal, or launder stolen property by assuring
them that they may use their own funds to pay for an
attorney after they have dissipated the proceeds of their
crime. It matters not, under today’s ruling, that the defendant’s remaining assets must be preserved if the victim
or the Government is to recover for the property wrongfully taken. By granting a defendant a constitutional
right to hire an attorney with assets needed to make a
property-crime victim whole, the plurality and JUSTICE
THOMAS ignore this Court’s precedents and distort the
Sixth Amendment right to counsel.
The result reached today makes little sense in cases
that involve fungible assets preceded by fraud, embezzlement, or other theft. An example illustrates the point.
Assume a thief steals $1 million and then wins another $1
million in a lottery. After putting the sums in separate
accounts, he or she spends $1 million. If the thief spends
his or her lottery winnings, the Government can restrain
the stolen funds in their entirety. The thief has no right to

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KENNEDY, J., dissenting

use those funds to pay for an attorney. Yet if the thief
heeds today’s decision, he or she will spend the stolen
money first; for if the thief is apprehended, the $1 million
won in the lottery can be used for an attorney. This result
is not required by the Constitution.
The plurality reaches its conclusion by weighing a defendant’s Sixth Amendment right to counsel of choice
against the Government’s interest in preventing the dissipation of assets forfeitable upon conviction. In so doing,
it—like JUSTICE THOMAS—sweeps aside the decisions in
Caplin & Drysdale, Chartered v. United States, 491 U. S.
617 (1989), and United States v. Monsanto, 491 U. S. 600
(1989), both of which make clear that a defendant has no
Sixth Amendment right to spend forfeitable assets (or
assets that will be forfeitable) on an attorney. The principle the Court adopted in those cases applies with equal
force here. Rather than apply that principle, however, the
plurality and concurrence adopt a rule found nowhere in
the Constitution or this Court’s precedents—that the
Sixth Amendment protects a person’s right to spend otherwise forfeitable assets on an attorney so long as those
assets are not related to or the direct proceeds of the
charged crime. Ante, at 1 (plurality opinion); ante, at 1
(THOMAS, J., concurring in judgment). The reasoning in
these separate opinions is incorrect, and requires this
respectful dissent.
I
This case arises from petitioner Sila Luis’ indictment for
conspiring to commit health care fraud against the United
States. The Government alleges that, as part of her illegal
scheme, Luis used her health care companies to defraud
Medicare by billing for services that were not medically
necessary or actually provided. The charged crimes, the
Government maintains, resulted in the payment of $45
million in improper Medicare benefits to Luis’ companies.

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KENNEDY, J., dissenting

The same day Luis was indicted, the Government initiated a civil action under 18 U. S. C. §1345 to restrain Luis’
assets before her criminal trial, including substitute property of an amount equivalent to the value of the proceeds
of her alleged crimes. To establish its entitlement to a
restraining order, the Government showed that Luis and
her co-conspirators were dissipating the illegally obtained
assets. In particular, they were transferring money involved in the scheme to various individuals and entities,
including shell corporations owned by Luis’ family members. As part of this process, Luis opened and closed well
over 40 bank accounts and withdrew large amounts of
cash to hide the conspiracy’s proceeds. Luis personally
received almost $4.5 million in funds and used at least
some of that money to purchase luxury items, real estate,
and automobiles, and to travel. Based on this and other
evidence, the District Court entered an order prohibiting
Luis from spending up to $45 million of her assets.
Before the Court of Appeals for the Eleventh Circuit,
Luis argued that the Sixth Amendment required that she
be allowed to spend the restrained substitute assets on an
attorney. The Court of Appeals disagreed, concluding that
“[t]he arguments made by Luis . . . are foreclosed by the
United States Supreme Court decisions in . . . Caplin &
Drysdale [and] Monsanto.” 564 Fed. Appx. 493, 494 (2014)
( per curiam). In my view the Court of Appeals was correct, and its judgment should be affirmed.
II


A


In Caplin & Drysdale, a law firm had represented a
defendant charged with running a massive drugdistribution scheme. The defendant pleaded guilty and
agreed to forfeit his assets. The law firm then sought to
recover a portion of the forfeited assets for its legal fees.
The firm argued that, when a defendant needs forfeitable

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KENNEDY, J., dissenting

assets to pay for an attorney, the forfeiture of those assets
violates the defendant’s Sixth Amendment right to be
represented by his counsel of choice.
The Court rejected the firm’s argument. The Sixth
Amendment, the Court explained, “guarantees defendants
in criminal cases the right to adequate representation, but
those who do not have the means to hire their own lawyers
have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts.”
Caplin & Drysdale, 491 U. S., at 624. As for the right to
choose one’s own attorney, the Court observed that “nothing in [the forfeiture statute] prevents a defendant from
hiring the attorney of his choice, or disqualifies any attorney from serving as a defendant’s counsel.” Id., at 625.
Even defendants who possess “nothing but assets the
Government seeks to have forfeited . . . may be able to find
lawyers willing to represent them, hoping that their fees
will be paid in the event of acquittal, or via some other
means that a defendant might come by in the future.”
Ibid. The burden imposed by forfeiture law, the Court
concluded, is thus “a limited one.” Ibid.
Caplin & Drysdale also repudiated the firm’s contention
that the Government has only a modest interest in forfeitable assets that may be used to retain an attorney. In
light of the importance of separating criminals from their
ill-gotten gains and providing restitution to victims of
crime, the Court found “a strong governmental interest in
obtaining full recovery of all forfeitable assets, an interest
that overrides any Sixth Amendment interest in permitting criminals to use assets adjudged forfeitable to pay for
their defense.” Id., at 631.
The same day the Court decided Caplin & Drysdale it
decided Monsanto, which addressed the pretrial restraint
of a defendant’s assets “where the defendant seeks to use
those assets to pay an attorney.” 491 U. S., at 602. The
Court rejected the notion that there is a meaningful dis-

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KENNEDY, J., dissenting

tinction, for Sixth Amendment purposes, between the
restraint of assets before trial and the forfeiture of assets
after trial: “[I]f the Government may, post-trial, forbid the
use of forfeited assets to pay an attorney, then surely no
constitutional violation occurs when, after probable cause
is adequately established, the Government obtains an
order barring a defendant from frustrating that end by
dissipating his assets prior to trial.” Id., at 616. The
Court noted, moreover, that “it would be odd to conclude
that the Government may not restrain property . . . in [a
defendant’s] possession, based on a finding of probable
cause, when we have held that (under appropriate circumstances), the Government may restrain persons where
there is a finding of probable cause.” Id., at 615–616.
When a defendant himself can be restrained pretrial,
there is “no constitutional infirmity” in a similar pretrial
restraint of a defendant’s property “to protect its ‘appearance’ at trial and protect the community’s interest in full
recovery of any ill-gotten gains.” Id., at 616.
B
The principle the Court announced in Caplin & Drysdale and Monsanto controls the result here. Those cases
establish that a pretrial restraint of assets forfeitable
upon conviction does not contravene the Sixth Amendment
even when the defendant possesses no other funds with
which to pay for an attorney. The restraint itself does not
prevent a defendant from seeking to convince his or her
counsel of choice to take on the representation without
advance payment. See Caplin & Drysdale, 491 U. S., at
625. It does not disqualify any attorney the defendant
might want. Ibid. And it does not prevent a defendant
from borrowing funds to pay for an attorney who is otherwise too expensive. To be sure, a pretrial restraint may
make it difficult for a defendant to secure counsel who
insists that high defense costs be paid in advance. That

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LUIS v. UNITED STATES
KENNEDY, J., dissenting

difficulty, however, does not result in a Sixth Amendment
violation any more than high taxes or other government
exactions that impose a similar burden. See, e.g., id., at
631–632 (“Criminal defendants . . . are not exempted from
federal, state, and local taxation simply because these
financial levies may deprive them of resources that could
be used to hire an attorney”).
The pretrial restraint in Monsanto was no more burdensome than the pretrial restraint at issue here. Luis, like
the defendant in Monsanto, was not barred from obtaining
the assistance of any particular attorney. She was free to
seek lawyers willing to represent her in the hopes that
their fees would be paid at some future point. In short,
§1345’s authorization of a pretrial restraint of substitute
assets places no greater burden on a defendant like Luis
than the forfeiture and pretrial restraint statute placed on
the defendant in Monsanto.
In addition, the Government has the same “strong . . .
interest in obtaining full recovery of all forfeitable assets”
here as it did in Caplin & Drysdale and Monsanto. See
Caplin & Drysdale, supra, at 631. If Luis is convicted,
the Government has a right to recover Luis’ substitute
assets—the money she kept for herself while spending the
taxpayer dollars she is accused of stealing. Just as the
Government has an interest in ensuring Luis’ presence at
trial—an interest that can justify a defendant’s pretrial
detention—so too does the Government have an interest in
ensuring the availability of her substitute assets after
trial, an interest that can justify pretrial restraint.
One need look no further than the Court’s concluding
words in Monsanto to know the proper result here: “[N]o
constitutional violation occurs when, after probable cause
[to believe that a defendant’s assets will be forfeitable] is
adequately established, the Government obtains an order
barring a defendant from . . . dissipating his assets prior to
trial.” 491 U. S., at 616. The Government, having estab-

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KENNEDY, J., dissenting

lished probable cause to believe that Luis’ substitute
assets will be forfeitable upon conviction, should be permitted to obtain a restraining order barring her from
spending those funds prior to trial. Luis should not be
allowed to circumvent that restraint by using the funds to
pay for a high, or even the highest, priced defense team
she can find.
III
The plurality maintains that Caplin & Drysdale and
Monsanto do not apply because “the nature of the assets at
issue here differs from the assets at issue in those earlier
cases.” Ante, at 5. According to the plurality, the property
here “belongs to the defendant, pure and simple.” Ibid. It
states that, while “title to property used to commit a crime
. . . often passes to the Government at the instant the
crime is planned or committed,” title to Luis’ untainted
property has not passed to the Government. Ante, at 6.
“That fact,” the plurality concludes, “undermines the
Government’s reliance upon precedent, for both Caplin &
Drysdale and Monsanto relied critically upon the fact that
the property at issue was ‘tainted,’ and that title to the
property therefore had passed from the defendant to the
Government before the court issued its order freezing (or
otherwise disposing of) the assets.” Ibid.
These conclusions depend upon a key premise: The
Government owns tainted assets before a defendant is
convicted. That premise is quite incorrect, for the common
law and this Court’s precedents establish that the opposite
is true. The Government does not own property subject to
forfeiture, whether tainted or untainted, until the Government wins a judgment of forfeiture or the defendant is
convicted. As Blackstone noted with emphasis, “goods and
chattels are forfeited by conviction.” 4 W. Blackstone,
Commentaries on the Laws of England 380 (1769) (Blackstone). Justice Story likewise observed that “no right to

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LUIS v. UNITED STATES
KENNEDY, J., dissenting

the goods and chattels of the felon could be acquired by the
crown by the mere commission of the offence; but the right
attached only by the conviction of the offender.” The
Palmyra, 12 Wheat. 1, 14 (1827); ibid. (“In the contemplation of the common law, the offender’s right was not devested until the conviction”).
These authorities demonstrate that Caplin & Drysdale
and Monsanto cannot be distinguished based on “the
nature of the assets at issue.” Title to the assets in those
cases did not pass from the defendant to the Government
until conviction. As a result, the assets restrained before
conviction in Monsanto were on the same footing as the
assets restrained here: There was probable cause to believe that the assets would belong to the Government upon
conviction. But when the court issued its restraining
order, they did not. The Government had no greater
ownership interest in Monsanto’s tainted assets than it
has in Luis’ substitute assets.
The plurality seeks to avoid this conclusion by relying
on the relation-back doctrine. In its view the doctrine
gives the Government title to tainted assets upon the
commission of a crime rather than upon conviction or
judgment of forfeiture. Even assuming, as this reasoning
does, that the relation-back doctrine applies only to tainted
assets—but see United States v. McHan, 345 F. 3d 262,
270–272 (CA4 2003)—the doctrine does not do the work
the plurality’s analysis requires.
The relation-back doctrine, which is incorporated in
some forfeiture statutes, see, e.g., 21 U. S. C. §853(c), has
its origins in the common law. Under this legal construct,
the Government’s title to certain types of forfeitable property relates back to the time at which the defendant committed the crime giving rise to the forfeiture. See 4 Blackstone 375 (“forfeiture [of real estates] relates backwards to
the time of the treason committed; so as to avoid all intermediate sales and incumbrances”); United States v.

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KENNEDY, J., dissenting

Parcel of Rumson, N. J., Land, 507 U. S. 111, 125 (1993)
(plurality opinion). The doctrine’s purpose is to prevent
defendants from avoiding forfeiture by transferring their
property to third parties. The doctrine, however, does not
alter the time at which title to forfeitable property passes
to the Government. Title is transferred only when a conviction is obtained or the assets are otherwise forfeited; it
is only once this precondition is met that relation back to
the time of the offense is permitted. See ibid. (The relation-back doctrine’s “fictional and retroactive vesting” is
“not self-executing”); id., at 132 (Scalia, J., concurring in
judgment) (“The relation-back rule applies only in cases
where the Government’s title has been consummated by
seizure, suit, and judgment, or decree of condemnation,
whereupon the doctrine of relation carries back the title to
the commission of the offense” (internal quotation marks,
brackets, and citations omitted)); United States v. Grundy,
3 Cranch 337, 350–351 (1806) (Marshall, C. J., opinion for
the Court) (a forfeitable asset does not “ves[t] in the government until some legal step shall be taken for the assertion of its right”); 4 Blackstone 375 (“But, though after
attainder the forfeiture relates back to the time of the
treason committed, yet it does not take effect unless an
attainder be had”). In short, forfeitable property does not
belong to the Government in any sense before judgment or
conviction. Cf. ante, at 9 (plurality opinion). Until the
Government wins a judgment or conviction, “someone else
owns the property.” Parcel of Rumson, supra, at 127.
The plurality is correct to note that Caplin & Drysdale
discussed the relation-back provision in the forfeiture
statute at issue. The Caplin & Drysdale Court did not do
so, however, to suggest that forfeitable assets can be restrained only when the assets are tainted. Rather, the
Court referred to the provision to rebut the law firm’s
argument that the United States has less of an interest in
forfeitable property than robbery victims have in their

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KENNEDY, J., dissenting

stolen property. 491 U. S., at 627–628. More to the point,
central to the Court’s decision was its observation that,
because the Government obtained “title to [the defendant’s] assets upon conviction,” it would be “peculiar” to
hold that the Sixth Amendment still gave the defendant
the right to pay his attorney with those assets. Id., at 628.
Monsanto reinforced that view, holding that the pretrial
restraint of assets—money to which the Government does
not yet have title—is permissible even when the defendant
wants to use those assets to pay for counsel. 491 U. S., at
616. True, the assets in Caplin & Drysdale and Monsanto
happened to be derived from the criminal activity alleged;
but the Court’s reasoning in those cases was based on the
Government’s entitlement to recoup money from criminals
who have profited from their crimes, not on tracing or
identifying the actual assets connected to the crime. For
this reason, the principle the Court announced in those
cases applies whenever the Government obtains (or will
obtain) title to assets upon conviction. Nothing in either
case depended on the assets being tainted or justifies
refusing to apply the rule from those cases here.
The plurality makes much of various statutory provisions that, in its view, give the United States a superior
interest before trial in tainted assets but not untainted
ones. See ante, at 8–9. That view, however, turns not on
any reasoning specific to the Sixth Amendment but rather
on Congress’ differential treatment of tainted versus
untainted assets. The plurality makes no attempt to
explain why Congress’ decision in §1345 to permit the
pretrial restraint of substitute assets is not also relevant
to its analysis. More to the point, Congress’ statutory
treatment of property is irrelevant to a Sixth Amendment
analysis. The protections afforded by the Sixth Amendment should not turn on congressional whims.
The plurality’s concern over the implications of the
Government’s position appears animated by a hypothetical

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KENNEDY, J., dissenting

future case where a defendant’s assets are restrained not
to return stolen funds but, for example, to pay a fine. That
case, however, is not the case before the Court. Section
1345 authorizes pretrial restraints to preserve substitute
assets, not to provide for fines greater than the amounts
stolen. The holdings in Caplin & Drysdale and Monsanto,
and what should be the holding today, thus, do not address the result in a case involving a fine. The governmental interests at stake when a fine is at issue are quite
separate and distinct from the interests implicated here.
This case implicates the Government’s interest in preventing the dissipation, transfer, and concealment of stolen
funds, as well as its interest in preserving for victims any
funds that remain. Those interests justify, in cases like
this one, the pretrial restraint of substitute assets.
IV
The principle the plurality and JUSTICE THOMAS announce today—that a defendant has a right to pay for an
attorney with forfeitable assets so long as those assets are
not related to or the direct proceeds of the crime alleged—
has far-reaching implications. There is no clear explanation why this principle does not extend to the exercise of
other constitutional rights. “If defendants have a right to
spend forfeitable assets on attorney’s fees, why not on
exercises of the right to speak, practice one’s religion, or
travel?” Caplin & Drysdale, 491 U. S., at 628. Nor does
either opinion provide any way to distinguish between the
restraint at issue here and other governmental interferences with a defendant’s assets. If the restraint of Luis’
assets violates the Sixth Amendment, could the same be
said of any imposition on a criminal defendant’s assets?
Cf. id., at 631 (“[S]eizures of assets to secure potential tax
liabilities . . . may impair a defendant’s ability to retain
counsel . . . [y]et these assessments have been upheld
against constitutional attack”). If a defendant is fined in a

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KENNEDY, J., dissenting

prior matter, is the Government barred from collecting the
fine if it will leave the defendant unable to afford a particular attorney in a current case? No explanation is provided for what, if any, limits there are on the invented
exemption for attorney’s fees.
The result today also creates arbitrary distinctions
between defendants. Money, after all, is fungible. There
is no difference between a defendant who has preserved
his or her own assets by spending stolen money and a
defendant who has spent his or her own assets and
preserved stolen cash instead. Yet the plurality and
concurrence—for different reasons—find in the Sixth
Amendment the rule that greater protection is given to the
defendant who, by spending, laundering, exporting, or
concealing stolen money first, preserves his or her remaining funds for use on an attorney.
The true winners today are sophisticated criminals who
know how to make criminal proceeds look untainted.
They do so every day. They “buy cashier’s checks, money
orders, nonbank wire transfers, prepaid debit cards, and
traveler’s checks to use instead of cash for purchases or
bank deposits.” Dept. of Treasury, National Money Laundering Risk Assessment 2015, p. 3. They structure their
transactions to avoid triggering recordkeeping and reporting requirements. Ibid. And they open bank accounts in
other people’s names and through shell companies, all to
disguise the origins of their funds. Ibid.
The facts of this case illustrate the measures one might
take to conceal or dispose of ill-gotten gains. In declarations relied on by the District Court, the Federal Bureau of
Investigation (FBI) Special Agent investigating the case
explained that “Luis transferred monies or caused the
transfer of monies received from Medicare to . . . family
members and companies owned by family members,”
including $1,471,000 to her husband, and over a million
dollars to her children and former daughter-in-law. App.

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72–73. She also “used Medicare monies for foreign travel,”
including approximately 31 trips to Mexico, “where she
owns several properties and has numerous bank accounts.” Id., at 73. She “transferred Medicare monies
overseas through international wire transfers to Mexico.”
Ibid. And the Government was “able to trace Medicare
proceeds going into [all but one of the] bank account[s]
owned by Defendant Luis and/or her companies listed in
the Court’s” temporary restraining order. Id., at 74. No
doubt Luis would have enjoyed her travel and expenditures even more had she known that, were her alleged
wrongs discovered, a majority of the Justices would insist
that she be allowed to pay her chosen legal team at the
price they set rather than repay her victim.
Notwithstanding that the Government established
probable cause to believe that Luis committed numerous
crimes and used the proceeds of those crimes to line her
and her family’s pockets, the plurality and JUSTICE
THOMAS reward Luis’ decision to spend the money she is
accused of stealing rather than her own. They allow Luis
to bankroll her private attorneys as well as “the best and
most industrious investigators, experts, paralegals, and
law clerks” money can buy—a legal defense team Luis
claims she cannot otherwise afford. See Corrected Motion
to Modify the Restraining Order in No. 12–Civ–23588,
p. 13 (SD Fla., Nov. 16, 2012). The Sixth Amendment does
not provide such an unfettered right to counsel of choice.
It is well settled that the right to counsel of choice is
limited in important respects. A defendant cannot demand a lawyer who is not a member of the bar. Wheat v.
United States, 486 U. S. 153, 159 (1988). Nor may a defendant insist on an attorney who has a conflict of interest. Id., at 159, 164. And, as quite relevant here, “a defendant may not insist on representation by an attorney
he cannot afford.” Id., at 159. As noted earlier, “those
who do not have the means to hire their own lawyers have

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KENNEDY, J., dissenting

no cognizable complaint so long as they are adequately
represented by attorneys appointed by the courts.” Caplin
& Drysdale, 491 U. S., at 624. As a result of the District
Court’s order, Luis simply cannot afford the legal team she
desires unless they are willing to represent her without
advance payment. For Sixth Amendment purposes, the
only question here is whether Luis’ right to adequate
representation is protected. That question is not before
the Court. Neither Luis nor the plurality nor JUSTICE
THOMAS suggests that Luis will receive inadequate representation if she is not able to use the restrained funds.
And this is for good reason. Given the large volume of
defendants in the criminal justice system who rely on
public representation, it would be troubling to suggest
that a defendant who might be represented by a public
defender will receive inadequate representation. See
generally T. Giovanni & R. Patel, Gideon at 50: Three
Reforms to Revive the Right to Counsel 1 (2013), online at
http://www.brennancenter.org/sites/default/files/publications/
Gideon_Report_040913.pdf (as last visited Mar. 28, 2016).
Since Luis cannot afford the legal team she desires, and
because there is no indication that she will receive inadequate representation as a result, she does not have a
cognizable Sixth Amendment complaint.
The plurality does warn that accepting the Government’s position “would—by increasing the governmentpaid-defender workload—render less effective the basic
right the Sixth Amendment seeks to protect.” Ante, at 15.
Public-defender offices, the plurality suggests, already
lack sufficient attorneys to meet nationally recommended
caseload standards. Ibid. But concerns about the caseloads of public-defender offices do not justify a constitutional command to treat a defendant accused of committing a lucrative crime differently than a defendant who is
indigent from the outset. The Constitution does not require victims of property crimes to fund subsidies for

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KENNEDY, J., dissenting

members of the private defense bar.
Because the rule announced today is anchored in the
Sixth Amendment, moreover, it will frustrate not only the
Federal Government’s use of §1345 but also the States’
administration of their forfeiture schemes. Like the Federal Government, States also face criminals who engage in
money laundering through extensive enterprises that
extend to other States and beyond. Where a defendant
has put stolen money beyond a State’s reach, a State
should not be precluded from freezing the assets the defendant has in hand. The obstacle that now stands in the
States’ way is not found in the Constitution. It is of the
Court’s making.
Finally, the plurality posits that its decision “should
prove workable” because courts “have experience separating tainted assets from untainted assets, just as they have
experience determining how much money is needed to
cover the costs of a lawyer.” Ante, at 15–16. Neither of
these assurances is adequate.
As to the first, the plurality cites a number of sources for
the proposition that courts have rules that allow them to
implement the distinction it adopts. Ibid. Those rules,
however, demonstrate the illogic of the conclusion that
there is a meaningful difference between the actual dollars
stolen and the dollars of equivalent value in a defendant’s
bank account. The plurality appears to agree that, if a
defendant is indicted for stealing $1 million, the Government can obtain an order preventing the defendant from
spending the $1 million he or she is believed to have stolen. The situation gets more complicated, however, when
the defendant deposits the stolen $1 million into an account that already has $1 million. If the defendant then
spends $1 million from the account, it cannot be determined with certainty whether the money spent was stolen
money rather than money the defendant already had. The
question arises, then, whether the Government can re-

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LUIS v. UNITED STATES
KENNEDY, J., dissenting

strain the remaining million.
One of the treatises on which the plurality relies answers that question. The opinion cites A. Scott’s Law of
Trusts to support the claim that “the law has tracing rules
that help courts implement the kind of distinction . . .
require[d] in this case.” Ante, at 15–16. The treatise says
that, if a “wrongdoer has mingled misappropriated money
with his own money and later makes withdrawals from
the mingled fund,” assuming the withdrawals do not
result in a zero balance, a person who has an interest in
the misappropriated money can recover it from the
amount remaining in the account. 4 A. Scott, Law of
Trusts §518, pp. 3309–3310 (1956). Based on this rule,
one would expect the plurality to agree that, in the above
hypothetical, the Government could restrain up to the full
amount of the stolen funds—that is, the full $1 million—
without having to establish whether the $1 million the
defendant spent was stolen money or not. If that is so, it
is hard to see why its opinion treats as different a situation where the defendant has two bank accounts—one
with the $1 million from before the crime and one with the
stolen $1 million. If the defendant spends the money in
the latter account, the Government should be allowed to
freeze the money in the former account in the same way it
could if the defendant spent the money out of a single,
commingled account. The Sixth Amendment provides no
justification for the decision to mandate different treatment in these all-but-identical situations.
The plurality sees “little reason to worry” about defendants circumventing forfeiture because courts can use rules
like the tracing rule discussed above. Ante, at 16. It also
asserts that these rules “will likely . . . prevent Luis from
benefiting from many of [her] money transfers and purchases.” Ibid. That proposition is doubtful where, as here,
“a lot of money was taken out in cash from the defendant’s
bank accounts” because “[y]ou can’t trace cash.” App. 155.

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KENNEDY, J., dissenting

Even were that not the case, this assertion fails to appreciate that it takes time to trace tainted assets. As the FBI
agent testified, at the time of the hearing both the tracing
and the FBI’s analysis were “still ongoing.” Ibid. The
whole purpose of a pretrial restraint under §1345 is to
maintain the status quo in cases, like this one, where a
defendant is accused of committing crimes that involve
fungible property, e.g., a banking law violation or a federal
health care offense. The plurality’s approach serves to
benefit the most sophisticated of criminals whose web of
transfers and concealment will take the longest to unravel. For if the Government cannot establish at the
outset that every dollar subject to restraint is derived from
the crime alleged, the defendant can spend that money on
whatever defense team he or she desires.
Of equal concern is the assertion that a defendant’s
right to counsel of choice is limited to only those attorneys
who charge a “reasonable fee.” Ante, at 16. If Luis has a
right to use the restrained substitute assets to pay for the
counsel of her choice, then why can she not hire the most
expensive legal team she can afford? In the plurality’s
view, the reason Luis can use the restrained funds for an
attorney is because they are still hers. But if that is so,
then she should be able to use all $2 million of her remaining assets to pay for a lawyer. The plurality’s willingness
to curtail the very right it recognizes reflects the need to
preserve substitute assets from further dissipation.
*
*
*
Today’s ruling abandons the principle established in
Caplin & Drysdale and Monsanto. In its place is an approach that creates perverse incentives and provides
protection for defendants who spend stolen money rather
than their own.
In my respectful view this is incorrect, and the judgment
of the Court of Appeals should be affirmed.

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1

KAGAN, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 14–419
_________________

SILA LUIS, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE ELEVENTH CIRCUIT


[March 30, 2016]



JUSTICE KAGAN, dissenting.
I find United States v. Monsanto, 491 U. S. 600 (1989), a
troubling decision. It is one thing to hold, as this Court
did in Caplin & Drysdale, Chartered v. United States, 491
U. S. 617 (1989), that a convicted felon has no Sixth
Amendment right to pay his lawyer with funds adjudged
forfeitable. Following conviction, such assets belong to the
Government, and “[t]here is no constitutional principle
that gives one person the right to give another’s property
to a third party.” Id., at 628. But it is quite another thing
to say that the Government may, prior to trial, freeze
assets that a defendant needs to hire an attorney, based
on nothing more than “probable cause to believe that the
property will ultimately be proved forfeitable.” Monsanto,
491 U. S., at 615. At that time, “the presumption of innocence still applies,” and the Government’s interest in the
assets is wholly contingent on future judgments of conviction and forfeiture. Kaley v. United States, 571 U. S. ___,
___ (2014) (slip op., at 6). I am not altogether convinced
that, in this decidedly different circumstance, the Government’s interest in recovering the proceeds of crime
ought to trump the defendant’s (often highly consequential) right to retain counsel of choice.
But the correctness of Monsanto is not at issue today.
Petitioner Sila Luis has not asked this Court either to
overrule or to modify that decision; she argues only that it

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KAGAN, J., dissenting

does not answer the question presented here. And because Luis takes Monsanto as a given, the Court must do
so as well.
On that basis, I agree with the principal dissent that
Monsanto controls this case. See ante, at 5–7 (opinion of
KENNEDY, J.). Because the Government has established
probable cause to believe that it will eventually recover
Luis’s assets, she has no right to use them to pay an attorney. See Monsanto, 491 U. S., at 616 (“[N]o constitutional violation occurs when, after probable cause is adequately established, the Government obtains an order
barring a defendant from . . . dissipating his assets prior to
trial”).
The plurality reaches a contrary result only by differentiating between the direct fruits of criminal activity and
substitute assets that become subject to forfeiture when
the defendant has run through those proceeds. See ante,
at 5–6. But as the principal dissent shows, the Government’s and the defendant’s respective legal interests in
those two kinds of property, prior to a judgment of guilt,
are exactly the same: The defendant maintains ownership
of either type, with the Government holding only a contingent interest. See ante, at 7–10. Indeed, the plurality’s
use of the word “tainted,” to describe assets at the preconviction stage, makes an unwarranted assumption
about the defendant’s guilt. See ante, at 5 (characterizing
such assets as, for example, “robber’s loot”). Because the
Government has not yet shown that the defendant committed the crime charged, it also has not shown that allegedly tainted assets are actually so.
And given that money is fungible, the plurality’s approach leads to utterly arbitrary distinctions as among
criminal defendants who are in fact guilty. See ante, at 12
(opinion of KENNEDY, J.). The thief who immediately
dissipates his ill-gotten gains and thereby preserves his
other assets is no more deserving of chosen counsel than

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KAGAN, J., dissenting

the one who spends those two pots of money in reverse
order. Yet the plurality would enable only the first defendant, and not the second, to hire the lawyer he wants.
I cannot believe the Sixth Amendment draws that irrational line, much as I sympathize with the plurality’s
effort to cabin Monsanto. Accordingly, I would affirm the
judgment below.