136 S. Ct. 1083 | SCOTUS | 2016
Lead Opinion
It is so ordered.
APPENDIX
Title
"(a)(1) If a person is-
"(A) violating or about to violate this chapter or section 287, 371 (insofar as such violation involves a conspiracy to defraud the United States or any agency thereof), or 1001 of this title;
"(B) committing or about to commit a banking law violation (as defined in section 3322(d) of this title); or
"(C) committing or about to commit a Federal health care offense;
"the Attorney General may commence a civil action in any Federal court to enjoin such violation.
"(2) If a person is alienating or disposing of property, or intends to alienate or dispose of property, obtained as a result of a banking law violation (as defined in section 3322(d) of this title) or a Federal health care offense or property which is traceable to such violation, the Attorney General may commence a civil action in any Federal court-
"(A) to enjoin such alienation or disposition of property; or
"(B) for a restraining order to-
"(i) prohibit any person from withdrawing, transferring, removing, dissipating, or disposing of any such property or property of equivalent value; and
"(ii) appoint a temporary receiver to administer such restraining order.
"(3) A permanent or temporary injunction or restraining order shall be granted without bond.
"(b) The court shall proceed as soon as practicable to the hearing and determination of such an action, and may, at any time before final determination, enter such a restraining order or prohibition, or take such other action, as is warranted to prevent a continuing and substantial injury to the United States or to any person or class of persons for whose protection the action is brought. A proceeding under this section is governed by the Federal Rules of Civil Procedure, except that, if an indictment has been returned against the respondent, discovery is governed by the Federal Rules of Criminal Procedure."
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 *1097owned 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 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,
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 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,
*1098Ezell v. Chicago,
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 ify the right to counsel of 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 1094; cf. McCulloch v. Maryland,
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.,
The modern, judicially created right to Government-appointed 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.
*1099Post, at 1110 (opinion of KENNEDY, J.). The dissent's approach ifies 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,
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 most telling indication of a severe constitutional problem.' " Free Enterprise Fund v. Public Company Accounting Oversight Bd.,
The common law prohibited pretrial freezes of criminal defendants' untainted assets. As the plurality notes, ante, at 1094, 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,
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,
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,
It is certainly the case that some early American statutes did provide for civil forfeiture of untainted substitute property. See Registry Act, § 12,
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 1099. 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,
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,
The dissenters object that, before trial, a defendant has an identical property interest in tainted and untainted assets. See post, at 1106 - 1107 (opinion of KENNEDY, J.); post, at 1112 - 1113 (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, at 1093. 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,
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 *1102right does not violate that right. See R.A.V. v. St. Paul,
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,
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,
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,
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 *1103for a defendant's untainted property.
For these reasons, I concur only in the judgment.
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 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,
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.
*1104The same day Luis was indicted, the Government initiated a civil action under
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 ."
II
A
In Caplin & Drysdale, a law firm had represented a defendant charged with running a massive drug-distribution 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 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,
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 *1105forfeitable to pay for their defense."
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,
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,
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,
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,
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 1090. 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 1090. "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."
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 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,
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 *1107interest 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,
The relation-back doctrine, which is incorporated in some forfeiture statutes, see, e.g.,
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 stolen property. 491 U.S., at 627-628,
*1108True, 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 1091 - 1092. 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 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,
*1109The 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.
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. 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,
The plurality does warn that accepting the Government's position "would-by increasing the government-paid-defender workload-render less effective the basic right the Sixth Amendment seeks to protect." Ante, at 1095. Public-defender offices, the plurality suggests, already lack sufficient attorneys to meet nationally recommended caseload standards.
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 1095. 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.
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 1095. 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 1095 - 1096. It also asserts that these rules "will likely ... prevent Luis from benefiting from many of [her] money transfers and purchases."
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 1095 - 1096. 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 *1112need 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.
Dissenting Opinion
I find United States v. Monsanto,
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 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 1105 - 1106 (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,
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 1089 - 1090. 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 1060 - 1092. Indeed, the plurality's use of the word "tainted," to describe assets at the pre-conviction stage, makes an unwarranted assumption about the defendant's guilt. See ante, at 1093 - 1094 (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 *1113shown 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 1108 - 1109 (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 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.