LUIS v. UNITED STATES
No. 14-419
SUPREME COURT OF THE UNITED STATES
March 30, 2016
OCTOBER TERM, 2015
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
LUIS v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 14-419. Argued November 10, 2015—Decided March 30, 2016
A federal statute provides that a 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.”
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
(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
(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-
(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 government-appointed 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
(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.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 14-419
SILA LUIS, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[March 30, 2016]
JUSTICE BREYER announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE, JUSTICE GINSBURG, and JUSTICE SOTOMAYOR join.
A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See
I
In October 2012, a federal grand jury charged the petitioner, Sila Luis, with paying kickbacks, conspiring to commit fraud, and engaging in other crimes all related to health care. See
The Government and Luis agree that this court order will prevent Luis from using her own untainted funds, i.e., funds not connected with the crime, to hire counsel to defend her in her criminal case. See App. 161 (stipulating “that an unquantified amount of revenue not connected to the indictment [had] flowed into some of the accounts” subject to the restraining order); ibid. (similarly stipulating that Luis used “revenue not connected to the indictment” to pay for real property that she possessed). Although the District Court recognized that the order might prevent Luis from obtaining counsel of her choice, it held “that there is no Sixth Amendment right to use untainted, substitute assets to hire counsel.” 966 F. Supp. 2d 1321, 1334 (SD Fla. 2013).
The Eleventh Circuit upheld the District Court. See 564 Fed. Appx. 493, 494 (2014) (per curiam) (referring to, e.g., Kaley v. United States, 571 U. S. ___ (2014); Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 631 (1989); United States v. Monsanto, 491 U. S. 600, 616 (1989)). We granted Luis’ petition for certiorari.
The question presented is “[w]hether the pretrial restraint of a criminal defendant‘s legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments.” Pet. for Cert. ii. We see no reasonable way to interpret the relevant statutes to avoid answering this constitutional question. Cf. Monsanto, supra, at 614. Hence, we answer it, and our answer is that the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment. The nature and importance of the constitutional right taken together with the nature of the assets lead us to this conclusion.
A
No one doubts the fundamental character of a criminal defendant‘s Sixth Amendment right to the “Assistance of Counsel.” In Gideon v. Wainwright, 372 U. S. 335 (1963), the Court explained:
“‘The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not
know how to establish his innocence.‘” Id., at 344-345 (quoting Powell v. Alabama, 287 U. S. 45, 68-69 (1932)).
It is consequently not surprising: first, that this Court‘s opinions often refer to the right to counsel as “fundamental,” id., at 68; see Grosjean v. American Press Co., 297 U. S. 233, 243-244 (1936) (similar); Johnson v. Zerbst, 304 U. S. 458, 462-463 (1938) (similar); second, that commentators describe the right as a “great engin[e] by which an innocent man can make the truth of his innocence visible,” Amar, Sixth Amendment First Principles, 84 Geo. L. J. 641, 643 (1996); see Herring v. New York, 422 U. S. 853, 862 (1975); third, that we have understood the right to require that the Government provide counsel for an indigent defendant accused of all but the least serious crimes, see Gideon, supra, at 344; and fourth, that we have considered the wrongful deprivation of the right to counsel a “structural” error that so “affec[ts] the framework within which the trial proceeds” that courts may not even ask whether the error harmed the defendant. United States v. Gonzalez-Lopez, 548 U. S. 140, 148 (2006) (internal quotation marks omitted); see id., at 150.
Given the necessarily close working relationship between lawyer and client, the need for confidence, and the critical importance of trust, neither is it surprising that the Court has held that the Sixth Amendment grants a defendant “a fair opportunity to secure counsel of his own choice.” Powell, supra, at 53; see Gonzalez-Lopez, supra, at 150 (describing “these myriad aspects of representation“). This “fair opportunity” for the defendant to secure counsel of choice has limits. A defendant has no right, for example, to an attorney who is not a member of the bar, or who has a conflict of interest due to a relationship with an opposing party. See Wheat v. United States, 486 U. S. 153, 159 (1988). And an indigent defendant, while entitled to
We nonetheless emphasize that the constitutional right at issue here is fundamental: “[T]he Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire.” Ibid.
B
The Government cannot, and does not, deny Luis’ right to be represented by a qualified attorney whom she chooses and can afford. But the Government would undermine the value of that right by taking from Luis the ability to use the funds she needs to pay for her chosen attorney. The Government points out that, while freezing the funds may have this consequence, there are important interests on the other side of the legal equation: It wishes to guarantee that those funds will be available later to help pay for statutory penalties (including forfeiture of untainted assets) and restitution, should it secure convictions. And it points to two cases from this Court, Caplin & Drysdale, supra, at 619, and Monsanto, 491 U. S., at 615, which, in the Government‘s view, hold that the Sixth Amendment does not pose an obstacle to its doing so here. In our view, however, the nature of the assets at issue here differs from the assets at issue in those earlier cases. And that distinction makes a difference.
1
The relevant difference consists of the fact that the property here is untainted; i.e., it belongs to the defendant, pure and simple. In this respect it differs from a robber‘s loot, a drug seller‘s cocaine, a burglar‘s tools, or other property associated with the planning, implementing, or concealing of a crime. The Government may well
The property at issue here, however, is not loot, contraband, or otherwise “tainted.” It belongs to the defendant. That fact undermines the Government‘s reliance upon precedent, for both Caplin & Drysdale and Monsanto relied critically upon the fact that the property at issue was “tainted,” and that title to the property therefore had passed from the defendant to the Government before the court issued its order freezing (or otherwise disposing of) the assets.
In Caplin & Drysdale, the Court considered a post-conviction 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
In Monsanto, the Court considered a pretrial restraining order that prevented a not-yet-convicted defendant from using certain assets to pay for his lawyer. The defendant argued that, given this difference, Caplin & Drysdale‘s conclusion should not apply. The Court noted, however, that the property at issue was forfeitable under the same statute that was at issue in Caplin & Drysdale. See Monsanto, supra, at 614. And, as in Caplin & Drysdale, the application of that statute to Monsanto‘s case concerned only the pretrial restraint of assets that were traceable to the crime, see 491 U. S., at 602-603; thus, the statute passed title to those funds at the time the crime was committed (i.e., before the trial), see
JUSTICE KENNEDY prefers to read Caplin & Drysdale and Monsanto broadly, as holding that “the Government, having established probable cause to believe that Luis’ substitute [i.e., innocent] assets will be forfeitable upon conviction, should be permitted to obtain a restraining order barring her from spending those funds prior to trial.” Post, at 6-7 (dissenting opinion). In other words, he believes that those cases stand for the proposition that property—whether tainted or untainted—is subject to pretrial restraint, so long as the property might someday be subject to forfeiture. But this reading asks too much of our precedents. For one thing, as discussed, Caplin & Drysdale and Monsanto involved the restraint only of tainted assets, and thus we had no occasion to opine in those cases about the constitutionality of pretrial restraints of other, untainted assets.
For another thing, JUSTICE KENNEDY‘s broad rule ignores the statutory background against which Caplin & Drysdale and Monsanto were decided. The Court in those cases referenced
The distinction that we have discussed is thus an important one, not a technicality. It is the difference between what is yours and what is mine. In Caplin & Drysdale and Monsanto, the Government wanted to impose restrictions upon (or seize) property that the Government had probable cause to believe was the proceeds of, or traceable to, a crime. See Monsanto, supra, at 615. The relevant statute said that the Government took title to those tainted assets as of the time of the crime. See
This is not to say that the Government “owned” the tainted property outright (in the sense that it could take possession of the property even before obtaining a conviction). See post, at 7-10 (KENNEDY, J., dissenting). Rather, it is to say that the Government even before trial had a “substantial” interest in the tainted property sufficient to justify the property‘s pretrial restraint. See Caplin & Drysdale, supra, at 627 (“[T]he property rights given the Government by virtue of [§853(c)‘s relation-back provision] are more substantial than petitioner acknowledges“); United States v. Stowell, 133 U. S. 1, 19 (1890) (“As soon as [the possessor of the forfeitable asset committed the violation] ... the forfeiture ... took effect, and (though needing judicial condemnation to perfect it) operated from that time as a statutory conveyance to the United States of all right, title and interest then remaining in the [possessor]; and was as valid and effectual, against all the world, as a recorded deed” (emphasis added)).
Here, by contrast, the Government seeks to impose restrictions upon Luis’ untainted property without any showing of any equivalent governmental interest in that property. Again, if this were a bankruptcy case, the Government would be at most an unsecured creditor. Although such creditors someday might collect from a debtor‘s general assets, they cannot be said to have any present claim to, or interest in, the debtor‘s property. See id., at 330 (“[B]efore judgment ... an unsecured creditor has no rights at law or in equity in the property of his debtor“); see also 5 Collier on Bankruptcy ¶541.05[1][b] (“[G]eneral unsecured creditor[s]” have “no specific property interest in the goods held or sold by the debtor“). The competing property interests in the tainted- and untainted-asset contexts therefore are not “exactly the same.” Post, at 2 (KAGAN, J., dissenting). At least regarding her untainted assets, Luis can at this point reasonably claim that the property is still “mine,” free and clear.
This distinction between (1) what is primarily “mine” (the defendant‘s) and (2) what is primarily “yours” (the Government‘s) does not by itself answer the constitutional question posed, for the law of property sometimes allows a person without a present interest in a piece of property to impose restrictions upon a current owner, say, to prevent waste. A holder of a reversionary interest, for example, can prevent the owner of a life estate from wasting the property. See, e.g., Peterson v. Ferrell, 127 N. C. 169, 170, 37 S. E. 189, 190 (1900). Those who later may become beneficiaries of a trust are sometimes able to prevent the trustee from dissipating the trust‘s assets. See, e.g., Kollock v. Webb, 113 Ga. 762, 769, 39 S. E. 339, 343 (1901). And holders of a contingent, future executory interest in property (an interest that might become possessory at some point down the road) can, in limited circumstances, enjoin the activities of the current owner. See, e.g., Dees v. Cheuvronts, 240 Ill. 486, 491, 88 N. E. 1011, 1012 (1909) (“[E]quity w[ill] interfere ... only when it is made to appear that the contingency ... is reasonably certain to happen, and the waste is ... wanton and conscienceless“). The Government here seeks a somewhat analogous order, i.e., an order that will preserve Luis’ untainted assets so that they will be available to cover the costs of forfeiture and restitution if she is convicted, and if the court later determines that her tainted assets are insufficient or otherwise unavailable.
The Government finds statutory authority for its request in language authorizing a court to enjoin a criminal defendant from, for example, disposing of innocent “property of equivalent value” to that of tainted property.
Three basic considerations lead us to this conclusion. First, the nature of the competing interests argues against this kind of court order. On the one side we find, as we have previously explained, supra, at 3-5, a Sixth Amendment right to assistance of counsel that is a fundamental constituent of due process of law, see Powell, 287 U. S., at 68-69. And that right includes “the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire.” Caplin & Drysdale, 491 U. S., at 624. The order at issue in this case would seriously undermine that constitutional right.
On the other side we find interests that include the Government‘s contingent interest in securing its punishment of choice (namely, criminal forfeiture) as well as the victims’ interest in securing restitution (notably, from funds belonging to the defendant, not the victims). While these interests are important, to deny the Government the order it requests will not inevitably undermine them, for, at least sometimes, the defendant may possess other assets—say, “tainted” property—that might be used for forfeitures and restitution. Cf. Gonzalez-Lopez, 548 U. S., at 148 (“Deprivation of the right” to counsel of the defendant‘s choice “is ‘complete’ when the defendant is erroneously prevented from being represented by the lawyer he wants“). Nor do the interests in obtaining payment of a criminal forfeiture or restitution order enjoy constitutional protection. Rather, despite their importance, compared to the right to counsel of choice, these interests would seem to lie somewhat further from the heart of a fair, effective criminal justice system.
Second, relevant legal tradition offers virtually no significant support for the Government‘s position. Rather, tradition argues to the contrary. Describing the 18th-century English legal world (which recognized only a
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 conviction. It is plain from this statement, that no right to the goods and chattels of the felon could be acquired by the crown by the mere commission of the offense; but the right attached only by the conviction of the offender.... In the contemplation of the common law, the offender‘s right was not divested until the conviction.” The Palmyra, 12 Wheat. 1, 14 (1827).
See generally Powell, supra, at 60-61 (describing the scope of the right to counsel in 18th-century Britain and colonial America).
As we have explained, supra, at 6-10, cases such as Caplin & Drysdale and Monsanto permit the Government to freeze a defendant‘s assets pretrial, but the opinions in those cases highlight the fact that the property at issue was “tainted,” i.e., it did not belong entirely to the defendant. We have found no decision of this Court authorizing unfettered, pretrial forfeiture of the defendant‘s own “innocent” property—property with no connection to the charged crime. Nor do we see any grounds for distinguishing the historic preference against preconviction forfei-
Third, as a practical matter, to accept the Government‘s position could well erode the right to counsel to a considerably greater extent than we have so far indicated. To permit the Government to freeze Luis’ untainted assets would unleash a principle of constitutional law that would have no obvious stopping place. The statutory provision before us authorizing the present restraining order refers only to “banking law violation[s]” and “Federal health care offense[s].”
Moreover, the financial consequences of a criminal conviction are steep. Even beyond the forfeiture itself, criminal fines can be high, and restitution orders expensive. See, e.g.,
These defendants, rendered indigent, would fall back upon publicly paid counsel, including overworked and underpaid public defenders. As the Department of Justice explains, only 27 percent of county-based public defender offices have sufficient attorneys to meet nationally recommended caseload standards. Dept. of Justice, Bureau of Justice Statistics, D. Farole & L. Langton, Census of Public Defender Offices, 2007: County-based and Local Public Defender Offices, 2007, p. 10 (Sept. 2010). And as one amicus points out, “[m]any federal public defender organizations and lawyers appointed under the Criminal Justice Act serve numerous clients and have only limited resources.” Brief for New York Council of Defense Lawyers 11. The upshot is a substantial risk that accepting the Government‘s views would—by increasing the government-paid-defender workload—render less effective the basic right the Sixth Amendment seeks to protect.
3
We add that the constitutional line we have drawn should prove workable. That line distinguishes between a criminal defendant‘s (1) tainted funds and (2) innocent funds needed to pay for counsel. We concede, as JUSTICE KENNEDY points out, post, at 12-13, that money is fungible; and sometimes it will be difficult to say whether a particular bank account contains tainted or untainted funds. But the law has tracing rules that help courts implement the kind of distinction we require in this case. With the help of those rules, the victim of a robbery, for example, will likely obtain the car that the robber used stolen money to buy. See, e.g., 1 G. Palmer, Law of Restitution §2.14, p. 175 (1978) (“tracing” permits a claim against “an asset which is traceable to or the product of”
Courts use tracing rules in cases involving fraud, pension rights, bankruptcy, trusts, etc. See, e.g., Montanile v. Board of Trustees of Nat. Elevator Industry Health Benefit Plan, 577 U. S. ___ (2016) (slip op., at 8-9). They consequently have experience separating tainted assets from untainted assets, just as they have experience determining how much money is needed to cover the costs of a lawyer. See, e.g.,
* * *
For the reasons stated, we conclude that the defendant in this case has a Sixth Amendment right to use her own “innocent” property to pay a reasonable fee for the assistance of counsel. On the assumptions made here, the District Court‘s order prevents Luis from exercising that right. We consequently vacate the judgment of the Court of Appeals and remand the case for further proceedings.
It is so ordered.
APPENDIX
“(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.”
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
I
The
The
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
The same goes for the
An unlimited power to freeze a defendant‘s potentially forfeitable assets in advance of trial would eviscerate the
The modern, judicially created right to Government-appointed counsel does not obviate these concerns. As understood in 1791, the
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
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
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
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
It is certainly the case that some early American statutes did provide for civil forfeiture of untainted substitute property. See
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).
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
III
Since the asset freeze here violates the
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
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 (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
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
For these reasons, I concur only in the 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 KENNEDY, with whom JUSTICE ALITO joins, dissenting.
The plurality and JUSTICE THOMAS find in the
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
The plurality reaches its conclusion by weighing a defendant‘s
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.
Before the Court of Appeals for the Eleventh Circuit, Luis argued that the
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
The Court rejected the firm‘s argument. The
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-
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
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,
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-
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
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.,
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
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
The plurality‘s concern over the implications of the Government‘s position appears animated by a hypothetical
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
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.
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
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 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
Because the rule announced today is anchored in the Sixth Amendment, moreover, it will frustrate not only the Federal Government‘s use of
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-
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.
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.
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. 320, 326 (2014). 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
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 pre-conviction stage, makes an unwarranted assumption about the defendant‘s guilt. See ante, at 5 (characterizing such assets as, for example, “robber‘s loot“). Because the Government has not yet shown that the defendant 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