November 10, 2015
WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
S.Ct. 1084] [194 L.Ed.2d 258] 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), [136 S.Ct. 1085] as
relevant here, other " property of equivalent
value." 18 U.S.C. § 1345(a)(2). The Government has
charged petitioner Luis with fraudulently obtaining nearly
$45 million through crimes related to health care. In order
to preserve the $2 million remaining in Luis' possession
for payment of restitution and other criminal penalties, the
Government secured a pretrial order prohibiting Luis from
dissipating her assets, including assets unrelated to her
alleged crimes. Though the District Court recognized that the
order might prevent Luis from obtaining counsel of her
choice, it held that the Sixth Amendment did not give her the
right to use her own untainted funds for that purpose. The
Eleventh Circuit affirmed.
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.
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, 53 S.Ct. 55, 77 L.Ed. 158, that he " can
afford to hire," Caplin & [194 L.Ed.2d
259] Drysdale, Chartered v. United
States, 491 U.S. 617, 624, 109 S.Ct. 2646, 109 S.Ct.
2667, 105 L.Ed.2d 528. This Court has consistently referred
to the right to counsel of choice as "
fundamental." Pp. 3-5.
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, 109 S.Ct. 2646, 109 S.Ct. 2667, 105
L.Ed.2d 528, and United States v.
Monsanto, 491 U.S. 600, 615, 109 S.Ct. 2657, 105
L.Ed.2d 512, 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.
Here, the property is untainted, i.e., it belongs
to Luis. As described in Caplin & Drysdale and
Monsanto, the Government may well be able to
freeze before trial " tainted" assets --
e.g., loot, contraband, or property otherwise
associated with the planning, implementing, or concealing
of a crime. As a matter of property law, the
defendant's ownership interest in such property is
imperfect. For example, a different federal statute
provides that title to property used to commit a crime (or
otherwise " traceable" to a crime) passes to the
Government at the instant the crime is planned or
committed. See 21 U.S.C. § 853(c). But here, the
Government seeks to impose restrictions upon Luis'
untainted property without any showing of any equivalent
governmental interest in that property. Pp. 5-10.
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
[136 S.Ct. 1086] 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.
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
contrary. Indeed, there appears to be no decision of this
Court authorizing unfettered, pretrial forfeiture of the
defendant's own " innocent" property. Third,
as a practical [194 L.Ed.2d 260] matter, accepting the
Government's position could erode the right to counsel
considerably. It would, in fact, unleash a principle of
constitutional law with no obvious stopping place, as
Congress could write more statutes authorizing restraints
in other cases involving illegal behavior that come with
steep financial consequences. These defendants, often
rendered indigent, would fall back upon publicly paid
counsel, including overworked and underpaid public
defenders. The upshot is a substantial risk that accepting
the Government's views would render less effective the
basic right the Sixth Amendment seeks to protect. Pp.
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.
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.
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, 126 S.Ct.
2557, 165 L.Ed.2d 409. 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.
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 [136 S.Ct. 1087]
protected from government interference before trial and
judgment, but his tainted assets 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 avoids
case-by-case adjudication and ensures that the original
meaning of the right to counsel does real work. Here, the
incursion of the pretrial asset freeze into untainted
assets, for which there is no historical tradition,
violates [194 L.Ed.2d 261] the Sixth Amendment. Pp. 5-9.
This conclusion leaves no room for an atextual balancing
analysis. Pp. 9-12.
judgment is vacated, and the case is remanded.
564 Fed.Appx. 493, vacated and remanded.
Srebnick argued the cause for petitioner.
R. Dreeben argued the cause for respondent.
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.
BREYER announced the judgment of the Court and delivered an
opinion in which THE CHIEF JUSTICE, JUSTICE GINSBURG, and
JUSTICE SOTOMAYOR join.
federal statute provides that a court may freeze before trial
certain assets belonging to a criminal defendant accused of
violations of federal health care or banking laws. See 18
U.S.C. § 1345. Those assets include: (1) property "
obtained as a result of" the crime, (2) property "
traceable" to the crime, and (3) other " property
of equivalent value." § 1345(a)(2). In this case,
the Government has obtained a court order that freezes assets
belonging to the third category of property, namely, property
that is untainted by the crime, and that belongs fully to the
defendant. That order, the defendant says, prevents her from
paying her lawyer. She claims that insofar as it does so, it
violates her Sixth Amendment " right . . . to have the
Assistance of Counsel for [her] defence." We agree.
October 2012, a federal grand jury charged the petitioner,
Sila Luis, with paying kickbacks, conspiring to commit fraud,
and engaging in other crimes all related to health care. See
§ 1349; § 371; 42 U.S.C. § 1320a-7b(b)(2)(A).
The Government claimed that Luis had fraudulently obtained
close to $45 million, almost all of which she had already
spent. Believing it would convict Luis of the crimes charged,
and hoping to preserve the $2 million remaining [136 S.Ct.
1088] in Luis' possession for payment of restitution and
other criminal penalties (often referred to as criminal
forfeitures, which can include innocent -- not just tainted
-- assets, a point of critical importance here), the
Government sought a pretrial order prohibiting Luis from
dissipating her assets. See 18 U.S.C. § 1345(a)(2). And
the District Court ultimately issued an order prohibiting her
from " dissipating, or otherwise disposing of . . .
assets, real or personal . . . up to the equivalent value of
the proceeds of the Federal health care fraud ($45
million)." App. to Pet. for Cert. A-6.
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). [194 L.Ed.2d 262] 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).
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. ___, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014); Caplin
& Drysdale, Chartered v. United States, 491
U.S. 617, 631, 109 S.Ct. 2646, 109 S.Ct. 2667, 105 L.Ed.2d
528 (1989); United States v. Monsanto, 491
U.S. 600, 616, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989)). We
granted Luis' petition for certiorari.
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, 109 S.Ct. 2657, 105 L.Ed.2d 512.
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.
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, 83 S.Ct. 792, 9 L.Ed.2d
799 (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, [136 S.Ct. 1089] 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, 83 S.Ct. 792, 9 L.Ed.2d 799 (quoting
Powell v. Alabama, 287 U.S. 45, 68-69, 53
S.Ct. 55, 77 L.Ed. 158 (1932)).
consequently not surprising: first, that this
Court's opinions often refer to the right to counsel as
" fundamental," id., at 68, 53 S.Ct. 55,
77 L.Ed. 158; see Grosjean v. American Press
Co., 297 U.S. 233, 243-244, 56 S.Ct. 444, 80 L.Ed. 660
(1936) (similar); Johnson v. Zerbst, 304
U.S. 458, 462-463, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)
(similar); second, that commentators describe the
right as a " great engin[e] by which an innocent [194
L.Ed.2d 263] 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, 95 S.Ct. 2550, 45 L.Ed.2d 593
(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, 83 S.Ct. 792, 9
L.Ed.2d 799; 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,
126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (internal quotation
marks omitted); see id., at 150, 126 S.Ct. 2557, 165
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, 53 S.Ct. 55, 77 L.Ed.
158; see Gonzalez-Lopez, supra, at 150, 126
S.Ct. 2557, 165 L.Ed.2d 409 (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, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). And an
indigent defendant, while entitled to adequate
representation, has no right to have the Government pay for
his preferred representational choice. See Caplin &
Drysdale, 491 U.S., at 624, 109 S.Ct. 2646, 109 S.Ct.
2667, 105 L.Ed.2d 528.
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
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, 109 S.Ct. 2646, 109 S.Ct. 2667, 105 L.Ed.2d 528, and
Monsanto, 491 U.S., at 615, 109 S.Ct. 105 L.Ed.2d
512, 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 [136
S.Ct. 1090] here differs from the assets at issue in those
earlier cases. And that distinction makes a difference.
relevant difference consists of [194 L.Ed.2d 264] 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 be able to freeze, perhaps to seize,
assets of the latter, " tainted" kind before trial.
As a matter of property law the defendant's ownership
interest is imperfect. The robber's loot belongs to the
victim, not to the defendant. See Telegraph Co. v.
Davenport, 97 U.S. 369, 372, 24 L.Ed. 1047 (1878)
(" The great principle that no one can be deprived of
his property without his assent, except by the processes of
the law, requires . . . that the property wrongfully
transferred or stolen should be restored to its rightful
owner" ). The cocaine is contraband, long considered
forfeitable to the Government wherever found. See,
e.g., 21 U.S.C. § 881(a) (" [Controlled
substances] shall be subject to forfeiture to the United
States and no property right shall exist in them" );
Carroll v. United States, 267 U.S. 132,
159, 45 S.Ct. 280, 69 L.Ed. 543, T.D. 3686 (1925) (describing
the seizure of " contraband forfeitable property"
). And title to property used to commit a crime (or otherwise
" traceable" to a crime) often passes to the
Government at the instant the crime is planned or committed.
See, e.g., § 853(c) (providing that the
Government's ownership interest in such property relates
back to the time of the crime).
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.
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 [constituting or derived from any
proceeds obtained from the crime] vests in the United States
upon the commission of the act giving rise to [the]
forfeiture.'" 491 U.S., at 625, n. 4, 109 S.Ct.
2646, 109 S.Ct. 2667, 105 L.Ed.2d 528 (quoting § 853(c))
(emphasis added). It added that the law had "
long-recognized" as " lawful" the "
practice of vesting title to any forfeitable asset[s] in the
United State[s] at the time of the crim[e]."
Id., at 627, 109 S.Ct. 2646, 109 S.Ct. 2667, 105
L.Ed.2d 528. It pointed out that the defendant did not "
claim, as a general proposition, that the [vesting] provision
is unconstitutional, or that Congress cannot, as a general
matter, vest title to assets derived from the crime in the
Government, as of the date of the criminal act in
question." Id., at 627-628, 109 S.Ct. 2646, 109
S.Ct. 2667, 105 L.Ed.2d 528. And, given the vesting language,
the Court explained that the defendant " did not hold
good title" to the property. Id., at 627, 109
S.Ct. 2646, 109 S.Ct. 2667, 105 L.Ed.2d 528. The Court
therefore concluded that " [t]here is no constitutional
principle that gives one [194 L.Ed.2d 265] person [namely,
the defendant] the right to give another's [namely, the
Government's] property to a third party," namely,
the lawyer. Id., at 628, 109 S.Ct. 2646, 109 S.Ct.
2667, 105 L.Ed.2d 528.
S.Ct. 1091] 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, 109 S.Ct. 2657, 105 L.Ed.2d 512. 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, 109 S.Ct. 2657, 105
L.Ed.2d 512; thus, the statute passed title to those funds at
the time the crime was committed ( i.e., before the
trial), see § 853(c). The Court said that Caplin
& Drysdale had already " weigh[ed] . . . th[e]
very interests" at issue. Monsanto,
supra, at 616, 109 S.Ct. 2657, 105 L.Ed.2d 512. And
it " rel[ied] on" its " conclusion" in
Caplin & Drysdale to dispose of, and to reject,
the defendant's " similar constitutional
claims." 491 U.S., at 614, 109 S.Ct. 2657, 105 L.Ed.2d
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,
another thing, JUSTICE KENNEDY's broad rule ignores the
statutory background against which Caplin &
Drysdale and Monsanto were decided. The Court
in those cases referenced § 853(c) more than a dozen
times. And it acknowledged that whether property is "
forfeitable" or subject to pretrial restraint under
Congress' scheme is a nuanced inquiry that very much
depends on who has the superior interest in the property at
issue. See Caplin & Drysdale, supra, at
626-628, 109 S.Ct. 2646, 109 S.Ct. 2667, 105 L.Ed.2d 528;
Monsanto, 491 U.S., at 616, 109 S.Ct. 2657, 105
L.Ed.2d 512. We see this in, for example, § 853(e)(1),
which explicitly authorizes restraining orders or injunctions
against " property described in subsection (a) of this
section" ( i.e., tainted assets). We
see this too in § 853(e)(1)(B), which requires the
Government--in certain circumstances -- to give " notice
to persons appearing to have an interest in the property and
opportunity for hearing" before obtaining a restraining
order against such property. We see this in § 853(c),
which allows " bona fide purchaser[s] for value" to
keep property [194 L.Ed.2d 266] that would otherwise be
subject to forfeiture. And we see this in §
853(n)(6)(A), which exempts certain property from forfeiture
when a third party can show a vested interest in the property
that is " superior" to that of the Government.
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,
109 S.Ct. 2657, 105 L.Ed.2d 512. The relevant statute said
that the Government took title [136 S.Ct. 1092] to those
tainted assets as of the time of the crime. See §
853(c). And the defendants in those cases consequently had to
concede that the disputed property was in an important sense
the Government's at the time the court imposed the
restrictions. See Caplin & Drysdale,
supra, at 619-620, 109 S.Ct. 2646, 109 S.Ct. 2667,
105 L.Ed.2d 528; Monsanto, supra, at
602-603, 109 S.Ct. 2657, 105 L.Ed.2d 512.
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 62, 109
S.Ct. 2646, 109 S.Ct. 2667, 105 L.Ed.2d 5287 (" [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, 10 S.Ct. 244, 33 L.Ed.
555 (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)).
analogize to bankruptcy law, the Government, by application
of § 853(c)'s relation-back provision, became
something like a secured creditor with a lien on the
defendant's tainted assets superior to that of most any
other party. See 4 Collier on Bankruptcy ¶ 506.03
(16th ed. 2015). For this reason, § 853(c) has operated
in our cases as a significant limitation on criminal
defendants' property rights in such assets -- even before
conviction. See Monsanto, supra, at 613,
109 S.Ct. 2657, 105 L.Ed.2d 512 (" Permitting a
defendant to use [tainted] assets for his private purposes
that, under this [relation-back] provision, will become the
property of the United States if a conviction occurs cannot
be sanctioned" ); cf. Grupo Mexicano de Desarrollo,
S. A. v. Alliance Bond Fund, Inc., 527 U.S.
308, 326, 119 S.Ct. 1961, 144 L.Ed.2d 319 (1999) (noting that
the Court had previously authorized injunctions against the
further dissipation of property where, among other things,
" the creditor (the Government) asserted an equitable
lien on the property" ).
by contrast, the Government [194 L.Ed.2d 267] seeks to impose
restrictions upon Luis' un tainted 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, 119 S.Ct. 1961, 144 L.Ed.2d 319 ("
[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[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.
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 [136 S.Ct.
1093] 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.
Government finds statutory authority for its request in
language authorizing a court to enjoin a criminal defendant
from, for example, disposing of innocent " property of
equivalent value" to that of tainted property. 18 U.S.C.
§ 1345(a)(2)(B)(i). But Luis needs some portion of those
same funds to pay for the lawyer of her choice. Thus, the
legal conflict arises. And, in our view, insofar as innocent
( i.e., untainted) funds are needed to obtain
counsel of choice, we believe that the Sixth Amendment
prohibits the court order that the Government seeks.
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, [194 L.Ed.2d 268] 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, 53 S.Ct. 55, 77 L.Ed.2d
158. 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, 109 S.Ct. 2646, 109 S.Ct.
2667, 105 L.Ed.2d 5287. The order at issue in this case would
seriously undermine that constitutional right.
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, 126 S.Ct. 2557,
165 L.Ed.2d 409 (" 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
relevant legal tradition offers virtually no significant
support for the Government's position. Rather, tradition
[136 S.Ct. 1094] argues to the contrary. Describing the
18th-century English legal world (which recognized only a
limited right to counsel), Blackstone wrote that "
only" those " goods and chattels" that "
a man has at the time of conviction shall be
forfeited." 4 W. Blackstone, Commentaries on the Laws of
England 388 (1765) (emphasis added); see 1 J. Chitty,
Practical Treatise on the Criminal Law 737 (1816) ("
[T]he party indicted may sell any of [his property] . . . to
assist him in preparing for his defense on the trial" ).
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 ...