Luis v. United States

LUIS v. UNITED STATES

certiorari to the united states court of appeals for

the eleventh circuit No. 14–419. Argued November 10, 2015—Decided March 30, 2016 A federal statute provides that a court may freeze before trial certain assets belonging to a defendant accused of violations of federal health care or banking laws. Those assets include (1) property “obtained as a result of” the crime, (2) property “traceable” to the crime, and (3), as relevant here, other “property of equivalent value.” 18 U. S. C. § 1345(a)(2). The Government has charged petitioner Luis with fraudulently obtaining nearly $45 million through crimes related to health care. In order to preserve the $2 million remaining in Luis' possession for payment of restitution and other criminal penalties, the Government secured a pretrial order prohibiting Luis from dissipating her assets, including assets unrelated to her alleged crimes. Though the District Court recognized that the order might prevent Luis from obtaining counsel of her choice, it held that the Sixth Amendment did not give her the right to use her own untainted funds for that purpose. The Eleventh Circuit affirmed. Held: The judgment is vacated, and the case is remanded.

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. 12–23.

(1) Here, the property is untainted, i. e., it belongs to Luis. As described in Caplin & Drysdale and Monsanto , the Government may well be able to freeze before trial “tainted” assets—e. g., loot, contraband, or property otherwise associated with the planning, implementing, or concealing of a crime. As a matter of property law, the defendant's ownership interest in such property is imperfect. For example, a different federal statute provides that title to property used to commit a crime (or otherwise “traceable” to a crime) passes to the Government at the instant the crime is planned or committed. See 21 U. S. C. § 853(c). But here, the Government seeks to impose restrictions upon Luis' untainted property without any showing of any equivalent governmental interest in that property. Pp. 12–17. (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 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 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 over-

worked 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. 17–22.

(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 deter-mining how much money is needed to cover the costs of a lawyer. Pp. 22–23. 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. 24–35. (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. 25–28. (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 through a separate in rem proceeding. Reading the Sixth Amendment to track the historical line between tainted and untainted assets avoids case-by-case adjudication and ensures that the original meaning of the right to counsel does real work. Here, the incursion of the pretrial asset freeze into untainted assets, for which there is no historical tradition, violates the Sixth Amendment. Pp. 28–32. (c) This conclusion leaves no room for an atextual balancing analysis. Pp. 32–35.

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, post, p. 24. Ken-nedy , J., filed a dissenting opinion, in which Alito, J., joined, post, p. 35. Kagan, J ., filed a dissenting opinion, post, p. 51.

Howard Srebnick argued the cause for petitioner. With him on the briefs were Scott A. Srebnick and Ricardo J. Bascuas.

Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were Solicitor General Verrilli, Assistant Attorney General Caldwell, Elaine J. Goldenberg , and Sonja M. Ralston.*

Justice Breyer announced the judgment of the Court and delivered an opinion, in which The Chief Justice , Justice Ginsburg , and Justice Sotomayor join.

A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See 18 U. S. C. § 1345. Those assets include: (1) property “obtained as a result of” the crime, (2) property “traceable” to the crime, and (3) other “property of equivalent value.” § 1345(a)(2). In this case, the Government has obtained a court order that freezes assets belonging to the third cate-

I

n 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 in Luis' possession for payment of restitution and other criminal penalties (often referred to as criminal forfeitures, which can include innocent—not just tainted—assets, a point of critical importance here), the Government sought a pretrial order prohibiting Luis from dissipating her assets. See 18 U. S. C. § 1345(a)(2). And the District Court ultimately issued an order prohibiting her from “dissipating, or otherwise disposing of . . . assets, real or personal . . . up to the equivalent value of the proceeds of the Federal health care fraud ($45 million).” App. to Pet. for Cert. A–6.

The Government and Luis agree that this court order will prevent Luis from using her own untainted funds, i. e., funds not connected with the crime, to hire counsel to defend her in her criminal case. See App. 161 (stipulating “that an un-quantified 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 Amend-

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. 320 (2014); Caplin & Drys-dale, 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 deter-mining 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 evi-

dence, 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 “af-fec[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.” Pow-ell, supra, at 53; see Gonzalez-Lopez, supra, at 150 (describ-ing “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 at-

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

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 [constituting

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 § 853(c). The Court said that Caplin & Drys-dale had already “weigh[ed] . . . th[e] very interests” at issue. Monsanto , supra, at 616. And it “rel[ied] on” its “conclusion” in Caplin & Drysdale to dispose of, and to reject, the defendant's “similar constitutional claims.” 491 U. S., at 614.

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 § 853(c) more than a dozen times. And it acknowledged that whether property is “forfeitable” or subject to pretrial restraint under Congress' scheme is a nuanced inquiry that very much depends on who has the superior interest in the property at issue. See Caplin & Drysdale , supra, at 626–628; Monsanto , 491 U. S., at 616. We see this in, for example, § 853(e)(1), which explicitly authorizes restraining orders or injunctions against “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 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

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 § 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; Monsanto , supra, at 602–603.

This is not to say that the Government “owned” the tainted property outright (in the sense that it could take possession of the property even before obtaining a conviction). See post, at 41–44 (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. Sto-well, 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)).

If we analogize to bankruptcy law, the Government, by application of § 853(c)'s relation-back provision, became something like a secured creditor with a lien on the defendant's tainted assets superior to that of most any other party. See

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 53 (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.

2

This distinction between (1) what is primarily “mine” (the defendant's) and (2) what is primarily “yours” (the Government's) does not by itself answer the constitutional question posed, for the law of property sometimes allows a person

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. 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.

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 10–12, a Sixth Amend-

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 signif-cant support for the Government's position. Rather, tradition 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”).

“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 devested 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 13–17, 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 forfeitures from the preconviction restraint at issue here. As far as Luis' Sixth Amendment right to counsel of choice is concerned, a restraining order might as well be a forfeiture; that is, the restraint itself suffices to completely deny this constitutional right. See Gonzalez-Lopez, supra, at 148.

Third, as a practical matter, to accept the Government's position could well erode the right to counsel to a considerably greater extent than we have so far indicated. To per-

Moreover, the financial consequences of a criminal conviction are steep. Even beyond the forfeiture itself, criminal fines can be high, and restitution orders expensive. See, e. g., § 1344 ($1 million fine for bank fraud); § 3571 (mail and wire fraud fines of up to $250,000 for individuals and $500,000 for organizations); United States v. Gushlak, 728 F. 3d 184, 187, 203 (CA2 2013) ($17.5 million restitution award against an individual defendant in a fraud-on-the-market case); FTC v. Trudeau, 662 F. 3d 947, 949 (CA7 2011) ($37.6 million remedial sanction for fraud). How are defendants whose innocent assets are frozen in cases like these supposed to pay for a lawyer—particularly if they lack “tainted assets” because they are innocent, a class of defendants whom the right to counsel certainly seeks to protect? See Powell, 287 U. S., at 69; Amar, 84 Geo. L. J., at 643 (“[T]he Sixth Amendment is generally designed to elicit truth and protect innocence”).

These defendants, rendered indigent, would fall back upon publicly paid counsel, including overworked and underpaid public defenders. As the Department of Justice explains, only 27 percent of county-based public defender offices have sufficient attorneys to meet nationally recommended case-load standards. Dept. of Justice, Bureau of Justice Statistics, D. Farole & L. Langton, Census of Public Defender Of-

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 46–47, 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” tainted funds); 4 A. Scott, Law of Trusts § 518, pp. 3309–3314 (1956) (describing the tracing rules governing commingled accounts). And those rules will likely also prevent Luis from benefiting from many of the money transfers and purchases Justice Kennedy describes. See post, at 46–47.

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. 136, 144–146 (2016). They consequently have experience separating tainted assets from untainted assets, just as they have experience determining how much

* * *

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 Title 18 U. S. C. § 1345 provides:

“(a)(1) If a person is—

“(A) violating or about to violate this chapter or section 287, 371 (insofar as such violation involves a conspiracy to defraud the United States or any agency thereof), or 1001 of this title;

“(B) committing or about to commit a banking law violation (as defined in section 3322(d) of this title); or

“(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

The Sixth Amendment provides important limits on the Government's power to freeze a criminal defendant's forfeit-able assets before trial. And, constitutional rights necessarily protect the prerequisites for their exercise. The right “to have the Assistance of Counsel,” U. S. Const., Amdt. 6, thus implies the right to use lawfully owned property to pay for an attorney. Otherwise the right to counsel—originally understood to protect only the right to hire counsel of choice—would be meaningless. History confirms this textual understanding. The common law limited pretrial asset restraints to tainted assets. Both this textual understanding and history establish that the Sixth Amendment prevents the Government from freezing untainted assets in order to secure a potential forfeiture. The freeze here accordingly violates the Constitution.

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, 440 U. S. 367, 370 (1979). The common law permitted counsel to represent defendants charged with misdemeanors, but not felonies other than treason. W. Beaney, The Right to Counsel in American Courts 8–9 (1955). The Sixth Amendment abolished the rule prohibiting representation in felony cases, but was “not aimed to compel the State to provide counsel for a defendant.” Betts v. Brady , 316 U. S. 455, 466 (1942), overruled by Gideon v. Wainwright, 372 U. S. 335 (1963); see Beaney, supra, at 27–36. “The right to select counsel of one's choice” is thus “the root meaning” of the Sixth Amendment right to counsel. United States v. Gonzalez-Lopez, 548 U. S. 140, 147–148 (2006).

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

The same goes for the Sixth Amendment and the financial resources required to obtain a lawyer. Without constitutional protection for at least some of a defendant's assets, the Government could nullify the right to counsel of 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 21; cf. McCulloch v. Maryland, 4 Wheat. 316, 431 (1819) (“[T]he power to tax involves the power to destroy” and that “power to destroy may defeat and render useless the power to create”). Unless the right to counsel also protects the prerequisite right to use one's financial resources for an attorney, I doubt that the Framers would have gone through the trouble of adopting such a flimsy “parchment barrie[r].” The Federalist No. 48, p. 308 (C. Rossiter ed. 1961) (J. Madison).

An unlimited power to freeze a defendant's potentially for-feitable 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) (Black-stone). That harsh penalty never caught on in America.

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. Post, at 48 (opinion of Kennedy , J.). The dissent's approach nullifies the original understanding of the right to counsel. To ensure that the right to counsel has meaning, the Sixth Amendment limits the assets the Government may freeze before trial to secure eventual forfeiture.

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

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., 561 U. S. 477, 505–506 (2010) (quoting Free Enterprise Fund v. Public Company Accounting Oversight Bd., 537 F. 3d 667, 699 (CADC 2008) (Kavanaugh, J., dissenting)). Indeed, blanket asset freezes are so tempting that the Government's “prolonged reticence would be amazing if [they] were not understood to be constitutionally proscribed.” Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 230 (1995); see Printz v. United States, 521 U. S. 898, 907–908 (1997) (reasoning that the lack of early federal statutes commandeering state executive officers “suggests an assumed absence of such power” given “the attractiveness of that course to Congress”).

The common law prohibited pretrial freezes of criminal defendants' untainted assets. As the plurality notes, ante, at 20, 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

The common law did permit the Government, however, to seize tainted assets before trial. For example, “seizure of the res has long been considered a prerequisite to the initiation of in rem forfeiture proceedings.” United States v. James Daniel Good Real Property , 510 U. S. 43, 57 (1993) (emphasis added); see The Brig Ann, 9 Cranch 289, 291 (1815) (Story, J.). But such forfeitures were traditionally “fixed . . . by determining what property has been `tainted' by unlawful use.” Austin v. United States, 509 U. S. 602, 627 (1993) (Scalia, J., concurring in part and concurring in judgment). So the civil in rem forfeiture tradition tracks the tainted-untainted line. It provides no support for the asset freeze here.

There is a similarly well-established Fourth Amendment tradition of seizing contraband and stolen goods before trial based only on probable cause. See Carroll v. United States, 267 U. S. 132, 149–152 (1925) (discussing this history); Boyd v.

It is certainly the case that some early American statutes did provide for civil forfeiture of untainted substitute property. See Registry Act, § 12, 1 Stat. 293 (providing for forfeiture of a ship or “the value thereof”); Collection Act of July 31, 1789, § 22, 1 Stat. 42 (similar for goods); United States v. Bajakajian, 524 U. S. 321, 341 (1998) (collecting statutes). These statutes grew out of a broader “six-century-long tradition of in personam customs fines equal to one, two, three, or even four times the value of the goods at issue.” Id., at 345–346 (Kennedy , J., dissenting).

But this long tradition of in personam customs fines does not contradict the general rule against pretrial seizures of untainted property. These fines' in personam status strongly suggests that the Government did not collect them by seizing property at the outset of litigation. As described, that process was traditionally required for in rem forfeiture of tainted assets. See supra, at 30. 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

The common law thus offers an administrable line: A criminal defendant's untainted assets are protected from Government interference before trial and judgment. His tainted assets, by contrast, may be seized before trial as contraband or through a separate in rem proceeding. Reading the Sixth Amendment to track the historical line between tainted and untainted assets makes good sense. It avoids case-by-case adjudication, and ensures that the original meaning of the right to counsel does real work. The asset freeze here infringes the right to counsel because it “is so broad that it differs not only in degree, but in kind, from its historical antecedents.” James Daniel Good, supra, at 82 (Thomas, J., concurring in part and dissenting in part).

The dissenters object that, before trial, a defendant has an identical property interest in tainted and untainted assets. See post, at 42–43 (opinion of Kennedy , J.); post, at 52– 53 (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.

Since the asset freeze here violates the Sixth Amendment, the plurality correctly concludes that the judgment below

The plurality's balancing analysis also casts doubt on the constitutionality of incidental burdens on the right to counsel. For the most part, the Court's precedents hold that a generally applicable law placing only an incidental burden on a constitutional right does not violate that right. See R. A. V. v. St. Paul, 505 U. S. 377, 389–390 (1992) (explaining that content-neutral laws do not violate the First Amendment simply because they incidentally burden expressive conduct); Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 878–882 (1990) (likewise for religion-neutral laws that burden religious exercise).

The Sixth Amendment arguably works the same way. “[A] defendant may not insist on representation by an attorney he cannot afford.” Wheat v. United States, 486 U. S. 153, 159 (1988). The Constitution perhaps guarantees only a “freedom of counsel” akin to the First Amendment freedoms of speech and religion that also “depen[d] in part on one's financial wherewithal.” Caplin & Drysdale , 491 U. S., at 628. Numerous laws make it more difficult for defendants to retain a lawyer. But that fact alone does not create a Sixth Amendment problem. For instance, criminal defendants must still pay taxes even though “these financial levies may deprive them of resources that could be used to hire an attorney.” Id., at 631–632. So I lean toward the principal dissent's view that incidental burdens on the right to counsel of choice would not violate the Sixth Amendment. See post, at 40, 45–46 (opinion of Kennedy , J.).

On the other hand, the Court has said that the right to counsel guarantees defendants “a fair opportunity to secure counsel of [their] choice.” Powell v. Alabama, 287 U. S. 45, 52–53 (1932) (emphasis added). The state court in Powell denied the defendants such an opportunity, the Court held, by moving to trial so quickly (six days after indictment) that

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

For these reasons, I concur only in the judgment.

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

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, 491 U. S. 617 (1989), and United States v. Monsanto , 491 U. S. 600 (1989), both of which make clear that a defendant has no Sixth Amendment right to spend forfeitable assets (or assets that will be forfeitable) on an attorney. The principle the Court adopted in those cases applies with equal force here. Rather than apply that principle, however, the plurality and concurrence adopt a rule found nowhere in the Constitution or this Court's precedents—that the Sixth Amendment protects a person's right to spend otherwise forfeitable assets on an attorney so long as those assets are not related to or the direct proceeds of the charged crime. Ante, at 8–9 (plurality opinion); ante, at 25 (Thomas, J., concurring in judgment). The reasoning in these separate opinions is incorrect, and requires this respectful dissent.

The same day Luis was indicted, the Government initiated a civil action under 18 U. S. C. § 1345 to restrain Luis' assets before her criminal trial, including substitute property of an amount equivalent to the value of the proceeds of her alleged crimes. To establish its entitlement to a restraining order, the Government showed that Luis and her co-conspirators were dissipating the illegally obtained assets. In particular, they were transferring money involved in the scheme to various individuals and entities, including shell corporations owned by Luis' family members. As part of this process, Luis opened and closed well over 40 bank accounts and with-drew large amounts of cash to hide the conspiracy's proceeds. Luis personally received almost $4.5 million in funds and used at least some of that money to purchase luxury items, real estate, and automobiles, and to travel. Based on this and other evidence, the District Court entered an order prohibiting Luis from spending up to $45 million of her assets.

Before the Court of Appeals for the Eleventh Circuit, Luis argued that the Sixth Amendment required that she be allowed to spend the restrained substitute assets on an attorney. The Court of Appeals disagreed, concluding that “[t]he arguments made by Luis . . . are foreclosed by the United States Supreme Court decisions in . . . Caplin & Drysdale [and] Monsanto .” 564 Fed. Appx. 493, 494 (2014) (per cu-riam ). In my view the Court of Appeals was correct, and its judgment should be affirmed.

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 re jected the firm's argument. The Sixth Amendment, the Court explained, “guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts.” Caplin & Drysdale , 491 U. S., at 624. As for the right to choose one's own attorney, the Court observed that “nothing in [the forfeiture statute] prevents a defendant from hiring the attorney of his choice, or disqualifies any attorney from serving as a defendant's counsel.” Id., at 625. Even defendants who possess “nothing but assets the Government seeks to have forfeited . . . may be able to find lawyers willing to represent them, hoping that their fees will be paid in the event of acquittal, or via some other means that a defendant might come by in the future.” Ibid. The burden imposed by forfeiture law, the Court concluded, is thus “a limited one.” Ibid.

Caplin & Drysdale also repudiated the firm's contention that the Government has only a modest interest in forfeit-able 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 obtain-

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 distinction, for Sixth Amendment purposes, between the restraint of assets before trial and the forfeiture of assets after trial: “[I]f the Government may, post-trial, forbid the use of forfeited assets to pay an attorney, then surely no constitutional violation occurs when, after probable cause is adequately established, the Government obtains an order barring a defendant from frustrating that end by dissipating his assets prior to trial.” Id., at 616. The Court noted, moreover, that “it would be odd to conclude that the Government may not restrain property . . . in [a defendant's] possession, based on a finding of probable cause, when we have held that (under appropriate circumstances), the Government may restrain persons where there is a finding of probable cause.” Id., at 615–616. When a defendant himself can be restrained pretrial, there is “no constitutional infirmity” in a similar pretrial restraint of a defendant's property “to protect its `appearance' at trial and protect the community's interest in full recovery of any ill-gotten gains.” Id., at 616.

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

The pretrial restraint in Monsanto was no more burdensome than the pretrial restraint at issue here. Luis, like the defendant in Monsanto , was not barred from obtaining the assistance of any particular attorney. She was free to seek lawyers willing to represent her in the hopes that their fees would be paid at some future point. In short, § 1345's authorization of a pretrial restraint of substitute assets places no greater burden on a defendant like Luis than the forfeiture and pretrial restraint statute placed on the defendant in Monsanto .

In addition, the Government has the same “strong . . . interest in obtaining full recovery of all forfeitable assets” here as it did in Caplin & Drysdale and Monsanto . See Caplin & Drysdale , supra, at 631. If Luis is convicted, the Government has a right to recover Luis' substitute assets— the money she kept for herself while spending the taxpayer dollars she is accused of stealing. Just as the Government has an interest in ensuring Luis' presence at trial—an interest that can justify a defendant's pretrial detention—so too does the Government have an interest in ensuring the availability of her substitute assets after trial, an interest that can justify pretrial restraint.

The plurality maintains that Caplin & Drysdale and Mon-santo do not apply because “the nature of the assets at issue here differs from the assets at issue in those earlier cases.” Ante, at 12. 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 13. “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,

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 Mon-santo's tainted assets than it has in Luis' substitute assets.

The plurality seeks to avoid this conclusion by relying on the relation-back doctrine. In its view the doctrine gives the Government title to tainted assets upon the commission of a crime rather than upon conviction or judgment of forfeiture. Even assuming, as this reasoning does, that the relation-back doctrine applies only to tainted assets—but see United States v. McHan, 345 F. 3d 262, 270–272 (CA4 2003)— the doctrine does not do the work the plurality's analysis requires.

The relation-back doctrine, which is incorporated in some forfeiture statutes, see, e. g., 21 U. S. C. § 853(c), has its origins in the common law. Under this legal construct, the Government's title to certain types of forfeitable property relates back to the time at which the defendant committed

The 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 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 15–16. 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 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 forfeit-able 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 assess-

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. 72–73. She also

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 no cognizable complaint so long as they are adequately represented by attorneys ap-

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 22. Public-defender offices, the plurality suggests, already lack suff-cient attorneys to meet nationally recommended case -load standards. Ante , at 21–22. 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 members of the private defense bar.

Because the rule announced today is anchored in the Sixth Amendment, moreover, it will frustrate not only the Federal

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 22–23. 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. Ante , at 22. 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 restrain the remaining million.

One of the treatises on which the plurality relies answers that question. The opinion cites A. Scott's Law of Trusts to support the claim that “the law has tracing rules that help courts implement the kind of distinction . . . require[d] in this case.” Ibid. The treatise says that, if a “wrongdoer

The plurality sees “little reason to worry” about defendants circumventing forfeiture because courts can use rules like the tracing rule discussed above. Ante, at 23. It also asserts that these rules “will likely . . . prevent Luis from benefiting from many of [her] money transfers and purchases.” Ante , at 22. 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. Even were that not the case, this assertion flails to appreciate that it takes time to trace tainted assets. As the FBI agent testified, at the time of the hearing both the tracing and the FBI's analysis were “still ongoing.” Ibid. The whole purpose of a pretrial restraint under § 1345 is to maintain the status quo in cases, like this one, where a defendant is accused of committing crimes that involve fungible property,

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 23. 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.

Justice Kagan, dissenting.

I find United States v. Monsanto , 491 U. S. 600 (1989), a troubling decision. It is one thing to hold, as this Court did in Caplin & Drysdale, Chartered v. United States, 491 U. S. 617 (1989), that a convicted felon has no Sixth Amendment right to pay his lawyer with funds adjudged forfeitable.

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 Mon-santo controls this case. See ante, at 39–41 (opinion of Ken-nedy , 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 differenti-ating 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 12– 13. But as the principal dissent shows, the Government's and the defendant's respective legal interests in those two

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 46 (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.