The plurality opinion, written by Justice Breyer and joined by
Chief Justice Roberts and Justices Ginsburg and Sotomayor,
concluded that the District Court's order violated Ms.
Luis' Sixth Amendment right to use her "innocent"
assets to pay a "reasonable fee" for the assistance of
counsel. Justice Breyer's decision rested on three primary
arguments. First, Justice Breyer weighed the government's
interest in securing a criminal asset forfeiture and the
victim's interest in obtaining restitution against the criminal
defendant's "fundamental right" to counsel under the
Sixth Amendment, and concluded that the balance clearly tips in the
defendant's favor: "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,
based on a survey of the common law, Justice Breyer found a
"historic preference" against preconviction forfeitures.
Finally, the plurality reasoned that a contrary decision could
encourage Congress to allow pretrial asset restraints in other
cases and that, after being deprived of their assets by virtue of a
pretrial asset freeze, criminal defendants would be forced to rely
on the already overburdened system of public defenders.
Concurring in the judgment, Justice Thomas rejected the
plurality's balancing approach, focusing instead on the text of
the Constitution and its common law backdrop. Justice Thomas
observed that before the Supreme Court announced an indigent
defendant's right to publicly financed defense counsel, the
Sixth Amendment served to protect a criminal defendant's right
"to employ a lawyer to assist in his defense." This right
would be subverted, Justice Thomas reasoned, if the government
possessed unfettered power to seize a defendant's assets before
trial because, simply, "retaining an attorney requires
resources." Since constitutional rights "implicitly
protect those closely related acts necessary to their
exercise," there must be a limit on the extent to which assets
of a criminal defendant can be seized prior to conviction if the
core of the Sixth Amendment right to counsel is to be preserved.
Justice Thomas agreed that the line should be drawn between tainted
and untainted assets, finding that the common law supported
reserving untainted assets for use by criminal defendants in
financing their legal defense.
In dissent, Justice Kennedy, joined by Justice Alito, criticized
the plurality and Justice Thomas for adopting a rule that would
create arbitrary distinctions among defendants, rewarding those who
preserve their untainted assets and spend their ill-gotten funds
first, while punishing otherwise identical defendants who dispose
of their tainted and untainted assets in the reverse order. Justice
Kennedy also argued that the plurality brushed aside the
Court's controlling precedents, mischaracterized the common law
approach to pretrial forfeitures, ignored the will of Congress as
embodied in the statute at issue and established a rule that would
prove unworkable in practice.
Justice Kagan authored a separate dissent in which she pointedly
questioned whether the government could lawfully freeze a
defendant's assets needed to hire an attorney prior to trial
based only on probable cause that the funds will ultimately be
forfeitable, but she nevertheless concluded that the Court's
decision in United States v. Monsanto, the correctness of
which had not been challenged in these proceedings, required a
decision in the government's favor.
Implications
In cases where certain assets are clearly derived from untainted
sources, the Court's holding provides valuable and clear-cut
protection for a criminal defendant. But practitioners in this area
will recognize the validity of Justice Kennedy's observation in
his dissent that finding a clear line between tainted and untainted
assets may be a difficult task. Although the plurality expressed
confidence that "tracing" doctrines that are often
applied in other contexts would provide the necessary guidance,
experience suggests that in complex financial cases the
identification and tracing of tainted assets can be challenging and
contentious.
In addition, the Court's holding leaves unaddressed the
question of when innocent funds are "needed" to obtain
counsel of choice, and what constitutes a "reasonable
fee" for assistance of counsel. Based on the particular facts
of the case, the Luis Court accepted that the
government's pretrial restraint of untainted assets would
prevent the retention of private counsel of the defendant's
choice. This may not be as clear in other contexts, especially when
the government seeks to freeze substantially less than all of a
defendant's remaining assets. Disagreements may also arise over
what constitutes a "reasonable fee" for retaining defense
counsel. As Justice Kennedy asked in his dissent, "[i]f 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?"
Although the circumstances in which the Court's decision in
Luis can be directly and easily applied may be limited,
the case may have broader implications. There appear to be several
members of the Court, from across the ideological spectrum, who are
sympathetic to the rights of the accused to mount a vigorous
defense and to be treated, up until the moment of conviction, in a
manner fully consistent with the presumption of innocence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
