United States: Supreme Court Holds That Pretrial Restraint of Untainted Funds Needed to Retain Counsel Violates Sixth Amendment

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.


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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.