Ms. Luis has been accused (not convicted) of defrauding the United States of 45 million dollars. Allegedly, Luis has already spent the 45 million dollars ill-gotten, but still has two million dollars in "untainted" property, property that she acquired legally. Pursuant to a Federal statute, the District Court granted the government's motion to freeze all Luis' assets, tainted or untainted, up to 45 million dollars, the amount of restitution for which Luis would be on the hook should the government's allegations result in a conviction. Luis wants, understandably, to use the two million dollars in untainted property to hire a defense attorney(s).
The District Court refused Luis' request, stating there is "no 6th Amendment right to use untainted assets to hire counsel". The Eleventh Circuit affirmed.
The United States Supreme Court reverses. J. Breyer writes for a plurality of four, J. Thomas concurs in the judgment, but disagrees with the plurality's approach. J. Kennedy, joined by J. Alito, pens a dissent. J. Kagan also pens a dissent.
For the plurality, the "untainted" character of Luis' assets make the difference, providing the basis to distinguish the court's previous decisions in Drysdale and Monsanto. In both of these cases, the assets at issue were either ill-gotten gains or property that could be traced to ill-gotten gains. Breyer reasons by analogy to Bankruptcy law's "relation back doctrine" that the government's interest in "tainted" property is substantial enough to outweigh a defendant's right to her counsel of choice, due to the legal fiction that ill-gotten gains become property of the government the moment the crime is committed. However, untainted assets, lack the inherent character that gives rise to the government's interest. Untainted assets, though available to satisfy fines and restitution upon a conviction, lack the criminal nexus of tainted assets and thus do not outbalance Luis' 6th Amendment right to hire counsel of her choosing.
Thomas' concurrence utilizes a much less flexible rubric. After an excellent historical overview of the 6th Amendment's right to counsel, Thomas uses the predicate act cannon to arrive at an appealingly simple syllogism: The 6th Amendment confers a right to hire a lawyer of one's choosing, a right necessarily includes the prerequisites for exercising the right, a prerequisite for hiring a lawyer of one's choosing is access to one's untainted assets, therefore the 6th Amendment necessarily includes the ability to use one's untainted assets to hire a lawyer.
Kennedy writes an exceedingly long and disappointing dissent. He thinks the result will encourage thieves to spend their ill-gotten gains first in order to keep their own untainted money in reserve to hire counsel if they are caught. This may be true (or it may not--I would spend the plundered loot first anyway if only to make detection more difficult), but it is far from a legitimate basis to interpret the United States Constitution. Within the criminal milieu, every exercise of an accused's Constitutional protections can be said to "reward" the accused, guilty or not. Thomas' approach looks even better after reading Kennedy's dissent.
Finally, Kagan says she is troubled by the holding in Monsanto, but not enough to overrule it. And because she thinks this case is controlled by Monsanto, she dissents.
[As an aside, I did not know that at common law you had no right to an attorney (meaning one you hired-the right to a lawyer at taxpayers' expense is a modern creation) if you were charged with a felony, save treason. In England, one accused of a felony (crimes punishable by death) was forced to represent himself at trial, even if he could, or did, hire an attorney. The Sixth Amendment's right to counsel "in all criminal proceedings" was a an explicit rejection of the English Common law's limitations on the right to counsel, which only conferred the right to be represented to those accused of misdemeanors (and treason). ]
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