(Slip Opinion)
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` OCTOBER TERM, 2015
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`Syllabus
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`1
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` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
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` being done in connection with this case, at the time the opinion is issued.
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` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
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` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`SUPREME COURT OF THE UNITED STATES
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` Syllabus
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`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,
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`the Government secured a pretrial order prohibiting Luis from dissi-
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`pating her assets, including assets unrelated to her alleged crimes.
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`Though the District Court recognized that the order might prevent
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`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
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`for that purpose. The Eleventh Circuit affirmed.
`Held: The judgment is vacated, and the case is remanded.
`564 Fed. Appx. 493, vacated and remanded.
`JUSTICE BREYER, joined by THE CHIEF JUSTICE, JUSTICE GINSBURG,
`
`and JUSTICE SOTOMAYOR, concluded that the pretrial restraint of le-
`gitimate, untainted assets needed to retain counsel of choice violates
`the Sixth Amendment. The nature and importance of the constitu-
`tional right taken together with the nature of the assets lead to this
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`conclusion. Pp. 3–16.
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`(a) The Sixth Amendment right to counsel grants a defendant “a
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`
`fair opportunity to secure counsel of his own choice,” Powell v. Ala-
`bama, 287 U. S. 45, 53, that he “can afford to hire,” Caplin & Drys-
`dale, Chartered v. United States, 491 U. S. 617, 624. This Court has
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`LUIS v. UNITED STATES
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`Syllabus
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`consistently referred to the right to counsel of choice as “fundamen-
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`tal.” Pp. 3–5.
`
`(b) While the Government does not deny Luis’ fundamental right to
`be represented by a qualified attorney whom she chooses and can af-
`ford to hire, it would nonetheless undermine the value of that right
`by taking from Luis the ability to use funds she needs to pay for her
`chosen attorney. The Government attempts to justify this conse-
`quence by pointing out that there are important interests on the oth-
`er side of the legal equation. It wishes to guarantee that funds will
`be available later to help pay for statutory penalties and restitution,
`
`for example. The Government further argues that two previous cases
`from this Court, Caplin & Drysdale, supra, at 619, 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
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`differs from the assets at issue in those earlier cases. And that dis-
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`tinction makes a difference. Pp. 5–16.
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`(1) Here, the property is untainted, i.e., it belongs to Luis. As de-
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`scribed in Caplin & Drysdale and Monsanto, the Government may
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`well be able to freeze before trial “tainted” assets—e.g., loot, contra-
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`band, or property otherwise associated with the planning, imple-
`menting, or concealing of a crime. As a matter of property law, the
`defendant’s ownership interest in such property is imperfect. For ex-
`ample, 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 re-
`strictions upon Luis’ untainted property without any showing of any
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`equivalent governmental interest in that property. Pp. 5–10.
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`
`(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
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`prohibits the court order sought here.
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`Three basic considerations lead to this conclusion. First, the na-
`ture of the competing interests argues against this kind of court or-
`der. On the one side is a fundamental Sixth Amendment right to as-
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`sistance 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 con-
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`Cite as: 578 U. S. ____ (2016)
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`Syllabus
`trary. Indeed, there appears to be no decision of this Court authoriz-
`ing 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 stop-
`ping place, as Congress could write more statutes authorizing re-
`straints in other cases involving illegal behavior that come with steep
`financial consequences. These defendants, often rendered indigent,
`would fall back upon publicly paid counsel, including overworked and
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`underpaid public defenders. The upshot is a substantial risk that ac-
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`cepting the Government’s views would render less effective the basic
`right the Sixth Amendment seeks to protect. Pp. 11–15.
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`(3) The constitutional line between a criminal defendant’s taint-
`ed funds and innocent funds needed to pay for counsel should prove
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`workable. Money may be fungible, but courts, which use tracing
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`rules in cases of, e.g., fraud and pension rights, have experience sepa-
`rating tainted assets from untainted assets, just as they have experi-
`ence determining how much money is needed to cover the costs of a
`lawyer. Pp. 15–16.
`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
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`common-law backdrop. Pp. 1–12.
`(a) The Sixth Amendment abolished the common-law rule that
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`generally prohibited representation in felony cases. “The right to se-
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`lect counsel of one’s choice” is thus “the root meaning” of the Sixth
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`Amendment right to counsel. United States v. Gonzalez-Lopez, 548
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`U. S. 140, 147–148. Constitutional rights protect the necessary pre-
`requisites for their exercise. As a result, the Sixth Amendment de-
`nies the Government unchecked power to freeze a defendant’s assets
`before trial simply to secure potential forfeiture upon conviction. Un-
`less the right to counsel protects the right to use lawfully owned
`property to pay for an attorney, the right to counsel—originally un-
`derstood to protect only the right to hire counsel of choice—would be
`meaningless. Without pretrial protection for at least some of a de-
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`fendant’s assets, the Government could nullify the right to counsel of
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`choice, eviscerating the Sixth Amendment’s original meaning and
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`purpose. The modern, judicially created right to government-
`appointed counsel does not obviate these concerns. Pp. 1–5.
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`(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,
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`but his tainted assets may be seized before trial as contraband or
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` LUIS v. UNITED STATES
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`Syllabus
`through a separate in rem proceeding. Reading the Sixth Amend-
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` ment to track the historical line between tainted and untainted as-
`sets 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. 5–9.
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`(c) This conclusion leaves no room for an atextual balancing analy-
`sis. Pp. 9–12.
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`BREYER, J., announced the judgment of the Court and delivered an
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`opinion, in which ROBERTS, C. J., and GINSBURG and SOTOMAYOR, JJ.,
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`joined. THOMAS, J., filed an opinion concurring in the judgment. KEN-
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`NEDY, J., filed a dissenting opinion, in which ALITO, J., joined. KAGAN,
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`J., filed a dissenting opinion.
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`4
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` Cite as: 578 U. S. ____ (2016)
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`Opinion of BREYER, J.
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`1
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`NOTICE: This opinion is subject to formal revision before publication in the
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`preliminary print of the United States Reports. Readers are requested to
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`notify the Reporter of Decisions, Supreme Court of the United States, Wash­
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`ington, D. C. 20543, of any typographical or other formal errors, in order
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`that corrections may be made before the preliminary print goes to press.
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`SUPREME COURT OF THE UNITED STATES
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`_________________
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` No. 14–419
`_________________
` SILA LUIS, PETITIONER v. UNITED STATES
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`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE ELEVENTH CIRCUIT
`
`
`[March 30, 2016]
`
` 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
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`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 equiva­
`lent value.” §1345(a)(2). In this case, the Government has
`obtained a court order that freezes assets belonging to the
`third category of property, namely, property that is un­
`tainted by the crime, and that belongs fully to the defend­
`ant. That order, the defendant says, prevents her from
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`paying her lawyer. She claims that insofar as it does so, it
`violates her Sixth Amendment “right . . . to have the As­
`sistance of Counsel for [her] defence.” We agree.
`I
`In October 2012, a federal grand jury charged the peti­
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`tioner, Sila Luis, with paying kickbacks, conspiring to
`commit fraud, and engaging in other crimes all related to
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`See §1349; §371; 42 U. S. C. §1320a–
`health care.
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`2
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` LUIS v. UNITED STATES
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`Opinion of BREYER, J.
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`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 resti­
`tution 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 pro­
`ceeds 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 unquantified amount of revenue not connected to
`the indictment [had] flowed into some of the accounts”
`subject to the restraining order); ibid. (similarly stipulat­
`ing that Luis used “revenue not connected to the indict­
`
`ment” to pay for real property that she possessed). Al­
`though the District Court recognized that the order might
`prevent Luis from obtaining counsel of her choice, it held
`“that there is no Sixth Amendment right to use untainted,
`substitute assets to hire counsel.” 966 F. Supp. 2d 1321,
`1334 (SD Fla. 2013).
`
`
`The Eleventh Circuit upheld the District Court. See 564
`Fed. Appx. 493, 494 (2014) ( per curiam) (referring to, e.g.,
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`Kaley v. United States, 571 U. S. ___ (2014); Caplin &
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`Drysdale, Chartered v. United States, 491 U. S. 617, 631
`(1989); United States v. Monsanto, 491 U. S. 600, 616
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`(1989)). We granted Luis’ petition for certiorari.
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` Cite as: 578 U. S. ____ (2016)
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`Opinion of BREYER, J.
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`
` II
`The question presented is “[w]hether the pretrial re­
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`straint 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
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`conclusion.
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`
`A
`No one doubts the fundamental character of a criminal
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`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 lit­
`tle 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.
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`If charged with crime, he is incapable, generally, of
`determining for himself whether the indictment is
`good or bad. He is unfamiliar with the rules of evi­
`dence. Left without the aid of counsel he may be put
`on trial without a proper charge, and convicted upon
`incompetent evidence, or evidence irrelevant to the is­
`sue 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 proceed­
`ings against him. Without it, though he be not guilty,
`he faces the danger of conviction because he does not
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` LUIS v. UNITED STATES
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`Opinion of BREYER, J.
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`know how to establish his innocence.’” Id., at 344–
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`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 “fundamen­
`tal,” 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 commen­
`tators 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,
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`862 (1975); third, that we have understood the right to
`require that the Government provide counsel for an indi­
`gent defendant accused of all but the least serious crimes,
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`see Gideon, supra, at 344; and fourth, that we have con­
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`sidered the wrongful deprivation of the right to counsel a
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`“structural” error that so “affec[ts] the framework within
`which the trial proceeds” that courts may not even ask
`whether the error harmed the defendant. United States v.
`Gonzalez-Lopez, 548 U. S. 140, 148 (2006) (internal quota­
`tion marks omitted); see id., at 150.
`
`Given the necessarily close working relationship be­
`tween lawyer and client, the need for confidence, and the
`critical importance of trust, neither is it surprising that
`the Court has held that the Sixth Amendment grants a
`defendant “a fair opportunity to secure counsel of his own
`choice.” Powell, supra, at 53; see Gonzalez-Lopez, supra,
`at 150 (describing “these myriad aspects of representa­
`tion”). This “fair opportunity” for the defendant to secure
`counsel of choice has limits. A defendant has no right, for
`example, to an attorney who is not a member of the bar, or
`who has a conflict of interest due to a relationship with an
`opposing party. See Wheat v. United States, 486 U. S. 153,
`159 (1988). And an indigent defendant, while entitled to
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` Cite as: 578 U. S. ____ (2016)
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`Opinion of BREYER, J.
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`adequate representation, has no right to have the Gov­
`ernment pay for his preferred representational choice. See
`Caplin & Drysdale, 491 U. S., at 624.
`We nonetheless emphasize that the constitutional right
`
`at issue here is fundamental: “[T]he Sixth Amendment
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`guarantees a defendant the right to be represented by an
`otherwise qualified attorney whom that defendant can
`afford to hire.” Ibid.
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`B
`The Government cannot, and does not, deny Luis’ right
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`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
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`may have this consequence, there are important interests
`on the other side of the legal equation: It wishes to guar­
`antee 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 distinc­
`tion makes a difference.
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`1
`The relevant difference consists of the fact that the
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`property here is untainted; i.e., it belongs to the defend­
`ant, pure and simple. In this respect it differs from a
`robber’s loot, a drug seller’s cocaine, a burglar’s tools, or
`other property associated with the planning, implement­
`ing, or concealing of a crime. The Government may well
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` LUIS v. UNITED STATES
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`Opinion of BREYER, J.
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`be able to freeze, perhaps to seize, assets of the latter,
`“tainted” kind before trial. As a matter of property law
`the defendant’s ownership interest is imperfect. The
`robber’s loot belongs to the victim, not to the defendant.
`
`See Telegraph Co. v. Davenport, 97 U. S. 369, 372 (1878)
`(“The great principle that no one can be deprived of his
`property without his assent, except by the processes of the
`law, requires . . . that the property wrongfully transferred
`or stolen should be restored to its rightful owner”). The
`cocaine is contraband, long considered forfeitable to the
`Government wherever found. See, e.g., 21 U. S. C. §881(a)
`
`(“[Controlled substances] shall be subject to forfeiture to
`the United States and no property right shall exist in
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`them”); Carroll v. United States, 267 U. S. 132, 159 (1925)
`(describing the seizure of “contraband forfeitable prop­
`erty”). And title to property used to commit a crime (or
`otherwise “traceable” to a crime) often passes to the Gov­
`ernment at the instant the crime is planned or committed.
`
`See, e.g., §853(c) (providing that the Government’s owner­
`ship interest in such property relates back to the time of
`the crime).
`The property at issue here, however, is not loot, contra­
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`band, 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
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`Opinion of BREYER, J.
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`[constituting or derived from any proceeds obtained from
`the crime] vests in the United States upon the commission
`of the act giving rise to [the] forfeiture.’” 491 U. S., at 625,
`n. 4 (quoting §853(c)) (emphasis added). It added that the
`law had “long-recognized” as “lawful” the “practice of
`vesting title to any forfeitable asset[s] in the United
`State[s] at the time of the crim[e].” Id., at 627. It pointed
`out that the defendant did not “claim, as a general propo­
`sition, that the [vesting] provision is unconstitutional, or
`that Congress cannot, as a general matter, vest title to
`assets derived from the crime in the Government, as of the
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`date of the criminal act in question.” Id., at 627–628.
`And, given the vesting language, the Court explained that
`the defendant “did not hold good title” to the property. Id.,
`at 627. The Court therefore concluded that “[t]here is no
`constitutional principle that gives one person [namely, the
`defendant] the right to give another’s [namely, the Gov­
`ernment’s] property to a third party,” namely, the lawyer.
`
`Id., at 628.
` 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 Mon-
`santo, 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 com­
`mitted (i.e., before the trial), see §853(c). The Court said
`that Caplin & Drysdale had already “weigh[ed] . . . th[e]
`very interests” at issue. Monsanto, supra, at 616. And it
`“rel[ied] on” its “conclusion” in Caplin & Drysdale to dis­
`pose of, and to reject, the defendant’s “similar constitu­
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` LUIS v. UNITED STATES
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`Opinion of BREYER, J.
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`tional claims.” 491 U. S., at 614.
`JUSTICE KENNEDY prefers to read Caplin & Drysdale
`and Monsanto broadly, as holding that “the Government,
`having established probable cause to believe that Luis’
`substitute [i.e., innocent] assets will be forfeitable upon
`conviction, should be permitted to obtain a restraining
`order barring her from spending those funds prior to
`trial.” Post, at 6–7 (dissenting opinion). In other words,
`he believes that those cases stand for the proposition that
`property—whether tainted or untainted—is subject to
`pretrial restraint, so long as the property might someday
`be subject to forfeiture. But this reading asks too much of
`our precedents. For one thing, as discussed, Caplin &
`
` Drysdale and Monsanto involved the restraint only of
`tainted assets, and thus we had no occasion to opine in
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`those cases about the constitutionality of pretrial re­
`straints of other, untainted assets.
`For another thing, JUSTICE KENNEDY’s broad rule ig­
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`nores the statutory background against which Caplin &
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`
`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 “prop­
`
`erty 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 “no­
`tice to persons appearing to have an interest in the prop­
`erty and opportunity for hearing” before obtaining a re­
`straining 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 forfei­
`
`
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`8
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`9
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` Cite as: 578 U. S. ____ (2016)
`
`Opinion of BREYER, J.
`
`ture. And we see this in §853(n)(6)(A), which exempts
`certain property from forfeiture when a third party can
`show a vested interest in the property that is “superior” to
`that of the Government.
`
`The distinction that we have discussed is thus an im­
`portant one, not a technicality. It is the difference be­
`tween what is yours and what is mine. In Caplin & Drys-
`dale 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 im­
`
`portant 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 convic­
`tion). See post, at 7–10 (KENNEDY, J., dissenting). Rather,
`
`it is to say that the Government even before trial had a
`“substantial” interest in the tainted property sufficient to
`justify the property’s pretrial restraint. See Caplin &
`Drysdale, supra, at 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. Stowell, 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 [posses­
`sor]; and was as valid and effectual, against all the world,
`as a recorded deed” (emphasis added)).
`
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`10
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`LUIS v. UNITED STATES
`
`
`Opinion of BREYER, J.
`
`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 de­
`fendant’s tainted assets superior to that of most any other
`party. See 4 Collier on Bankruptcy ¶506.03[1] (16th ed.
`2015). For this reason, §853(c) has operated in our cases
`as a significant limitation on criminal defendants’ prop­
`erty rights in such assets—even before conviction. See
`Monsanto, supra, at 613 (“Permitting a defendant to use
`[tainted] assets for his private purposes that, under this
`
`[relation-back] provision, will become the property of the
`United States if a conviction occurs cannot be sanc­
`tioned”); cf. Grupo Mexicano de Desarrollo, S. A. v. Alli-
`ance Bond Fund, Inc., 527 U. S. 308, 326 (1999) (noting
`that the Court had previously authorized injunctions
`
`against the further dissipation of property where, among
`other things, “the creditor (the Government) asserted an
`
`equitable lien on the property”).
`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 Gov­
`
` ernment would be at most an unsecured creditor. Al­
`
`though such creditors someday might collect from a debt­
`or’s general assets, they cannot be said to have any pre­
` sent 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 2
`
`(KAGAN, J., dissenting). At least regarding her untainted
`
`
`assets, Luis can at this point reasonably claim that the
`property is still “mine,” free and clear.
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`

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` Cite as: 578 U. S. ____ (2016)
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`Opinion of BREYER, J.
`
`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 without a present interest in a piece of property to
`
`impose restrictions upon a current owner, say, to prevent
`
`waste. A holder of a reversionary interest, for example,
`can prevent the owner of a life estate from wasting the
`
`property. See, e.g., Peterson v. Ferrell, 127 N. C. 169, 170,
`37 S. E. 189, 190 (1900). Those who later may become
`beneficiaries of a trust are sometimes able to prevent the
`trustee from dissipating the trust’s assets. See, e.g., Kol-
`
`lock v. Webb, 113 Ga. 762, 769, 39 S. E. 339, 343 (1901).
`
`And holders of a contingent, future executory interest in
`property (an interest that might become possessory at
`some point down the road) can, in limited circumstances,
`
`enjoin the activities of the current owner. See, e.g., Dees v.
`Cheuvronts, 240 Ill. 486, 491, 88 N. E. 1011, 1012 (1909)
`(“[E]quity w[ill] interfere . . . only when it is made to ap­
`pear that the contingency . . . is reasonably certain to
`happen, and the waste is . . . wanton and conscienceless”).
`The Government here seeks a somewhat analogous order,
`i.e., an order that will preserve Luis’ untainted assets so
`that they will be available to cover the costs of forfeiture
`
`and restitution if she is convicted, and if the court later
`determines that her tainted assets are insufficient or
`
`otherwise unavailable.
`
`The Government finds statutory authority for its re­
`quest in language authorizing a court to enjoin a criminal
`defendant from, for example, disposing of innocent “prop­
`
`erty 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 coun­
`
`
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` 11
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`12
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` LUIS v. UNITED STATES
`
`Opinion of BREYER, J.
`
`sel of choice, we believe that the Sixth Amendment prohib­
`its 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 3–5, a Sixth Amend­
`ment right to assistance of counsel that is a fundamental
`constituent of due process of law, see Powell, 287 U. S.,
`at 68–69. And that right includes “the right to be repre­
`sented by an otherwise qualified attorney whom that
`defendant can afford to hire.” Caplin & Drysdale, 491
`U. S., at 624. The order at issue in this