578 U.S. 5 (2016)
A federal statute authorizes a court to freeze before trial certain assets in cases involving specified federal health care or banking offenses. See 18 U.S.C. § 1345. That authority reaches, among other categories, property obtained as a result of the crime, property traceable to the crime, and, as relevant here, other property of equivalent value. In this case the Government obtained a pretrial restraining order that freezes assets the Government describes as substitute property of equivalent value. The defendant, Sila Luis, contends that insofar as the order prevents her from using legitimately owned, untainted funds to hire counsel of her choice, it violates the Sixth Amendment. We agree and hold that the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment.
In October 2012 a federal grand jury charged petitioner Sila Luis with offenses related to health care fraud. The Government alleged that she had obtained nearly $45 million in proceeds from illegal conduct and sought to preserve the roughly $2 million remaining in her possession for potential restitution and other criminal penalties. The Government therefore sought, and the District Court entered, an order prohibiting Luis from dissipating or disposing of assets up to the equivalent value of the alleged proceeds. The parties stipulated that some of the accounts subject to the restraining order contained revenue not connected to the indictment. The District Court recognized that the order might prevent Luis from using her own untainted funds to hire counsel of her choice, but it held that the Sixth Amendment did not give her a right to use such untainted substitute assets to hire counsel. The Eleventh Circuit affirmed, and we granted certiorari.
The question presented is whether the pretrial restraint of a criminal defendant's legitimate, untainted assets needed to retain counsel of choice violates the Fifth and Sixth Amendments. We see no adequate way to construe the relevant statutes to avoid the constitutional question, and we answer it: the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment. The conclusion follows from the nature and importance of the right and from the nature of the assets at issue.
No one doubts the fundamental character of the Sixth Amendment right to the assistance of counsel. This Court has repeatedly described the right to counsel, and in particular the right to counsel of choice, as fundamental. The right ensures that defendants have a fair opportunity to secure counsel of their own choice who they can afford to hire. That right, however, is not without limits: a defendant cannot insist on counsel who is not a member of the bar, or who has a disqualifying conflict of interest, and an indigent defendant has no constitutional right to have the Government pay for a chosen private lawyer.
The Government does not deny that Luis has the right to be represented by a qualified attorney whom she chooses and can afford. But by freezing the funds she needs to pay that attorney, the Government would substantially undermine the right. The Government seeks to justify the restraint on the ground that it must preserve funds that may later be needed to satisfy statutory penalties and restitution. It relies on this Court's decisions in Caplin & Drysdale and Monsanto, but those cases involved property that the Government had probable cause to treat as tainted or forfeitable under a statutory scheme that, in effect, gave the Government a superior interest in such property. That factual and statutory context makes a difference.
The crucial distinction is that the assets at issue here are untainted property that belong to the defendant, not loot, contraband, or other property associated with the planning, implementing, or concealing of a crime. In the cases the Government cites, the property involved was the sort of tainted property whose ownership interest was imperfect and that could be treated under forfeiture statutes as passing to the Government as of the time of the criminal act. By contrast, the Government here seeks to impose restrictions on property that, as of now, belongs to Luis without any showing of a comparable governmental interest in those particular assets.
This distinction does not end the analysis, because property law sometimes permits a person with only a contingent or future interest to seek restraints to prevent waste. But insofar as innocent funds are needed to obtain counsel of choice, the Sixth Amendment forbids the court order the Government seeks. Three considerations support that rule. First, the competing interests are different in kind: on one side is a fundamental constitutional right central to a fair criminal process; on the other are important but more contingent governmental and victim interests in securing restitution and forfeiture. Second, relevant historical and common-law tradition offers essentially no support for broad pretrial forfeiture or restraint of a defendant's untainted property; the tradition generally treated interference with a defendant's untainted assets as contingent on conviction. Third, accepting the Government's position presents serious practical dangers: it would permit a significant erosion of the right to counsel of choice, by increasing reliance on overburdened public defenders and by enabling Congress to authorize more pretrial restraints that could render the right largely illusory.
The constitutional line we draw between tainted funds and innocent funds needed to pay counsel should be administrable. Money may be fungible, but courts routinely apply tracing rules in fraud, trust, bankruptcy, and other contexts to separate tainted from untainted assets, and courts are familiar with methods to determine reasonable attorneys' fees. Those tools should enable courts to implement the rule announced here without creating the unbounded mischief the Government fears.
Accordingly, we conclude that a criminal defendant has a Sixth Amendment right to use lawfully owned, untainted property to pay a reasonable fee for the assistance of counsel of choice. On the assumptions made in this case, the District Court's restraining order prevents Luis from exercising that right. We therefore vacate the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion.
It is so ordered.
Justice Thomas, concurring in the judgment
I agree with the plurality that a pretrial freeze of untainted assets violates the Sixth Amendment right to counsel of choice, but I do not join the plurality's balancing approach. My reasoning rests on the Sixth Amendment's text and the common-law backdrop.
The Sixth Amendment guarantees in criminal prosecutions the right to have the assistance of counsel. As originally understood, that right guaranteed a defendant the right to employ a lawyer to assist in his defense, and the Amendment abolished the common-law rule that denied counsel in felony cases. The right to select counsel of one's choice is the root meaning of the right to counsel. The Amendment implicitly protects the prerequisites necessary to exercise that right; otherwise the right would be hollow if the Government could freeze a defendant's lawfully owned assets needed to pay for an attorney simply to secure potential forfeiture upon conviction.
History confirms this textual understanding. The common-law forfeiture tradition drew a clear line between tainted and untainted assets: untainted assets were generally protected from interference before conviction, while tainted assets could be seized as contraband or through in rem proceedings. Reading the Sixth Amendment to track that historical line provides an administrable rule and prevents ad hoc balancing. Because the pretrial freeze in this case reaches into untainted assets for which there is no historical tradition of pretrial restraint, the freeze here violates the Sixth Amendment.
I cannot join the plurality's atextual balancing. The Sixth Amendment's protection of the right to counsel of choice leaves no room for weighing interests in the manner the plurality does. Judges are ill-suited to strike such balances, and the people through the Constitution have already weighed certain policy tradeoffs. The Sixth Amendment's guarantee should not be subjected to this kind of judicial balancing. For these reasons I concur only in the judgment.
The plurality and Justice Thomas read the Sixth Amendment to give defendants a constitutional right to pay for counsel with assets that are potentially forfeitable upon conviction so long as those assets are not traceable to the charged crime. That novel rule rewards defendants who dissipate, conceal, or launder proceeds of crime and permits them to use otherwise forfeitable substitute assets to hire counsel. The result is at odds with this Court's precedent and raises practical and doctrinal difficulties.
Caplin & Drysdale and Monsanto control. In Caplin & Drysdale the Court held that postconviction forfeiture that takes from a convicted defendant funds he would have used to pay his lawyer does not violate the Sixth Amendment. Monsanto addressed pretrial restraint and held that restraint of assets the Government sought to have forfeited upon conviction does not violate the Sixth Amendment once probable cause is established. Those principles apply here: the Government presented evidence of dissipation and probable cause to believe assets would be forfeitable; it therefore was permitted to seek a restraining order to prevent dissipation prior to trial.
The plurality attempts to distinguish those cases on the ground that the assets here are "untainted" and therefore belong to the defendant, but that premise misstates the law. Under the common law and this Court's precedent, forfeitable property does not truly belong to the Government only after judgment or conviction, but Monsanto and Caplin & Drysdale did not hinge on the property being physically tainted. The relation-back doctrine and the Government's interest in securing available assets upon conviction justify pretrial restraint here where probable cause exists to believe the assets will be forfeitable.
The plurality's rule also produces perverse incentives and arbitrary distinctions. Because money is fungible, a defendant who spends stolen funds first and preserves untainted assets would be able to use those preserved assets to hire counsel, while a defendant who spends untainted funds first would not. It rewards the sophisticated criminal who can conceal and launder proceeds and undermines forfeiture and restitution interests. Practical tracing is often difficult, time-consuming, and sometimes impossible, especially where cash withdrawals are involved.
Finally, there is no indication that Luis will be denied adequate representation if she cannot use the restrained funds to hire private counsel she now says she cannot afford; the Sixth Amendment does not guarantee a right to an attorney one cannot afford. For these reasons, I would affirm the court of appeals.
Justice Kagan, dissenting
I share concerns about Monsanto, which allowed pretrial restraint of assets once probable cause exists to believe they will be forfeitable, and I would not extend Monsanto. Because the Government has established probable cause to believe it will eventually recover Luis's assets, Monsanto controls this case and requires the result the Government seeks: pretrial restraint is permissible and Luis has no Sixth Amendment right to spend those assets on counsel. The Government's and the defendant's respective interests in the property prior to judgment are materially the same — ownership remains with the defendant and the Government's interest is contingent — and the Sixth Amendment should not draw the arbitrary line the plurality adopts.
The plurality's approach yields irrational distinctions among defendants and invites practical difficulty because money is fungible. It permits only defendants who happen to have preserved untainted assets to hire the lawyers they want while barring others similarly situated. I would therefore affirm the judgment below.