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SILA LUIS, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT


SILA LUIS, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF  APPEALS FOR THE ELEVENTH CIRCUIT
The asset freeze here is not merely an incidental burden on the right to counsel of choice; it targets a defendant’s assets, which are necessary to exercise that right, simply to secure forfeiture upon conviction. The prospect of that criminal puni

Cite as: 578 U. S. ____ (2016) 
THOMAS, J., concurring in judgment
 
SUPREME COURT OF THE UNITED STATES 
No. 14–419 
 
SILA LUIS, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE ELEVENTH CIRCUIT
[March 30, 2016]
 
JUSTICE THOMAS, concurring in the judgment. I agree with the plurality that a pretrial freeze of untainted assets violates a criminal defendant’s Sixth Amendment right to counsel of choice.  But I do not agree with the plurality’s balancing approach. Rather, my reasoning rests strictly on the Sixth Amendment’s text and common-law backdrop. The Sixth Amendment provides important limits on the Government’s power to freeze a criminal defendant’s forfeitable assets before trial.  And, constitutional rights necessarily protect the prerequisites for their exercise. The right "to have the Assistance of Counsel,” U. S. Const., Amdt. 6, thus implies the right to use lawfully owned property to pay for an attorney.  Otherwise the right to counsel—originally understood to protect only the right to hire counsel of choice—would be meaningless. History confirms this textual understanding. The common law limited pretrial asset restraints to tainted assets.  Both this textual understanding and history establish that the Sixth Amendment prevents the Government from freezing untainted assets in order to secure a potential forfeiture. The freeze here accordingly violates the Constitution.
 
I
The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”  As originally understood, this right guaranteed a defendant the right "to employ a lawyer to assist in his defense.”  Scott v. Illinois, 440 U. S. 367, 370 (1979).  The common law permitted counsel to represent defendants charged with misdemeanors, but not felonies other than treason.  W. Beaney, The Right to Counsel in American Courts 8–9 (1955).  The Sixth Amendment abolished the rule prohibiting representation in felony cases, but was "not aimed to compel the State to provide counsel for a defendant.”  Betts v. Brady, 316 U. S. 455, 466 (1942), overruled by Gideon v. Wainwright, 372 U. S. 335 (1963); see Beaney, supra, at 27–36. "The right to select counsel of one’s choice” is thus "the root meaning” of the Sixth Amendment right to counsel. United States v. Gonzalez-Lopez, 548 U. S. 140, 147–148 (2006). The Sixth Amendment denies the Government unchecked power to freeze a defendant’s assets before trial simply to secure potential forfeiture upon conviction.  If that bare expectancy of criminal punishment gave the Government such power, then a defendant’s right to counsel of choice would be meaningless, because retaining an attorney requires resources.  The law has long recognized that the "[a]uthorization of an act also authorizes a necessary predicate act.”  A. Scalia & B. Garner, Reading Law:
 
The Interpretation of Legal Texts 192 (2012) (discussing the "predicate-act canon”).  As Thomas Cooley put it with respect to Government powers, "where a general power is conferred or duty enjoined, every particular power necessary for the exercise of the one, or the performance of the other, is also conferred.” Constitutional Limitations 63 (1868); see 1 J. Kent, Commentaries on American Law 464 (13th ed. 1884) ("[W]henever a power is given by a statute, everything necessary to the making of it effectual or requisite to attain the end is implied”). This logic equally applies to individual rights.  
 
After all, many rights are powers reserved to the People rather than delegated to the Government. Cf. U. S. Const., Amdt. 10 ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”). Constitutional rights thus implicitly protect those closely related acts necessary to their exercise.  "There comes a point . . . at which the regulation of action intimately and unavoidably connected with [a right] is a regulation of [the right] itself.”  Hill v. Colorado, 530 U. S. 703, 745 (2000) (Scalia, J., dissenting).  
 
The right to keep and bear arms, for example, "implies a corresponding right to obtain the bullets necessary to use them,” Jackson v. City and County of San Francisco, 746 F. 3d 953, 967 (CA9 2014) (inter- nal quotation marks omitted), and "to acquire and maintain proficiency in their use,” Ezell v. Chicago, 651 F. 3d 684, 704 (CA7 2011). See District of Columbia v. Heller, 554 U. S. 570, 617–618 (2008) (citing T. Cooley, General Principles of Constitutional Law 271 (2d ed. 1891) (discussing the implicit right to train with weapons)); United States v. Miller, 307 U. S. 174, 180 (1939) (citing 1 H. Osgood, The American Colonies in the 17th Century 499 (1904) (discussing the implicit right to possess ammunition)); Andrews v. State, 50 Tenn. 165, 178 (1871) (discussing both rights). Without protection for these closely related rights, the Second Amendment would be toothless.
 
Likewise, the First Amendment "right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise.” McConnell v. Federal Election Comm’n, 540 U. S. 93, 252 (2003) (Scalia, J., concurring in part, concurring in judgment in part, and dissenting in part). The same goes for the Sixth Amendment and the financial resources required to obtain a lawyer. Without constitutional protection for at least some of a defendant’s assets, the Government could nullify the right to counsel of choice. As the plurality says, an unlimited power to freeze assets before trial "would unleash a principle of constitutional law that would have no obvious stopping place.” Ante, at 14; cf. McCulloch v. Maryland, 4 Wheat. 316, 431 (1819) ("[T]he power to tax involves the power to destroy” and that "power to destroy may defeat and render useless the power to create”).  Unless the right to counsel also protects the prerequisite right to use one’s financial resources for an attorney, I doubt that the Framers would have gone through the trouble of adopting such a flimsy "parchment barrie[r].” The Federalist No. 48, p. 308 (C. Rossiter ed. 1961) (J. Madison). An unlimited power to freeze a defendant’s potentially forfeitable assets in advance of trial would eviscerate the Sixth Amendment’s original meaning and purpose.  At English common law, forfeiture of all real and personal property was a standard punishment for felonies.  See 4 W. Blackstone, Commentaries on the Laws of England 95 (1769) (Blackstone).
 
That harsh penalty never caught on in America. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 682–683 (1974).  The First Congress banned it. See Crimes Act of 1790, §24, 1 Stat. 117 ("[N]o conviction or judgment for any of the offences aforesaid, shall work corruption of blood, or any forfeiture of estate”). But the Constitution did not. See Art. III, §3, cl. 2 ("[N]o Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted”). If the Government’s mere expectancy of a total forfeiture upon conviction were sufficient to justify a complete pretrial asset freeze, then Congress could render the right to counsel a nullity in felony cases.  
 
That would have shocked the Framers. As discussed, before adoption of the Sixth Amendment, felony cases (not misdemeanors) were precisely when the common law denied defendants the right to counsel. See supra, at ___. With an unlimited power to freeze assets before trial, the Government could well revive the common-law felony rule that the Sixth Amendment was designed to abolish. The modern, judicially created right to Governmentappointed counsel does not obviate these concerns.  As understood in 1791, the Sixth Amendment protected a defendant’s right to retain an attorney he could afford.  It is thus no answer, as the principal dissent replies, that defendants rendered indigent by a pretrial asset freeze can resort to public defenders. Post, at 14 (opinion of KENNEDY, J.). The dissent’s approach nullifies the original understanding of the right to counsel.  
 
To ensure that the right to counsel has meaning, the Sixth Amendment limits the assets the Government may freeze before trial to secure eventual forfeiture. II The longstanding rule against restraining a criminal defendant’s untainted property before conviction guarantees a meaningful right to counsel. The common-law forfeiture tradition provides the limits of this Sixth Amendment guarantee.  
 
That tradition draws a clear line between tainted and untainted assets.  The only alternative to this common-law reading is case-by-case adjudication to determine which freezes are "legitimate” and which are an "abuse of . . . power.”  McCulloch, 4 Wheat., at 430. This piecemeal approach seems woefully inadequate. Such questions of degree are "unfit for the judicial department.” Ibid. But see Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 635 (1989) (stating in dicta that "[c]ases involving particular abuses can be dealt with individually . . . when (and if) any such cases arise”). Fortunately the common law drew a clear line between tainted and untainted assets. Pretrial freezes of untainted forfeitable assets did not emerge until the late 20th century.  "‘[T]he lack of historical precedent’” for the asset freeze here is "‘[p]erhaps the most telling indication of a severe constitutional problem.’”
 
Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 505–506 (2010) (quoting Free Enterprise Fund v. Public Company Accounting Oversight Bd., 537 F. 3d 667, 699 (CADC 2008) (Kavanaugh, J., dissenting)).  Indeed, blanket asset freezes are so tempting that the Government’s "prolonged reticence would be amazing if [they] were not understood to be constitutionally proscribed.” Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 230 (1995); see Printz v. United States, 521 U. S. 898, 907–908 (1997) (reasoning that the lack of early federal statutes commandeering state executive officers "suggests an assumed absence of such power” given "the attractiveness of that course to Congress”). The common law prohibited pretrial freezes of criminal defendants’ untainted assets.  
 
As the plurality notes, ante, at 13, for in personam criminal forfeitures like that at issue here, any interference with a defendant’s property traditionally required a conviction.  Forfeiture was "a part, or at least a consequence, of the judgment of conviction.” The Palmyra, 12 Wheat. 1, 14 (1827) (Story, J.).  The defendant’s "property cannot be touched before . . . the forfeiture is completed.” 1 J. Chitty, A Practical Treatise on the Criminal Law 737 (5th ed. 1847).  This rule applied equally "to money as well as specific chattels.”  Id., at 736. And it was not limited to full-blown physical seizures. Although the defendant’s goods could be appraised and inventoried before trial, he remained free to "sell any of them for his own support in prison, or that of his family, or to assist him in preparing for his defence on the trial.” Id., at 737 (emphasis added). Blackstone likewise agreed that a defendant "may bona fide sell any of his chattels, real or personal, for the sustenance of himself and family between the [offense] and conviction.”  4 Blackstone 380; see Fleetwood’s Case, 8 Co. Rep. 171a, 171b, 77 Eng. Rep. 731, 732 (K. B. 1611) (endorsing this rule).  
 
At most, a court could unwind prejudgment fraudulent transfers after conviction. 4 Blackstone 381; see Jones v. Ashurt, Skin. 357, 357–358, 90 Eng. Rep. 159 (K. B. 1693) (unwinding a fraudulent sale after conviction because it was designed to defeat forfeiture). Numerous English authorities confirm these common-law principles.  Chitty, supra, at 736–737 (collecting sources). The common law did permit the Government, however, to seize tainted assets before trial.  For example, "seizure of the res has long been considered a prerequisite to the initiation of in rem forfeiture proceedings.” United States v. James Daniel Good Real Property, 510 U. S. 43, 57 (1993) (emphasis added); see The Brig Ann, 9 Cranch 289, 291 (1815) (Story, J.).  But such forfeitures were traditionally "fixed . . . by determining what property has been ‘tainted’ by unlawful use.”  Austin v. United States, 509 U. S. 602, 627 (1993) (Scalia, J., concurring in part and concurring in judgment).  So the civil in rem forfeiture tradition tracks the tainted-untainted line.  It provides no support for the asset freeze here.
 
There is a similarly well-established Fourth Amendment tradition of seizing contraband and stolen goods before trial based only on probable cause. See Carroll v. United States, 267 U. S. 132, 149–152 (1925) (discussing this history); Boyd v. United States, 116 U. S. 616, 623– 624 (1886) (same). Tainted assets fall within this tradition because they are the fruits or instrumentalities of crime. So the Government may freeze tainted assets before trial based on probable cause to believe that they are forfeitable. See United States v. Monsanto, 491 U. S. 600, 602–603, 615–616 (1989).  Nevertheless, our precedents require "a nexus . . . between the item to be seized and criminal behavior.”  Warden, Md. Penitentiary v. Hayden, 387 U. S. 294, 307 (1967).  Untainted assets almost never have such a nexus.
 
 The only exception is that some property that is evidence of crime might technically qualify as "untainted” but nevertheless has a nexus to criminal behavior. See ibid. Thus, untainted assets do not fall within the Fourth Amendment tradition either. It is certainly the case that some early American statutes did provide for civil forfeiture of untainted substitute property. See Registry Act, §12, 1 Stat. 293 (providing for forfeiture of a ship or "the value thereof ”); Collection Act of July 31, 1789, §22, 1 Stat. 42 (similar for goods); United States v. Bajakajian, 524 U. S. 321, 341 (1998) (collecting statutes). These statutes grew out of a broader "sixcentury-long tradition of in personam customs fines equal to one, two, three, or even four times the value of the goods at issue.” Id., at 345–346 (KENNEDY, J., dissenting). But this long tradition of in personam customs fines does not contradict the general rule against pretrial seizures of untainted property. These fines’ in personam status strongly suggests that the Government did not collect them by seizing property at the outset of litigation. As described, that process was traditionally required for in rem forfeiture of tainted assets.  See supra, at ___.
 
There appears to be scant historical evidence, however, that forfeiture ever involved seizure of untainted assets before trial and judgment, except in limited circumstances not relevant here. Such summary procedures were reserved for collecting taxes and seizures during war. See Phillips v. Commissioner, 283 U. S. 589, 595 (1931); Miller v. United States, 11 Wall. 268, 304–306 (1871).  The Government’s right of action in tax and custom-fine cases may have been the same—"a civil action of debt.” Bajakajian, supra, at 343, n. 18; Stockwell v. United States, 13 Wall. 531, 543 (1871); Adams v. Woods, 2 Cranch 336, 341 (1805). Even so, nothing suggests trial and judgment were expendable. See Miller, supra, at 304–305 (stating in dicta that confiscating Confederate property through in rem proceedings would have raised Fifth and Sixth Amendment concerns had they not been a war measure). 
 
The common law thus offers an administrable line: A criminal defendant’s untainted assets are protected from Government interference before trial and judgment.  His tainted assets, by contrast, may be seized before trial as contraband or through a separate in rem proceeding. Reading the Sixth Amendment to track the historical line between tainted and untainted assets makes good sense. It avoids case-by-case adjudication, and ensures that the original meaning of the right to counsel does real work. The asset freeze here infringes the right to counsel because it "is so broad that it differs not only in degree, but in kind, from its historical antecedents.” James Daniel Good, supra, at 82 (THOMAS, J., concurring in part and dissenting in part). The dissenters object that, before trial, a defendant has an identical property interest in tainted and untainted assets. See post, at 8–9 (opinion of KENNEDY, J.); post, at 2 (opinion of KAGAN, J.).  
 
Perhaps so.  I need not take a position on the matter.  Either way, that fact is irrelevant. Because the pretrial asset freeze here crosses into untainted assets, for which there is no historical tradition, it is unconstitutional. Any such incursion violates the Sixth Amendment. III Since the asset freeze here violates the Sixth Amendment, the plurality correctly concludes that the judgment below must be reversed. But I cannot go further and endorse the plurality’s atextual balancing analysis.  The Sixth Amendment guarantees the right to counsel of choice. As discussed, a pretrial freeze of untainted assets infringes that right. This conclusion leaves no room for balancing. Moreover, I have no idea whether, "compared to the right to counsel of choice,” the Government’s interests in securing forfeiture and restitution lie "further from the heart of a fair, effective criminal justice system.” Ante, at 12.  
 
Judges are not well suited to strike the right "balance” between those incommensurable interests.  Nor do I think it is our role to do so.  The People, through ratification, have already weighed the policy tradeoffs that constitutional rights entail. See Heller, 554 U. S., at 634–635. Those tradeoffs are thus not for us to reevaluate.  "The very enumeration of the right” to counsel of choice denies us "the power to decide . . . whether the right is really worth insisting upon.” Id., at 634.  Such judicial balancing "do[es] violence” to the constitutional design. Crawford v. Washington, 541 U. S. 36, 67–68 (2004).  And it is out of step with our interpretive tradition.  See Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L. J. 943, 949–952 (1987) (noting that balancing did not appear in the Court’s constitutional analysis until the mid-20th century).
 
The plurality’s balancing analysis also casts doubt on the constitutionality of incidental burdens on the right to counsel. For the most part, the Court’s precedents hold that a generally applicable law placing only an incidental burden on a constitutional right does not violate that right. See R. A. V. v. St. Paul, 505 U. S. 377, 389–390 (1992) (explaining that content-neutral laws do not violate the First Amendment simply because they incidentally burden expressive conduct); Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 878–882 (1990) (likewise for religion-neutral laws that burden religious exercise). Criminal-procedure rights tend to follow the normal incidental-burden rule.
 
The Constitution does not "forbi[d] every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.” Chaffin v. Stynchcombe, 412 U. S. 17, 30 (1973). The threat of more severe charges if a defendant refuses to plead guilty does not violate his right to trial. See Bordenkircher v. Hayes, 434 U. S. 357, 365 (1978). And, in my view, prosecutorial arguments that raise the "cost” of remaining silent do not violate a defendant’s right against self-incrimination (at least as a matter of original meaning). See Mitchell v. United States, 526 U. S. 314, 342–343 (1999) (THOMAS, J., dissenting); id., at 331–336 (Scalia, J., dissenting). The Sixth Amendment arguably works the same way. "[A] defendant may not insist on representation by an attorney he cannot afford.” Wheat v. United States, 486 U. S. 153, 159 (1988).  The Constitution perhaps guarantees only a "freedom of counsel” akin to the First Amendment freedoms of speech and religion that also "depen[d] in part on one’s financial wherewithal.”  Caplin & Drysdale, 491 U. S., at 628.  
 
Numerous laws make it more difficult for defendants to retain a lawyer. But that fact alone does not create a Sixth Amendment problem.  For instance, criminal defendants must still pay taxes even though "these financial levies may deprive them of resources that could be used to hire an attorney.”  Id., at 631–632. So I lean toward the principal dissent’s view that incidental burdens on the right to counsel of choice would not violate the Sixth Amendment. See post, at 5–6, 11–12 (opinion of KENNEDY, J.).
 
On the other hand, the Court has said that the right to counsel guarantees defendants "a fair opportunity to secure counsel of [their] choice.” Powell v. Alabama, 287 U. S. 45, 52–53 (1932) (emphasis added).  The state court in Powell denied the defendants such an opportunity, the Court held, by moving to trial so quickly (six days after indictment) that the defendants had no chance to communicate with family or otherwise arrange for representation. Ibid. The schedule in Powell was not designed to block counsel, which suggests the usual incidental-burden rule might be inapt in the Sixth Amendment context.  leave the question open because this case does not require an answer. 
 
The asset freeze here is not merely an incidental burden on the right to counsel of choice; it targets a defendant’s assets, which are necessary to exercise that right, simply to secure forfeiture upon conviction.  The prospect of that criminal punishment, however, is precisely why the Constitution guarantees a right to counsel. The Sixth Amendment does not permit the Government’s bare expectancy of forfeiture to void that right. When the potential of a conviction is the only basis for interfering with a defendant’s assets before trial, the Constitution requires the Government to respect the longstanding common-law protection for a defendant’s untainted property. For these reasons, I concur only in the judgment. 

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