Pretrial Freezes of Untainted Assets Violates 6th Amendment

On March 30, 2016, the US Supreme Court in a 5-3 decision ruled that a federal law allowing courts to order pretrial freezes on assets untainted or unrelated to a crime violates the Sixth Amendment right to effective assistance of counsel for defendants who are unable to pay their lawyers as a result of such orders.[1] Specifically, Justice Breyer, joined by the Chief Justice, Justice Ginsburg & Justice Sotomayor concluded that “the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment.[2] The ruling was made in a case involving Sila Luis, who was accused of committing Medicare and banking fraud using kickbacks and other schemes to fraudulently obtain $45 million. The asset-seizure order at issue allowed the government to obtain the $2 million balance in Luis’ bank account, on the basis that it would eventually need the money for restitution. Luis challenged this order, arguing that she needed the untainted assets (which the government conceded were unrelated to the crime) to hire a lawyer for trial.[3]

The ruling considered, among other things, the nature of the competing interests of “the fundamental 6th Amendment right to assistance of counsel and the government’s interest in “securing its punishment of choice, as well as the victim’s interest in securing restitution.”[4] While noting the relevant common-law legal tradition in support, the ruling further concluded that: “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 stopping place, as Congress could write more statutes authorizing restraints 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 underpaid public defenders. The upshot is a substantial risk that accepting the Government’s views would render less effective the basic right the Sixth Amendment seeks to protect.”[5]

In reaching this decision, Justice Breyer reasoned that, as a practical matter, the constitutional line drawn by this ruling “should prove workable,” as courts “have experience separating tainted assets from untainted assets, just as they have experience determining how much money is needed to cover the costs of a lawyer.”[6]  It seems quite a tall order for the many courts to actually take on the task of separating intermingled funds, and likely, we’ll see a rise in cases challenging the constitutionality of other asset-seizure orders.  While it remains to be seen if the courts will be able to live up to this, for now, the government will no longer be able to freeze assets of untainted funds in cases similar to this one.


— By Keobopha Keopong, Esq., Barnes Law

Keo Keopong is an associate attorney with Barnes Law, licensed to practice law in California.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1]Luis v. United States:

[2] Id.

[3] Id.;

[4] Luis v. United States:

[5] Id.

[6] Id.