Whether the pretrial restraint 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.
Lower court decision: United States v. Sila Luis, 564 Fed. Appx. 493 (11th Cir. May 1, 2014) (unpublished)
This decision will resolve a conflict between the federal circuits on a constitutional issue of obvious significance to criminal defendants who want to retain counsel using assets the government wants to restrain and seize because they are “tainted”—i.e., traceable to criminal activity—or because they are “property of equivalent value” to tainted assets.
The Court has previously held that tainted assets may be restrained before trial (and forfeited upon conviction) even when the assets are needed to retain counsel of choice, and it reaffirmed this holding last Term. Kaley v. United States, 134 S. Ct. 1090, 1105 (2014); United States v. Monsanto, 491 U.S. 600, 616 (1989); Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 631 (1989). In rejecting constitutional challenges to pretrial restraints under one federal statute, 21 U.S.C. § 853, it was of some significance to the Court that the restrained assets were tainted, but the majority opinion in Kaley “[did] not opine on” whether the restraint of untainted assets would pose constitutional problems. See, e.g., Kaley, 134 S. Ct. at 1095 n.3. While one circuit has held a defendant “still possesses a qualified Sixth Amendment right to use wholly legitimate [“untainted”] funds to hire the attorney of his choice,” United States v. Farmer, 274 F.3d 800, 804 (4th Cir. 2001), in this case the Court of Appeals rejected Luis’s challenge to a pretrial restraint under 18 U.S.C. § 1345, saying Kaley, Monsanto, and Caplin & Drysdale “foreclose[d]” a constitutional challenge to the pretrial restraint of legitimate, untainted funds needed to retain counsel of choice.
The decision in this case will be of interest primarily to federal practitioners. As noted in our post on Kaley, Wisconsin has a number of statutes providing for the forfeiture of property used in or traceable to a criminal offense; however, unlike the federal statutes at issue in Kaley and this case, none of our statutes explicitly provide for pretrial seizure of the assets and no Wisconsin case addresses pretrial restraint of assets. That said, should the state ever try to use one of the statutes before trial, any limitations the Court places on that practice under the Fifth and Sixth Amendments would obviously apply, so the decision will be worth watching even for state practitioners.