Skip to main content

Saint Louis University School of Law Header Logo Center

Menu Search & Directory

Luis v. United States: Protecting the Sixth Amendment Right to Counsel


Luis v. United States: Protecting the Sixth Amendment Right to Counsel When a White Collar Criminal Defendant's Assets Are Frozen

By Taylor J. Essner


The Sixth Amendment right to counsel withstood a strong attack on March 30, 2016, in Luis v. U.S.[1] The Supreme Court of the United States protected white collar criminal defendants’ Sixth Amendment rights after granting certiorari to the case out of the Eleventh Circuit.[2] Federal statute 18 U.S.C. § 1345(a)(2) allows a court—before trial—to freeze the assets of a criminal defendant accused of violating an 18 U.S.C. § 3322(d) banking law or a federal health care law.[3] A court can freeze property that is “obtained as a result of” or is “traceable to such violation. . .”[4] The court’s “freezing power” even allows it to “prohibit any person from withdrawing, transferring, removing, dissipating, or disposing of any such property or property of equivalent value. . .”[5] Courts have interpreted this last clause broadly to allow the government to freeze even “untainted,” legitimate assets up to the amount allegedly obtained through the fraud.[6] The policy behind the statute is one of value preservation; without the court’s freezing power, a criminal defendant might hide, gift, or otherwise dispose of all assets, decreasing restitution payments to wronged parties after conviction. However, should a court’s power to freeze a criminal defendant’s assets trump the defendant’s Sixth Amendment right to counsel of choice? After all, how can a criminal defendant pay for an attorney if all his assets—both tainted and untainted—have been frozen by the government?


In October 2012, Sila Luis (“Luis”) was indicted by a grand jury and charged with masterminding a complex Medicare fraud.[7] The Government alleged that Luis illegally obtained about $45 million in this fraud, but she had already spent most of it.[8] At the time of the indictment, Luis only had $2 million remaining in her possession.[9] The Government acknowledged and stipulated that some of these funds were “legitimate, untainted assets.”[10] Nevertheless, the Government argued that the court’s freezing power allowed it to freeze up to $45 million of Luis’ assets, even though some of the property frozen was unquestionably not “obtained as a result of” or “traceable to. . .” the fraud.[11] The Southern District of Florida granted the Government’s request, freezing all $2 million of Luis’ assets.[12] Luis argued that this asset freeze infringed on her Sixth Amendment right to obtain the counsel of her choice.[13] With all of her assets—both untainted and allegedly tainted—frozen, Luis could not afford to pay her attorney of choice.[14] The District Court disagreed, holding that “there is no Sixth Amendment right to use untainted, substitute assets to hire counsel.”[15] The Eleventh Circuit Court of Appeals affirmed the decision, and the United States Supreme Court subsequently granted certiorari.[16]

Supreme Court’s Analysis

A divided Court agreed with Luis that “restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment.”[17] Justice Breyer, writing for the majority, used a balancing test to weigh a criminal defendant’s Sixth Amendment right to counsel of choice against the government’s interest in ensuring that adequate restitution payments can be made if the defendant is convicted.[18] In balancing these competing policies, the Court chose in favor of the Sixth Amendment right to counsel of choice, emphasizing multiple times that “the constitutional right at issue here is fundamental. . .”[19]Furthermore, the Court was nervous about creating a slippery slope.[20] “[T]o accept the Government’s position could well erode the right to counsel to a considerably greater extent than we have so far indicated. To permit the Government to freeze Luis’ untainted assets would unleash a principle of constitutional law that would have no obvious stopping place.”[21] Indeed, Congress could simply enact statutes authorizing a pretrial asset freeze in other cases of illegal behavior, and so the Sixth Amendment right to counsel of choice might slowly erode away through legislation.[22]

Therefore, after balancing competing policy interests, the Supreme Court ruled that a pretrial seizure of untainted assets violates criminal defendants’ Sixth Amendment right to counsel of choice.

Author’s Analysis

The Supreme Court “balanced” correctly in Luis by protecting the Sixth Amendment right to counsel of choice. The Sixth Amendment does not merely require that the accused is represented by any lawyer at all.[23] Rather, by the Supreme Court’s own admission, “[i]t commands . . . that the accused be defended by the counsel he believes to be the best.”[24]Often, the counsel that an accused “believes to be the best” is a private defense attorney who charges expensive rates.[25] Public defenders and other free-of-charge, government-appointed attorneys—although skilled attorneys—are almost never “believe[d] to be the best” by the accused.[26] If a court is allowed to freeze all of a criminal defendant’s assets, there is little chance that the accused can retain the counsel he “believes to be the best” because he won’t be able to afford a private attorney.[27] Therefore, allowing the seizure of untainted assets seriously threatens the right to “counsel of choice” as articulated by the Supreme Court in Gonzalez-Lopez.

Allowing a court to freeze untainted assets and effectively prevent the accused from retaining private counsel has even broader consequences. Such a policy threatens the fabric of the American justice system and the adversarial process. A criminal defendant’s presumption of innocence lies at the very heart of our justice system. This country champions the “innocent until proven guilty” principle. However, allowing governmental seizure of untainted assets before trial directly contradicts this fundamental presumption. The defendant is presumed innocent because has not had his day in court, yet all of his assets are frozen “just in case” he is found guilty. Doesn’t it send mixed signals to assume the defendant is innocent, yet freeze all of his assets in anticipation of a conviction? Is the presumption of innocence truly being presumed? By allowing such a policy, the Court would be valuing speculative restitution payments over fundamental constitutional rights to the presumption of innocence and to the counsel of choice.[28] Such a valuation is completely backwards and incorrect.


The United States Supreme Court protected white collar criminal defendants’ Sixth Amendment right to counsel of choice in Luis v. United States. The Court “balanced” correctly by finding that the fundamental constitutional right to counsel of choice outweighed the Government’s speculative interest in restitution payments. A finding to the contrary would contradict the presumption of innocence in criminal law, and it would deprive the criminal defendant of a chance to defend himself with sophisticated private counsel. The Supreme Court was correct in protecting these fundamental constitutional rights.

By Taylor J. Essner*
Edited by Tyler Winn


[1] Luis v. United States, No. 14–419, 2016 WL 1228690, at *1 (S. Ct. Mar. 30, 2016).

[2] Id.

[3] 18 U.S.C. § 1345(a)(2).

[4] Id.

[5] 18 U.S.C. § 1345(a)(2)(B)(i) (emphasis added).

[6] See United States v. DBB, 180 F.3d 1277, 1286 (11th Cir. 1999).

[7] Luis v. United States, No. 14–419, 2016 WL 1228690, at *4 (S. Ct. Mar. 30, 2016).

[8] Id.

[9] Id.

[10] Id. at *5.

[11] 18 U.S.C. § 1345(a)(2).

[12] Luis v. United States, 2016 WL 1228690, at *4.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Luis v. United States, 2016 WL 1228690, at *5.

[18] Id. at *6.

[19] Id.

[20] Id. at *11.

[21] Id.

[22] Luis v. United States, 2016 WL 1228690, at *11.

[23] U.S. v. Gonzalez-Lopez, 548 U.S. 140, 146 (2006).

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Luis v. U.S., 564 Fed. Appx. 493 (11th Cir. 2014), petition for cert. filed, 2014 WL 5075087, at *17 (U.S. Aug. 18, 2015) (No. 14-419).

* Saint Louis University Law School, J.D. Candidate 2017.