Luis v. United States

Oral argument transcript · No. 14-419 · October Term 2015 · argued November 10, 2015 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Howard Srebnick, Miami, Fla., for the petitioner
• Michael R. Dreeben, Deputy Solicitor General, for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We will hear argument next in Case 14­419, Luis v. United States. Mr. Srebnick. ORAL ARGUMENT OF HOWARD SREBNICK ON BEHALF OF THE PETITIONER

Howard Srebnick: Thank you, Mr. Chief Justice, and may it please the Court: The Sixth Amendment has always recognized the individual's right to spend his own money to obtain the advice and assistance of counsel. At the time of the adoption of the Bill of Rights, that was the core right, a time when the right to appointed counsel had not yet been established by this Court. We submit that the right to representation by private counsel must allow a defendant to use assets which she rightfully owns, assets over which there is no dispute that she has good title, so that she may be represented by the lawyer that she prefers.

Chief Justice Roberts: What do you do about Monsanto?

Howard Srebnick: In Monsanto and in Caplin & Drysdale, those were cases involving tainted funds, drug money. Alderson Reporting Company Official

Chief Justice Roberts: Right. So what is the logic that says it doesn't violate the Sixth Amendment if it's tainted funds, but it does if it's untainted funds?

Howard Srebnick: Mr. Chief Justice, the ­­ the logic is that no one has a rightful claim to drug money. No one can claim a valid property right in drug proceeds. Ms. Luis is wanting to use assets that are not drug money. They are her lawful assets. They are not connected to any crime at all.

Justice Kagan: But, Mr. Srebnick, I mean, compare two situations. One is the one that Monsanto talked about where, yeah, a bank robber goes in and he has a pile of money now. And Monsanto says, you know, even though he wants to use that money to pay for an attorney, too bad. Now a bank robber goes in, he has a pile of money, he puts it into a separate bank account, he uses that bank account to pay his rent, to pay other expenses, and he uses the money that would have gone for the rent and other expenses to pay a lawyer. Why should the two cases be treated any differently for Sixth Amendment purposes?

Howard Srebnick: Because no amount of so­called dissipation, as the government would suggest, Alderson Reporting Company Official 1 negates petitioner's lawful interest in the property she owns apart from any alleged criminal activity.

Chief Justice Roberts: Well, but is ­­ doesn't it make sense the ­­ the sort of substitution rule? I mean, if you've got $10 million in drug activity ­­ money and you had $5 million, and you spent $10 million, you can't say, you know, oh, I spent the drug money, you can't touch the $5 million. It seems to me that's what the statute is doing when it says whatever it's a reasonable substitute or assets substituted for.

Howard Srebnick: And so, Mr. Chief Justice, of course, if there is a conviction, if the defendant is found guilty, after the conviction when punishment is determined, there may well be the opportunity for the government to seek punishment that includes the financial penalties associated with the crime. But before that time, pretrial, when the defendant is the exclusive owner of the untainted assets, there is no principle of law that deprives her of the right.

Justice Kennedy: Well, but I ­­ I thought the Chief Justice's question was slightly different. I don't know if you were privileged to hear the exciting argument yesterday on tainted assets. (Laughter.) Alderson Reporting Company Official

Howard Srebnick: I was.

Justice Kennedy: But, you know, there are degree ­­ there are degrees of taint. Can you ­­ can you follow ­­ can you follow the assets? So just to say "tainted" or "untainted," it's a ­­ it's a more difficult question than that.

Howard Srebnick: Well, in this case, it's a simple answer, because here we have a stipulation, Joint Appendix 161, that the assets that are the subject of the dispute here today are assets that are undisputedly untainted, not traceable to the crime. They include, for example, family jewelry, not traced to any criminal activity. They include real estate that was acquired before the allegations of the conspiracy.

Justice Alito: Well, let me go back to Justice ­­ Justice Kagan's question and ask it in ­­ in a different way. So you ­­ we have two brothers and ­­ twin brothers, and they rob a bank. They get $10,000. They split it up, $5,000 each. And on that very same day, it happens to be their birthday, and their rich uncle comes and gives each of them $5,000 as a birthday present. So they go out to party, and one of them ­­ and they both spend $5,000 partying. One of them spends the money from the bank robbery. The other one spends the money Alderson Reporting Company Official 1 that was given to them by their rich uncle. And your position is that the one who spent the money from the so­called "tainted assets," the money from the bank robbery, is entitled to use the remaining $5,000 to hire an attorney, but the other one is out of luck?

Howard Srebnick: Yes, because the ­­

Justice Alito: What sense does that make?

Howard Srebnick: Because the property interest a defendant has in an inheritance or in a gift, those property rights are not negated simply because the defendant has allegedly committed a crime, simply because there's probable cause.

Justice Kennedy: So the law ­­ you want this Court to say spend the bank robbery money first. (Laughter.)

Justice Kennedy: That's ­­ that's your position?

Howard Srebnick: Well, the ­­ the government is concerned about what we would ­­ have described as the so­called wily criminal. The defendant who spends the money, the tainted assets, faces perhaps even more punishment at the end of the day or at the end of the conviction, either through money laundering charges or otherwise. So the Court, keeping in mind that Alderson Reporting Company Official 1 forfeiture has as its primary component punishment, there are ways of disincentivizing these kinds of financial transactions that, Justice Kennedy, you're referring to. But it doesn't affect the defendant's property interest in assets that are wholly apart from any criminal activity.

Chief Justice Roberts: How do ­­ I ­­ I don't know how these things actually work. I mean, the defendant obviously has daily expenses, and ­­ and that the government's freeze order apparently goes beyond the money she has. What, does she get an allowance or ­­ or something?

Howard Srebnick: As of now she gets nothing, Mr. Chief Justice.

Chief Justice Roberts: So ­­ so if her ­­ putting aside lawyers, if her daughter's tuition bill comes due, she can't pay that?

Howard Srebnick: Under the current restraining order, she can do nothing.

Chief Justice Roberts: But she can surely pay the rent or the mortgage?

Howard Srebnick: Under the current restraining order, she can do nothing. The statute, as it's being construed by the district court, allows no exception.

Justice Sotomayor: I have the ­­ Alderson Reporting Company Official

Justice Kennedy: Is it your position the government could prevent payment for the tuition but not for the counsel?

Howard Srebnick: Our position is that there's a constitutional right under the Sixth Amendment to retain counsel.

Justice Kennedy: So the answer is you can ­­ the government can stop the tuition payment but not the payment to counsel?

Howard Srebnick: I would think so, in those kinds of instances. There may be other cases, I concede, if it's life­or­death matters, life­or­death expenditures, a different defendant might come before the Court and say there's a strong compelling need for that money for other reasons. But if it's ordinary, routine expenses, our claim today doesn't reach that. Our claim reaches Sixth Amendment issues.

Justice Sotomayor: So you really don't have a statutory argument. You're making a Sixth Amendment argument because if it were a statutory argument, it would be you can ­­ you can restrain ­­ you can't restrain untainted assets.

Howard Srebnick: Justice Sotomayor, the statute, 18 U.S.C. 1345, which is different than the drug forfeiture statute, 18 U.S.C. 1345, it's at the Alderson Reporting Company Official 1 blue brief at page 2 ­­

Justice Sotomayor: I guess I'm ­­ I understand what you're going to say because I read your brief.

Howard Srebnick: Okay.

Justice Sotomayor: But the logic of your argument would suggest that you can't freeze untainted assets for anything, because you're saying the government has no property right to it. It's untainted. It's your money; it's not their money until they secure a judgment. And so the logic of your position would be, I think, they can't restrain untainted assets, period, constitutionally or statutorily.

Howard Srebnick: Well, we do not go that far in our ­­

Justice Sotomayor: I know you don't because it's very nice that you limit it. But once we announce a rule, we have to carry it to its logical conclusion. And if the rule is it's untainted assets and it belongs to me, how do we then limit it?

Howard Srebnick: Well, I suppose that if there's no Sixth Amendment right at stake, if there's no constitutional right to use the asset today, I don't know of any prohibition, provided that there's due process, that would prevent the Court from restraining Alderson Reporting Company Official 1 assets proposed to be used for other purposes.

Justice Ginsburg: But you said that this ­­ this is her property. If it's tainted, you say she doesn't own it, it's not her money. But if it's untainted, it is her money. So I think Justice Sotomayor has asked a fair question. Isn't the logic of your position that the untainted assets can be used without restraint for whatever she wants to use it for?

Howard Srebnick: Justice Ginsburg, from a constitutional perspective, I don't think that that's necessarily correct because the courts can give injunctive power to restrain assets, even assets currently belonging to the defendant. Our objection is when such an injunction interferes with the constitutionally protected right to retain counsel of choice. And so while the statute could constitutionally allow, provided that there is adequate hearings, et cetera, the restraint of even a defendant's owned assets, lawfully owned assets, that principle can't extend to assets ­­ the subset of assets she needs to use counsel of choice.

Justice Scalia: What if ­­ what if the woman is a devout Muslim and she ­­ she makes a ­­ an Alderson Reporting Company Official 1 annual trip to Mecca every year? Wouldn't she have a constitutional right to use the money for that?

Howard Srebnick: So certainly she would have a constitutional right. And whether she could then obtain the assets free from the injunction immediately would raise a separate First Amendment question. The Sixth Amendment, because the deprivation will be permanent, meaning, we need those assets now before the trial, and the immediacy of the need for those assets ­­

Justice Scalia: Well, she has an immediate need to go to Mecca. I mean, if she doesn't get it now, she's not going to be able to fulfill what she regards as a religious obligation. I don't know how you can limit your ­­ your principle to the Sixth Amendment.

Howard Srebnick: The Sixth Amendment is important in the context of the adversarial proceeding that will determine the ultimate ownership of those assets at the end of the day. And so unlike the First Amendment, unlike any other amendment, the Sixth Amendment is a guarantee that the defendant will be represented at the proceeding where that property and her liberty are at stake. And with regard to the travels to Mecca, those travels, while significant under the First Amendment, don't bear on the ultimate outcome Alderson Reporting Company Official 1 of the criminal case. And so because the need for assets that we are requesting limited to that amount needed to retain counsel of choice, limited to the amount needed to mount a legal defense to the very charge that threatens her property rights and her liberty upon conviction, there needs to be an accommodation so that she can use enough assets, controlled by the Court, of course ­­

Justice Kagan: Mr. Srebnick, this goes back, I think, to the Chief Justice's first question. It seems that the distinction that you're making is one that the Court explicitly rejected in Monsanto. In other words, the Court said the Sixth Amendment here is the exact same thing as the First Amendment. It even used that example that Justice Scalia gave, or that general example. And ­­ and so it goes back to the Chief Justice's question in ­­ in the sense of there's a very powerful intuition behind your argument, but it's a powerful intuition that was explicitly rejected by us. And ­­ and this case doesn't seem to present any different circumstances than that one.

Howard Srebnick: Justice Kagan, I ­­ I think the circumstances are quite different because of the tainted property that was at issue in Monsanto. Alderson Reporting Company Official 1 First, we know it was drug money in Monsanto. It had been established by clear and convincing evidence. In our case, it's totally untainted assets. Second, the Court recognized that a defendant doesn't have a lawful property interest in drug money. No different than a bank robber does not have a lawful interest in the bank loot.

Justice Kennedy: Yeah, but your ­­ your earlier argument was you have a constitutional right to establish that it isn't drug money. That was your whole answer to Justice Scalia.

Howard Srebnick: In this case there's no dispute that the money is untainted. And I'm not ­­

Justice Kennedy: I'm talking about the rule that you're proposing.

Howard Srebnick: The rule I proposed, consistent with the Court's observation in Kaley, there are two elements to establish forfeitability; one, that there's a crime committed, and second, traceability from the majority opinion in Kaley. Here we have undisputedly untainted assets, not traceable to a crime. In Monsanto, the assets were drug money. And a defendant doesn't have the right to use drug money to represent ­­ to be represented by the Alderson Reporting Company Official 1 counsel of his choice.

Chief Justice Roberts: I guess you're ­­ I think this may be Justice Sotomayor's point. Your argument, you're distinguishing tainted and untainted assets, and I understand that. I just don't understand that if you can freeze the assets despite the Sixth Amendment when they're tainted, I don't understand why it's not the same rule when they're untainted. You may have ­­ may have statutory arguments, you ­­ but if you have arguments, it has nothing to do with the constitutional right to counsel.

Howard Srebnick: Mr. Chief Justice, I think it has everything to do with the Sixth Amendment because, at its inception, the Sixth Amendment only encompassed the right to spend one ­­ one's own money to be represented by counsel. There was no right to the appointment of counsel. So taking away the defendant's lawfully held assets, whether it be their pension funds, whether it be an inheritance, whether it be their lawfully earned labors, to take that away at the inception of this nation would have meant the defendant would have been left with no counsel at all since the notion of an appointed lawyer is really a notion of more recent Alderson Reporting Company Official 1 vintage, in the 20th century. So indeed, to take away the property rights, pretrial, of a defendant, at the time when he or she is under indictment, needs those assets to retain counsel, any private counsel ­­ so we're not talking in this case about a particular ­­

Justice Scalia: Well, what if ­­ what if the prosecution brings a case for crime X and wins that case, and it imposes a fine that takes away all of the defendant's assets, and then the prosecution brings another case for crime Y, would you be arguing that the fine had to make an exception for the defense of crime Y?

Howard Srebnick: No, Justice Scalia.

Justice Scalia: What's the difference?

Howard Srebnick: There's a judgment. Upon judgment, a defendant can lose his right to property upon execution of that judgment. So the government could execute on that criminal judgment and take as much of the defendant's assets needed to satisfy the fine. Our objection is to the government doing it before conviction, before there's been any judgment. Locking down somebody's assets at the very moment when he or she needs those assets to exercise the right to counsel. As it was envisioned ­­ Alderson Reporting Company Official

Justice Scalia: The Sixth Amendment only ­­ only protects your money up until the point where there's a judgment?

Howard Srebnick: Yes.

Justice Kennedy: But in ­­ in this case, there was a finding of probable cause.

Howard Srebnick: Yes.

Justice Kennedy: So you want us to make a distinction between probable cause and a judgment?

Howard Srebnick: Yes. Every case, every indictment brings with it a finding of probable cause. It's ­­ the two rights have to coexist. The right to be represented by counsel of choice under the Sixth Amendment has to coexist with the indictment, because under Patterson v. Illinois, the right under the Sixth Amendment is triggered by the indictment. It's triggered by the finding of probable cause. To then say that probable cause destroys the right to the Sixth Amendment is to then say that they don't coexist. But, of course, they do, because the Sixth Amendment was established in 1791, and it's part of our fabric.

Justice Kagan: I might just be repeating myself, but ­­ but I thought that, again, that distinction was the one specifically rejected in Alderson Reporting Company Official 1 Monsanto. I mean, Monsanto could have said Caplin & Drysdale is different because it's postconviction. But Monsanto refused to say that. Monsanto said the same rule that applies postconviction ought to apply upon a finding of probable cause.

Howard Srebnick: Yes, Justice Kagan, but probable cause to believe the assets are tainted. Probable cause to believe that the drug money is not the defendant's to spend. Not probable ­­ there's no probable cause here as to these assets that Ms. Luis proposes to use to retain counsel of choice.

Justice Alito: The problem with this argument is that as a matter of economics and ­­ and common sense, money is fungible. To say if the ­­ if the so­called tainted money has been spent, and what's left is the untainted money, it doesn't make a difference which ­­ you know, which pot has been spent and which pot hasn't been spent.

Howard Srebnick: Respectfully, Justice Alito, it makes a major difference. Our property laws, while money in some instances is fungible when they're commingled, if there is segregated property, when creditors try to levy against property that's not part of a secured interest, the law treats it very differently. Alderson Reporting Company Official

Justice Alito: Well, yes, but then there's ­­ that's all sorts of complicated rules in those areas. I mean, let's ­­ suppose you have ­­ and none of that necessarily applies here. Suppose you have the situation where what's at stake is money that's going to be used for restitution, all right? So at the beginning of the case, the question is whether the defendant can spend that money to hire the attorney of the defendant's choice, which is certainly a very powerful interest, or whether that money, at the end of the case if there is a conviction, is going to go to the victims. So how do you ­­ how do you try to accommodate those two interests?

Howard Srebnick: Well, to provide a restitution exception would just swallow the entire Sixth Amendment out of the Constitution for the following reason. In most cases, a victim has sustained an injury. It might be property damage. It might be personal injury. And if, for example, to use a hypothetical, if someone were to steal the Mona Lisa, or allegedly steal the Mona Lisa but the Mona Lisa isn't found, there's no principle this Court has ever ­­

Justice Alito: So your answer is that the Alderson Reporting Company Official 1 defendant's right to hire counsel of choice takes precedence over the rights of the victims, and you would say that no matter how strong the proof is?

Howard Srebnick: Yes.

Justice Alito: Until there's ­­ until there is a verdict?

Howard Srebnick: As long as the assets that the defendant proposes to use are her lawful assets, untainted, not connected to the crime, not traceable to any criminal activity, yes, because ­­

Justice Scalia: That seems to me not a very ­­ I don't know ­­ not a very persuasive line. You're relying on property law. What you're saying is the government can take away all your money if it's tainted, if there is probable cause to believe that it's tainted, right? It can take away all of your money if there is a judgment. But it can't take away all of your money if there's simply probable cause to believe that you're going to owe this money.

Howard Srebnick: Right.

Justice Scalia: Your crime. That seems to me a very ­­ I don't know, not ­­ not ­­ an evanescent line. I ­­ I don't know why the Sixth Amendment case is ­­ the property case is ­­ is stronger in one situation than the other, but I'm not sure that the Alderson Reporting Company Official 1 Sixth Amendment case is any stronger.

Howard Srebnick: What ­­ what the statute is purporting to do is give the government a prejudgment attachment on the defendant's assets based on a projected judgment.

Justice Scalia: That's right. It's property law.

Howard Srebnick: And the Sixth Amendment ­­

Justice Scalia: You're complaining about property law, not the Sixth Amendment.

Howard Srebnick: Well, I'm complaining that the Sixth Amendment, because at its root contemplated the use of property to retain counsel, the two in some degree are interrelated, of course, because without money 220 years ago or so, you couldn't hire a lawyer, and none would be appointed for you. So while the Court has accommodated the indigent by providing them with appointed counsel, that is not a license for the government to render people who are not indigent, indigent. It's not a license to impoverish them by virtue of the accusation alone. That would simply write out the Sixth Amendment from the Constitution. In every single case where there is a victim who claims injury, every single one, the government has Alderson Reporting Company Official 1 by definition probable cause because the indictment is based on probable cause. And it's not subject to challenge under the Kaley opinion. And so if we are going to say that merely being accused in this country because a grand jury has found probable cause is now sufficient to lock down all of your assets, assets you have owned for decades, perhaps, because at some future time maybe a jury will convict and maybe a judge will enter a judgment, and then maybe the court will then have to enforce that judgment, really is to write out the Sixth Amendment. And there are ways ­­ if the point of a criminal case is to inflict punishment on a defendant, there are ways other than financial means to do so. Of course, incarceration is the number one form of punishment. And while the needs of the victims are certainly important, what we're asking here is to accommodate both. We're not asking that all the funds be released, only so much as are necessary so that the accused can be represented by private counsel.

Justice Sotomayor: I know this is not part of the question asked, but I know that it ­­ it's suggested in the fringes of the briefs. How does the district court ensure that she doesn't use every penny Alderson Reporting Company Official 1 for defense costs when the district court thinks that that's not reasonable, for example?

Howard Srebnick: I don't think there's an issue, particularly in this case with that issue, because the court which now has control over the assets would manage the disbursement of funds for counsel, and the bar rules would apply. Just as with a CJA­appointed lawyer, Criminal Justice Act appointed lawyer, goes to the court, and says, here are my hours. Here's what I need for investigation. Here's what I need for support services for discovery. That would be managed by the district courts.

Chief Justice Roberts: But you're not ­­ you're not looking for CJA rates, are you?

Howard Srebnick: No, we're not, Justice.

Chief Justice Roberts: I didn't think so. (Laughter.)

Howard Srebnick: And ­­ and so given the ability of our district courts to manage those issues, the only standard we would ask for, that they be reasonable and bona fide, and the bar rules govern that. I should add that while we are having a ­­ an academic discussion here, it didn't seem to be such a controversial proposition to the government when in Caplin & Drysdale in their brief, they wrote the Alderson Reporting Company Official 1 following: "The Constitution requires that a court afford a defendant a fair opportunity to secure counsel of choice using whatever assets he has at his lawful disposal." That's the brief of Caplin & Drysdale by the Solicitor General at page 42. And so when the Solicitor General's office argued this case in Caplin & Drysdale 25 years ago, they came to the Court and said there was a difference between tainted and untainted assets. And some 26 years later, those are being conflated as if there is no difference between the two.

Justice Sotomayor: Well, we have a new statute. 853 made a difference between ­­ and still does ­­ between tainted and untainted.

Howard Srebnick: That is very true, Justice Sotomayor. And to the ­­

Justice Sotomayor: This section came later, and it says substitute property.

Howard Srebnick: That is true. So there is a ­­ a statute, the statute that's at issue in this case, different from 853. 853 in most circuits does not authorize the pretrial restraint of untainted assets. So all the concerns about victims, all the concerns that emanate from the questions that have been asked today, Alderson Reporting Company Official 1 Congress struck that balance and did not allow for the restraint of substitute assets, at least in most circuits as it has been interpreted. The Solicitor General has a different view of the statute as it expressed in the Fourth Circuit. But in all events, though the victims are certainly to be accommodated, so, too, the rights of the criminal defendant who needs to be represented by the counsel of choice.

Justice Ginsburg: But Congress seemed to have singled out these banking frauds and healthcare frauds for special treatment, so they're not governed by the general forfeiture statute, which makes the distinction between tainted and untainted. They seem to want to come down very hard on these two crimes. So why would we interpret ­­ was it 1345? ­­ as doing nothing, as being controlled essentially by 853?

Howard Srebnick: So 1345, although it doesn't use the word "forfeiture," it doesn't say what happens to these assets. It simply locks them down, so to speak, until something happens. It doesn't even talk about a criminal case, but it is in the context of Title 18. And the one court ­­ court ­­ Fang case talks about, there needs to be some sort of criminal procedure that follows the lockdown. Alderson Reporting Company Official 1 And Justice Ginsburg, while Congress may have given in this instance the ability of the government to restrain assets of equivalent value, notwithstanding our statutory interpretation argument, it still needs to accommodate the rights of the criminal accused. If I may reserve the balance of my time for rebuttal.

Chief Justice Roberts: Thank you, counsel. Mr. Dreeben. ORAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF THE RESPONDENT

Michael R. Dreeben: Thank you, Mr. Chief Justice, and may it please the Court: I think that the appropriate starting point for this case is the last sentence of Monsanto, not because Monsanto specifically addressed substitute property, but because it adopted a principle that I believe resolves this case. And the last sentence of Monsanto says, "If the government may, posttrial, forbid the use of forfeited assets to pay an attorney, then surely no constitutional violation occurs when after probable cause is adequately established, the government obtains an order barring a defendant from frustrating that end by dissipating his assets prior to trial." Alderson Reporting Company Official

Chief Justice Roberts: Well, that was said in the context of the government's submission that there's a difference between tainted and untainted, right? Your ­­ your argument in Monsanto focused on the tainted aspects of the proceeds.

Michael R. Dreeben: Yes, it did. And that's why I say that the principle that the court articulated in that sentence is what decides this case.

Justice Breyer: Why is that the principle? The principle ­­ they're talking about money that doesn't belong to the defendant.

Michael R. Dreeben: Well ­­

Justice Breyer: It belongs to Smith or Jones of the bank. Now, let's try that principle in a case where it's the defendant's money. The principle is that the government, without proving that he's guilty of any crime beyond a reasonable doubt, can take all his money. Oh, because he might be fined. I've never heard of such a principle, frankly. I've just never heard of it. Now, if there is some case that says ­­

Justice Scalia: Sixth Amendment or not.

Justice Breyer: So ­­ now I can imagine ­­

Michael R. Dreeben: Justice Breyer, let me try to explain ­­ Alderson Reporting Company Official

Justice Breyer: I can go from there and find interests on both sides, da, da, da.

Michael R. Dreeben: Justice Breyer, I think that it's important to start with, actually, the principle that Monsanto adopted, not because it resolved the factual circumstances here, but because it's talking about the point in time after the government wins a judgment. And the principle is that if the government will have a right to forfeit that property at the end ­­

Justice Breyer: Yes.

Michael R. Dreeben: ­­ if it can show probable cause ­­

Justice Breyer: I ­­ I understood that. I just wanted to try it with the facts here. I mean, the first principle is if, in fact, the defendant has somebody else's money that he's taken unlawfully, and he has to give it up at the end of the trial, we can make him give it up at the beginning to make sure it's there. Now let's try it with the facts here. If a defendant has some money, which maybe he will have to pay in a fine, what we'll do is we'll take all his money away before he's been convicted beyond a reasonable doubt. Okay. That's the difference in the propositions. Alderson Reporting Company Official 1 And I'm saying it's pretty hard for me to think in a country which says that before he's convicted, you have to release him on bail except in unusual circumstances, that nonetheless, you can take all his money away so he can't hire a lawyer. I know that's a little simpleminded, but nonetheless, that seems fairly basic. I don't know where it comes from.

Michael R. Dreeben: So Justice Breyer, I think that the ­­ the embedded premise there is that people will not suffer restraints on their liberty or property before they have been convicted beyond a reasonable doubt.

Justice Breyer: That's correct. That is the principle, and now we make a number of exceptions. And one exception is if you think he's going to ­­ I mean, I can think of exceptions where we do keep people in jail. That is, of course, right. And ­­ and here, what they're saying, I think, in essence is, let's try and think of an exception for this one. Pretty hard. And anyway, if there is one, what he wants to use the money for is to make sure he has a lawyer. It's called the Sixth Amendment. All right. Now, there we are. That's where I ­­ at this moment in my mind, that's where the case Alderson Reporting Company Official 1 is.

Michael R. Dreeben: All right. So can I try to break that down a little bit? Because I do think that the principle in Monsanto is critical. The principle in Monsanto is that if the government will be able to forfeit the property at the end of the day, it has an interest in ensuring that it is available and not dissipated. It's the monetary equivalent of flight. It's asset flight. And this statute, Section 1345, was specifically designed, as Justice Ginsburg observed, for crimes in the banking and in the healthcare context in which money flows into accounts, money is fungible, very difficult to ­­

Justice Breyer: I think ­­ I think that's a ­­ what you say is, look, this is equivalent to the case where we keep the guy in jail because he might run away. That's your point. That's not a bad point. So I have on that on one side, and I have on the other side that he'd like to have a lawyer which is a Sixth Amendment right. So I have a suggestion that I want you to focus on. The suggestion is ­­ let's read this statute in light of what you've said, that there is an interest on your side and there is a constitutional amendment on Alderson Reporting Company Official 1 the other side. Why can't we read this statute to say they accommodate those interests in this way? If they're going to run away from ­­ with the property, then the court has the authority to enjoin the alienation or disposition of property, say tainted, then you can ask for a restraining order to prohibit the prohibition, not just of the tainted property but also of property of equivalent value. If I read that without knowing the background, I would say a lot of cases come up where you get TROs, where they're not precise because you don't know exactly what property you're talking about. So what do you think about reading this statute to avoid the constitutional question to say the TRO means TRO? And a TRO means where there's some property out there and it may be tainted, mixed up with the untainted, you can get a TRO on the whole thing. You have to have a speedy hearing. He has to be represented. And your purpose of that is to separate the two kinds of assets. That seems to me to work for the purpose, and it also avoids the constitutional question.

Michael R. Dreeben: So two things on that. I hope I get a chance to say both of them. First, I don't think that it is a serious Alderson Reporting Company Official 1 constitutional question in light of Monsanto, so I don't really think that there's a serious avoidance concern here. Monsanto basically said that if the government has shown adequately that it will be able to forfeit the money at the conclusion of the case, the Sixth Amendment doesn't override the government's interests. After all, Justice Breyer, this is basically a zero­sum game. Either there will be money available at the end of the case for the victims or the money will have been spent on lawyers. And Congress made a judgment that the government can't come in in every case and simply restrain assets upon a showing of nothing. But it does have a statute in a very specific area that allows it to ­­

Justice Sotomayor: Do you really ­­

Justice Kennedy: But what is it that confines your ­­ your rationale to a specific area? It seems to me that if the government prevails in this case, every State in the union, every locality could say that in the event of assault and battery, malicious ­­ malicious mischief, drunk ­­ an accident caused by drunk driving, any crime involving a bodily injury, that the government is entitled to restrain disposition of assets that might be used for medical care, for pain and suffering. And this would, in effect, prevent the Alderson Reporting Company Official 1 private bar from ­­ from practicing law unless it did so on a contingent basis.

Michael R. Dreeben: Justice Kennedy, it's correct that our principle is not limited to the types of crimes that are in this case. It is limited to the government making an adequate showing that at the conclusion of the case, it will have the right to the money.

Justice Kennedy: Well, but you're talking about probable cause. But ­­ but there's ­­

Michael R. Dreeben: Understood.

Justice Kennedy: The government can often show probable cause, and that's usually the basis for the indictment.

Michael R. Dreeben: That's correct. And, I ­­ again, I think that Monsanto resolved this question by saying that if the government can take title to the property at the conclusion of the case, it has an interest in ensuring that it is available, and the Sixth Amendment doesn't override it.

Justice Kagan: Mr. Dreeben ­­

Chief Justice Roberts: It takes the ­­ it ­ it establishes that right in the same way as the issue here, without counsel on the part of the defendant, because you ­­ I assume Kaley applies to untainted assets as well as untainted. Alderson Reporting Company Official

Michael R. Dreeben: That's correct.

Chief Justice Roberts: So add to the context of what Justice Breyer was concerned about. You not only can do that, you can do that without giving the defendant any type of hearing, right?

Michael R. Dreeben: No, I think the defendant is often entitled to a hearing. The question is what issues the defendant may raise at the hearing. Here, for example, there was clearly an issue of whether the defendant was, in fact, dissipating assets. And that would have been something that the defendant ­­

Chief Justice Roberts: I thought ­­ I thought under Kaley, the defendant didn't have to be provided a ­­ a hearing with respect to the pretrial ­­

Michael R. Dreeben: With ­­

Chief Justice Roberts: ­­ seizure of assets.

Michael R. Dreeben: With respect to whether there's probable cause to believe that the defendant committed an offense. That's what Kaley said is controlled.

Justice Sotomayor: Kaley was a question of tracing, because it was ­­

Michael R. Dreeben: It ­­ it was, Justice Sotomayor. And that ­­ Alderson Reporting Company Official

Justice Sotomayor: But you don't have any tracing problem here. As soon as he commits a crime that you say was worth $45 million, you can freeze $45 million worth of assets, correct?

Michael R. Dreeben: Although there were far fewer here because most of them had been dissipated. And I think that the reason why ­­

Justice Sotomayor: I respect that, and ­­ but ­­ but you agreed that these particular funds were untainted. I'm told by your adversary ­­

Michael R. Dreeben: We ­­ we stipulated ­­ it's technical, but we ­­ we stipulated that there may be some unquantified amount of untainted assets in the assets being restrained. We did not know, and did not attempt to figure out, and that would be an issue for a later day if the Court said that that mattered.

Justice Kagan: Mr. Dreeben, I think, you know, in essence your argument goes like this: You have Monsanto, you combine Monsanto with a ­­ a simple factual acknowledgment that money is fungible, and it gets you to a judgment in this case. You win, the petitioner loses. And ­­ and, you know, that's a fair, strong argument, if ­­ if one is comfortable with Monsanto. I mean, there is ­­ so I think I would just Alderson Reporting Company Official 1 ask you, I mean, suppose the Court is just uncomfortable with the path we started down the road on in Monsanto? And you might be right that it just doesn't make sense to draw a line here, but it leaves you with a situation in which more and more and more we're depriving people of the ability to hire counsel of choice in complicated cases. And so what should we do with that intuition that Monsanto sent us down the wrong path?

Michael R. Dreeben: Well, I ­­ I would hope that the Court sees that even if there are some uncomfortable aspects of Monsanto, it actually rests on a sound legal judgment. And I ­­ I realize I have said this, but I will keep coming back to this because I think it is the touchstone for Monsanto. Caplin & Drysdale was a postjudgment case. And it said once these funds are forfeitable, the defendant, if he pays his lawyer with them, is paying the lawyer with somebody else's money, namely, the government. Then the question is, can the government do anything to prevent dissipation of the assets before it obtains the judgment? And the Court said not automatically, not as a general rule it can always come in and say this is what we want, this is what we get. But with an appropriate hearing, the balance of interest Alderson Reporting Company Official 1 does permit the government to preserve the equities. Now, this has an effect on counsel of choice. It has no effect on the ability of the defendant to be represented by counsel.

Chief Justice Roberts: Counsel, how ­­ I don't know how these things work. Let's say you get an order freezing the assets, and it's $10 million, and ­­ and the defendant comes into the court, whatever, and says, look, my lawyer is going to cost $100,000, one percent of the assets that are at issue here. Then you would argue, no, even though it's only a tiny fraction of what we're seizing, the Sixth Amendment doesn't even entitle him to one percent of the assets that might ­­ might end up being forfeitable?

Michael R. Dreeben: Yes. I don't think there's an exception in the Sixth Amendment. Now, this is a statute in which the government proceeded through seeking a civil injunction and restraining order, and the district court does have discretion. It's not a flat rule that forbids the district court from releasing funds for counsel.

Chief Justice Roberts: How does it work? Like the ­­ you know, the daughter's tuition bill comes due, you know, and it's whoever ­­ you know, who knows how much these days, $60,000. And the defendant cannot Alderson Reporting Company Official 1 pay that?

Michael R. Dreeben: Not as a matter of right. But this is a civil statute in which the judge can exercise equitable discretion. And if the defendant comes in and says ­­

Chief Justice Roberts: Well, why was it ­­ why would it be ­­ if he can exercise equitable discretion for the daughter's tuition, why ­­ why not when the Sixth Amendment is at stake? And, you know, counsel of choice, it turns on that, it would seem to me that if there's going to be a case in which equitable discretion will be exercised, it ought to be in that situation.

Michael R. Dreeben: Well, I don't think automatically so. Here the judge said one consideration is, will the defendant have representation in the 1345 proceeding itself? The defendant did. Mr. Srebnick represented the defendant in that proceeding. So the court said, I don't need to worry about that. Then the court turned to the question of whether the defendant needed counsel in the criminal case and said, the defendant will be afforded counsel in the criminal case, by appointment if necessary.

Justice Breyer: Can you get back ­­ you had two responses to my reading of the statute. I heard the Alderson Reporting Company Official 1 first, and I didn't hear the second.

Michael R. Dreeben: So this ­­

Justice Breyer: By the way, let me ­­ let me remind you ­­

Michael R. Dreeben: I remember exactly what ­­

Justice Breyer: But I want to say it, because maybe you can focus on this. We're in before the judge on a TRO. Our object of the TRO is to separate the assets that are not this man's from the assets that are this man's. So we do that separation. Now we say $10,000 is not his, it's the bank's. $15,000 or $10,000 over here is totally his; he's never been convicted of the crime. What's the government's interest? And why can't he take this other, once we've had the TRO ­­

Michael R. Dreeben: So Justice Breyer ­­

Justice Breyer: ­­ to separate it?

Michael R. Dreeben: ­­ I think I need to stop you here because it's not a TRO. The statute does not ­­

Justice Breyer: I know. It says restraining order ­­

Michael R. Dreeben: That's correct.

Justice Breyer: ­­ and my suggestion is we read those words "restraining order" as "temporary restraining order," which (3)(b), it seems to me, Alderson Reporting Company Official 1 clearly permits, but we can get into that argument. I'll worry about that later.

Michael R. Dreeben: Well, I think that the ­­

Justice Breyer: I want to know what your second response was to that.

Michael R. Dreeben: My second response is that this a statute that contains two basic provisions. I think petitioner describes it accurately. Section (a) describes the things the government can seek under the statute; Subsection (B) describes the procedure that's used. Subsection (A) first allows the government to get an injunction against fraud in (A)(1). In (A)(2) it allows it to restrain assets as the ultimate object of the suit, not as a temporary interim measure. Temporary interim measures are described in Subsection (B) where it specifically allows the Court to impose various restraints until the Court has concluded the proceeding. So it addresses temporary relief in (B). Subsection (A)(2) describes the things that the government can seek as the ultimate object of the case. Injunction against the person who has the funds, or a restraining order against any person to restrain the funds that are derived from illegal activity, or Alderson Reporting Company Official 1 funds of equivalent value. And just to make one final point on that, the reason that makes sense in a banking context and in a healthcare context is dollars are fungible, as Justice Alito said earlier. They will flow into an account; they will flow out into other accounts. It's difficult to trace them. So Congress obviated the need to do that by saying you can restrain the defendant, but we're not going to rely only on restraining the defendant. You can also restrain the banks where the funds are. And you can restrain them not only in the amounts that represent the tainted funds, but represent the monetary equivalent of them. So in a sense ­­

Justice Alito: I don't ­­ go ahead and finish.

Michael R. Dreeben: Well, I think, in a sense, this statute negates the premise that there is a clean line between tainted funds and untainted funds. The money is fungible once it's received by the defendant. There is Medicare fraud if the government establishes probable cause, and its financial interest is ensuring that it can have a judgment to make whole the Medicare trust fund or other victims at the Alderson Reporting Company Official 1 conclusion of the case.

Justice Alito: I'm ­­ I'm troubled by this statute. I ­­ I can't understand the difference between (a) and (B). I don't think ­­ the issue was not raised in the cert petition, and I don't know whether it can be brought in with the Doctrine of Constitutional Avoidance, because it really has nothing to do with the Sixth Amendment. This would apply regardless of whether there's any Sixth Amendment issue in the case. But, having said that ­­ Mr. Srebnick can address those in rebuttal if he wishes to, but having said that, if (B) does not refer to a temporary form of relief, then ­­ which I understand to be your argument ­­ then I don't understand what (a) contributes.

Michael R. Dreeben: So (a)(2) has two different sections, and it describes what the government can seek as the ultimate relief in the case. This started out as an antifraud injunction statute. Somebody is going around with the boiler room operation or a Ponzi scheme; it takes a while to get the evidence to indict. The government can come in and seek an injunction to prevent further fraud. Then Congress added (a)(2) on the theory that there's something else the government needs to do, Alderson Reporting Company Official 1 ensure that money is available at the conclusion of whatever parallel criminal case or civil fraud case the government brings.

Justice Breyer: So what they can do is this? If we read this literally under (B), that Mr. Smith is indicted for a banking law violation, he has $100,000 of other people's money. The government can say that the order ­­ the restraining order of the Court prohibits his wife, any other client, the milk man, anyone in the world, from taking, not the $100,000 that belongs to the bank, but any other $100,000 that he got for any other purpose, I guess including his retirement fund, including no matter what. I mean, that is ­­ goes ­­ it seems to me that's what it says ­­ any other person from taking property of equivalent value, and he hasn't been convicted of anything.

Michael R. Dreeben: Yes, but it's ­­ it's referring, again, to a person who has ­­ there is probable cause to believe has obtained money as a result of a criminal violation, and then it provides a mechanism for restraining it. It's not aimed at restraining people who have nothing to do with the case, unless they're holding the defendant's money.

Justice Breyer: Well, this is ­­ this is Alderson Reporting Company Official 1 innocent money, the defendant's, not the money he obtained as a result of the violation. The money he didn't obtain, that's what this case is about.

Michael R. Dreeben: The innocent money versus tainted money all depends on a theory that they are economically pure. Now, the ­­ the only argument that Mr. Srebnick made to distinguish them, and I realize there may be members of the Court who think this is not a very good argument, and maybe the question is whether Monsanto is at root problematic, but at least insofar as that argument goes, it's based on a reading of the relation­backed doctrine that's contrary to this Court's cases. Monsanto itself made this very clear. It said that the government can restrain money that will become the government's property at the conclusion of the case.

Justice Sotomayor: Mr. Dreeben, you're taking Monsanto out of context, because 853, by its nature, was limited to tainted funds. This is the first statute if ­­ that I know of that permits the government to come in and take untainted funds. The incidence of the tainted funds concept was, you can't spend another person's money. You stole this money somehow, and you can't spend that money because it belongs to someone Alderson Reporting Company Official 1 else. It really doesn't belong to you. But it's not until a judgment ­­ and this is what your adversary is trying to say ­­ that the money that's untainted, the money that ­­ or the property that he bought before this crime, this untainted property becomes yours. It's not until that moment, the judgment, that the property is forfeitable.

Michael R. Dreeben: That's true.

Justice Sotomayor: You can't forfeit it beforehand. So now the issue is ­­

Michael R. Dreeben: That's true for all ­­ that's true or all money, tainted and untainted.

Justice Sotomayor: Well, but ­­ but still the question becomes, is there a substantive difference, and I think Justice Breyer is expressing ­­ the problem with this, as Justice Kagan said, this intuitive sense, which is where do we draw this line?

Michael R. Dreeben: So ­­

Justice Sotomayor: Does the right to counsel have any meaning anymore?

Michael R. Dreeben: I think it does.

Justice Sotomayor: Frankly, I expect within three to five years, if we rule in your favor, 853 will be changed to have this same language.

Michael R. Dreeben: So 853, Justice Sotomayor, Alderson Reporting Company Official 1 does permit forfeiture of substitute property.

Justice Sotomayor: Yes, but not pretrial.

Michael R. Dreeben: Not ­­ not pretrial. This statute is different because it has a different function and a different purpose. But the basic concept of forfeiture is punishing the defendant by taking money through forfeiture that's equivalent to the tainted property if the tainted property is gone. That's the policy behind it. Now ­­

Justice Sotomayor: But that's true of every judgment.

Michael R. Dreeben: It is true ­­

Justice Sotomayor: Every judgment gives you a right to substitute property of some sort.

Michael R. Dreeben: Yes, but ­­ but the point is that the tainted property and the substitute property are similarly situated at the end of the forfeiture case. The government has a property right in each of them, but the ­­ I don't think the property right is really the essence of what's going on here. The fact that Section 853 permits pretrial restraint of tainted property, but it doesn't reference the subsection that deals with substitute property, is a feature of that statute, but I think that has nothing to do with the underlying point, which is that if the Alderson Reporting Company Official 1 government is going to be able to collect on its forfeiture judgment, sometimes it will need to restrain property. Monsanto recognizes that, and I don't think that saying that the defendant has a interest in paying for counsel trumps the government's interest in being made whole at the conclusion of the case.

Justice Kagan: Mr. Dreeben ­­

Justice Scalia: When did the ­­ when did the ­­ when was the first statute that allowed the government to restrain the expenditure of tainted funds? Does that go back a long time or ­­

Michael R. Dreeben: Well, the ­­ the whole history of in personam forfeiture was dormant until 1970, and then Congress passed a statute that permitted this kind of activity. It improved the statute in 1984 to remedy defects in the pretrial restraint of assets. So it was relatively recently developed, targeting basically drug conspiracies and organized criminal activity.

Justice Scalia: And ­­ and the first time that Congress ever applied it to non­tainted property was what year?

Michael R. Dreeben: Well, the substitute assets provision was added to the ­­ the basic forfeiture statute, and it was there at least by 1984. I think Alderson Reporting Company Official 1 that it may have been earlier as well. This provision is different, as Justice Sotomayor pointed out, from the basic forfeiture statute in permitting pretrial restraint of any assets, but I think that it reflects the same basic underlying idea.

Justice Ginsburg: And that ­­

Justice Kennedy: And ­­ but just ­­ just to be clear, so that I understood your earlier answer, the consequence, the necessary consequence of your position is that any State in the union can provide for forfeiture or a freeze ­­ a freeze of assets pending trial in any assault and battery case, spousal abuse case, criminal negligence, date rape cases in order to make the victim whole, to pay for medical costs, to pay for pain and suffering, and can freeze those assets even if the consequences of that is that in most of those cases most people cannot afford counsel.

Michael R. Dreeben: So if ­­ if at the conclusion of the case ­­

Justice Kennedy: That's the consequence of your argument?

Michael R. Dreeben: Well, I think that if there is a ­­ yes, if there is a monetary assessment that will become provable at the conclusion of the case and the government can show a need to preserve the assets so Alderson Reporting Company Official 1 that they're available. I mean, think about the cases that you're talking about, Justice Kennedy. They are cases in which victims have been harmed. Serious medical costs may be at issue. If the funds are spent on an attorney, they will not be available for compensation.

Chief Justice Roberts: Well, and they're all cases in which the defendant has not been found guilty. And ­­ and in all those cases, I mean, all you have to do, all the governments have to do, all the State governments have to do, is provide for a fine and argue, then, well, unless we ­­ if we don't freeze the assets, there won't be money left to pay a fine. So this could apply ­­ I guess this is the point. This could apply to every crime on the books.

Michael R. Dreeben: So I ­­ I do think the Court could draw distinctions among the types of fines and the purposes of the fines that are at issue. So it's not ­­

Justice Breyer: Have you seen ­­ have you seen the judgments in the fraud on the market cases? I mean, it isn't too tough in cases involving fraud on the market to find judgments of tens or hundreds of millions of dollars, I mean, judgments in fines after convictions, and that's what, I think, the question is. The principle of constitutional law that Alderson Reporting Company Official 1 you're advocating would, in fact, permit the freezing of what might be paid afterwards in a fine which could be a huge amount before the person is convicted. Am I right?

Michael R. Dreeben: So ­­ well, I ­­ I do think that I was trying to say to the Chief Justice that there could be distinctions that are drawn among various monetary exactions. I think the strongest case is when victim compensation is at issue. All the money in the ­­ the context of a Medicare fraud case like this, although it's not required by statute, it will be returned to the Medicare trust fund. This is a fraud against the people. $45 million is obtained, we allege, by fraud. Most of ­­

Chief Justice Roberts: It goes to the Medicaid trust fund?

Michael R. Dreeben: Medicare trust fund, provided to the Medicare trust fund.

Chief Justice Roberts: The ­­ will go to the victims?

Michael R. Dreeben: Yes.

Chief Justice Roberts: Does that go to the victims in case?

Michael R. Dreeben: Well, the Medicare trust fund, which represents basically the fiscal interests of the people of the United States is the victim. Alderson Reporting Company Official

Chief Justice Roberts: I'm sorry?

Michael R. Dreeben: The Medicare trust fund, from which the funds came that we say are obtained by fraud, is the victim. So the funds will be returned to the victim. That's the purpose of trying to freeze the funds in a health care case, so that they can be returned.

Justice Ginsburg: Mr. Dreeben, you're saying that your ­­ your view, your interpretation, your reading of the statute is the only tenable one, but if one took the view that Justice Breyer's interpretation, that restraining order means a temporary restraining order, or it was another interpretation put forth in the Americans for Forfeiture Reform brief, because if ­­ if a judge were to take the position that all of ­­ all three are plausible readings of the statute, but we'll pick the one that allows the defendant to have counsel.

Michael R. Dreeben: So Justice Ginsburg, we don't think that any of the alternative readings are plausible. For the reasons that I explained to Justice Breyer, this statute doesn't limit the restraining order to temporary relief, nor would it make any logical sense to do that because the purpose of this statute was to preserve funds so that they would be available at the conclusion of the case. Alderson Reporting Company Official 1 I also think that the amicus argument is not a tenable one because it simply reads "or equivalent value" out of the statute and without any reference to the context of the statute, which is to try to make the government be able to be made whole at the conclusion of a case if, in fact, it obtains a judgment given the very difficult process of segregating out money in banking and financial­type crimes.

Justice Kagan: Mr. Dreeben, if I could go back to Justice Alito's questions about your interpretation of the statute, I think what Justice Alito was suggesting was that (a)(2)(A) would be completely subsumed by (a)(2)(B) on your interpretation, and I don't think that you got around to answering that question.

Michael R. Dreeben: So I ­­ I think that that ­­ that is true. I think this Court understands, from arguments last week, that superfluity is no stranger to congressional statutes. They do have a different focus, though, and I think it was quite reasonable for Congress to make clear what that focus is. 2(A) is aimed at the person who's doing the dissipating themselves, the person who obtained the property by fraud, and (B) expands that out.

Justice Kagan: No, but in ­­ in just saying Alderson Reporting Company Official 1 that, you're essentially saying, yes, (B) expands it out, meaning it covers everything that (A) covers and some more.

Michael R. Dreeben: Yes, but the ­­ it's not that this is a statute that anyone's reading gives off provisions of fact because the (b) section, 1345(b) permits restraining orders or prohibitions during the course of the case as are needed to protect the United States against the substantial injury. So that provision would subsume the ­­ the reading that my friend gives.

Justice Kagan: Do you think that there's any ­­

Chief Justice Roberts: Go ahead.

Justice Kagan: Do you think that there's any way to read this statute such that it applies to people who wish to retain counsel as opposed to make other expenditures?

Michael R. Dreeben: No, I don't think there's any reading of the statute that exempts counsel. It does give discretion to the district court to entertain arguments. Those arguments were made here and rejected.

Chief Justice Roberts: Thank you, counsel. Mr. Srebnick, you have four minutes Alderson Reporting Company Official 1 remaining. REBUTTAL ARGUMENT OF HOWARD SREBNICK ON BEHALF OF THE PETITIONER

Howard Srebnick: Thank you, Mr. Chief Justice. I think all of us who heard the argument of Monsanto and Caplin & Drysdale when it was delivered in 1989 understood the line was drawn between tainted and untainted assets. And that was a line ­­ while the defense bar had its druthers, was a line that was accepted by the Court. The government proposes now to move that line and essentially make the line disappear altogether. Justice Alito ­­

Justice Alito: I don't want to use up your rebuttal time, but I do want to ask you two quick questions about the statute. First is: Did you raise anything about this in your cert petition? And the second is: Is there a way to limit this to the Sixth Amendment context?

Howard Srebnick: The answer to the first question is no. In our cert petition, since we were constrained in the Eleventh Circuit by the interpretation that had been given back in 1999, we focused on the constitutional issue in order to suggest to the Court that the doctrine of constitutional Alderson Reporting Company Official 1 avoidance should be triggered because there's a Sixth Amendment problem. The Eleventh Circuit has concluded that the statute is ambiguous.

Justice Alito: You didn't say anything about constitutional avoidance in your cert position, did you?

Howard Srebnick: That is correct. We argued that the Constitution would be violated, and because this Court, in its discretion and indeed in the Rumsfeld vs. FAIR case, looks at a statute even if the interpretation is offered at the merit stage by an amicus, the Court has considered those competing interpretations in order to avoid the constitutional issue. Justice Scalia, in response to your question about property, it sure sounded to anyone who heard the argument and read the opinions in Monsanto and Caplin & Drysdale that it was much about property. The government, by invoking the taint theory, which does date back to the founding of our nation, taints a particular subject, and that is the tainted asset. That's why it's called the taint theory. It's counterintuitive to suggest that untainted assets should be treated as tainted assets. Alderson Reporting Company Official 1 And because, as I used the word earlier, there must be a coexistence between the taint theory and the right to counsel of choice, Monsanto drew the line, Caplin & Drysdale drew the line and said if the government can establish that the asset is tainted, it can be frozen. Nothing about Monsanto, nothing about Caplin & Drysdale, suggested that assets over which the government has no present property interest, no relation­backed theory, no taint theory to speak of, can then take Aunt Sally's money or a client's pension funds needed to ­­ for representation to use those assets to retain counsel. Nothing in this Court's precedent in those cases suggests that. And naturally, as a member of the defense bar, we would welcome a revisiting of Monsanto and Caplin & Drysdale because the parade of horribles is here today. The government says quite candidly there is no line. If the fine is $1 million, the defendant has to pony up, ante up $1 million up front in order to exercise his right to counsel. The right to counsel of choice will have a price tag. And it is whatever the government says the maximum fine is. Whatever the maximum restitution is, that will be the price that the defendant must pay in advance. It's an advance fee that Alderson Reporting Company Official 1 the defendant must pay according to the government in order to be able to exercise his Sixth Amendment rights. We ask the Court to reject such an interpretation.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 12:07 p.m., the case in the above­entitled matter was submitted.)