Key Takeaways:
- The tainted vs. untainted line is the constitutional fault line. Under Luis, the government generally may not freeze untainted assets needed to retain counsel of choice, even though Caplin & Drysdale and Monsanto allow restraint of tainted (forfeitable) assets—even if needed for legal fees.
- Procedure and proof often decide the appeal, not just the mistake. Even when the government concedes some overrestraint, defendants still must navigate waiver/timing issues and show causation—that the restraint actually prevented retention of specific chosen counsel by relevant deadlines.
- For white collar cases, restraint strategy can shape the entire defense. In large, resource-intensive matters, a broad freeze can affect not only who appears as counsel, but also staffing, investigation, experts, and trial preparation—making early tracing analysis and record-building critical.
For white collar practitioners, the most interesting issue in U.S. v. Rishi Shah, now pending in the U.S. Court of Appeals for the Seventh Circuit, may be the one least tied to the underlying fraud allegations: whether the government restrained too much of the defendant's property before trial, thereby violating the Sixth Amendment by preventing him from retaining counsel of choice.
Shah's opening brief argues that prosecutors improperly froze millions of dollars in assets not traceable to fraud, including funds already transferred to counsel, which forced Shah's original chosen lawyer to withdraw. The government later acknowledged that some assets had been overrestrained, but by then the trial had already occurred.
This issue can sound technical, but it sits at the intersection of three important doctrines: criminal forfeiture, pretrial asset restraint and the constitutional right to choose one's own lawyer.
Read the full article here.