# Crime and Forfeiture

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URL: https://www.frixlaw.com/law-library/documents/crs%3A97-139

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** January 10, 2023
- **Citation:** 97-139

## Text

Crime and Forfeiture
Updated January 10, 2023

Congressional Research Service
https://crsreports.congress.gov
97-139

Crime and Forfeiture

Summary
Modern forfeiture is a creature of statute that calls for the confiscation of certain property related
to a criminal offense. Forfeiture has long been a law enforcement tool in the United States.
Congress and state legislatures have authorized its use for over 200 years. Every year, it redirects
billions of dollars worth of property connected to criminal activity to other uses. Forfeiture law
has always been somewhat unique. By the close of the 20th century, however, legislative bodies,
commentators, and the courts had begun to examine its eccentricities in greater detail because
under some circumstances it could be not only harsh but unfair. The Civil Asset Forfeiture
Reform Act (CAFRA), Pub. L. No. 106-185, 114 Stat. 202 (2000), was a product of that
reexamination.
Modern forfeiture follows one of two procedural routes. Although crime triggers all forfeitures,
they are classified as civil forfeitures or criminal forfeitures according to the nature of the
procedure which ends in confiscation. Civil forfeiture is an in rem proceeding. The property is the
defendant in the case. Unless the statute provides otherwise, the innocence of the owner is
irrelevant—it is enough that the property was involved in a violation to which forfeiture attaches.
As a matter of expedience and judicial economy, Congress often allows administrative forfeiture
in uncontested civil confiscation cases. Criminal forfeiture is an in personam proceeding, and
confiscation is possible only upon the conviction of the owner of the property.
The Supreme Court has held that authorities may seize moveable property without prior notice or
an opportunity for a hearing but that real property owners are entitled as a matter of due process
to preseizure notice and a hearing. As a matter of due process, innocence may be irrelevant in the
case of an individual who entrusts his or her property to someone who uses the property for
criminal purposes. Although some civil forfeitures may be considered punitive for purposes of the
Eighth Amendment’s excessive fines clause, civil forfeitures do not implicate the Fifth
Amendment’s double jeopardy clause unless they are so utterly punitive as to belie remedial
classification.
The statutes governing the disposal of forfeited property may authorize its destruction, its transfer
for governmental purposes, or deposit of the property or of the proceeds from its sale in a special
fund. Intra- and intergovernmental transfers and the use of special funds are hallmarks of federal
forfeiture. Every year, federal agencies share among themselves the proceeds of jointly conducted
forfeitures. They also transfer hundreds of millions of dollars and property to state, local, and
foreign law enforcement officials as compensation for their contribution to joint enforcement
efforts.

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Contents
Introduction ..................................................................................................................................... 1
Background ..................................................................................................................................... 1
Modern Forfeiture Law ................................................................................................................... 3
Property and Trigger Crimes ..................................................................................................... 3
Civil Forfeiture .......................................................................................................................... 6
Administrative (Nonjudicial) Forfeitures.......................................................................... 12
Criminal Forfeiture.................................................................................................................. 17
Disposition of Forfeited Assets ............................................................................................... 23
Equitable Sharing and Adoptive Forfeitures ..................................................................... 24
Federal Funds .................................................................................................................... 25
Constitutional Considerations ....................................................................................................... 32
Eighth Amendment.................................................................................................................. 33
Double Jeopardy...................................................................................................................... 34
Sixth Amendment .................................................................................................................... 35
Due Process ............................................................................................................................. 36
Article III................................................................................................................................. 39
Fourth Amendment.................................................................................................................. 41
Ex Post Facto........................................................................................................................... 42
First Amendment ..................................................................................................................... 43
Attachments ................................................................................................................................... 43
18 U.S.C. § 981. Civil forfeiture ............................................................................................. 43
18 U.S.C. § 982. Criminal forfeiture ....................................................................................... 49
18 U.S.C. § 983. General rules for civil forfeiture proceedings .............................................. 50
Federal Rules of Civil Procedure, Supplemental Rules for Certain Admiralty and
Maritime Claims. Rule G. Forfeiture Actions in Rem ......................................................... 56
18 U.S.C. § 984. Civil forfeiture of fungible property ............................................................ 60
18 U.S.C. § 985. Civil forfeiture of real property ................................................................... 60
18 U.S.C. § 987. Anti-terrorist forfeiture protection ............................................................... 61
21 U.S.C. § 881. [Civil Forfeitures (Controlled Substances)] ................................................ 61
21 U.S.C. § 853. Criminal forfeitures [Controlled Substances] .............................................. 64
18 U.S.C. § 1956(c)(7). [Specified Unlawful Activity] .......................................................... 68
18 U.S.C. § 24. [Federal Health Care Offense] ....................................................................... 70
18 U.S.C. § 1961(1). [Racketeering Activities (RICO)] ......................................................... 70
18 U.S.C. § 2332b(g)(5)(B). [Federal Crime of Terrorism] .................................................... 71
18 U.S.C. § 1963. [Criminal Forfeiture (RICO)] .................................................................... 72
Fed. R. Crim. P. 32.2 Criminal Forfeiture ............................................................................... 75
28 U.S.C. § 524(c). [Department of Justice Asset Forfeiture Fund] ....................................... 78
28 U.S.C. § 1355. Fine, penalty or forfeiture .......................................................................... 81
28 U.S.C. § 2461. Mode of recovery ...................................................................................... 81
28 U.S.C. § 2465. Return of property . . . attorney fees, costs, and interest ........................... 82
31 U.S.C. § 9705. Department of the Treasury Forfeiture Fund ............................................. 82
34 U.S.C. § 20101. Crime Victims Fund................................................................................. 88
Federal Forfeiture Statutes (citations) ..................................................................................... 90
State Forfeiture Statutes (citations) ....................................................................................... 102

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Contacts
Author Information...................................................................................................................... 103

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Introduction
This is an overview of federal forfeiture law.1 It sketches the origins and general attributes of
forfeiture, describes the distribution of the millions of dollars it generates annually, and identifies
some of the constitutional issues it raises.

Background
Congress and state legislatures have authorized the use of forfeiture for more than 200 years.
Forfeiture law has always been somewhat unique. Its increased use has highlighted its
eccentricities and attendant policy concerns.
Present forfeiture law has its roots in early English law. It is reminiscent of three early English
procedures: deodands, forfeiture of estate or common law forfeiture, and statutory or commercial
forfeiture.2
At early common law, the object that caused the death of a human being—the ox that gored, the
knife that stabbed, or the cart that crushed—was confiscated as a deodand.3 Coroners’ inquests
and grand juries, bound with the duty to determine the cause of death, were obligated to identify
the offending object and determine its value.4 The Crown distributed the proceeds realized from
the confiscation of the animal or deadly object for religious and charitable purposes in the name
of the deceased.5
Although deodands were not unknown in the American colonies,6 they appear to have fallen into
disuse or been abolished by the time of the American Revolution or shortly thereafter.7 In spite of
1

As used here, forfeiture is the confiscation of property associated with a criminal offense. In a broader sense,
forfeiture is the loss of any right—ordinarily a property right—as a consequence of a breach of some legal obligation.
Forfeiture, BLACK’S LAW DICTIONARY 792 (11th ed. 2019). Discussion in this report is limited to forfeitures associated
with criminal conduct, other than the forfeiture of bail. Throughout this report, the terms “forfeiture” and
“confiscation” will be used interchangeably; see generally U.S. Dep’t of Justice, Crim. Div., Money Laundering and
Asset Recovery Section, Asset Forfeiture Policy Manual (2021) [hereinafter Forfeiture Manual],
https://www.justice.gov/criminal-afmls/file/839521/download. This report is available in an abridged form, without
citations, footnotes, or appendices, as CRS Report RS22005, Crime and Forfeiture: In Short, by Charles Doyle.
2 Austin v. United States, 509 U.S. 602, 611–13 (1993); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663,
680–82 (1974); James R. Maxeiner, Bane of American Forfeiture Law—Banished at Last? 62 CORNELL L. REV. 768,
770 (1977).
3 J.W. Goldsmith v. United States, 254 U.S. 505 (1921); 1 MATTHEW HALE, HISTORY OF THE PLEAS OF THE CROWN 419
(1778); 2 FREDERICK POLLOCK & FREDERIC W. MAITLAND, THE HISTORY OF ENGLISH LAW 473 (2d ed. 1923); Jacob J.
Finklestein, The Goring Ox: Some Historical Perspective on Deodands, Forfeiture, Wrongful Death and the Western
Notion of Sovereignty, 46 TEMP. L. Q. 169 (1973).
4 HALE, supra note 3 at 419; 1 WILLIAM BLACKSTONE, COMMENTARIES 290 (1765–1769). The value of the offending
object or animal had to be determined because the owner was permitted to recover his property as long as he paid the
Crown its value. Id.
5 Id. Originally, the proceeds were used to pay for a Mass to be said for the repose of the soul of the deceased, hence
the name—giving (“dand”) to God (“deo”).
6 JULIUS GOEBEL, JR. & T. RAYMOND NAUGHTON, LAW ENFORCEMENT IN COLONIAL NEW YORK 717 (1944); RAPHAEL
SEMMES, CRIME AND PUNISHMENT IN EARLY MARYLAND 136 (1938); ARTHUR P. SCOTT, CRIMINAL LAW IN COLONIAL
VIRGINIA 52 (1930).
7 JOEL PRENTISS BISHOP, COMMENTARIES ON THE CRIMINAL LAW § 827 (7th ed. 1882); N.J. Const. art. XVII (1776); Vt.
Const. ch. 2, § 35 (1777); N.H. Const. pt. 2, art. 89 (1783); Del. Const. art. I, § 15 (1792).

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their limited use in this country, deodands and the practice of treating the offending animal or
object as the defendant have frequently been cited to illustrate the characteristics of modern civil
forfeiture.8
Forfeiture of estate or common law forfeiture, unlike deodands, focused solely on a human
offender. At common law, anyone, convicted and attained for treason or a felony, forfeited all his
lands and personal property.9 Attainder, the judicial declaration of civil death, occurred as a
consequence of the pronouncement of final sentence for treason or felony.10 In colonial America,
common law forfeitures were rare.11 After the Revolution, the Constitution restricted the use of
common law forfeiture in cases of treason, and Congress restricted its use, by statute, in the case
of other crimes.12
The third antecedent of modern forfeiture, statutory or commercial forfeiture, figured prominently
in cases in admiralty and on the revenue side of the Exchequer in pre-colonial England.13 It was
used fairly extensively against smuggling and other revenue evasion schemes in the American
colonies and has been used ever since.14 In most instances, the statutes called for in rem
confiscation proceedings in which, as with deodands, the offending object was the defendant;
occasionally, they established in personam procedures where confiscation occurred as the result
of the conviction of the owner of the property.15
Although contemporary American forfeiture law owes much to the law of deodands and the law
of forfeiture of estate, it is clearly a descendant of English statutory or commercial forfeiture.16

8 United States v. United States Coin & Currency, 401 U.S. 715, 720–21 (1971); Calero-Toledo, 416 U.S. at 680–81;

J.W. Goldsmith, 254 U.S. at 510–11.
9 HALE, supra note 3, at 354–67 (1778); 1 JOSEPH CHITTY, A PRACTICAL TREATISE ON CRIMINAL LAW 727–39 (1816); 1
JAMES FITZJAMES STEPHENS, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 468–88 (1883); 4 WILLIAM BLACKSTONE,
COMMENTARIES 376–81 (1765–1769).
10 Id. at 373–74. Attainder not only resulted in forfeiture but in corruption of the blood as well, “so that an attained
person can neither inherit lands or hereditaments from his ancestors, nor retain those he is already in possession of, nor
transmit them by descent to any heir; but the same shall escheat to the lord of the fee, subject to the king’s superior
right of forfeiture; and the person attained shall also obstruct all descents of his posterity, wherever they are obliged to
derive a title through him to a remoter ancestor.” Id. at 381.
11 SEMMES, supra note 6, at 107–10; GOEBEL & NAUGHTON, supra note 6, at 717. During the Revolution, some of the
states enacted provisions forfeiting the land and goods of those considered sympathetic to the Crown, see, e.g., 5 Mass.
Acts & Resolves 1769–1780, at 966–67 (1779); 9 Hening’s (Va.) Stat. at Large 1775-1778, ch.9 (1777); 1 N.H. Laws
22 (1778).
12 “The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work
corruption of blood, or forfeiture except during the life of the person attainted.” U.S. CONST. art. III, § 3.
“[N]o conviction or judgment for any of the offenses aforesaid, shall work corruption of blood, or any forfeiture of
estate.” 1 Stat. 177 (1790). This provision and its successors remained in force until 1984, Rev. Stat. § 5326; 35 Stat.
1151 (1909); 62 Stat. 837 (1948); 18 U.S.C. § 3563 (1982 ed.); 98 Stat. 1987 (1984).
13 1 THOMAS MADDOX, HISTORY AND ANTIQUITIES OF THE EXCHEQUER 781–82 (1769); LAWRENCE A. HARPER, THE
ENGLISH NAVIGATION LAWS 109–10 (1964); Erwin C. Surrency, The Courts in the American Colonies, 11 AM. J. LEGAL
HIST. 253, 357 (1967). Admiralty jurisdiction extended to piracy, spoils of war, and ship registration offenses, all of
which called for confiscation, 1 WILLIAM SEARLE HOLDSWORTH, HISTORY OF ENGLISH LAW 328 (1903 ed.); 2 SELDON
SOCIETY, SELECT PLEAS OF THE COURT OF ADMIRALTY, A.D.1517–1602, at xvi-xxii (Marsden ed. 1897). The Exchequer
dealt with customs duties and other revenue matters.
14 HARPER, supra note 13, at 109–11; Surrency, supra note 13, at 357.
15 E.g., 18 Stat. 186, 188 (1874) (smuggling); 41 Stat. 305, 315 (1919) (prohibition); 18 U.S.C. § 3665 (unlawful
firearms possession).
16 The Supreme Court in Calero-Toledo summarized the relative contributions of the three English procedures with the
observation that:

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Modern Forfeiture Law
Property and Trigger Crimes
Modern forfeiture is a creature of statute that calls for the confiscation of property related to a
criminal offense. While there are some common themes and general patterns concerning the
crimes that trigger forfeiture, the property subject to confiscation, and the procedures associated
with forfeiture are matters of legislative choice and can vary greatly.17
Virtually every kind of property, real or personal, tangible or intangible, may be subject to
confiscation under the appropriate circumstances.18 The laws that call for the confiscation of
contraband per se, property whose very possession has been outlawed, were at one time the most
prevalent and can still be found.19 Property—particularly vehicles—used to facilitate the
commission of a crime and without which violation would be less likely, has long been the target
of confiscatory statutes as well.20

Deodands did not become part of the common law tradition of this country. Nor has forfeiture of estate as a
consequence of a federal criminal conviction been permitted. Forfeiture of estate resulting from a conviction
for treason has been constitutionally proscribed by Art. III, §3 though forfeitures of estate for the lifetime of a
traitor have been sanctioned. But “[l]ong before the adoption of the Constitution the common law courts in the
Colonies—and later in the states during the period of Confederation—were exercising jurisdiction in rem in
the enforcement of [English and local] forfeiture statutes” which provided for the forfeiture of commodities
and vessels used in violation of the customs and revenue laws. And almost immediately after adoption of the
Constitution, ships and cargoes involved in customs offenses were made subject to forfeiture under federal law,
as were vessels used to deliver slaves to foreign countries, and somewhat later those used to deliver slaves to
this country. The enactment of forfeiture statutes has not abated; contemporary federal and state forfeiture
statutes reach virtually any type of property that might be used in the conduct of a criminal enterprise.
416 U.S. at 682–83 (citations and footnotes omitted); see id. at 663. Calero-Toledo, however, was written prior to
legislation apparently authorizing forfeiture of the estates of certain terrorists, 18 U.S.C. § 981(a)(1)(G)(i) (“The
following property is subject to forfeiture to the United States . . . (G) All assets, foreign or domestic—(i) of any
individual . . . engaged in planning or perpetrating any Federal crime of terrorism (as defined in section 2332b(g)(5))
against the United States, citizens or residents of the United States, or their property. . . .”); see also 50 U.S.C.
§ 1702(a)(1)(C). For some time, the government invoked this authority rarely, see United States v. Saade, No. S1 11
Crim. 111(NRB), 2013 WL 6847034, at *2 (S.D.N.Y. Dec. 30, 2013) (rejecting an excessive fines argument following
criminal forfeiture where Saade raised no forfeiture of estate challenge). More recently, the government has asserted it
in a number of largely unreported cases, none of which involve a forfeiture of estate discussion, see United States v. All
Funds on Deposit with R.J. O’Brien & Assocs., 783 F.3d 607, 612 (7th Cir. 2015) (Section 981(a)(1)(G) invoked
against funds blocked under the International Emergency Economic Powers Act); United States v. Oil Tanker Bearing
Int’l Mar. Org. (IMO), 480 F. Supp. 3d 39, 41 (D.D.C. 2020) (tanker and cargo forfeitable as assets of Islamic
Revolutionary Guard Corps (IRGC)).
17 A list of federal forfeiture laws, along with the type of property whose confiscation they permit or require, is
attached, as are the citations to state RICO and drug forfeiture statutes.
18 E.g., 21 U.S.C. § 853(b); United States v. Dicter, 198 F.3d 1284, 1290 (11th Cir. 1999) (a physician’s license to
practice medicine is forfeitable under 21 U.S.C. § 853); see also 18 U.S.C. § 1963(b) (“[p]roperty subject to criminal
forfeiture under this section includes—(1) real property, including things growing on, affixed to, and found in land; and
(2) tangible and intangible personal property, including rights, privileges, interests, claims and securities”). The text of
Section 1963 is attached.
19 E.g., 18 U.S.C. §§ 2513 (wiretapping equipment), 844 (unlawful explosives); 19 U.S.C. § 467 (distilled spirits
without a tax stamp).
20 E.g., 19 U.S.C. § 1595a (conveyances used for smuggling); 18 U.S.C. § 492 (counterfeiting paraphernalia);
16 U.S.C. § 128 (guns and traps used in violation of hunting and trapping restrictions); 18 U.S.C. § 229B (“any person
convicted under section 229A(a)[relating to chemical weapons] shall forfeit to the United States . . . any of the property
used in any manner or part, to commit, or to facilitate the commission of such violation.”).

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In some instances, Congress has focused upon the profits of crime and authorized the confiscation
of the direct and indirect proceeds of illegal activities.21 Under some circumstances, Congress has
authorized the forfeiture of substitute assets, when the tainted property subject to confiscation
under a particular statute has become unavailable.22
Traditionally, the crimes which triggered forfeiture were (1) those that threatened the
government’s revenue interest, for example, smuggling, tax evasion, hunting or fishing without a
license, or (2) those crimes that because of their perceived threat to public health or morals might
have been considered public nuisances subject to abatement, for example, gambling, dealing in
obscene material, or illicit drug use.
Beginning with the racketeering statutes, a number of jurisdictions have created another category
of forfeiture-warranting offenses—crimes that involve substantial economic gain for the
defendant even if not at the expense of government revenues, but which might greatly enhance
government revenues, for example, racketeering and money laundering.23 A prime example of this
approach is the Civil Asset Forfeiture Reform Act (CAFRA),24 which made forfeitable, among
other things, the proceeds from any of the crimes upon which a money laundering, racketeering,
or terrorism prosecution might be based.25
Following the terrorist attacks on September 11, 2001, Congress authorized the confiscation of
another type of crime-related property—property owned by certain terrorists regardless of

21 E.g., 18 U.S.C. § 1963(a)(3) (racketeer influenced and corrupt organizations (RICO)); 21 U.S.C. § 881(a)(6) (drug

trafficking).
22 18 U.S.C. § 1963(m) (“If the property described in subsection (a) [listing the types of property forfeitable], as a result
of any act or omission of the defendant—(1) cannot be located upon the exercise of due diligence; (2) has been
transferred or sold to, or deposited with, a third party; (3) has been placed beyond the jurisdiction of the court; (4) has
been substantially diminished in value; or (5) has been commingled with other property which cannot be divided
without difficulty; the court shall order the forfeiture of any other property of the defendant up to the value of any
property described in paragraphs (1) through (5).”): see also 21 U.S.C. § 853(p); FED. R. CRIM. P. 32.2(e).
23 18 U.S.C. §§ 981(a)(1)(A), 982(a)(1) (money laundering), 1963 (RICO).
24 Pub. L. No. 106-185, 114 Stat 202 (2000).
25 18 U.S.C. § 981(a)(1)(C) (“The following property is subject to forfeiture to the United States . . . (C) Any property,
real or personal, which constitutes or is derived from proceeds traceable to . . . any offense constituting ‘specified
unlawful activity’ (as defined in section 1956(c)(7) of this title) [i.e., the list of predicate offenses for money laundering
(18 U.S.C. § 1956) which list includes by cross reference all the predicate offenses for a RICO prosecution and to the
federal crimes of terrorism under 18 U.S.C. § 2332b(g)(5)(B))], or a conspiracy to commit such offense.”).
As one court noted, this trend could have unfortunate consequences, United States v. Funds Held in Name or for
Benefit of Wetterer, 210 F.3d 96, 110 (2d Cir. 2000)
We have previously observed the government’s “virtually unchecked use of the civil forfeiture statutes” [and
the disregard for due process that is buried in those statutes]. Another source of potential abuse is that the
forfeited funds are kept by the Department of Justice as a supplement to its budget. . . . Thus the agency that
conceives the jurisdiction and ground for seizures, and executes them, also absorbs their proceeds. This
arrangement creates incentives that evidently require a more-than-human judgment and restraint. The Supreme
Court has politely remarked on the Department of Justice’s “direct pecuniary” interest in maximizing drug
forfeitures to meet the Department’s budget target. See United States v. James Daniel Good Real Property, 510
U.S. 43, 56 n.2 (1993) (quoting 1990 memo of the Attorney General: “We must significantly increase
production to reach our budget target. . . . Every effort must be made to increase forfeiture income during the
remaining three months of fiscal year 1990.”). The bare financial facts of this case shine a light on the corrupting
incentives of this arrangement: we see aggressive but marginal claims asserted on dubious jurisdiction to seize
charitable funds raised for the relief of abject orphans in an impoverished country, so that the money can be
diverted for expenditure by the Department of Justice.
Id. Sensitive to such criticism, CAFRA sought to balance increased procedural efficiency with additional procedural
safeguards.

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whether the property is traceable, used to facilitate, or connected in any other way to any practical
crime.26
Federal confiscation ordinarily begins with a crime, usually a federal crime, but occasionally a
state or foreign offense. Federal law permits the confiscation of property generated by a felonious
act or threat involving “murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing
in obscene matter,” or drug dealing.27 It also authorizes the forfeiture of property located in the
United States, derived from or used to facilitate various crimes committed in violation of foreign
law overseas.28 The qualifying felonies include public corruption, crimes of violence, drug
trafficking, gun running, bank fraud, and child prostitution.29
Statutes that outlaw conduct often house related forfeiture provisions.30 Confiscation is also
accomplished by cross reference, sometimes multiple cross references. For example, 21 U.S.C.
§ 853 dictates the forfeiture of certain property related to violations of the Controlled Substances
Act proscribed elsewhere in the Act.31 CAFRA supplies perhaps the most common example of
forfeiture by multiple cross references. Section 981, its initial civil forfeiture provision, declares,
26 50 U.S.C. § 1702(a)(1)(C) (“. . . the President may . . . when the United States is engaged in armed hostilities or has

been attacked by a foreign country or foreign nationals, confiscate any property, subject to the jurisdiction of the United
States, of any foreign person, foreign organization, or foreign country that he determines has planned, authorized,
aided, or engaged in such hostilities or attacks against the United States. . . .”); see also 18 U.S.C. § 981(a)(1)(G)(i). At
first glance, the two seem to resemble common law forfeiture of estate, but as noted earlier, these provisions are rarely
invoked.
27 18 U.S.C. §§ 981(a)(1)(C) (“specified unlawful activity”), 1956(c)(7)(A) (“offense listed in section 1961(1)”),
1961(1)(A).
28 Id. § 981(a)(1)(B) (“(a)(1) The following property is subject to forfeiture to the United States . . . (B) Any property,
real or personal, within the jurisdiction of the United States, constituting, derived from, or traceable to, any proceeds
obtained directly or indirectly from an offense against a foreign nation, or any property used to facilitate such an
offense, if the offense—(i) involves trafficking in nuclear, chemical, biological, or radiological weapons technology or
material, or the manufacture, importation, sale, or distribution of a controlled substance (as that term is defined for
purposes of the Controlled Substances Act), or any other conduct described in section 1956(c)(7)(B); (ii) would be
punishable within the jurisdiction of the foreign nation by death or imprisonment for a term exceeding 1 year; and (iii)
would be punishable under the laws of the United States by imprisonment for a term exceeding 1 year, if the act or
activity constituting the offense had occurred within the jurisdiction of the United States”); see, e.g., United States v.
$125,938.62 (Cardenal), 537 F.3d 1287, 1288 (11th Cir. 2008); In re Seizure & Search of Motor Yacht Tango, 597 F.
Supp. 3d 149 (D.D.C. 2022).
29 See 18 U.S.C. § 1956(c)(7)(B) (“. . . an offense against a foreign nation involving—(i) the manufacture, importation,
sale, or distribution of a controlled substance (as such term is defined for the purposes of the Controlled Substances
Act); (ii) murder, kidnapping, robbery, extortion, destruction of property by means of explosive or fire, or a crime of
violence (as defined in section 16); (iii) fraud, or any scheme or attempt to defraud, by or against a foreign bank (as
defined in paragraph 7 of section 1(b) of the International Banking Act of 1978); (iv) bribery of a public official, or the
misappropriation, theft, or embezzlement of public funds by or for the benefit of a public official; (v) smuggling or
export control violations involving—(I) an item controlled on the United States Munitions List established under
section 38 of the Arms Export Control Act (22 U.S.C. 2778); or (II) an item controlled under regulations under the
Export Administration Regulations (15 C.F.R. Parts 730-774); (vi) an offense with respect to which the United States
would be obligated by a multilateral treaty, either to extradite the alleged offender or to submit the case for prosecution,
if the offender were found within the territory of the United States; or (vii) trafficking in persons, selling or buying
children, sexual exploitation of children, or transporting, recruiting or harboring a person, including a child, for
commercial sex acts.”).
30 E.g., Id. §§ 38 (d)(1) (“The court, in imposing sentence on any person convicted of an offense under this section,
shall order . . . that the person forfeit to the United States – (A) any property constituting, or derived from, any proceeds
that the person obtained, directly or indirectly, as a result of the offense . . . .”); 544 (relanding of goods (customs
violations)); 793 (relating to certain forms of espionage).
31 See also id. §§ 229B (relating to chemical weapons); 934 (relating to firearms); 1594(d) (relating to peonage and
slavery); 1834 (relating to the protection of trade secrets).

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among other provisions, that “[t]he following property is subject to forfeiture to the United States:
. . . (C) Any property, real or personal, which constitutes or is derived from proceeds traceable to
a violation of . . . any offense constituting ‘specified unlawful activity’ (as defined in section
1956(c)(7) of this title).”32 “Specified unlawful activity,” means, among other things, “with
respect to a financial transaction occurring in whole or in part in the United States, an offense
against a foreign nation involving” various kinds of offenses of violence or official corruption, for
example.33 The term also includes “any act or activity constituting an offense listed in section
1961(1) of this title” [relating to Racketeer Influenced and Corrupt Organizations (RICO) which
proscribes the use of predicate offenses to acquire or conduct the activities of a commercial
enterprise] . . . .”34
In addition to the more than seventy-five federal crimes identified by citation, the RICO predicate
offense list of Section 1961(1) mentions a category of state felonies.35 Section 1961(1) specifies
“any offense involving fraud connected with a case under title 11 [relating to bankruptcy].”36
Finally, it cross references as a RICO predicate offense “any act that is indictable under any [of
the more than fifty] provision[s] listed in section 2332b(g)(5)(B) [defining federal crimes of
terrorism].”37
Additionally, by virtue of 28 U.S.C. § 2461(c), property forfeitable under civil forfeiture
provisions, such as those of 18 U.S.C. § 981, may be confiscated as part of a criminal
prosecution.38

Civil Forfeiture
Forfeiture follows one of two procedural routes: criminal or civil. Although crime triggers all
forfeitures, they are classified as civil forfeitures or criminal forfeitures according to the nature of
the procedure which ends in confiscation. Criminal forfeitures are part of the criminal
proceedings against the property owner, and confiscation is possible only upon the conviction of
the owner of the property39 and only to the extent of the defendant’s interest in the property.40
Civil forfeitures are accomplished using civil procedure. Civil forfeiture is ordinarily the product
of a civil, in rem proceeding in which the property is treated as the offender.41 Within the confines
32 Id. § 981(a)(1)(C).
33 Id. § 1956(c)(7)(B)

.

34 Id. § 1956(c)(7)(A). Exception is made for acts indictable under Subchapter II of Chapter 53 of Title 31 of the U.S.

Code. Id.
35 Id. § 1961(1)(A) (“ ‘racketeering activity’ means (A) any act or threat involving murder, kidnapping, gambling,
arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as
defined in section 102 of the Controlled Substances Act), which is chargeable under State law. . . .”).
36 Id. § 1961(1)(D).
37 The text of Section 2332b(g)(5)(B) is attached at the end of this report.
38 28 U.S.C. § 2461(c).
39 FED. R. CRIM. P. 32.2; United States v. $8,850 in U.S. Currency (Vasquez), 461 U.S. 555, 567 (1983) (“[A] criminal
proceeding . . . may often include forfeiture as part of the sentence.”); United States v. Smith, 770 F.3d 628, 637 (7th
Cir. 2014) (“Criminal forfeiture is considered to be punishment and therefore is part of the sentencing process.”);
United States v. Lazarenko, 476 F.3d 642, 647 (9th Cir. 2007); United States v. Totaro, 345 F.3d 989, 993 (8th Cir.
2003).
40 E.g., 21 U.S.C. § 853(a); 18 U.S.C. §§ 982, 1963(a); United States v. Nava, 404 F.3d 1119, 1124 (9th Cir. 2005).
41 United States v. Ursery, 518 U.S. 267, 275 (1996) (quoting Waterloo Distilling Corp. v. United States, 282 U.S. 577,
584 (1931)) (“This [civil] ‘forfeiture proceeding . . . is in rem. It is the property which is proceeded against, and by
resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient’”);

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of due process and the language of the applicable statutes, the guilt or innocence of the property
owner is irrelevant; it is enough that the property was involved in a crime to which forfeiture
attaches in the manner in which statute demands.42 Some civil forfeitures are accomplished
administratively; some are not. Administrative forfeitures are, in oversimplified terms,
uncontested civil forfeitures.
Historically, most forfeiture statutes called for civil forfeiture. The procedure for forfeiture varies
according to the statute which authorizes confiscation. Although each usually contains a few
procedural features, the drug, money laundering, and several other civil forfeiture statutes fill in
their procedural gaps by cross-reference to the regime established under the customs laws.43
CAFRA contains generally applicable procedures and thus reduces the extent to which civil
forfeiture procedural matters are resolved by reference solely to the customs laws.44
As a general rule, since the proceedings are brought against the forfeitable property itself in rem,
actual or constructive possession of the property by the court is a necessary first step in any
confiscation proceeding.45 The arrest of the property may be accomplished either by warrant
see also United States v. All Assets Held at Credit Suisse (Guernsey) Ltd. (Lazarenko), 45 F.4th 426, 429 (D.C. Cir.
2022); United States v. Federative Rep. of Brazil, 748 F.3d 86, 95 (2d Cir. 2014); United States v. Liquidators of
European Fed. Credit Bank, 630 F.3d 1139, 1149–50 (9th Cir, 2011).
42 Bennis v. Michigan, 516 U.S. 442, 453 (1996); United States v. Approximately $299, 873.70 Seized from a Bank of
Am. Acct., 15 F.4th 1332, 1341 (11th Cir. 2021) (M.Y.); United States v. Contorinis, 692 F.3d 136, 146 (2d Cir. 2012);
Liquidators of European Fed. Credit Bank, 630 F.3d at 1150 (“The government may pursue civil forfeiture even after a
failed criminal prosecution.”); United States v. One “Piper” Aztec “F” De Luxe Model 250 PA 23 Aircraft Bearing
Serial No. 27-7654057, 321 F.3d 355, 360 (3d Cir. 2003).
43 18 U.S.C. § 981(d); 21 U.S.C. § 881(d).
44 18 U.S.C. § 983. The CAFRA procedural framework, however, does not apply to forfeitures that originate under the
customs laws, the tax laws, and several others. Id. § 983(i) (“In this section, the term ‘civil forfeiture statute’—(1)
means any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon
conviction of a criminal offense; and (2) does not include—(A) the Tariff Act of 1930 or any other provision of law
codified in title 19 [(the customs laws)]; (B) the Internal Revenue Code of 1986 [(federal tax laws)]; (C) the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) [(relating to misbranded, adulterated and other unhealthy or
unsafe food, drugs, or cosmetics)]; (D) the Trading with the Enemy Act (50 U.S.C. 4301 et seq.) or the International
Emergency Economic Powers Act (IEEPA) (50 U.S.C. 1701 et seq.); or (E) section 1 of title VI of the Act of June 15,
1917 (40 Stat. 233; 22 U.S.C. 401) [relating to the export of war materials in violation of the Neutrality Act]”); see also
id. §§ 985 (civil forfeiture of real property), 986 (subpoena of bank records) which contain additional provisions
applicable to “all civil forfeitures” and to “any civil forfeiture,” respectively.
45 Ursery, 518 U.S. at 289 (“In contrast to the in personam nature of criminal actions, [forfeiture] actions in rem have
traditionally been viewed as civil proceedings, with jurisdiction dependent upon seizure of a physical object”) (quoting
United States v. One Assortment of 89 Firearms, 465 U.S. 354, 363 (1984); Calero-Toledo, 416 U.S. at 684); see also
Dobbins’s Distillery v. United States, 96 U.S. (6 Otto) 395, 396 (1877); United States v. $506,231 in U.S Currency
(Lombardo), 125 F.3d 442, 447–49 (7th Cir. 1997); United States v. All Funds Distributed to Weiss, 345 F.3d 49, 55
(2d Cir. 2003); United States v. All Funds in Account Nos. 747.034/278, 747.009/278, & 747.714/278 Banco Espanol
de Credito, Spain, 295 F.3d 23, 27 n* (D.C. Cir. 2002); United States v. Real Prop. located at 475 Martin Lane, 545
F.3d 1134, 1144 (9th Cir. 2008); but see Contents of Account Number 03001288 (Jalal) v. United States, 344 F.3d 399,
404–05 (3d Cir. 2003) (impact of Section 1355 discussed below); United States v. Vazquez-Alvarez, 760 F.3d 193, 197
(2d Cir. 2014) (“[E]xecution of the arrest warrant [to begin civil forfeiture proceedings] is specifically excused by the
Forfeiture Rules when the property is already in the government’s possession, custody or control”).
In fact, until the Supreme Court’s decision in Republic National Bank v. United States, 506 U.S. 80, 92–93 (1992),
seemed to confirm that initial rather than continued control was ordinarily sufficient to support jurisdiction, some
believed that a court’s continued jurisdiction depended upon its continued control over the res, and that its power to
proceed disappeared if the property were released other than by accident, fraud or some other improper or inequitable
means. United States v. $1,322,242.58 (Road Atlanta, Inc.), 938 F.2d 433, 437 (3d Cir. 1991); United States v. Four
Parcels of Real Prop., 941 F.2d 1428, 1435–36 (11th Cir. 1991); Paul S. Grossman, Appellate Jurisdiction for Civil
Forfeiture: The Case for the Continuation of Jurisdiction Beyond the Release of the Res, 59 FORDHAM L. REV. 679
(1991).

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under the Federal Rules of Criminal Procedure; or, if judicial proceedings have been filed, by a
warrant under the Supplemental Rules of Certain Admiralty and Maritime Claims; or without
warrant, if there is probable cause and other grounds under which the Fourth Amendment permits
a warrantless arrest; or pursuant to equivalent authority under state law.46 Because realty cannot
ordinarily be seized until after the property owner has been given an opportunity for a hearing,47
the procedure differs slightly in the case of real property.48
The rules vary somewhat when forfeitable property is located abroad. Section 1355(b) of Title 28
of the U.S. Code vests jurisdiction over such forfeiture proceedings in any federal district court in
the district where the forfeiture-triggering offense occurred or in the United States District Court
for the District of Columbia.49 In addition, Congress provides a mechanism in 18 U.S.C. § 981(k)
which permits the confiscation of funds in interbank accounts of a foreign bank held in this
country when the foreign bank holds forfeitable assets on account overseas.50
For the government the civil forfeiture begins with seizure of the property51 and the filing of a
civil complaint against the property.52 The arresting agency must notify anyone with an interest in
the property of its intent to confiscate and provide an opportunity to request judicial forfeiture
proceedings.53 Notice of the seizure alone, but without notice of the government’s intent to seek
46 18 U.S.C. § 981(b)(2); United States v. $291,828 in U.S. Currency (Braddy), 536 F.3d 1234, 1237 (11th Cir. 2008).

The court may permit the pretrial sale of property seized under the Supplemental Rules with an eye to preservation of
the property’s value and the parties’ interests, United States v. Real Prop. & Residence located at 4816 Chaffey Lane
(Coffman), 699 F.3d 956, 959–62 (6th Cir. 2012), but it may refuse to do so for reasons of public safety, United States
v. Approximately 81,454 Cans of Baby Formula, 560 F.3d 638, 641–42 (7th Cir. 2009).
47 James Daniel Good Real Prop., 510 U.S. at 48.
48 18 U.S.C. § 985.
49 28 U.S.C. § 1355(b) (“(1) A forfeiture action or proceeding may be brought in—(A) the district court for the district
in which any of the acts or omissions giving rise to the forfeiture occurred, or (B) any other district where venue for the
forfeiture action or proceeding is specifically provided for in section 1395 of this title or any other statute.
(2) Whenever property subject to forfeiture under the laws of the United States is located in a foreign country, or has
been detained or seized pursuant to legal process or competent authority of a foreign government, an action or
proceeding for forfeiture may be brought as provided in paragraph (1), or in the United States District [C]ourt for the
District of Columbia.”). E.g., Lazarenko, 45 F.4th at 429–30. Sections 1355 and 1395 appear in their entirety as
attachments to this report.
50 United States v. $6,976,934.65, Plus Interest Deposited into Royal Bank of Scotland Int’l (Soulbury Ltd.), 554 F.3d
123, 125 (D.C. Cir. 2009); United States v. Union Bank for Sav. & Inv. (Jordan), 487 F.3d 8, 15–16 (1st Cir. 2007).
Interbank accounts or correspondent accounts may also be implicated under the provisions of 18 U.S.C. §
1956(b)(2)(A), which reach money laundering violations involving a financial transaction that occurs in whole or in
part in the United States; see In re Seizure and Search of Tango, No. 22-SZ-5, 2022 WL 1165569, at *9 (D.D.C. Apr.
4, 2022) (“Correspondent banks serve to support international wire transfers for foreign customers in a currency that
the foreign customer’s overseas financial institution normally does not hold on reserve, such as U.S. dollars, and to
conduct currency conversions to/from U.S. dollars. . . . Nearly all U.S. dollar wire transactions conducted by foreign
financial institutions are processed through correspondent bank accounts in the United States.”).
51 18 U.S.C. § 981(b)(2).
52 FED. R. CIV. P. SUPP. R. G(2).
53 18 U.S.C. § 983(a); 19 U.S.C. §§ 1607, 1608; FED. R. CIV. P. SUPP. R. G(4); United States v. Scarfo, 41 F.4th 136,
220 (3d Cir. 2022); Omidi v. United States, 851 F.3d 859, 861 (9th Cir. 2017); Dusenbery v. United States, 534 U.S.
161, 167 (2002); James Daniel Good Real Prop., 510 U.S. at 48.
An owner or anyone else with a property interest in the res, including a victim whose property constitutes the proceeds
of the offense of conviction, may petition for remission or mitigation. Remission is a petition for return of all of the
property seized or its entire value; mitigation for return of only a portion, see, e.g., 28 C.F.R. pt. 9; Malladi Drugs &
Pharmaceuticals, Ltd. v. Tandy, 552 F.3d 885, 887–88 (D.C. Cir. 2009). The authority to grant remission or mitigation
is ordinarily a matter of discretion vested in the executive official whose agency is responsible for enforcement of the
law under which the property was confiscated and is subject to only limited review. Courts will not review a decision to

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confiscation, is not in itself sufficient.54 Anyone with an interest in the property may contest
confiscation with a verified claim under the Supplemental Rules.55 Property owners have 30 days
after the government’s filing to submit a claim,56 and 20 days thereafter to tender their answer.57
The government may serve a claimant with interrogatories seeking to confirm the validity of the
claim58 and may petition the court to dismiss a claim for failure to respond to interrogatories or
for want of standing.59 Prior to discovery, “[c]ourts do not generally deny standing to a claimant
who is either the colorable owner of the res [property] or who has any colorable possessory
interest in it;”60 but thereafter, “mere physical possession of property does not suffice to show
standing.” 61
In the in rem civil proceeding, the claimant bears the burden of proving his standing, 62 while the
government bears the burden of establishing forfeitability by a preponderance of the evidence.63

grant or withhold remission or mitigation, although they will grant relief upon a showing of refusal to consider a
remission petition, In re $67,470.00 (Averhart), 901 F.2d 1540, 1543–45 (11th Cir. 1990);Yskamp v. DEA, 163 F.3d
767, 770 (3d Cir. 1998); Vereda, Ltda v. United States, 271 F.3d 1367, 1371 (Fed. Cir. 2001); see generally, Forfeiture
Manual, supra note 1, at chs. 12, 14.II. Congress, of course, may provide otherwise, e.g., 18 U.S.C. § 3668 (permitting
judicial remission or mitigation for forfeitures under federal liquor laws).
54 United States v. One Star Class Sloop Sailboat (Flash II), 458 F.3d 16, 22 (1st Cir. 2006).
55 18 U.S.C. § 983(a)(4); FED. R. CIV. P. SUPP. R. G(5)(a) (“(i) A person who asserts an interest in the defendant
property may contest the forfeiture by filing a claim in the court where the action is pending. The claim must: (A)
identify the specific property claimed; (B) identify the claimant and state the claimant’s interest in the property; (C) be
signed by the claimant under penalty of perjury; and (D) be served on the government attorney designated under Rule
G(4)(b) . . . (iii) A claim filed by a person asserting an interest as a bailee must identify the bailor, and if filed on the
bailor’s behalf must state the authority to do so”).
56 18 U.S.C. § 983(a)(4)(A); 20 days in customs cases, FED. R. CIV. P. SUPP. R. C(6).
57 18 U.S.C. § 983(a)(4)(B); FED. R. CIV. P. SUPP. R. C(6).
58 FED. R. CIV. P. SUPP. R. G(6).
59 FED. R. CIV. P. SUPP. R. G(8)(c)(i)(B); United States v. 2008 33’ Contender Model Tournament Vessel, 990 F.3d 725,
727 (1st Cir. 2021); United States v. Technodyne LLC, 753 F.3d 368, 380 (2d Cir. 2014) (“In general, in order to
contest a governmental forfeiture action, claimants must have both standing under the statute or statutes governing their
claims and standing under Article III of the Constitution as required for any action brought in federal court. Litigants
have Article III standing if they have suffered an injury in fact that is fairly . . . traceable to the challenged action and
likely to be redressed by a favorable decision. Litigants have statute standing to oppose forfeiture in a civil in rem
proceeding commenced by the government if they claim an interest in the seized property, . . . asserting that interest in
the property in the manner set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims”); United
States v. $154,853.00 in U.S. Currency (Marcus), 744 F.3d 559, 564 (8th Cir. 2014), rev’d on other grounds United
States v. $579,475.00 in U.S. Currency (LNG Express), 917 F.3d 1097 (8th Cir. 2019) (“Marcus also contends the
district court abused its discretion in striking his claims. . . . Yet, Marcus’s refusal to answer the special interrogatories
on the asserted basis of this Fourth and Fifth Amendment privileges did not preclude the district court from striking his
claims. A claimant’s decision to invoke the Fifth Amendment’s protection against self-incrimination . . . does not
decrease his burden of establishing standing.”).
60 United States v. Letter from Alexander Hamilton, 15 F.4th 515, 521 (1st Cir. 2021).
61 United States v. $39,000.00 in U.S. Currency (Wells), 951 F.3d 740, 742 (6th Cir. 2020); see also United States v.
$579,475.00 in U.S. Currency (LNG Express, Inc.), 917 F.3d 1047, 1049 (8th Cir. 2019) (“Rule G sets a low threshold
for the filing of a claim, but provides another mechanism to address unsubstantiated claims. Rule G(6) allows the
government to serve special interrogatories that may be used to test the claimant’s relationship to the property . . . and a
claimant’s failure to comply with the interrogatory rule is grounds to strike the claim.”).
62 Wells, 951 F.3d at 742.
63 18 U.S.C. § 983(c).

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In criminal forfeiture cases, Section 853(n) (innocent owner) “provides the exclusive avenue for
third-party asset recourse and ultimately the sole grounds for standing.”64
CAFRA contains a number of provisions designed to soften some of forfeiture’s harsher
features.65 For example, claimants may enjoy an “innocent owner” defense under CAFRA that
varies depending upon whether their ownership arose before or after the forfeiture-triggering
offense.66 When they owned the tainted property before the offense, owners must establish that
they did not know of the tainting conduct or did all that could be reasonably expected to prevent
the property’s misuse.67 Owners that acquired the tainted property after the offense must prove
that they were good faith purchasers who were unaware of the taint.68 In either case, claimants
bear the burden of proof by a preponderance of the evidence.69

64 United States v. Furando, 40 F.4th 567, 576 (2d Cir. 2022); cf. 101 Houseco, 22 F.4th at 851.
65 H.R. REP. NO. 106-192, at 2–19 (1999).
66 18 U.S.C. § 983(d)(6) (“[T]he term ‘owner’—(A) means a person with an ownership interest in the specific property

sought to be forfeited, including a leasehold, lien, mortgage, recorded security interest, or valid assignment of an
ownership interest; and (B) does not include—(i) a person with only a general unsecured interest in, or claim against,
the property or estate of another; (ii) a bailee unless the bailor is identified and the bailee shows a colorable legitimate
interest in the property seized; or (iii) a nominee who exercises no dominion or control over the property.”).
67 Id. § 983(d)(2) (“(A) With respect to a property interest in existence at the time the illegal conduct giving rise to
forfeiture took place, the term ‘innocent owner’ means an owner who—(i) did not know of the conduct giving rise to
forfeiture; or (ii) upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected
under the circumstances to terminate such use of the property. (B)(i) For the purposes of this paragraph, ways in which
a person may show that such person did all that reasonably could be expected may include demonstrating that such
person, to the extent permitted by law—(I) gave timely notice to an appropriate law enforcement agency of information
that led the person to know the conduct giving rise to a forfeiture would occur or has occurred; and (II) in a timely
fashion revoked or made a good faith attempt to revoke permission for those engaging in such conduct to use the
property or took reasonable actions in consultation with a law enforcement agency to discourage or prevent the illegal
use of the property. (ii) A person is not required by this subparagraph to take steps that the person reasonably believes
would be likely to subject any person (other than the person whose conduct gave rise to the forfeiture) to physical
danger.”); e.g., United States v. Approximately $299,873.70 Seized from Bank of Am. Acct. (M.Y.), 15 F.4th 1332,
1342–43 (11th Cir. 2021).
68 18 U.S.C. § 983(d)(3)
(A) With respect to a property interest acquired after the conduct giving rise to the forfeiture has taken place,
the term ‘innocent owner’ means a person who, at the time that person acquired the interest in the property—
(i) was a bona fide purchaser or seller for value (including a purchaser or seller of goods or services for value);
and (ii) did not know and was reasonably without cause to believe that the property was subject to forfeiture.
(B) An otherwise valid claim under subparagraph (A) shall not be denied on the ground that the claimant gave
nothing of value in exchange for the property if—(i) the property is the primary residence of the claimant;
(ii) depriving the claimant of the property would deprive the claimant of the means to maintain reasonable
shelter in the community for the claimant and all dependents residing with the claimant; (iii) the property is
not, and is not traceable to, the proceeds of any criminal offense; and (iv) the claimant acquired his or her
interest in the property through marriage, divorce, or legal separation, or the claimant was the spouse or legal
dependent of a person whose death resulted in the transfer of the property to the claimant through inheritance
or probate, except that the court shall limit the value of any real property interest for which innocent ownership
is recognized under this subparagraph to the value necessary to maintain reasonable shelter in the community
for such claimant and all dependents residing with the claimant.
Some courts have made clear that a claimant must nevertheless have a legal ownership interest, Letter from Alexander
Hamilton, 15 F. 4th at 526 (“[T]he lack of a legal ownership . . . defeats the Estate’s claim that it is an ‘innocent
owner.’”); United States v. M/Y Galactica Star, 13 F.4th 448, 458 (5th Cir. 2021) (“Accordingly, shareholders . . . do
not have an ‘ownership interest in the specific property sought to be forfeited and therefore . . . cannot assert the
innocent owner defense.).
69 18 U.S.C. § 983(D)(1).

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CAFRA also authorizes legal representation of indigent property owners under some
circumstances.70 In addition, it allows a court to reduce a forfeiture that would otherwise be
unconstitutionally excessive.71 Moreover, when the seizure of the property causes an undue
hardship, CAFRA affords an owner the opportunity to petition the court for release of the
property pending the completion of forfeiture proceedings.72 Conversely, the government may be

70 Id

. § 983(b):

(1)(A) If a person with standing to contest the forfeiture of property in a judicial civil forfeiture proceeding
under a civil forfeiture statute is financially unable to obtain representation by counsel, and the person is
represented by counsel appointed under section 3006A of this title in connection with a related criminal case,
the court may authorize counsel to represent that person with respect to the claim. (B) In determining whether
to authorize counsel to represent a person under subparagraph (A), the court shall take into account such factors
as—(i) the person’s standing to contest the forfeiture; and (ii) whether the claim appears to be made in good
faith. (2)(A) If a person with standing to contest the forfeiture of property in a judicial civil forfeiture proceeding
under a civil forfeiture statute is financially unable to obtain representation by counsel, and the property subject
to forfeiture is real property that is being used by the person as a primary residence, the court, at the request of
the person, shall insure that the person is represented by an attorney for the Legal Services Corporation with
respect to the claim. (B)(i) At appropriate times during a representation under subparagraph (A), the Legal
Services Corporation shall submit a statement of reasonable attorney fees and costs to the court. (ii) The court
shall enter a judgment in favor of the Legal Services Corporation for reasonable attorney fees and costs
submitted pursuant to clause (i) and treat such judgment as payable under section 2465 of title 28, United States
Code, regardless of the outcome of the case. (3) The court shall set the compensation for representation under
this subsection, which shall be equivalent to that provided for court-appointed representation under section
3006A of this title.
71 Id. § 983(g) (“(1) The claimant under subsection (a)(4) may petition the court to determine whether the forfeiture was
constitutionally excessive. (2) In making this determination, the court shall compare the forfeiture to the gravity of the
offense giving rise to the forfeiture. (3) The claimant shall have the burden of establishing that the forfeiture is grossly
disproportional by a preponderance of the evidence at a hearing conducted by the court without a jury. (4) If the court
finds that the forfeiture is grossly disproportional to the offense it shall reduce or eliminate the forfeiture as necessary
to avoid a violation of the Excessive Fines Clause of the Eighth Amendment of the Constitution.”).
72 Section 983(f) states:
(1) A claimant under subsection (a) is entitled to immediate release of seized property if—(A) the claimant has
a possessory interest in the property; (B) the claimant has sufficient ties to the community to provide assurance
that the property will be available at the time of the trial; (C) the continued possession by the Government
pending the final disposition of forfeiture proceedings will cause substantial hardship to the claimant, such as
preventing the functioning of a business, preventing an individual from working, or leaving an individual
homeless; (D) the claimant’s likely hardship from the continued possession by the Government of the seized
property outweighs the risk that the property will be destroyed, damaged, lost, concealed, or transferred if it is
returned to the claimant during the pendency of the proceeding; and (E) none of the conditions set forth in
paragraph (8) applies . . . (8) This subsection shall not apply if the seized property—(A) is contraband, currency,
or other monetary instrument, or electronic funds unless such currency or other monetary instrument or
electronic funds constitutes the assets of a legitimate business which has been seized; (B) is to be used as
evidence of a violation of the law; (C) by reason of design or other characteristic, is particularly suited for use
in illegal activities; or (D) is likely to be used to commit additional criminal acts if returned to the claimant.
Id. § 983(f); see also United States v. Contents of Accts. (Chavez), 629 F.3d 601, 606–09 (6th Cir. 2011) (when
Section 983(f) precludes release, recourse may not be had to injunctive relief for release of the property under Rule 65
of the Federal Rules of Civil Procedure); United States v. Undetermined Amount of U.S. Currency (Warren), 376 F.3d
260, 263–69 (4th Cir. 2004) (petition for release seized funds in order to pay attorneys’ fees without incurring undue
hardship denied on the grounds the funds would likely be dissipated before the completion of forfeiture proceedings);
In re Return of Seized Property, $4,000 in U.S. Currency (Trimmer), 130 F. Supp. 3d 1354, 1356 n.3 (S.D. Cal. 2015)
(relief limited to legitimate business currency).
In a similar vein, the customs laws authorize the release of seized property upon the posting of an amount equal to its
value, perhaps conscious of the fact that the seizure of vessel may cause economic hardship greater than its market
value, 19 U.S.C. § 1614.

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entitled to a restraining or protective order to preserve the property pending the completion of
forfeiture proceedings.73

Administrative (Nonjudicial) Forfeitures
In the interests of expediency and judicial economy, Congress has sometimes authorized the use
of administrative forfeiture as the first step after seizure in “uncontested” civil forfeiture cases.74
It may be somewhat misleading to characterize administrative forfeitures as uncontested
forfeitures, given the limitations that the government and claimants must overcome before the
government is put to its burden in a judicial proceeding. The most obvious limitation on the
government is restriction on the nature of property subject to administrative forfeiture:


cash, currency, travelers’ checks or the like;



conveyances used to transport or store controlled substances or precursor chemicals;



items that cannot be imported (contraband); or



other property worth less than $500,000.00.75

Following the seizure of the property, the government must notify those known to have an interest
in the property and the public at large of the government’s intent to confiscate and of the
procedures to file a claim under the Supplemental Rules for Admiralty or Maritime Claims and
Asset Forfeiture Actions of the Federal Rules of Civil Procedure.76 The Rules permit the
government to address interrogatories to claimants to verify their claims and to strike a claim for

73 18 U.S.C. § 983(j); Lazarenko, 45 F.4th at 433; United States v. Melrose E. Subdiv., 357 F.3d 493, 498–500 (5th Cir.

2004) (recognizing the government’s right to seek a restraining order, but acknowledging that in such cases due process
may require a post-restraint, pretrial hearing on the forfeitability of the encumbered property).
74 See Scarfo, 41 F.4th at 220 (CAFRA “allows the government to obtain title to seized property without any
involvement by the courts, as long as it gives affected parties timely notice and no one comes forward to claim an
interest in the property.”). Under CAFRA and the customs laws, administrative forfeiture may be used if the property to
be forfeited is cash; or if the property is worth less than $500,000; or is a boat, plane or car used to carry or store drugs,
19 U.S.C. § 1607; 21 U.S.C. § 881(d); 18 U.S.C. § 981(d). Under the tax laws, the procedure is available with respect
to personal property valued at $100,000 or less, 26 U.S.C. § 7325. Commentators have estimated that administrative
forfeitures account for over 80 percent of federal civil forfeitures. David W. Banta, Where, Oh Where Has My Property
Gone?: The Case for Revising Iowa’s Recently Reformed Asset Forfeiture Law, 107 IOWA L. REV. 787, 793 (2022)
(“The vast majority of all federal forfeitures are administrative forfeitures.”) (quoting STEFAN D. CASSELLA, ASSET
FORFEITURE LAW IN THE UNITED STATES (2d ed. 2013)); Sue (Yifan) Su, Legalized Bounty Hunting: Extraterritoriality
of Preclearance Currency Forfeiture, 6 COLUM. HUM. RTS. L. REV. ONLINE 212, 231 (2022) (Ninety-three percent of
currency civil forfeiture involves administrative forfeiture); Catherine E. McCaw, Assets Forfeiture as a Form of
Punishment: A Case for Integrating Asset Forfeiture into Criminal Sentencing, 38 AM. J. CRIM. L. 181, 190 (2011).
75 19 U.S.C. § 1607(a) (“(1) the value of such seized vessel, vehicle, aircraft, merchandise, or baggage does not exceed
$500,000; (2) such seized merchandise is merchandise the importation of which is prohibited; (3) such seized vessel,
vehicle, or aircraft was used to import, export, transport, or store any controlled substance or listed chemical; or (4)
such seized merchandise is any monetary instrument within the meaning of section 5312(a)(3) of title 31. . . .”);
31 U.S.C. § 5312(a)(3) (“ ‘monetary instruments’ means—(A) United States coins and currency; (B) as the Secretary
may prescribe by regulation, coins and currency of a foreign country, travelers’ checks, bearer negotiable instruments,
bearer investment securities, bearer securities, stock on which title is passed on delivery, and similar material; (C) as
the Secretary of the Treasury shall provide by regulation for purposes of sections 5316 and 5331, checks, drafts, notes,
money orders, and other similar instruments which are drawn on or by a foreign financial institution and are not in
bearer form; and (D) as the Secretary shall provide by regulation, value that substitutes for any monetary instrument
described in subparagraph (A), (B), or (C).”); see also Forfeiture Manual, supra note 1, at ch. 5.II.
76 18 U.S.C. § 983(a)(1); FED. R. CIV. P. SUPP. R. G(4); see also 12 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, &
RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE §§ 3261–3269 (2014 & 2022 Supp.).

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failure to comply.77 If there are viable claims, the government proceeds with its civil judicial
complaint against the property.78 If there are no viable claims, the property is summarily declared
forfeited.79
If the government has failed to provide adequate notice or failed to honor some other due process
obligation, the declaration of administrative forfeiture may be set aside.80 When an administrative
forfeiture is set aside for want of notice, Section 983(e) gives the government 60 days to initiate
judicial forfeiture proceedings notwithstanding the expiration of an otherwise applicable statute
of limitations.81
CAFRA establishes a timetable for administrative forfeitures under which the government must
notify those with a property interest of its intent to confiscate within 60 days of seizure.82
77 FED. CIV. P. SUPP. R. G(6), (8)(c); 2008 33’ Contender Model Tournament Vessel, 990 F.3d at 727.
78

E.g., United States v. McClellan, 44 F.4th 200, 204 (4th Cir. 2022).

79 19 U.S.C. § 1609; 26 U.S.C. § 7325.
80 18 U.S.C. § 983(e) states that:

(1) Any person entitled to written notice in any nonjudicial civil forfeiture proceeding under a civil forfeiture
statute who does not receive such notice may file a motion to set aside a declaration of forfeiture with respect
to that person’s interest in the property, which motion shall be granted if—(A) the Government knew, or
reasonably should have known, of the moving party’s interest and failed to take reasonable steps to provide
such party with notice; and (B) the moving party did not know or have reason to know of the seizure within
sufficient time to file a timely claim. (2)(A) Notwithstanding the expiration of any applicable statute of
limitations, if the court grants a motion under paragraph (1), the court shall set aside the declaration of forfeiture
as to the interest of the moving party without prejudice to the right of the Government to commence a
subsequent forfeiture proceeding as to the interest of the moving party. (B) Any proceeding described in
subparagraph (A) shall be commenced—(i) if nonjudicial, within 60 days of the entry of the order granting the
motion; or (ii) if judicial, within 6 months of the entry of the order granting the motion. (3) A motion under
paragraph (1) may be filed not later than 5 years after the date of final publication of notice of seizure of the
property. (4) If, at the time a motion made under paragraph (1) is granted, the forfeited property has been
disposed of by the Government in accordance with law, the Government may institute proceedings against a
substitute sum of money equal to the value of the moving party’s interest in the property at the time the property
was disposed of. (5) A motion filed under this subsection shall be the exclusive remedy for seeking to set aside
a declaration of forfeiture under a civil forfeiture statute,”) Otherwise, “[o]nce an administrative forfeiture is
complete, a district court may review only whether the forfeiture comported with constitutional due process
guarantees.
Id.; see Taylor v. United States, 483 F.3d 385, 388 (5th Cir. 2007); Mesa Valderrama v. United States, 417 F.3d 1189,
1194 (11th Cir. 2005).
81 This resolved an earlier conflict among the circuits over whether the statute of limitations barred further forfeiture
proceedings in cases where an administrative forfeiture was set aside after the period of limitations had run. United
States v. Dusenbery, 201 F.3d 763, 768 (6th Cir. 2000); cf., Boero v. DEA, 111 F.3d 301, 306 (2d Cir. 1997); contra,
United States v. Marolf, 173 F.3d 1213, 1216–17 (9th Cir. 1999); Clymore v. United States, 164 F.3d 569, 572–74
(10th Cir. 1999); Kadonsky v. United States, 216 F.3d 499, 505–06 (5th Cir. 2000); cf., United States v. One Toshiba
Color Television (McGlory), 213 F.3d 147, 158–59 (3d Cir. 2000). A related conflict has arisen, however. See United
States v. $11,500.00 in U.S. Currency (Guerrero), 710 F.3d 1006, 1016 (9th Cir. 2013) (“Some courts have held that ...
when the government has failed to provide timely notice, it must return the seized property to the claimant even though
it had already commenced forfeiture proceedings. But others have held that the government need not return the seized
property. . . . In our view, the better and more practical interpretation of the statutory framework is that a failure to
provide timely notice does not require the government to return the property if it has subsequently commenced a
forfeiture proceeding. The government can still file a forfeiture action, and once it has done so, it is empowered to seize
the property. By the time issue was raised before the district court, the forfeiture proceeding was under way. Requiring
the returns of the property and then permitting he government to immediately e-seize it would impose a meaningless
exercise.”) (citations omitted).
82 18 U.S.C. § 983(a)(1). While the timetables of 18 U.S.C. § 983 apply to the noncustoms forfeiture statutes that once
relied extensively upon customs procedure, e.g., id. § 981 (money laundering); 21 U.S.C. § 881 (controlled substances),
they do not apply to forfeitures arising under the customs laws or under other statutes carved out of the definition of a

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Thereafter, the property owner has at least 35 days within which to file a claim and request a
judicial hearing.83 The government has 90 days within which to initiate judicial proceedings after
the receipt of a claim.84 The Supplemental Rules supply the deadlines for the forfeitures “carved
out” of the application of Section 983.85
In cases other than those under CAFRA, due process dictates the speed with which the
government must act to initiate forfeiture proceedings following seizure of the property.86
When administrative forfeiture is unavailable, when a claimant has successfully sought judicial
proceedings, or when the government has elected not to proceed administratively, the government
may begin civil judicial proceedings by filing either a complaint or a libel against the property.87
In civil forfeitures governed by CAFRA, the government must establish that the property is
subject to confiscation by a preponderance of the evidence.88 A claimant may successfully
challenge confiscation on several grounds. He or she may be able to show that no forfeituretriggering criminal offense occurred or that his or her property lacks the statutorily required nexus
to the crime.89 For example, when the government claims that property is forfeitable because it
was used to commit or to facilitate the commission of a crime, it must “establish that there was a
substantial connection between the property and the offense.”90 A claimant’s innocence or even
acquittal only bars civil forfeiture to the extent that a statute permits or due process requires.91
“civil forfeiture statute” for purposes of the procedures under Section 983. 18 U.S.C. §§ 983(i), 981(d).
83 Id. § 983(a)(2) (the deadline is set in the notice but must give the claimant at least 35 days from the mailing of
personal notice; 30 days from the final publication notice, if personal notice is not received).
84 Id. § 983(a)(3). The deadline is not jurisdictional. If the party does not claim it, it is waived, United States v. Wilson,
S, 797 (4th Cir. 2012). Moreover, the claimant must meet statutory standing requirements before he may direct the
court’s attention to the government’s tardiness, Vazquez-Alvarez, 760 F.3d at 197–98.
85 E.g., FED. CIV. P. SUPP. R. G(5)(a)(ii) (“(ii) Unless the court for good cause sets a different time, the claim must be
filed: (A) by the time stated in a direct notice sent under Rule G(4)(B); (B) if notice was published but direct notice was
not sent to the claimant or the claimant’s attorney, no later thant30 days after final publication of newspaper notice or
legal notice under Rule G(4)(a) or no later than 60 days after the first day of publication on an official internet
government forfeiture site. . . .”).
86 United States v. Robinson, 434 F.3d 357, 364 (5th Cir. 2005); see discussion infra note 248 and accompanying text;
Teresia B. Jovanovic, Delay Between Seizure of Personal Property by Federal Government and Institution of
Proceedings for Forfeiture Thereof as Violative of Fifth Amendment Due Process Requirements, 69 A.L.R. Fed. 373
(1984).
87 18 U.S.C. § 983(a)(3); 19 U.S.C. § 1608.
88 18 U.S.C. § 983(c); McClellan, 44 F.4th at 205; Letter from Alexander Hamilton, 15 F.4th at 526; United States v.
Real Prop. 10338 Marcy Rd. Nw., 938 F.3d 802, 808 (6th Cir. 2019); United States v. $132,245.00 in U.S. Currency
(Cyr), 764 F.3d 1055, 1057 (9th Cir. 2014); United States v. $48,100.00 in U.S. Currency (Nelson), 756 F.3d 650, 653
(8th Cir. 2014); United States v. Sum of $185,336.07 U.S. Currency (Pellegrino), 731 F.3d 189, 196 (2d Cir. 2013).
The government may not rely on hearsay evidence to meet its burden under Section 983(c), United States v. $92,203.00
in U.S. Currency (Garcia-Baeza), 537 F.3d 504, 510 (5th Cir. 2008).
89 McClellan, 44 F.4th at 212 (“[T]he Government must prove its case before depriving citizens of their private
property based on an allegation of wrongdoing. Here, the Government convinced the district court that the facts paint a
picture that definitively establishes that the cash was drug money. But as we see it, the record is not quite so clear . . .
[a]s a reasonable jury could interpret it more than one way.”) (reversing a grant of summary judgment on the
government’s forfeiture complaint).
90 18 U.S.C. § 983(c)(3); McClellan, 44 F.4th at 205; United States v. Approximately $299,873.70 Seized from a Bank
of Am. Acct. (P.Q.), 15 F.4th 1332, 1341 (11th Cir. 2021); Pellegrino, 731 F.3d at 196–97; United States v. Funds in
the Amount of $100,120.00 (Marrocco), 730 F.3d 711, 716 (7th Cir. 2013).
91 Austin, 509 U.S. at 617. The Supreme Court has observed that due process only precludes forfeiture either (1) where
the property has “been taken from [its owner] without his privity or consent” and used in a manner which would
ordinarily give rise to confiscation, or (2) where the owner was “not only . . . uninvolved in and unaware of the

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For most civil forfeitures, other than those arising under the tax or customs laws,92 CAFRA
establishes two “innocent owner” defenses—one for claimants with an interest in the property at
the time the forfeiture-triggering offense occurred and the other for claimants with an interest
acquired after the forfeiture-triggering offense occurred.93 The first is available to claimants either
who were unaware that their property was being criminally used or who did all that could be
reasonably expected of them to prevent criminal use of their property.94 The second is for good
faith purchasers who did not know of the taint on the property at the time they acquired their
interest.95 Even when the government establishes that property is subject to civil forfeiture,
CAFRA affords a claimant the right to a judicial reduction of the amount of the confiscation, if
the court determines the extent of the forfeiture is excessive in view of the gravity of the offense
and claimant’s culpability.96
When the court determines that the property is not subject to forfeiture, it must be released to its
owner, assuming the property can be lawfully possessed by its owner.97 Regardless of the
statutory procedure initially invoked, prevailing claimants may be entitled to compensation for

wrongful activity, but also that he had done all that reasonably could be expected to prevent the proscribed use of the
property,” Calero-Toledo, 416 U.S. at 689. Although some argue that the splintered nature of the majority in Bennis v.
Michigan, 516 U.S. 442 (1996), erodes the support for this view, it remains the law until modified or rejected by the
Court.
92 Outside of CAFRA, statutory “innocent owner” defenses in civil forfeiture, more generous than due process requires,
are relatively rare. See, e.g., United States v. Davis, 648 F.3d 84, 94 (2d Cir. 2011) (noting that the customs forfeiture
provisions are not covered by CAFRA or its innocent owner defense). As discussed below, some criminal forfeiture
statutes feature comparable innocent owner provisions, see, e.g, 18 U.S.C. § 1963(l)(6); 21 U.S.C. § 853(n)(6).
93 18 U.S.C. § 983(d); United States v. One 1990 Beechcraft, 1900 C Twin Engine Turbo-Prop Aircraft (Int’l Aviation,
LLC), 619 F.3d 1275, 1277 (11th Cir. 2010) (CAFRA’s innocent owner bar to confiscation is only available to those
who qualify as “owners.”).
94 18 U.S.C. § 983(d)(2)(A); United States v. Ferro, 681 F.3d 1105, 1109 (9th Cir. 2012); von Hofe v. United States,
492 F.3d 175, 180 (2d Cir. 2007); United States v. 16328 S. 43rd E. Ave. , 275 F.3d 1281, 1284 n.1 (10th Cir. 2002).
95 18 U.S.C. § 983(d)(3)(A). Under Section 983(d)(3)(B), the defense may also be available to claimants who acquire
an interest in their primary residence through inheritance or divorce rather than by purchase.
96 Id. § 983(g); Marrocco, 901 F.3d at 771; Cyr, 764 F.3d at 1057–58; Garcia-Baez, 537 F.3d at 510.
97 28 U.S.C. § 2465(a); Rep. Nat’l Bank, 506 U.S. at 95–96; Synagogue v. United States, 482 F.3d 1058, 1062 (9th Cir.
2007). A property owner may petition the court for return of his property under Rule 41(g) of the Federal Rules of
Criminal Procedure (previously Rule 41(e)). United States v. Wright, 49 F.4th 1221, 1225 (9th Cir. 2022); Serrano v.
U.S. Customs & Border Patrol, 975 F.3d 488, 499 (5th Cir. 2020); Jackson v. United States, 526 F.3d 394, 396–97 (8th
Cir. 2008). An owner, however, is not entitled to the return of property that cannot be lawfully possessed, United States
v. Vanhorn, 296 F.3d 713, 719 (8th Cir. 2002).

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damages to the property incurred while in federal custody,98 attorneys’ fees,99 post-judgment
interest, and in some instances pre-judgment interest.100

98 28 U.S.C. § 2680(c) (“The provisions of this chapter and section 1346(b) of this title [relating to federal tort claims]

shall not apply to . . . (c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the
detention of any goods, merchandise, or other property by any officer of customs or excise or any other law
enforcement officer, except that the provisions of this chapter and section 1346(b) of this title apply to any claim based
on injury or loss of goods, merchandise, or other property, while in the possession of any officer of customs or excise
or any other law enforcement officer, if—(1) the property was seized for the purpose of forfeiture under any provision
of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of a criminal
offense; (2) the interest of the claimant was not forfeited; (3) the interest of the claimant was not remitted or mitigated
(if the property was subject to forfeiture); and (4) the claimant was not convicted of a crime for which the interest of the
claimant in the property was subject to forfeiture under a Federal criminal forfeiture law”).
99
United States v. $28,000.00 in U.S. Currency (Moser), 802 F.3d 1100, 1103 (9th Cir. 2015); United States v.
$186,416.00 in U.S. Currency (Gabbert), 722 F.3d 1173, 1175 (9th Cir. 2013). The Eleventh Circuit has held that
attorneys’ fees are available in civil forfeiture cases subject to the customs laws but not for fees related to criminal
proceedings. United States v. Certain Real Prop., located at 317 Nick Fitchard Rd., Nw., 579 F.3d 1315, 1318–19 (11th
Cir. 2009).
The award of attorneys’ fees requires that the claimant “substantially prevail,” United States v. Kim, 806 F.3d 1161,
1171 (9th Cir. 2015) (quoting 28 U.S.C. § 2465(b)(1)(A)). “Substantially prevails” which means a result that represents
“a material alteration of the legal relationship of the parties.” United States v. $32,820.56 in U.S. Currency (Hinders),
838 F.3d 930, 934 (8th Cir. 2016) (quoting Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep’t of Health & Human
Res., 532 U.S. 598, 603–04 (2001)); United States v. $70,670.00 in U.S. Currency (Colorado), 929 F.3d 1293, 1303
(11th Cir. 2019); but see Synagogue, 482 F.3d at 1064 (a property owner is not entitled interest, attorney fees or costs
when the government seizes his property but later returns it without initiating forfeiture proceedings).
100 28 U.S.C. § 2465 states:
(a) Upon the entry of a judgment for the claimant in any proceeding to condemn or forfeit property seized or
arrested under any provision of Federal law—(1) such property shall be returned forthwith to the claimant or
his agent; and (2) if it appears that there was reasonable cause for the seizure or arrest, the court shall cause a
proper certificate thereof to be entered and, in such case, neither the person who made the seizure or arrest nor
the prosecutor shall be liable to suit or judgment on account of such suit or prosecution, nor shall the claimant
be entitled to costs, except as provided in subsection (b).
(b)(1) Except as provided in paragraph (2), in any civil proceeding to forfeit property under any provision of
Federal law in which the claimant substantially prevails, the United States shall be liable for—(A) reasonable
attorney fees and other litigation costs reasonably incurred by the claimant; (B) post-judgment interest, as set
forth in section 1961 of this title; and (C) in cases involving currency, other negotiable instruments, or the
proceeds of an interlocutory sale—(i) interest actually paid to the United States from the date of seizure or
arrest of the property that resulted from the investment of the property in an interest-bearing account or
instrument; and (ii) an imputed amount of interest that such currency, instruments, or proceeds would have
earned at the rate applicable to the 30-day Treasury Bill, for any period during which no interest was paid (not
including any period when the property reasonably was in use as evidence in an official proceeding or in
conducting scientific tests for the purpose of collecting evidence), commencing 15 days after the property was
seized by a Federal law enforcement agency, or was turned over to a Federal law enforcement agency by a
State or local law enforcement agency. (2)(A) The United States shall not be required to disgorge the value of
any intangible benefits nor make any other payments to the claimant not specifically authorized by this
subsection. (B) The provisions of paragraph (1) shall not apply if the claimant is convicted of a crime for which
the interest of the claimant in the property was subject to forfeiture under a Federal criminal forfeiture law. (C)
If there are multiple claims to the same property, the United States shall not be liable for costs and attorneys’
fees associated with any such claim if the United States—(i) promptly recognizes such claim; (ii) promptly
returns the interest of the claimant in the property to the claimant, if the property can be divided without
difficulty and there are no competing claims to that portion of the property; (iii) does not cause the claimant to
incur additional, reasonable costs or fees; and (iv) prevails in obtaining forfeiture with respect to one or more
of the other claims. (D) If the court enters judgment in part for the claimant and in part for the Government,
the court shall reduce the award of costs and attorney fees accordingly.
Id.

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Criminal Forfeiture
Once less frequently invoked than civil forfeiture, criminal forfeiture appears to have become the
procedure of choice when judicial proceedings are required.101 CAFRA added to the federal
crimes punishable by criminal forfeiture, various offenses involving unlawful money
transmission,102 counterfeiting,103 identify fraud,104 credit card fraud,105 computer fraud,106 theft
related to motor vehicles,107 health care fraud,108 telemarketing fraud,109 bank fraud,110 and
101 The number of criminal forfeiture judgments has surpassed the number of civil forfeiture judgments every year

since Fiscal Year 1995, U.S. Dep’t of Just., Offices of U.S. Att’ys, Annual Statistical Report (Feb. 24, 2022),
https://www.justice.gov/usao/resources/annual-statistical-reports (FY2005, and FY2008 through FY2021. AF Chart in
the older reports; Table 16 in the more recent reports).The statistics, however, do not include civil administrative
forfeitures. It is not clear where the balance would stand if administrative forfeitures were added to the civil forfeiture
side of the equation.
102
18 U.S.C. § 982(a)(1) (“The court, in imposing sentence on a person convicted of an offense in violation of section
. . . 1960 of this title, shall order that the person forfeit to the United States any property, real or personal, involved in
such offense, or any property traceable to such property.”).
103 Id. § 982(a)(2) (“The court, in imposing sentence on a person convicted of a violation of, or a conspiracy to violate
. . . (B) section 471, 472, 473, 474, 476, 477, 478, 479, 480, 481, 485, 486, 487, 488, 501, 502, 510, 542, 545, 555, 842,
844 . . . of this title, shall order that the person forfeit to the United States any property constituting, or derived from,
proceeds the person obtained directly or indirectly, as the result of such violation.”).
104 Id. (“The court, in imposing sentence on a person convicted of a violation of, or a conspiracy to violate . . . (B)
section . . . 1028 . . . of this title, shall order that the person forfeit to the United States any property constituting, or
derived from, proceeds the person obtained directly or indirectly, as the result of such violation.”).
105 Id. (“The court, in imposing sentence on a person convicted of a violation of, or a conspiracy to violate . . . (B)
section . . . 1029 . . . of this title, shall order that the person forfeit to the United States any property constituting, or
derived from, proceeds the person obtained directly or indirectly, as the result of such violation.”).
106 Id. (“The court, in imposing sentence on a person convicted of a violation of, or a conspiracy to violate . . . (B)
section . . . 1030 of this title, shall order that the person forfeit to the United States any property constituting, or derived
from, proceeds the person obtained directly or indirectly, as the result of such violation.”).
107 Id.§ 982(a)(5) (“The court, in imposing sentence on a person convicted of a violation or conspiracy to violate—(A)
section 511 (altering or removing motor vehicle identification numbers); (B) section 553 (importing or exporting stolen
motor vehicles); (C) section 2119 (armed robbery of automobiles); (D) section 2312 (transporting stolen motor vehicles
in interstate commerce); or (E) section 2313 (possessing or selling a stolen motor vehicle that has moved in interstate
commerce); shall order that the person forfeit to the United States any property, real or personal, which represents or is
traceable to the gross proceeds obtained, directly or indirectly, as a result of such violation.”).
108 Id. § 982(a)(7) (“The court, in imposing sentence on a person convicted of a Federal health care offense, shall order
the person to forfeit property, real or personal, that constitutes or is derived, directly or indirectly, from gross proceeds
traceable to the commission of the offense.”).
109 Id. § 982(a)(8) (“The court, in sentencing a defendant convicted of an offense under section 1028, 1029, 1341, 1342,
1343, or 1344, or of a conspiracy to commit such an offense, if the offense involves telemarketing (as that term is
defined in section 2325), shall order that the defendant forfeit to the United States any real or personal property—(A)
used or intended to be used to commit, to facilitate, or to promote the commission of such offense; and (B) constituting,
derived from, or traceable to the gross proceeds that the defendant obtained directly or indirectly as a result of the
offense.”).
110 Section 982(a)(2)–(4) reads:
(2) The court, in imposing sentence on a person convicted of a violation of, or a conspiracy to violate—(A)
section 215, 656, 657, 1005, 1006, 1007, 1014, 1341, 1343, or 1344 of this title, affecting a financial institution,
. . . shall order that the person forfeit to the United States any property constituting, or derived from, proceeds
the person obtained directly or indirectly, as the result of such violation.
(3) The court, in imposing a sentence on a person convicted of an offense under—(A) section 666(a)(1) (relating
to Federal program fraud); (B) section 1001 (relating to fraud and false statements); (C) section 1031 (relating
to major fraud against the United States); (D) section 1032 (relating to concealment of assets from conservator,
receiver, or liquidating agent of insured financial institution); (E) section 1341 (relating to mail fraud); or (F)
section 1343 (relating to wire fraud), involving the sale of assets acquired or held by the Resolution Trust

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immigration-related offenses.111 Perhaps more significantly, a bridge statute, 28 U.S.C. § 2461(c),
exists which permits confiscation using criminal forfeiture procedures whenever civil forfeiture is
authorized elsewhere.112

Corporation, the Federal Deposit Insurance Corporation, as conservator or receiver for a financial institution
or any other conservator for a financial institution appointed by the Office of the Comptroller of the Currency,
or the National Credit Union Administration, as conservator or liquidating agent for a financial institution, shall
order that the person forfeit to the United States any property, real or personal, which represents or is traceable
to the gross receipts obtained, directly or indirectly, as a result of such violation.
(4) With respect to an offense listed in subsection (a)(3) committed for the purpose of executing or attempting
to execute any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent
statements, pretenses, representations, or promises, the gross receipts of such an offense shall include any
property, real or personal, tangible or intangible, which is obtained, directly or indirectly, as a result of such
offense.
Id. § 982(a)(2)–(4).
111 Id. § 982(a)(6) (“The court, in imposing sentence on a person convicted of a violation of, or conspiracy to violate,
section 274(a), 274A(a)(1), or 274A(a)(2) of the Immigration and Nationality Act or section 554, 1425, 1426, 1427,
1541, 1542, 1543, 1544, or 1546 of this title, or a violation of, or conspiracy to violate, section 1028 of this title if
committed in connection with passport or visa issuance or use, shall order that the person forfeit to the United States,
regardless of any provision of State law—(i) any conveyance, including any vessel, vehicle, or aircraft used in the
commission of the offense of which the person is convicted; and (ii) any property real or personal—(I) that constitutes,
or is derived from or is traceable to the proceeds obtained directly or indirectly from the commission of the offense of
which the person is convicted; or (II) that is used to facilitate, or is intended to be used to facilitate, the commission of
the offense of which the person is convicted. (B) The court, in imposing sentence on a person described in
subparagraph (A), shall order that the person forfeit to the United States all property described in that subparagraph”).
112 28 U.S.C. § 2461(c) (“If a person is charged in a criminal case with a violation of an Act of Congress for which the
civil or criminal forfeiture of property is authorized, the Government may include notice of the forfeiture in the
indictment or information pursuant to the Federal Rules of Criminal Procedure. If the defendant is convicted of the
offense giving rise to the forfeiture, the court shall order the forfeiture of the property as part of the sentence in the
criminal case pursuant to the Federal Rules of Criminal Procedure and section 3554 of title 18, United States Code. The
procedures in section 413 of the Controlled Substances Act (21 U.S.C. § 853) apply to all stages of a criminal forfeiture
proceeding, except that subsection (d) of such section applies only in cases in which the defendant is convicted of a
violation of such Act.”). E.g., United States v. Cingari, 952 F.3d 1301, 1306 n.3 (11th Cir. 2020); United States v. Soto,
915 F.3d 675, 679 (9th Cir. 2019).
At one time, the bridge statute only applied if “no specific statutory provision is made for criminal forfeiture,” 28
U.S.C. § 2461(c) (2000 ed.). Some questioned whether the bridge statute might be used in general mail and wire fraud
cases. True, tainted property was subject to civil forfeiture in mail and wire fraud cases as a general rule, but it was also
subject to criminal forfeiture as long as the fraud was committed against a financial institution, 18 U.S.C. §
982(a)(2)(A) (2000 ed.). Nevertheless, federal appellate courts read Section 2461 to permit criminal forfeiture in mail
and wire fraud cases in which a financial institution was not the victim, United States v. Day, 524 F.3d 1361, 1374–77
(D.C. Cir. 2008); United States v. Schlesinger, 514 F.3d 277, 278 (2d Cir. 2008); United States v. Foley, 508 F.3d 627,
635 (11th Cir. 2007). Congress changed the language to its present form to eliminate any uncertainty.

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Like civil forfeiture, criminal forfeiture is a creature of statute.113 Unlike civil forfeiture, criminal
forfeiture follows as a consequence of conviction.114 It is punishment,115 even though it may also
serve remedial purposes very effectively.116 While civil forfeiture treats the property as the
defendant, confiscating the interests of the innocent and guilty alike, criminal forfeiture
traditionally consumes only the property interests of the convicted defendant,117 and only with
respect to the crime for which he is convicted.118 When the property subject to confiscation is
unavailable following the defendant’s conviction, however, the court may order the confiscation
of other property belonging to the defendant in its stead (substitute assets).119
113 E.g., 18 U.S.C. §§ 982 (money laundering), 963 (RICO); 21 U.S.C. § 853 (drug dealing). Or a creature of several

statutes, as demonstrated by the facts underlying the Supreme Court’s decision in Kaley v. United States, 571 U.S. 320
(2014). The Kaleys were indicted for interstate transportation of stolen property in violation of 18 U.S.C. § 2314. To
pay their anticipated legal defense costs, they secured a $500,000 line of credit secured by their home and used the line
of credit to purchase a certificate of deposit in that amount. Through a series of cross references, property traceable to
the proceeds of a stolen property violation is subject to civil forfeiture. More precisely, the stolen property offense is a
RICO predicate offense, that is, one of the crimes upon which a racketeering prosecution might be based, id. § 1961(1).
Moreover, any RICO predicate offense is automatically a money laundering predicate offense, id. § 1956(c)(7)(A).
Section 981(a)(1)(C) calls for the civil forfeiture of proceeds traceable to any money laundering predicate offense. An
offense’s status as a predicate offense is all that is required; there is no need to establish the other elements of either a
RICO or money laundering offense. In Kaley, however, the grand jury subsequently indicted the Kaleys for conspiracy
to money launder, id. § 1956(h). Although it is not completely clear, it appears the grand jury believed that in order to
conceal the illegal source of their wealth the Kaleys had used the proceeds from the stolen property offense to purchase
or pay the mortgage on their home or had engaged in the line of credit and CD transactions for that purpose, cf., id. §
1956(a)(1)(B)(i).
Money laundering forfeiture reaches property on both sides of the transaction, i.e., any property “involved” in a
prohibited money laundering transaction or traceable to such property, id. § 981(a)(1)(A). This would explain how the
forfeiture liability of $140,000 resulting from the Kaleys’ alleged stolen property offense grew to over $2 million:
$140,000 from the proceeds of the stolen property offense; plus the $500,000 line of credit and the value of the home
used to secure the line of credit; plus the $500,000 CD and the value of the $500,000 line of credit used to purchase of
the CD. ($140,000 + $500,000 (home) + $500,000 (credit line) + $500,000(credit line) + $500,000(CD)).
114 FED. R. CRIM. P. 32.2; 18 U.S.C. § 982(a)(1) (providing for an order of forfeiture “in imposing sentence on a person
convicted of an offense in violation of section 1956, 1957, or 1960 of this title”); United States v. Shakur, 691 F.3d
979, 984 (8th Cir. 2012) (quoting Libretti v. United States, 516 U.S. 29, 39 (1995)) (“[C]riminal forfeiture as an aspect
of punishment imposed following conviction of a substantive criminal offense.”).
115 United States v. Moss, 34 F.4th 1176, 1194 (11th Cir. 2022); United States v. Channon, 973 F.3d 1105, 1112 (10th
Cir. 2020); Smith, 770 F.3d at 637; United States v. Davis, 706 F.3d 1081, 1083 (9th Cir. 2013).
116 The federal RICO forfeiture statute, for example, is designed not only to sever the offender from the organization he
or she has corrupted but to confiscate any property right which affords a source of influence over the enterprise, 18
U.S.C. § 1963(a)(2)(D).
117 21 U.S.C. § 853(n)(6); 101 Houseco, 22 F.4th at 851; Contorinis, 692 F.3d at 146 (quoting United States v.
Bajakajian, 524 U.S. 321, 332 (1998)) (Forfeiture in criminal proceedings “is designed to punish the offender, and
cannot be imposed upon innocent owners.”); United States v. Fleet, 498 F.3d 1225, 1232 (11th Cir. 2007) (“There is no
innocent spouse defense to criminal forfeiture because the only property being forfeited is the interest that belongs to
the defendant.”); United States v. Saccoccia, 354 F.3d 9, 15 (1st Cir. 2003) (“[T]he government may reach only the
defendant’s substitute assets and not those of a third party.”).
118
United States v. Lucas, 986 F.3d 224, 228 n.4 (3d Cir. 2021) (“An in personam [criminal] forfeiture proceeding
determines the government’s right to the property only against the criminal defendant. It does not resolve whatever
claims third parties may have to the property. Only property owned by the criminal defendant at the time the crime was
committed is subject to [criminal] forfeiture.”) (quoting 1 DAVID B. SMITH, PROSECUTION AND DEFENSE OF FORFEITURE
CASES ¶ 2.03 (Matthew Bender 2020)); United States v. Bader, 678 F.3d 858, 895 (10th Cir. 2012) (“If the conviction
that supported a forfeiture is reversed on appeal, the forfeiture—along with all other aspects of the defendant’s sentence
for that offense—must be reversed as well.”) (brackets omitted); United States v. Juluke, 426 F.3d 323, 327–28 (5th
Cir. 2005).
119 21 U.S.C. § 853(p)(2) (“(2) In any case described in any of subparagraphs (A) through (E) of paragraph (1) [below],
the court shall order the forfeiture of any other property of the defendant, up to the value of any property described in

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The indictment or information upon which the conviction is based must list the property which
the government asserts is subject to confiscation.120 When the trial is conducted before a jury,
either party may insist upon a jury determination of the forfeiture issue.121 Since the court’s
jurisdiction does not depend upon initial control of the res, it need not be seized before forfeiture
is declared.122 Although the courts are authorized to issue pretrial restraining orders to prevent
depletion or transfer of property which the government contends is subject to confiscation,123 the
Sixth Amendment right to the assistance of counsel precludes pretrial restraint of untainted
substitute assets necessary to pay for reasonable attorneys’ fees.124 And there may be some
lingering uncertainty as to whether such orders can be issued when the government has opted to
use the good offices of the bridge statute125 to accomplish what would otherwise be a civil
forfeiture in conjunction with the criminal prosecution of the property owner.
Originally, Section 2461(c) permitted criminal forfeiture under statutes that authorized civil
forfeiture but made no provision for criminal forfeiture.126 In such cases, it declared that “upon
conviction, the court shall order the forfeiture of the property in accordance with the procedures
set forth in Section 413 of the Controlled Substances Act (21 U.S.C. 853), other than subsection
subparagraphs (A) through (E) of paragraph (1), as applicable. (1) Paragraph (2) of this subsection shall apply, if any
property described in subsection (a), as a result of any act or omission of the defendant—(A) cannot be located upon
the exercise of due diligence; (B) has been transferred or sold to, or deposited with, a third party; (C) has been placed
beyond the jurisdiction of the court; (D) has been substantially diminished in value; or (E) has been commingled with
other property which cannot be divided without difficulty.”); see also 18 U.S.C. § 1963(m); United States v. Bradley,
969 F.3d 585, 588 (6th Cir. 2020); Smith, 770 F.3d at 641–42.
120 FED. R. CRIM. P. 32.2(a); United States v. Omigie, 977 F.3d 397, 403 (5th Cir. 2020); United States v. Hampton,
732 F.3d 687, 690 (6th Cir. 2013); United States v. Torres, 703 F.3d 194, 196 n.1 (2d Cir. 2012); United States v.
Oregon, 671 F.3d 484, 487 (4th Cir. 2012).
121 FED. R. CRIM. P. 32.2(b)(5). In Libretti v. United States, the Supreme Court observed that “the nature of criminal
forfeiture as an aspect of sentencing compels the conclusion that the right to a jury verdict on forfeitability does not fall
within the Sixth Amendment’s constitutional protection.” 516 U.S. at 49. Thereafter, however, the Court held in
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that sentencing factors are not beyond the Amendment’s reach and
that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury.” In Southern Union Co. v. United States, 567 U.S. 343, 360 (2012), the Court held that Apprendi applies to fines
as well as terms of imprisonment. Criminal forfeiture defendants have sometimes argued, to no avail, that Apprendi and
Southern Union, abrogate Libretti notwithstanding their election under Rule 32.2 to forego a jury determination of the
forfeitability of their property. E.g., United States v. Sigillito, 759 F.3d 913, 936 (8th Cir. 2014) (citing in accord
United States v. Wilkes, 744 F.3d 1101, 1109 (9th Cir. 2014); United States v. Simpson, 741 F.3d 539, 560 (5th Cir.
2014); United States v. Day, 700 F.3d 713, 733 (4th Cir. 2012)).
122 Rule 32.2 permits the Attorney General to seize the property upon the court’s entry of a preliminary forfeiture order,
FED. R. CRIM. P. 32.2(b)(3); United States v. Davenport, 668 F.3d 1316, 1320 (11th Cir. 2012).
123 E.g., 21 U.S.C. § 853(e)(1), (2). At least one circuit has held that pretrial restraining orders are not available when
the government opts for a criminal forfeiture by merging a civil forfeiture authorization with a criminal prosecution
under the auspices of 28 U.S.C. § 2461(c), United States v. Razmilovic, 419 F.3d 134, 137–41 (2d Cir. 2005). Neither
the Sixth Amendment right to counsel nor the Fifth Amendment right to due process afford a defendant the right to a
pre-trial, post-indictment hearing to determine whether the government has probable cause to believe that the restrained
property is subject to confiscation, even if the property is the defendant’s only means of securing the services of his
counsel of choice, Kaley, 571 U.S. at 340–41.
124 Luis v. United States, 578 U.S. 5, 23 (2016).
125 28 U.S.C. § 2461.
126 28 U.S.C. § 2461(c) (2000 ed.) (“If a forfeiture of property is authorized in connection with a violation of an Act of
Congress, and any person is charged in an indictment or information with such violation but no specific statutory
provision is made for criminal forfeiture upon conviction, the Government may include the forfeiture in the indictment
or information in accordance with the Federal Rules of Criminal Procedure, and upon conviction, the court shall order
the forfeiture of the property in accordance with the procedures set forth in section 413 of the Controlled Substances
Act (21 U.S.C. 853), other than subsection (d) of that section.”).

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(d) of that section.”127 The current version of Section 2461(c) appeared, unexplained, in the
conference report on the bill subsequently enacted as the USA PATRIOT Improvement and
Reauthorization Act.128 The new language permits criminal forfeiture under the procedures of
Section 2461(c) whenever a civil forfeiture is authorized, regardless of whether the statute that
authorizes the civil forfeiture also authorizes criminal forfeiture under different procedures.129 It
allows the government to elect to use Section 2461(c)’s criminal forfeiture procedures even
where alternative criminal forfeiture procedures were already available, hence perhaps its
“uniform procedures” caption in the act.
In any event, the defense to criminal forfeiture differs somewhat from the defense to civil
forfeiture. For example, since conviction is a prerequisite to confiscation, an overturned
conviction or an acquittal will ordinarily preclude criminal forfeiture.130 Third party interests are
less likely to be cut off by virtue of the property’s proximity to criminal conduct simply because
only the defendant’s interest in the property is subject to confiscation and because bona fide
purchaser exceptions are more common. Bona fide purchaser exceptions protect a good faith
purchaser who acquired the property after commission of the offense—at which time title to the
property vested in the United States—but before the declaration of forfeiture.131
After conviction of the defendant and after it has met its burden of establishing forfeitability by a
preponderance of the evidence,132 the government may elect to seek either confiscation of
forfeitable property or a money judgment in the amount of its value.133 If the government seeks
confiscation, the court must determine whether the statutory nexus between the property and the
crime of conviction exists.134 If the government instead seeks a money judgment, the court must

127 Id.

H. REP. NO. 109-333, at 56. The new language which appears in the act under the caption “uniform procedures for
criminal forfeiture,” is not mentioned in the report’s Joint Explanatory Statement of the Committee of Conference
where the act’s other sections are briefly described.
129 18 U.S.C. § 2461(c) (“If a person is charged in a criminal case with a violation of an Act of Congress for which the
civil or criminal forfeiture of property is authorized, the Government may include notice of the forfeiture in the
indictment or information pursuant to the Federal Rules of Criminal Procedure. If the defendant is convicted of the
offense giving rise to the forfeiture, the court shall order the forfeiture of the property as part of the sentence in the
criminal case pursuant to the Federal Rules of Criminal Procedure and section 3554 of title 18, United States Code. The
procedures in section 413 of the Controlled Substances Act (21 U.S.C. 853) apply to all stages of a criminal forfeiture
proceeding, except that subsection (d) of such section [(rebuttable presumption of forfeitability)] applies only in cases
in which the defendant is convicted of a violation of such Act.”).
130 Bader, 678 F.3d at 895 (“If the conviction that supported a forfeiture is reversed on appeal, the forfeiture—along
with all other aspects of the defendant’s sentence for that offense—must be reversed as well.”) (brackets omitted).
131 Perhaps the best known of these are found in the RICO and the drug trafficking criminal forfeiture provisions, “. . .
[a]ny such property that is subsequently transferred to a person other than the defendant may be the subject of a special
verdict of forfeiture and thereafter shall be ordered forfeited to the United States, unless the transferee establishes in a
hearing pursuant to subsection (l) that he is a bona fide purchaser for value of such property who at the time of
purchase was reasonably without cause to believe that the property was subject to forfeiture under this section.”
18 U.S.C. § 1963(c); 21 U.S.C. § 853(c).
132 United States v. Garbacz, 33 F.4th 459, 472 (8th Cir. 2022); Smith, 770 F.3d at 637; United States v. Smith, 749
F.3d 465, 448 (6th Cir. 2014); United States v. Peters, 732 F.3d 93, 98 (2d Cir. 2013).
133 FED. R. CRIM. P. 32.2(b)(1); Omigie, 977 F.3d at 403; Peters, 732 F.3d at 98; Oregon, 671 F.3d at 487–88; United
States v. Zorrilla-Echevarria, 671 F.3d 1, 6 (1st Cir. 2011); United States v. Smith, 656 F.3d 821, 827 (8th Cir. 2011).
134 FED. R. CRIM. P. 32.2(b)(1); United States v. Guerrero, 37 F.4th 1215, 1218 (7th Cir. 2022); United States v.
Sanders, 952 F.3d 263, 285 (5th Cir. 2020); Peters, 732 F.3d at 98; Shakur, 691 F.3d at 988.
128

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determine the amount the defendant must pay.135 A co-defendant, however, may not be held
jointly and severally liable for the judgment if he received none of the tainted property.136
Following the conviction, the court issues a preliminary forfeiture order or order for a money
judgment against the defendant in favor of the government.137 Upon the issuance of a preliminary
forfeiture order, the government must proclaim its intent to dispose of the property and notify any
third parties known to have an interest in the property.138 Third parties with a legal interest in the
forfeited property, other than the defendant, are then entitled to a judicial hearing,i provided they
file a timely petition asserting their claims.139 The court may amend its forfeiture order at any
time, even a number of years after its initial entry.140
Third party claims must be grounded either in an assertion that they possessed a superior interest
in the property at the time confiscation-trigger misconduct occurred or that they are good faith
purchasers.141 The courts will not recognize the unsecured claims of general creditors to the
property,142 but will look to state law to determine whether a third party has the requisite superior
interest in the property.143 Regardless of whether third parties assert a superior interest or the
status of a good faith purchaser, they bear the burden of establishing their claim by a

135 FED. R. CRIM. P. 32.2(b)(1); Omigie, 977 F.3d at 403; United States v. Segal, 938 F.3d 898, 906 (7th Cir. 2019);

Peters, 732 F.3d at 98.
136 Honeycutt v. United States, 137 S. Ct. 1626, 1630 (2017); Scarfo, 41 F.4th at 215–16 (a co-defendant who shared in
the tainted property may be held jointly and severally liable); United States v. Saccoccia, 1 F.4th 64, 71 (1st Cir. 2021)
(Honeycutt’s “bar against joint and several co-conspirator liability . . . applies only to defendants who did not actually
possess or control the funds at issue.”).
137 FED. R. CRIM. P. 32.2(b)(2); Lazarenko, 476 F.3d at 648. There is some disagreement among the circuits over
whether a governmental victim may be the beneficiary of both a forfeiture order and an order to make restitution,
Davis, 706 F.3d at 1083–84 (“Other circuits have considered whether an offset is warranted to avoid double recovery
when government entities will receive both forfeiture and restitution. . . . These cases hold or imply that if two entities
are related closely enough, restitution or forfeiture should be reduced. We disagree with this approach. Even if the same
government entity will receive both forfeiture and restitution, there simply is no double recovery. The two payments
represent different types of funds: punitive and compensatory. They are different in nature, kind, and purpose.”)
(citations omitted).
138 21 U.S.C. § 853(n)(1).
139 21 U.S.C. § 853(n)(2). The petition must be filed within 30 days or the claimant’s interest is lost, id. § 853(n)(7);
Furando, 40 F.4th at 576–77; United States v. Marion, 562 F.3d 1330, 1341 (11th Cir. 2009).
140 FED. R. CRIM. P. 32.2(e)(1); United States v. Duboc, 694 F.3d 1223, 1228 (11th Cir. 2012) (petition to amend filed
11 years after initial entry).
141 18 U.S.C. § 982(b)(1); 21 U.S.C. § 853(n)(6); 18 U.S.C. § 1963(l)(6); Furando, 40 F.4th at 576 (“Because ‘[i]t is
well established that third parties may not intervene during criminal forfeiture proceedings to assert their interests in the
property being forfeited,’ § 853(n) provides the exclusive avenue for third-party asset recourse and ultimately the sole
grounds for standing.”) (quoting DSI Assocs. LLC v. United States, 496 F.3d 175, 183 (2d Cir. 2007)); Lucas, 986 F.3d
at 227 (superior right); United States v. Fabian, 764 F.3d 636, 638 (6th Cir. 2014); United States v. Holy Land Found.
for Relief & Dev., 722 F.3d 677, 684–85 (5th Cir. 2013); United States v. White, 675 F.3d 1073, 1081 (8th Cir. 2012);
United States v. Cox, 575 F.3d 352, 355 (4th Cir. 2009). Under 21 U.S.C. § 853(k) third parties are barred from
intervening in earlier or other separate proceedings to contest the forfeiture of property in which they have an interest,
Furando, 40 F.4th at 576; Fabian, 764 F.3d at 637–38; White, 675 F.3d at 1077–78; Cox, 575 F.3d at 358.
142 White, 675 F.3d at 1080–81; DSI Assocs., 496 F.3d at 184.
143 White, 675 F.3d at 1078; United States v. Huntington Nat’l Bank, 682 F.3d 429 (6th Cir. 2012) (holding that the
bank purchased an interest in forfeitable assets when it granted a line of credit secured by those assets); id. at 433
(“Federal law controls whether a party qualifies as a BFP [bona fide purchaser] under 21 U.S.C. § 853(n)(6)(B) . . . . ‘If
a court determines the claimant has an interest in the property under the law of the jurisdiction that created the property
right, then it must next look to federal law, i.e. 21 U.S.C. § 853(n), to determine if the claimant will prevail.’ ”) (quoting
United States v. Timley, 507 F.3d 1125, 1130 (8th Cir. 2007)).

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preponderance of the evidence,144 and they may not challenge the district court’s preliminary
determination of forfeitability.145
Although Rule 32.2 presumes court authority to enter a personal money judgment against a
defendant,146 the only statute that explicitly conveys such authority is the bulk cash smuggling
provision of 31 U.S.C. § 5332.147 Some courts have also read such authority into the substitute
asset provision of the Controlled Substances Act adopted by cross reference.148 When the
government is awarded a money judgment, it is not limited to the forfeitable assets the defendant
has on hand at the time but may enforce the judgment against future assets as well.149

Disposition of Forfeited Assets
Disposal of forfeited property is ordinarily a matter of statute. The pertinent statute may require
that the proceeds of a confiscation be devoted to a single purpose, such as the support of
education or deposit in the general fund. The statute may call for the destruction of property that

144 21 U.S.C. § 853(n)(6); Furando, 40 F.4th at 577; 101 Houseco, 22 F.4th at 847–48; Oregon, 671 F.3d at 492.
145 101 Houseco, LLC, 22 F.4th at 849–50 (citing in accord Fabian, 764 F.3d at 638; Holy Land Found. for Relief &

Dev., 722 F.3d at 689-90; Davenport, 668 F.3d at 1320–21; United States v. Porchay, 533 F.3d 704, 710 (8th Cir.
2008); United States v. Andrews, 530 F.3d 1232, 1236 (10th Cir. 2008)).
146 Rule 32.2 states that:
(a) . . . The indictment or information need not identify the property subject to forfeiture or specify the amount
of any forfeiture money judgment that the government seeks. (b)(1)(A) . . . If the government seeks a personal
money judgment, the court must determine the amount of money that the defendant will be ordered to pay. . .
(2)(A) . . . If the court finds that property is subject to forfeiture, it must promptly enter a preliminary order of
forfeiture setting forth the amount of any money judgment, directing the forfeiture of specific property, and
directing the forfeiture of any substitute property if the government has met the statutory criteria. The court
must enter the order without regard to any third party’s interest in the property. Determining whether a third
party has su

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3A97-139. Public record. Not legal advice.