Facing Criminal Forfeiture in a Federal Case? Check the Notice and Order

A forfeiture notice in a federal indictment does not by itself mean the government owns your property. It warns that the government will seek forfeiture as part of a criminal sentence if the charged offense supports it. Have defense counsel read the charged offense, the forfeiture notice, any property schedule or restraint, and the actual court order together. Federal Rule of Criminal Procedure 32.2(a) requires notice in the indictment or information before a criminal forfeiture judgment, but the notice need not list each asset or state the proposed money-judgment amount. An omitted asset list alone is not a winning objection.

Which law permits forfeiture for this charge?

The rule supplies a procedure; the offense needs a separate forfeiture authority. 21 U.S.C. § 853(a) directly addresses convictions under the specified federal drug subchapters punishable by more than one year. It reaches proceeds the person obtained from the violation and that person’s property used or intended to facilitate it, with an additional category for a continuing criminal enterprise conviction. It does not make every item belonging to a drug defendant forfeitable merely because charges were filed.

Other federal offenses can have different property rules. For example, 18 U.S.C. § 982 treats property involved in specified money-laundering offenses differently from proceeds of its listed fraud and other offenses. 28 U.S.C. § 2461(c) permits criminal-case forfeiture when the charged federal offense has an authorized civil or criminal forfeiture penalty and applies § 853 procedures; it does not create forfeiture for every federal felony. Ask counsel to match the exact charged count to the statute authorizing forfeiture before assessing which assets or amount may be at risk.

Is the government seeking property or a money judgment?

Under Rule 32.2(b)(1), after an accepted guilty or no-contest plea, guilty verdict, or guilty finding on a count for which forfeiture is sought, the court determines what is subject to forfeiture under the applicable statute. For specific property, it determines whether the government established the required connection between that property and the offense. For a personal money judgment, it determines the amount the defendant must pay. The record and plea agreement may matter; if forfeiture is contested, either party may request a hearing. The governing offense statute determines the property category, so a bank balance, vehicle or house is not automatically forfeitable because it appears on a government list.

In a qualifying drug case, § 853(p) can allow other property of the defendant, up to the value of directly forfeitable property, when that property became unavailable through one of the listed acts or omissions of the defendant. That substitute-property rule has conditions; it is not permission to take unrelated assets from every accused person.

Which order have you received, and when can you contest it?

A pretrial restraint or seizure may be used to preserve property before guilt is decided. For a qualifying § 853 case, § 853(e)–(f) sets separate conditions for preservation orders and seizure warrants. A frozen account or seizure receipt is therefore not the same thing as a post-guilt forfeiture decision. Give counsel the actual notice or order promptly; the available response depends on its legal basis and terms.

A preliminary order of forfeiture under Rule 32.2(b)(2) follows the required post-plea or post-verdict forfeiture determination. Unless impractical, the court should enter it sufficiently before sentencing to let the parties propose revisions. Under Rule 32.2(b)(4), that order becomes final as to the defendant at sentencing, or earlier if the defendant consents. The defendant’s appeal time ordinarily starts when judgment is entered. A property list may later be amended under Rule 32.2(e) if the government meets its conditions, so an early list is not necessarily the last word.

If the criminal case is tried to a jury, raise any request for a jury finding on the forfeitable connection of specific property with counsel before the jury begins deliberating. Rule 32.2(b)(5) provides that limited request; it is not a jury trial on every money judgment or a way to reopen the charged offense after sentencing.

Bring these records to counsel

• The entire indictment or information, not just the forfeiture paragraph, plus any superseding filing or plea agreement.
• Every property schedule, seizure receipt, account-restraint notice, and preliminary order, with the dates received and any sentencing date.
• Existing title, bank, purchase and transaction records that show what the property is, who owns or controls it, and where it came from. Preserve originals; do not move assets contrary to an order or alter records.

The separate § 853(n) ancillary petition and Rule 32.2(c) process are for a person other than the defendant claiming an interest in specific property. They are not the defendant’s substitute for addressing the allegation, preliminary order or sentence in the criminal case. A civil or administrative forfeiture notice also calls for a different procedure; identify which document you actually received before relying on a filing deadline.

If you are charged in a federal case connected to California and the government seeks criminal forfeiture, the Law Offices of David S. Chesley can discuss the charging paper and property orders with you. Call (800) 755-5174.