Federal Asset Forfeiture Defense

Agents execute a warrant and the accounts are frozen the same day. A notice arrives weeks later with a deadline on it. By the time most people work out what it means, the window has closed.

Forfeiture is where families are financially destroyed even when the criminal case goes well. It runs on a parallel track with its own rules, and it needs to be defended deliberately rather than as an afterthought to the criminal case.

Criminal and civil forfeiture are different animals

Criminal forfeiture is part of the sentence in your case. It requires a conviction, it is directed at you personally, and it is litigated inside the criminal proceeding under Rule 32.2. The authorising statutes are offense-specific — 21 U.S.C. § 853 for drug offenses, 18 U.S.C. § 982 for money laundering and many fraud offenses.

Civil forfeiture is an action against the property itself under 18 U.S.C. § 981 and related provisions. The property is the defendant. No criminal charge is required, no conviction is required, and the government's burden is a preponderance of the evidence rather than beyond a reasonable doubt. This is why property is sometimes forfeited in cases where nobody is ever charged.

The deadlines that decide most civil cases

Administrative forfeiture begins with a written notice from the seizing agency. Under 18 U.S.C. § 983, notice must generally be sent within 60 days of seizure, and you then have 35 days from the date of the notice to file a claim. If you file nothing, the property is administratively forfeited and the fight is over before it starts.

Filing a claim forces the government either to release the property or to file a judicial complaint, generally within 90 days. From there it becomes litigation, with a verified answer due under the Supplemental Rules and the government required to prove the property is connected to the offense.

The most common catastrophic mistake in this area is inaction. People assume the criminal defense lawyer is handling it, or that the property will be sorted out at the end of the case. Neither is safe to assume.

Honeycutt: forfeiture is not joint and several

In Honeycutt v. United States, 581 U.S. 443 (2017), the Supreme Court held that forfeiture under § 853(a) reaches only property the defendant actually acquired as a result of the crime. A low-level participant cannot be made to forfeit the entire proceeds of a conspiracy he never received.

This was a significant correction. Before Honeycutt, the government routinely sought joint and several forfeiture judgments for the full scheme amount against every co-defendant. Judgments that ignore Honeycutt still get proposed, and they should be challenged.

Substitute assets and money judgments

If the directly traceable property is gone — spent, transferred, or hidden — § 853(p) permits the government to reach substitute assets up to the value of what is unavailable. In practice this is how untainted property such as a family home or a retirement account becomes exposed.

Forfeiture money judgments work similarly: the court enters a judgment for a dollar figure, and the government collects against whatever it can find. Contesting the calculation therefore matters as much as contesting the traceability of any particular asset, because the figure sets the ceiling on everything that follows.

If the property belongs to someone else

Criminal forfeiture cannot take property belonging to an innocent third party, but the third party has to assert the claim. After a preliminary order of forfeiture, an ancillary proceeding under Rule 32.2(c) lets anyone with an interest in the property file a petition. The petitioner must show either a superior legal interest predating the offense, or that they are a bona fide purchaser for value without reason to know the property was forfeitable.

In civil cases the analogous protection is the innocent owner defense under § 983(d), which the claimant bears the burden of establishing. Spouses, business partners, and lenders are the most frequent claimants, and their interests are genuinely at risk if nobody appears for them.

Constitutional limits worth invoking

Excessive fines. In Timbs v. Indiana, 586 U.S. 146 (2019), the Supreme Court confirmed the Eighth Amendment's Excessive Fines Clause applies to the states and reaches civil in rem forfeitures. Grossly disproportionate forfeitures are challengeable.

Right to counsel. In Luis v. United States, 578 U.S. 5 (2016), the Court held that pretrial restraint of untainted assets a defendant needs to hire counsel violates the Sixth Amendment. If a restraining order has frozen legitimate funds and left you unable to retain a lawyer, that is a distinct and immediate argument.

What to do in the first two weeks

Identify every seized or restrained item and the exact date of each notice. Calendar the 35-day claim deadline immediately. Gather proof of legitimate source for each asset — pay records, loan documents, gift documentation, closing statements. Identify every third party with an interest and make sure someone is protecting it. And resist the instinct to move remaining assets around, which reads as concealment and creates new exposure.