If the government has seized your property or frozen your accounts, the first question is not “how do I get it back.” It is which of two entirely different proceedings you are in, because they have different burdens, different deadlines, different courts, and different ways of losing.
Civil forfeiture is an action against the property itself. It requires no criminal charge against anyone, and if you miss a deadline measured in weeks you can lose the property without any court ever considering whether the government’s theory is right. Criminal forfeiture is part of a person’s sentence. It requires a conviction, it is decided in the criminal case, and under Honeycutt v. United States, 581 U.S. 443 (2017), it is “limited to property the defendant himself actually acquired as the result of the crime” — there is no joint and several liability among co-conspirators.
Almost nothing on the first page of search results separates these two cleanly. Getting it right is the whole of the analysis.
What this page answers at a glance
| Question | Civil forfeiture | Criminal forfeiture |
|---|---|---|
| What is the defendant? | The property (in rem) | The person (in personam) |
| Is a criminal charge required? | No | Yes — forfeiture is part of the sentence |
| Governing statutes | 18 U.S.C. § 981; § 983 | 18 U.S.C. § 982; 21 U.S.C. § 853 |
| Procedure | § 983 and Supplemental Rule G | Fed. R. Crim. P. 32.2 |
| Burden | Government, preponderance of the evidence — § 983(c)(1) | Established at sentencing on the conviction |
| Your deadline | File a claim — as short as 35 days from the notice letter | Raise it in the criminal case; third parties wait for the ancillary proceeding |
| Reach among co-defendants | The specific property | Only what the defendant actually acquired — Honeycutt |
| Innocent-owner defense | Yes — § 983(d), claimant bears the burden | Third-party ancillary proceeding — § 853(n) |
Table: the organizing distinction in federal forfeiture. Which column you are in determines every deadline and every defense available to you.
Forfeiture attaches across federal practice — fraud, laundering, securities and health care cases alike — which is why this page sits alongside our white collar crime lawyer hub, our securities fraud attorney hub and our healthcare fraud attorney hub rather than inside any one of them.
Civil forfeiture: the case against your property
Civil forfeiture is an in rem proceeding. The action is captioned against the thing — United States v. $124,700 in U.S. Currency is a real case name, and the form is not a curiosity. It is the doctrine. Because the property is the defendant, the government does not have to charge you, and does not have to convict anyone, in order to keep it.
18 U.S.C. § 981 supplies the substantive authority across a wide range of offenses, including “[a]ny property, real or personal, involved in a transaction or attempted transaction in violation of section 1956, 1957 or 1960 of this title, or any property traceable to such property” — the money-laundering hook that reaches most white-collar cases. The mechanics of §§ 1956 and 1957, and why they are not interchangeable, are on our money laundering attorney page.
18 U.S.C. § 983 then supplies the procedure, and it is where the deadlines live.
Administrative (nonjudicial) forfeiture, and why most property is lost there
Most seizures never reach a courtroom. The seizing agency starts an administrative — the statute says “nonjudicial” — forfeiture, sends notice, and if nobody files a valid claim, the property is forfeited by declaration. No judge reviews the merits. No court considers whether the seizure was lawful.
Filing a claim is the act that forces the case into court. It is not a request. It is the jurisdictional step that converts an administrative process into a judicial one, and if it is not taken in time the merits are never reached.
On this page
The deadlines — the most actionable content on this page
These are quoted from the statute. They are short, and several run from dates rather than from when you understood what had happened.
| Stage | Period | Statutory text | Authority |
|---|---|---|---|
| Government sends notice after seizure | 60 days | notice “shall be sent … as soon as practicable, and in no case more than 60 days after the date of the seizure” | § 983(a)(1)(A)(i) |
| — where state or local police seized and turned it over | 90 days | “notice shall be sent not more than 90 days after the date of seizure by the State or local law enforcement agency” | § 983(a)(1)(A)(iv) |
| You file a claim | The date in the notice letter | “may be not earlier than 35 days after the date the letter is mailed” | § 983(a)(2)(B) |
| — if you never received the letter | 30 days from final publication | “a claim may be filed not later than 30 days after the date of final publication of notice of seizure” | § 983(a)(2)(B) |
| Government files a forfeiture complaint after your claim | 90 days | “Not later than 90 days after a claim has been filed, the Government shall file a complaint for forfeiture … or return the property” | § 983(a)(3)(A) |
| Third party petitions in a criminal forfeiture | 30 days | “within thirty days of the final publication of notice or his receipt of notice … whichever is earlier” | 21 U.S.C. § 853(n)(2) |
Table: every statutory deadline in a federal forfeiture, with the text that sets it. The claim deadline is the one that most often decides the case.
What happens if the government misses its deadline
This cuts in the claimant’s favor and is worth knowing precisely. Under § 983(a)(3)(B), if the government does not file a complaint or return the property, and does not before that time obtain an indictment alleging the property is forfeitable and take the steps to preserve custody, then:
“the Government shall promptly release the property pursuant to regulations promulgated by the Attorney General, and may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense.”
That is a genuine forfeiture of the government’s own position, and it is why the ninety-day clock after a claim is worth diarising as carefully as your own.
What happens if you miss yours
Nothing dramatic. That is the problem. The property is administratively forfeited by declaration, and no court ever weighs the merits. The remedy after the fact is a motion to set aside a declaration of forfeiture, which is a narrower and harder proceeding than the claim you were entitled to file. The single most valuable thing an owner does in a forfeiture case is calendar the claim deadline on the day the notice arrives.
Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The seizure notice is frequently mistaken for a demand for a response, and people write a letter explaining themselves. A letter is not a claim. The claim is a specific filing, with specific contents, made to a specific place, by a specific date — and a well-intentioned explanatory letter sent to the wrong office does not stop the clock. When property has been seized, identifying what the notice actually requires, and by when, comes before any argument about whether the seizure was justified.
What a claim must actually contain — Supplemental Rule G
The statute sets the deadlines. It does not say what you file. For that, § 983(a)(3)(A) points elsewhere: the government must proceed “in the manner set forth in the Supplemental Rules for Certain Admiralty and Maritime Claims.”
That reference is easy to miss and worth explaining, because the rule governing federal civil forfeiture is filed under admiralty law. Supplemental Rule G is part of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions — an appendix to the Federal Rules of Civil Procedure, lettered rather than numbered. The historical reason is that both admiralty and forfeiture proceed in rem, against a thing rather than a person. The practical reason it matters: Rule G, not § 983, is where the contents of your claim are specified, and a claim that does not comply is vulnerable to being struck.
Rule G(5): the claim, its contents, and the answer
Under Rule G(5)(a)(i), a person asserting an interest in the 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)(a)(ii)(C) or (b)(ii)(D).”
Read (C) twice. Contesting a seizure is not a letter and not an argument made by counsel on your behalf — it is a sworn statement, signed by you, asserting an interest in the property. Where the seizure sits alongside a criminal investigation, that sworn assertion of ownership is a considered decision, not a formality. It is one of the clearest places in federal practice where the civil case and the criminal exposure touch each other directly, and it is a decision to make with counsel before anything is signed.
Rule G(5)(a)(ii) also supplies deadlines the statute does not, for the situations where notice went astray. Unless the court sets a different time for good cause, the claim is due by the time stated in a direct notice; or, if notice was published but never sent to you, “no later than 30 days after final publication of newspaper notice or legal notice,” or “no later than 60 days after the first day of publication on an official internet government forfeiture site.” Where no notice was published or sent at all, the period is 60 days from the complaint’s filing (property already in government hands) or from execution of process. The internet-publication rule is the one most often overlooked, because nothing arrives in the mail to start it.
A bailee — someone holding property for another, such as a garage or a warehouse — may file, but “must identify the bailor,” and if filing on the bailor’s behalf must state the authority to do so (Rule G(5)(a)(iii)).
Then a second deadline that catches people who met the first one. Under Rule G(5)(b), a claimant “must serve and file an answer to the complaint or a motion under Rule 12 within 21 days after filing the claim.” And the sanction is stated in the same subdivision: a claimant “waives an objection to in rem jurisdiction or to venue if the objection is not made by motion or stated in the answer.” Filing the claim is not the end of the sequence; it starts a 21-day clock, and jurisdictional objections not raised inside it are gone.
Rule G(6): the interrogatories that arrive before ordinary discovery
Rule G(6) gives the government a tool with no counterpart in ordinary civil litigation. It “may serve special interrogatories limited to the claimant’s identity and relationship to the defendant property without the court’s leave at any time after the claim is filed and before discovery is closed.”
The limits are real — identity and relationship to the property only — but the timing is the point. Filing a claim exposes you to targeted, court-permission-free questioning about how you came to own the asset, and it can arrive long before general discovery opens. Answers or objections are due within 21 days after service. If you have moved to dismiss, the government must serve its interrogatories within 21 days after that motion is served (Rule G(6)(a)).
One further provision deserves attention from anyone planning to move to dismiss. Under Rule G(6)(c), the government “need not respond to a claimant’s motion to dismiss the action under Rule G(8)(b) until 21 days after the claimant has answered these interrogatories.” A motion to dismiss does not outrun the interrogatories. The sequence is deliberate: the government is entitled to know who is claiming the property, and on what basis, before it has to defend its case against dismissal.
| Rule | Requirement | Period |
|---|---|---|
| G(5)(a)(i)(C) | Claim signed under penalty of perjury | — |
| G(5)(a)(ii)(B) | Claim, where notice published but not sent | 30 days from final publication |
| G(5)(a)(ii)(B) | Claim, official internet forfeiture site | 60 days from first publication |
| G(5)(b) | Answer or Rule 12 motion after filing the claim | 21 days |
| G(5)(b) | In rem jurisdiction / venue objection | Waived if not then raised |
| G(6)(a) | Government’s special interrogatories | No leave required |
| G(6)(b) | Answers or objections to them | 21 days |
| G(6)(c) | Government’s response to a motion to dismiss | Deferred until 21 days after answers |
Table: Supplemental Rule G’s claim and interrogatory provisions. These sit on top of the § 983 deadlines above — meeting the statutory claim deadline is necessary, not sufficient.
The burden, and the “substantial connection” requirement
Once a case is in court, § 983(c) sets the standard, and it contains a requirement claimants frequently overlook:
“(1) the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture; (2) the Government may use evidence gathered after the filing of a complaint for forfeiture to establish, by a preponderance of the evidence, that property is subject to forfeiture; and (3) if the Government’s theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense.”
Three observations.
The burden is the government’s — a meaningful improvement over the pre-2000 position, where a claimant often had to disprove the government’s case.
Preponderance, not beyond reasonable doubt. Property can be forfeited on a showing that would not support a conviction. That is how an acquitted defendant can still lose the property, and it surprises people.
“Substantial connection” is a real limit in facilitation cases. Where the theory is that the property was used to facilitate an offense rather than that it is proceeds, the government must show a substantial connection — not merely that the property was present, or was owned by someone involved.
The innocent-owner defense
Section 983(d) provides that “[a]n innocent owner’s interest in property shall not be forfeited under any civil forfeiture statute,” and then places the burden squarely: “The claimant shall have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence.”
The definition splits on when the interest arose.
If you owned it when the conduct occurred — § 983(d)(2)(A) — an innocent owner is one 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.”
Note the disjunctive. Not knowing is enough. But if you did learn, the question becomes what you did about it, and “did all that reasonably could be expected” is a fact-intensive standard on which contemporaneous evidence matters — what you were told, when, and what you did next.
If you acquired it afterwards — § 983(d)(3)(A) — you must have been “a bona fide purchaser or seller for value (including a purchaser or seller of goods or services for value)” who “did not know and was reasonably without cause to believe that the property was subject to forfeiture.”
This is the provision that matters to a spouse, a business partner, a lender or a supplier. Each is asserting an interest in property the government says is tainted, and each is proving a negative under a preponderance standard, on their own evidence.
Criminal forfeiture: part of the sentence, not a separate case
Criminal forfeiture is in personam — against the defendant, as part of the judgment. It requires a conviction. 18 U.S.C. § 982 supplies the authority in most white-collar cases, directing that on conviction of listed offenses the court “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.” 21 U.S.C. § 853 supplies both the drug-offense authority and, through cross-reference, much of the procedure. Fed. R. Crim. P. 32.2 governs how it is done — notice in the charging document, determination of the forfeitability of specific property, a preliminary order, and incorporation into the judgment.
How Rule 32.2 actually runs — and the two moments a defendant can lose by silence
The procedure repays close reading, because two of its steps are easy to let pass.
Notice must be in the charging document. Rule 32.2(a): “A court must not enter a judgment of forfeiture in a criminal proceeding unless the indictment or information contains notice to the defendant that the government will seek the forfeiture of property as part of any sentence in accordance with the applicable statute.”
But the notice can be thin. The same subdivision provides that “[t]he indictment or information need not identify the property subject to forfeiture or specify the amount of any forfeiture money judgment that the government seeks.” So a defendant can be on formal notice of forfeiture without knowing what property or what number is coming — which is a reason to ask early rather than wait for the presentence process to disclose it.
The nexus finding. Under Rule 32.2(b)(1)(A), “[i]f the government seeks forfeiture of specific property, the court must determine whether the government has established the requisite nexus between the property and the offense.” That is a finding to be contested, item by item, not a formality that follows automatically from the verdict.
The jury moment — and it is easy to miss. Rule 32.2(b)(5)(A): “In any case tried before a jury, if the indictment or information states that the government is seeking forfeiture, the court must determine before the jury begins deliberating whether either party requests that the jury be retained to determine the forfeitability of specific property if it returns a guilty verdict.” If a party timely requests it, the government “must submit a proposed Special Verdict Form listing each property subject to forfeiture and asking the jury to determine whether the government has established the requisite nexus.”
The request must be made before deliberations begin. A defendant who has not thought about forfeiture until sentencing has already lost the option of having a jury decide it.
Where the jury has no role. Rule 32.2(b)(5) does not extend everywhere: “There is no right to a jury trial under Rule 32.2(e)” — the subdivision covering subsequently located property and substitute assets. Substitute-asset forfeiture is decided by the court.
Timing of the preliminary order. Rule 32.2(b)(2)(B) provides that “[u]nless doing so is impractical, the court must enter the preliminary order sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final as to the defendant.” That window is the defendant’s opportunity to correct a money-judgment figure, and it is frequently the last one.
The order then “sett[s] forth the amount of any money judgment, direct[s] the forfeiture of specific property, and direct[s] the forfeiture of any substitute property if the government has met the statutory criteria” — the § 853(p) criteria discussed below.
Honeycutt: the most useful holding for a peripheral defendant
Honeycutt v. United States, 581 U.S. 443 (2017), is the decision every defendant who was not the principal should know. The Court held, verbatim:
“Forfeiture pursuant to § 853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime.”
The consequence is that co-conspirators are not jointly and severally liable for the full proceeds of a scheme. A salaried employee, a junior participant, or a defendant who handled money that went to someone else does not forfeit the whole figure because the conspiracy generated it. The forfeiture money judgment is measured by what that defendant actually obtained.
This is often the single largest number in a white-collar sentencing, and it is regularly overstated in the government’s initial proposal — particularly where the government has computed a scheme-wide total and applied it to everyone charged. Testing what each defendant actually acquired is high-value work. It also interacts with the loss calculation and with restitution, which are covered in our federal sentencing pages, and it recurs in the investment cases described on our investment fraud attorney page.
Substitute assets — when untainted property is reached
If the tainted property is gone, the government may reach clean property instead. Section 853(p) applies where, “as a result of any act or omission of the defendant,” the original property:
“(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.”
Where one of those applies, “the court shall order the forfeiture of any other property of the defendant, up to the value” of the original.
Two points defendants miss. The predicate is “as a result of any act or omission of the defendant” — property that became unavailable for reasons unconnected to the defendant’s conduct does not automatically open the substitute-asset door, and that condition is contestable. And subsection (E) — commingling — is the provision most often invoked in financial cases, because money in a bank account is the paradigm of property “commingled with other property which cannot be divided without difficulty.”
Paying for a lawyer: Luis and Kaley
Two Supreme Court decisions define what can and cannot be released to retain counsel of choice, and they point in opposite directions. The line between them is the line between tainted and untainted assets.
Luis: untainted assets cannot be restrained pretrial
In Luis v. United States, 578 U.S. 5 (2016), the Court held, verbatim, that:
“the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment.”
If the assets are the defendant’s own, are not traceable to the alleged offense, and are needed to retain chosen counsel, restraining them before trial is unconstitutional.
Kaley: tainted assets are a different question
Kaley v. United States, 571 U.S. 320 (2014), addressed the other side. Pretrial restraints under § 853(e)(1)(A) are permissible where probable cause exists to believe both that the defendant committed an offense permitting forfeiture and that the assets are traceable or sufficiently related to it. The Court held that an indicted defendant challenging such a restraint is not constitutionally entitled to contest the grand jury’s determination of probable cause that he committed the charged crimes — even to free assets he needs for a lawyer. The grand jury’s finding on the offense stands.
But note what remains open, because it is the practical opening. The opinion records the Solicitor General’s concession — and that every court of appeals to consider it had so held — that “defendants are entitled to show that the assets that are restrained are not actually the proceeds of the charged criminal offense.” The traceability prong is contestable; the offense prong is not.
Putting the two together
| Asset | Can it be restrained pretrial? | Authority |
|---|---|---|
| Untainted, needed for counsel of choice | No | Luis, 578 U.S. 5 |
| Tainted (traceable to the alleged offense) | Yes, on probable cause | Kaley, 571 U.S. 320 |
| Disputed traceability | The restraint may be challenged on traceability | Kaley (Government’s concession) |
| The underlying charge itself | Not re-litigable by an indicted defendant | Kaley, 571 U.S. 320 |
Table: what can be unfrozen to pay a lawyer, and on what ground.
The practical sequence follows from the table: identify which restrained assets the government actually contends are traceable, and to what; establish which are not; and litigate the traceability of anything in between. That analysis is usually the first thing done in a case where accounts have been frozen, because it determines whether the defendant can fund a defense at all.
Third parties: the spouse, the partner, the lender
The most disorienting feature of criminal forfeiture for a third party is that you cannot come in early. Section 853(k) is a bar on intervention:
“Except as provided in subsection (n), no party claiming an interest in property subject to forfeiture under this section may— (1) intervene in a trial or appeal of a criminal case involving the forfeiture of such property under this section; or (2) commence an action at law or equity against the United States concerning the validity of his alleged interest in the property subsequent to the filing of an indictment or information alleging that the property is subject to forfeiture.”
So a spouse who co-owns the house, a partner with an interest in the business, or a lender holding a security interest must watch the criminal case decide the property’s fate without being able to participate. Their moment comes afterwards, in the ancillary proceeding under § 853(n) and Rule 32.2(c).
The deadline is thirty days — a petition “within thirty days of the final publication of notice or his receipt of notice under paragraph (1), whichever is earlier.”
There are exactly two ways to win. Under § 853(n)(6), the petitioner must establish by a preponderance of the evidence either:
“(A) the petitioner has a legal right, title, or interest in the property, and such right, title, or interest renders the order of forfeiture invalid in whole or in part because the right, title, or interest was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the commission of the acts which gave rise to the forfeiture; or (B) the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of purchase reasonably without cause to believe that the property was subject to forfeiture.”
Read those two grounds carefully, because between them they exclude a great deal. Ground (A) is fixed at the time of the offense — an interest acquired later does not qualify under it. Ground (B) requires value given and the absence of reason to believe. A spouse who received an interest as a gift, or by operation of a marital arrangement rather than for value, may fit neither. That is a hard result, and it is better understood before the thirty days start running than after.
The Eighth Amendment limit
There is a constitutional ceiling on punitive forfeiture, and it is worth stating accurately because the two leading cases do different work.
The federal standard comes from United States v. Bajakajian, 524 U.S. 321 (1998), which held — verbatim — that “a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.”
Timbs v. Indiana, 586 U.S. 146 (2019), is a state-incorporation case, and it should not be cited as though it announced a new federal rule. Its holding is that “[t]he Excessive Fines Clause is … incorporated by the Due Process Clause of the Fourteenth Amendment.”
Its relevance to a federal forfeiture is indirect but real: in reaching that result the Court declined Indiana’s invitation to revisit Austin v. United States, 509 U.S. 602 (1993), reaffirming “our unanimous judgment in Austin that civil in rem forfeitures are fines for purposes of the Eighth Amendment when they are at least partially punitive.” So the Excessive Fines Clause reaches civil in rem forfeiture, not merely criminal fines — and Bajakajian supplies the test.
Proportionality arguments are not easy and they are not a substitute for contesting forfeitability. But where the forfeiture sought dwarfs the offense — a home forfeited over a modest transaction, a money judgment far exceeding what the defendant actually received — the argument is available, and it pairs naturally with the Honeycutt point that the defendant forfeits only what he actually acquired.
Where forfeiture shows up
Forfeiture is not a practice area of its own so much as a consequence that attaches to other cases.
Fraud offenses. Section 982(a)(2) reaches proceeds of offenses “affecting a financial institution” under §§ 1341, 1343 and 1344 among others, and § 982(a)(3) reaches federal program fraud, false statements, and major fraud. See our wire fraud lawyer, bank fraud attorney and embezzlement lawyer pages.
Money laundering. Section 981(a)(1)(A) and § 982(a)(1) both reach property “involved in” a § 1956, § 1957 or § 1960 offense — a category broader than proceeds, because the funds moved and sometimes the accounts used to move them are “involved in” the transaction.
Tax and offshore matters. Unreported income and foreign accounts generate their own exposure; see our tax fraud lawyer and FBAR penalties pages.
Securities and investment cases. Restraint of accounts is routine, and it frequently arrives alongside a parallel regulatory action — see our SEC defense lawyer and insider trading lawyer pages.
Health care matters. Practice accounts and real property are commonly restrained; the enforcement picture is on our medicare fraud attorney, stark law attorney and false claims act attorney pages, with the administrative consequences on our OIG exclusion page. Where a civil investigative demand has arrived, or the company has begun interviewing staff — see our Upjohn warning page — restraint may not be far behind.
Elizabeth Franklin-Best, P.C. is a federal criminal defense attorney practice handling federal forfeiture matters nationwide. Where a forfeiture order has already been entered, review runs through federal appeals and, for claims resting on facts outside the record, a § 2255 motion.
What to do when property is seized
- Establish which proceeding you are in. Administrative, civil judicial, or criminal. The notice tells you, and everything else follows from it.
- Calendar the claim deadline the day the notice arrives — the date in the letter, which may be as little as 35 days from mailing, or 30 days from final publication if no letter reached you.
- File a claim rather than a letter. Only a claim forces the case into court.
- Diary the government’s 90-day clock under § 983(a)(3)(A). Its expiry has consequences for the government, not just for you.
- Separate tainted from untainted assets, because Luis and Kaley turn entirely on that distinction and it decides whether counsel can be paid.
- Establish what the defendant actually acquired, because Honeycutt limits criminal forfeiture to that figure and the government’s opening number is frequently larger.
- Identify third-party interests early, even though § 853(k) bars them from intervening — the 30-day ancillary petition arrives quickly and the two § 853(n)(6) grounds are narrow.
- Do not move, transfer or dissipate anything. Beyond the obvious obstruction risk, transferring property is an enumerated trigger for substitute-asset forfeiture under § 853(p)(1)(B).
We do not predict outcomes and we will not tell any reader whether their property will be returned. What the statute provides, and what the deadlines are, is set out above so the decisions can be made in time.
Frequently Asked Questions About Asset Forfeiture
Can the government take my property without charging me with a crime?
In a civil forfeiture, yes. Civil forfeiture under 18 U.S.C. § 981 proceeds in rem — against the property — and requires no criminal charge against any person. The government must prove the property is forfeitable by a preponderance of the evidence under § 983(c)(1), which is a lower standard than a conviction requires.
What is the difference between civil and criminal forfeiture?
Civil forfeiture is an action against property, needs no conviction, and is governed by § 983 and Supplemental Rule G — a rule that sits in the admiralty appendix to the civil rules, and that sets what a claim must contain. Criminal forfeiture is part of a convicted defendant’s sentence, is governed by § 853, § 982 and Fed. R. Crim. P. 32.2, and is limited by Honeycutt to what that defendant actually acquired.
How long do I have to contest a seizure?
Short. In an administrative forfeiture the claim deadline is the date set in the personal notice letter, which “may be not earlier than 35 days after the date the letter is mailed” — § 983(a)(2)(B). If no letter reached you, a claim may be filed “not later than 30 days after the date of final publication of notice of seizure.”
Do I have to sign the claim myself, under oath?
Yes. Supplemental Rule G(5)(a)(i) requires that a claim “identify the specific property claimed,” “identify the claimant and state the claimant’s interest in the property,” and “be signed by the claimant under penalty of perjury.” A letter of explanation is not a claim. Where there is a parallel criminal investigation, a sworn assertion of an interest in the property is a significant step and should be taken with counsel.
After I file a claim, is that the end of it?
No — it starts two more clocks. Under Rule G(5)(b) you must serve and file an answer or a Rule 12 motion “within 21 days after filing the claim,” and an objection to in rem jurisdiction or venue is waived if it is not raised then. Separately, Rule G(6) lets the government serve special interrogatories about your identity and relationship to the property without the court’s leave, answerable within 21 days. Under Rule G(6)(c) the government need not respond to a motion to dismiss until 21 days after those interrogatories are answered.
What happens if I miss the claim deadline?
The property is forfeited administratively by declaration and no court examines the merits. The after-the-fact remedy is a motion to set aside the declaration, which is narrower and harder than the claim would have been. This is the most common way property is lost.
Does the government have a deadline too?
Yes, and it matters. Notice must be sent within 60 days of seizure (90 where state or local police seized and turned the property over). And after a claim is filed, the government has 90 days to file a forfeiture complaint or return the property. If it does neither and does not obtain an indictment alleging forfeiture, § 983(a)(3)(B) requires release and provides that the government “may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense.”
I did not know what my spouse or partner was doing. Is that a defense?
It can be. Section 983(d) provides that an innocent owner’s interest “shall not be forfeited,” but “[t]he claimant shall have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence.” For an interest held at the time of the conduct, you must show you “did not know of the conduct giving rise to forfeiture” or, on learning of it, “did all that reasonably could be expected under the circumstances to terminate such use of the property.”
Can I be made to forfeit money my co-defendant received?
No. Honeycutt v. United States, 581 U.S. 443 (2017), holds that forfeiture under § 853(a)(1) “is limited to property the defendant himself actually acquired as the result of the crime.” Joint and several liability among co-conspirators is not available. Where the government’s forfeiture figure is a scheme-wide total applied to every defendant, Honeycutt is the answer.
Can the government freeze money I need to hire a lawyer?
It depends entirely on whether the assets are tainted. Under Luis v. United States, 578 U.S. 5 (2016), “the pretrial restraint of legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment.” Tainted assets are different: Kaley, 571 U.S. 320 (2014), holds an indicted defendant may not contest the grand jury’s probable-cause finding on the charged offense in order to unfreeze them.
Can I challenge whether the frozen assets are really connected to the offense?
Yes — that is the part Kaley leaves open. The opinion records the Government’s concession, consistent with the courts of appeals, that “defendants are entitled to show that the assets that are restrained are not actually the proceeds of the charged criminal offense.” Traceability is contestable even where the charge is not.
What are substitute assets?
Clean property the court orders forfeited in place of tainted property that is gone. Under § 853(p) it applies where, “as a result of any act or omission of the defendant,” the original property cannot be located, was transferred to a third party, was placed beyond the court’s jurisdiction, was substantially diminished in value, or “has been commingled with other property which cannot be divided without difficulty.” The “act or omission of the defendant” condition is a real element and is contestable.
I am not the defendant but I own part of the property. When can I be heard?
Not during the criminal case. Section 853(k) bars a third party from intervening in the trial or appeal or bringing a separate action after indictment. Your proceeding is the ancillary one under § 853(n), and the petition is due within thirty days of final publication or your receipt of notice, whichever is earlier.
What do I have to prove in the ancillary proceeding?
One of two things, by a preponderance: that your interest “was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the commission of the acts” giving rise to forfeiture; or that you were a “bona fide purchaser for value” who at the time of purchase was “reasonably without cause to believe that the property was subject to forfeiture.” Interests acquired later, or acquired without giving value, frequently fit neither.
Is there any limit on how much can be forfeited?
Yes, constitutionally. United States v. Bajakajian, 524 U.S. 321 (1998), holds that “a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense.” Timbs v. Indiana, 586 U.S. 146 (2019), incorporated the Clause against the states and, in doing so, reaffirmed Austin v. United States that civil in rem forfeitures are fines under the Eighth Amendment “when they are at least partially punitive.”
If I am acquitted, do I get my property back?
Not automatically. An acquittal ends the criminal forfeiture, because that requires a conviction. It does not end a civil forfeiture, which proceeds against the property on a preponderance standard and does not depend on anyone being convicted. This is one of the most consequential practical differences between the two proceedings.
By Elizabeth Franklin-Best, Esq. — Principal Attorney & Founder, Elizabeth Franklin-Best, P.C.
Property Restrained or Seized?
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Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026