Criminal Forfeiture: At Sentencing and on Appeal

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

Criminal forfeiture is the part of a federal sentence that takes property, and it has its own procedure, its own record and its own appeal rules. This page follows it from the forfeiture allegation in the indictment through sentencing to the court of appeals. Elizabeth Franklin-Best, P.C. is a federal criminal defense and appellate firm that handles federal matters nationwide, with offices in Columbia and Mount Pleasant, South Carolina.

Quick Answer

Criminal forfeiture is part of a federal sentence. If the indictment gives notice, the judge decides what property is tied to the offense of conviction, or the amount of a personal money judgment, and must order the forfeiture the government proves. The nexus, amount, Honeycutt‘s limits and substitute assets can be contested, and the order appealed with the judgment.

Key Takeaways

• A forfeiture allegation is notice, not a charge. Fed. R. Crim. P. 32.2(a) bars a judgment of forfeiture unless the indictment or information gives notice, says the notice “should not be designated as a count,” and does not require it to list the property or the dollar amount.
• Forfeiture is part of the sentence, so there is no Sixth Amendment jury right (Libretti v. United States, 516 U.S. 29 (1995)). The Fourth Circuit applies a preponderance standard (Tanner, 4th Cir. 1995; Cherry, 4th Cir. 2003), and a jury decides only specific property, only if a party asks before deliberations (Rule 32.2(b)(5)(A)).
• Honeycutt v. United States, 581 U.S. 443 (2017), limits § 853(a)(1) forfeiture to property the defendant himself obtained. The Fourth Circuit applies it to § 982(a)(2) (Chittenden); the circuits are split on § 981(a)(1)(C) (Elias, 2d Cir. 2025) — the route for mail and wire fraud that does not affect a financial institution — which the Fourth Circuit has not decided in a published opinion.
• Forfeiture is not restitution. It is mandatory even when restitution is also ordered (Mhana, 4th Cir. 2026), a court cannot reduce restitution by the value of forfeited property (Alalade, 4th Cir. 2000), and applying forfeited money to victims is the Attorney General’s discretionary decision (21 U.S.C. § 853(i)(1)).
• A missed preliminary-order deadline does not cancel forfeiture. McIntosh v. United States, 601 U.S. 330 (2024), holds the judge may still order forfeiture at sentencing, subject to harmless-error review; the defense’s remedy is a timely objection before sentencing.
• The order is final as to the defendant at sentencing, and the appeal clock runs from entry of the judgment (Rule 32.2(b)(4)). A later order adding property carries its own appeal, and 28 U.S.C. § 2255 — a remedy for a prisoner “claiming the right to be released” — generally cannot reach a forfeiture order.

What is criminal forfeiture?

Criminal forfeiture is a penalty imposed on a convicted defendant, as part of the sentence, that transfers to the United States property connected to the offense, a personal money judgment, or — when tainted property is out of reach because of the defendant’s own act or omission — other property of equal value. Under 28 U.S.C. § 2461(c), “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 ….” The Supreme Court describes it the same way: “Forfeiture is an element of the sentence imposed following conviction or, as here, a plea of guilty” (Libretti). It runs against the defendant personally, and the court can enter it as a personal money judgment (Rule 32.2(b)(1)(A)).

What it reaches depends on the statute of conviction. The drug-forfeiture statute, 21 U.S.C. § 853(a), reaches “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation,” and property used “to commit, or to facilitate the commission of,” the offense. The money-laundering provision reaches property “involved in” the offense (18 U.S.C. § 982(a)(1)), and most fraud forfeiture reaches proceeds. Criminal asset forfeiture is not optional once its conditions are met: § 853(a) and § 2461(c) both say the court “shall order” it, and the Fourth Circuit holds that “forfeiture is not a discretionary element of sentencing” (United States v. Blackman, 746 F.3d 137 (4th Cir. 2014)).

Criminal forfeiture is not civil forfeiture. Civil forfeiture is a separate in rem proceeding against the property itself; for most federal statutes it runs under the procedure of the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), codified at 18 U.S.C. § 983, and it requires no conviction. Criminal forfeiture requires a conviction and is decided under Fed. R. Crim. P. 32.2. The deadlines, burdens and third-party rights differ between the two, and our federal asset forfeiture attorney page compares them side by side. If what arrived was a seizure letter rather than an indictment, start with our page on the notice of seizure. If agents took property in a search and no forfeiture case names it, the page on the motion for return of property explains when Fed. R. Crim. P. 41(g) applies.

The forfeiture allegation: notice, not a charge

A forfeiture allegation is the paragraph in an indictment or information that tells the defendant the government will seek forfeiture if it obtains a conviction. Rule 32.2(a) makes it a precondition: 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.” The charging document “need not identify the property subject to forfeiture or specify the amount of any forfeiture money judgment that the government seeks,” and the Fourth Circuit applied that sentence in 2026: the government “was not required to identify in the indictment” the property or the amount (United States v. Mhana, Nos. 24-4488, 24-4533 (4th Cir. May 12, 2026)).

Nor is the allegation a charge: Rule 32.2(a) says the notice “should not be designated as a count,” and the Fourth Circuit treats forfeiture as “a penalty, rather than a separate criminal offense or an element of a criminal offense” (United States v. Cherry, 330 F.3d 658 (4th Cir. 2003)).

What the allegation usually does reveal is the forfeiture statute, and that is the first thing to read. Whether it cites 21 U.S.C. § 853, a subsection of 18 U.S.C. § 982, or 18 U.S.C. § 981(a)(1)(C) with 28 U.S.C. § 2461(c) determines what property can be reached, how proceeds are measured, and which version of the Honeycutt rule applies in your circuit. If the allegation names no property and no figure, ask the government for both early rather than waiting for its proposed order.

Criminal forfeiture examples from federal appeals

Federal appellate decisions show the range of what criminal forfeiture of property looks like:

• A jury returned a special verdict on specific property and the money-judgment figure was court-determined at $3,649,033, but the district court declined at sentencing to order forfeiture because restitution was also owed; the Fourth Circuit reversed, holding forfeiture mandatory (Mhana, 4th Cir. 2026).
• A $2,128,549.50 money judgment was affirmed over an Apprendi challenge (United States v. Day, 700 F.3d 713 (4th Cir. 2012)).
• The Fourth Circuit held that a $136,601.03 forfeiture order “poses no Eighth Amendment problem,” noting the sum was “well below the maximum statutory fine of $250,000” (Blackman, 4th Cir. 2014).
• A $10,000 forfeiture was vacated because the defendant obtained nothing from the robbery (United States v. Elias, 154 F.4th 56 (2d Cir. 2025)).
• A $35.1 million forfeiture was affirmed against an Excessive Fines challenge (United States v. Ng Chong Hwa, 161 F.4th 127 (2d Cir. 2025)).

The criminal forfeiture timeline, with every appeal point

Criminal forfeiture procedure runs through nine stages, and criminal forfeiture defense is a series of decisions made at each one. The preservation column matters because an argument not raised in the district court gets only plain-error review on appeal (United States v. Bennett, 986 F.3d 389 (4th Cir. 2021)).

Stage	Governing text	What the defendant can contest	What must be preserved, and how	Deadline or timing rule
1. Indictment or information	Rule 32.2(a): notice “that the government will seek the forfeiture of property as part of any sentence”; 28 U.S.C. § 2461(c)	Whether notice was given at all, and which statute it invokes (§ 853, § 982 or § 981(a)(1)(C) through § 2461(c)). A notice that omits the property or the amount is valid (Mhana).	Object in the district court before judgment if notice is missing; identify the statute cited, because it sets the measure of forfeiture and the Honeycutt rule that applies.	The notice must be in the indictment or information itself and “should not be designated as a count.”
2. Plea or verdict	Rule 11(b)(1)(J): the court must determine the defendant understands “any applicable forfeiture”; Libretti (stipulated forfeiture)	Whether the plea’s forfeiture term was knowing and voluntary; exactly what was stipulated — specific property, an amount, or both.	Write any reserved forfeiture arguments into the plea agreement expressly; the Justice Department’s Asset Forfeiture Policy Manual 2025 (AFPM 2025) says preserved rights “should be identified” (AFPM 2025, ch. 10, § VI — policy, not law). At trial, decide on the jury option before deliberations.	The court may base the forfeiture determination on a written plea agreement (Rule 32.2(b)(1)(B)).
3. Forfeiture determination	Rule 32.2(b)(1): the court decides nexus for specific property and “the amount of money that the defendant will be ordered to pay”; evidence must be “relevant and reliable”; jury option in (b)(5)	Nexus, item by item; the money-judgment amount; whether the defendant himself obtained the proceeds (Honeycutt); the proceeds measure under 18 U.S.C. § 981(a)(2).	Request a hearing (“on either party’s request the court must conduct a hearing” if forfeiture is contested); at trial, ask to retain the jury for specific property; state every ground specifically (Bennett).	“As soon as practical after a verdict or finding of guilty, or after a plea of guilty or nolo contendere is accepted”; jury request resolved “before the jury begins deliberating.” Standard: preponderance in the Fourth Circuit (Martin).
4. Preliminary order of forfeiture	Rule 32.2(b)(2)–(3): sets the money judgment, specific property and any substitute property; entered “without regard to any third party’s interest”; authorizes seizure	The figure, the property list, any substitute property (the § 853(p) showing), and a general order under (b)(2)(C) that leaves the amount open.	File written objections to the proposed order. If no preliminary order has been entered before sentencing, object: a timely objection “likely will prompt the district court to enter the preliminary order and, if appropriate, postpone sentencing” (McIntosh).	Entered “sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications” unless impractical ((b)(2)(B)); missing that timing does not bar forfeiture (McIntosh, 2024).
5. Sentencing	Rule 32.2(b)(4)(A)–(B): the order “becomes final as to the defendant”; the court “must include the forfeiture when orally announcing the sentence” and in the judgment	Whether forfeiture was actually imposed at sentencing (the Sixth Circuit requires the court to “affirmatively impose forfeiture at the point of sentencing” — Harrell, 2026); Excessive Fines (Jalaram, 4th Cir.).	Confirm the forfeiture is stated in the oral sentence and written into the judgment; renew objections; build the Excessive Fines record, because the defendant bears the burden (Jalaram).	Final “At sentencing—or at any time before sentencing if the defendant consents”; an omission from the judgment “may be corrected at any time under Rule 36.”
6. Ancillary proceeding	Rule 32.2(c)(1), (c)(4); 21 U.S.C. § 853(n): third-party petitions; “An ancillary proceeding is not part of sentencing.”	Not ownership: the defendant “may not object to the entry of the final order on the ground that the property belongs, in whole or in part, to a codefendant or third party” ((c)(2)).	The defendant’s challenge to forfeitability rides on the appeal from the judgment, not on this stage. Third parties must file their own petitions (see innocent owner defense).	Criminal third-party petitions: within 30 days of final publication or receipt of notice, whichever is earlier (§ 853(n)(2)). None is required “to the extent that the forfeiture consists of a money judgment” ((c)(1)).
7. Final order of forfeiture	Rule 32.2(c)(2): the court amends the preliminary order “as necessary to account for any third-party rights”	Little, for the defendant: a final order “decides only third parties’ rights in the property” (Bane, 11th Cir. 2020).	Do not wait for this order to appeal the defendant’s own forfeiture; that clock started at the judgment ((b)(4)(C)).	Entered “When the ancillary proceeding ends”; if no timely petition is filed, the preliminary order becomes final if the court finds the defendant had a forfeitable interest.
8. Substitute or after-located property	Rule 32.2(e); 21 U.S.C. § 853(p): substitute property when forfeitable property is unavailable “as a result of any act or omission of the defendant”	Each § 853(p)(1) condition; that the defendant’s own act or omission caused the unavailability (Honeycutt; Elias); value. In the Fourth Circuit, no pretrial restraint of substitute assets under § 853(e) (Chamberlain, en banc).	Answer the government’s motion with evidence; an agent affidavit the defendant did not counter, backed by other record evidence, was enough in Alamoudi (4th Cir. 2006). “There is no right to a jury trial under Rule 32.2(e).”	The court may act “at any time” on the government’s motion. An appeal “regarding that property” runs from when the order granting or denying the amendment “becomes final” ((b)(4)(C)).
9. Appeal	Rule 32.2(b)(4)(C); FRAP 4(b)(1)(A), (b)(4), (b)(6)	Legal questions reviewed de novo, fact findings for clear error (Martin; Mhana); proportionality de novo (Jalaram); Honeycutt‘s reach; whether an appeal waiver applies (Boutcher).	File a notice of appeal from the judgment, and a separate or amended notice from any later order fixing the amount or adding property (United States v. Montemayor, No. 19-12047 (11th Cir. May 29, 2020) (unpublished)); ask for a stay under Rule 32.2(d) if the property must remain available.	A defendant’s notice is due “within 14 days after the later of” entry of the judgment or order appealed, or the government’s notice of appeal (FRAP 4(b)(1)(A)); extendable up to 30 days for excusable neglect or good cause ((b)(4)); “entered” means entered on the criminal docket ((b)(6)).

How to read the timing column. It states rules, not dates. A notice of appeal runs from the date the judgment or order is entered on the criminal docket, not the date of the hearing (FRAP 4(b)(6)).

Which statute is the government using?

The statute cited in the forfeiture allegation decides what property can be taken and how it is measured. Four routes cover most federal criminal cases: 21 U.S.C. § 853 for drug offenses; 18 U.S.C. § 982(a)(1) for money laundering; other subsections of § 982 for bank fraud, health care fraud and a handful of other offenses; and 18 U.S.C. § 981(a)(1)(C), made available in criminal cases by 28 U.S.C. § 2461(c), for ordinary mail and wire fraud and most other “specified unlawful activity.” The charges themselves are covered on our white collar crime lawyer page.

21 U.S.C. § 853: drug offenses, and the procedure for everything else

Section 853(a) covers drug offenses punishable by more than one year in prison and reaches proceeds, facilitating property and, for a continuing criminal enterprise, the defendant’s interests in the enterprise, “irrespective of any provision of State law.” Section 853 matters far beyond drug cases because its procedures travel. Under § 2461(c), § 853’s procedures “apply to all stages of a criminal forfeiture proceeding,” except that § 853(d) applies only when the conviction is under the Controlled Substances Act, and § 982(b)(1) does the same for § 982 forfeitures. That is why substitute property (§ 853(p)), restraining orders (§ 853(e)) and third-party petitions (§ 853(n)) apply in fraud and laundering cases.

18 U.S.C. § 982(a)(1): property “involved in” money laundering

For a conviction under 18 U.S.C. § 1956, § 1957 or § 1960, the court “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” (§ 982(a)(1)). “Involved in” is broader than “proceeds”: it reaches the laundered funds themselves, and the Eleventh Circuit has said “A defendant clearly has a personal interest in the corpus of funds he laundered” (United States v. Waked Hatum, 969 F.3d 1156 (11th Cir. 2020)). A money laundering count in a fraud indictment can therefore widen forfeiture exposure. How Honeycutt applies to it is covered in the circuit map below.

18 U.S.C. § 982(a)(2), (a)(3) and (a)(7): bank fraud, FDIC-asset sales and health care fraud

Section 982(a)(2) covers two lists. Subparagraph (A) covers offenses including §§ 1014, 1341, 1343 and 1344 “affecting a financial institution”; subparagraph (B) covers counterfeiting, identity and access-device fraud, computer fraud (§§ 1028, 1029, 1030) and others. For both, 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.” A bank fraud conviction under § 1344 is the common example.

Section 982(a)(3) is narrower than it is sometimes described. It applies to program fraud, false statements, major fraud, concealment of assets, mail fraud and wire fraud only when the offense involves “the sale of assets acquired or held by” the Federal Deposit Insurance Corporation as conservator or receiver for a financial institution, a conservator appointed by the Office of the Comptroller of the Currency, or the National Credit Union Administration as conservator or liquidating agent. It is not a general fraud-forfeiture provision.

Section 982(a)(7) covers federal health care offenses and reaches property “that constitutes or is derived, directly or indirectly, from gross proceeds traceable to the commission of the offense.” In healthcare fraud cases, including Medicare fraud, the measure is therefore gross proceeds.

18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c): ordinary mail and wire fraud

Mail and wire fraud that does not affect a financial institution falls outside § 982(a)(2)(A), so the government reaches it through a civil forfeiture statute made usable in criminal cases. Section 981(a)(1)(C) covers property “which constitutes or is derived from proceeds traceable to” listed offenses or “any offense constituting ‘specified unlawful activity.'” That term includes the offenses listed in 18 U.S.C. § 1961(1) (§ 1956(c)(7)(A)), which names mail fraud (§ 1341), wire fraud (§ 1343) and financial institution fraud (§ 1344). As the Second Circuit put it, “Although Section 981(a)(1)(C) is a civil forfeiture provision, it is made applicable to criminal cases pursuant to 28 U.S.C. § 2461(c)” (United States v. Romeo, 136 F.4th 372 (2d Cir. 2025)), and the Fourth Circuit walked the same chain in Mhana (2026). This is the usual route in a wire fraud case.

The route is not available when a criminal forfeiture provision already covers the offense. The Fourth Circuit holds that “§ 2461, and by extension § 981, does not apply when a criminal forfeiture provision applies to the crime charged” (United States v. Chittenden, 896 F.3d 633 (4th Cir. 2018)). The distinction matters because Honeycutt‘s reach differs by statute, as the circuit map below shows.

What counts as “proceeds”: § 981(a)(2)

Section 981(a)(2) draws three lines. For “illegal goods, illegal services, unlawful activities, and telemarketing and health care fraud schemes,” proceeds means property obtained “as the result of the commission of the offense giving rise to forfeiture,” and “is not limited to the net gain or profit realized from the offense.” For “lawful goods or lawful services that are sold or provided in an illegal manner,” proceeds means “the amount of money acquired through the illegal transactions resulting in the forfeiture, less the direct costs incurred in providing the goods or services”; the claimant bears the burden on direct costs, which exclude overhead and income taxes. In loan-fraud cases, the court “shall allow the claimant a deduction from the forfeiture to the extent that the loan was repaid, or the debt was satisfied, without any financial loss to the victim.” Outside the categories the statute names, whether a particular fraud falls under the gross rule or the net rule is argued case by case, and the answer can change the figure substantially.

Who decides forfeiture, and by what standard?

The judge decides criminal forfeiture after conviction, by a preponderance of the evidence in the Fourth Circuit, unless a party has asked the jury to decide whether specific property is forfeitable. The defendant has no constitutional right to a jury on forfeiture, and the Fourth Circuit and the other circuits discussed below hold that Apprendi does not apply to it.

Part of the sentence, not an element of the crime

Libretti settled the framework in 1995. The Court (O’Connor, J.) noted that its precedents characterize criminal forfeiture as “an aspect of punishment imposed following conviction of a substantive criminal offense,” and held that its “analysis of 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” (Libretti). The jury right that exists is a creation of rule, now Rule 32.2(b)(5). Construing the predecessor rule, Libretti also held that a plea agreement need not mention the jury right and that the court need not specifically advise a defendant that pleading guilty waives it.

The standard of proof: preponderance

The Fourth Circuit applies a preponderance standard under § 853 — “the preponderance standard must control in forfeiture cases under § 853(a)” (United States v. Tanner, 61 F.3d 231 (4th Cir. 1995)) — and under § 982, where “the court properly instructed the jury that the preponderance standard governed its findings under § 982” (Cherry); Cherry reserved the question for RICO forfeiture under 18 U.S.C. § 1963. For the nexus finding, “the government must establish a nexus between the property for which it is seeking forfeiture and the crime by a preponderance of the evidence” (United States v. Martin, 662 F.3d 301 (4th Cir. 2011)). The Tenth Circuit applied the same standard to the nexus finding in 2025 (United States v. Dermen, 143 F.4th 1148 (10th Cir. 2025)).

Why Apprendi does not apply

The Supreme Court held in 2012 “that the rule of Apprendi applies to the imposition of criminal fines” (Southern Union Co. v. United States, 567 U.S. 343 (2012)). Defendants then argued forfeiture should follow. The Fourth Circuit disagreed: Southern Union “did not concern forfeiture,” and “We therefore hold that the rule of Apprendi does not apply to a sentence of forfeiture” (Day). It had already reasoned that “Because no statutory or other maximum limits the amount of forfeiture, a forfeiture order can never violate Booker” (United States v. Alamoudi, 452 F.3d 310 (4th Cir. 2006)). The Second Circuit (United States v. Stevenson, 834 F.3d 80 (2d Cir. 2016)) and the Eighth (United States v. Sigillito, 759 F.3d 913 (8th Cir. 2014)) reached the same result after Southern Union.

The jury option under Rule 32.2(b)(5)

In a jury trial, the jury decides forfeiture only if someone asks in time. Under Rule 32.2(b)(5)(A), 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 asks, the government must submit a proposed special verdict form asking the jury whether the government “has established the requisite nexus between the property and the offense committed by the defendant” (Rule 32.2(b)(5)(B)). The jury’s role covers only specific property: the amount of a personal money judgment is for “the court” under (b)(1)(A) — the division followed in Mhana, where the jury returned a special verdict on specific property and the court determined the money-judgment amount. Substitute property carries no jury right at all (Rule 32.2(e)(3)).

What evidence the court may consider

The court’s determination may rest on “evidence already in the record, including any written plea agreement,” and on additional evidence “accepted by the court as relevant and reliable,” and if forfeiture is contested, either party can require a hearing (Rule 32.2(b)(1)(B)). The Tenth Circuit has held that the Federal Rules of Evidence “do not apply to sentencing,” so hearsay with “some minimal indicia of reliability” may be considered (Dermen). If the government’s figure also appears in the presentence report, object there too, so the disagreement is in every document the judge reads before sentencing.

The preliminary order of forfeiture

The preliminary order of forfeiture is the court’s written forfeiture ruling. It should be entered before sentencing, and it becomes final as to the defendant at sentencing. If the court finds property subject to forfeiture, it “must promptly enter a preliminary order of forfeiture” setting out any money judgment, specific property and substitute property (Rule 32.2(b)(2)(A)). The order is entered “without regard to any third party’s interest in the property”; third-party claims are deferred to the ancillary proceeding.

Timing, and what McIntosh changed. “Unless 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 under Rule 32.2(b)(4)” (Rule 32.2(b)(2)(B)). In 2024 a unanimous Supreme Court held that missing this deadline does not prevent the judge from ordering forfeiture at sentencing; the error is reviewed on appeal for harmlessness (McIntosh). The Court explained that “a timely objection required to preserve a claim of error likely will prompt the district court to enter the preliminary order and, if appropriate, postpone sentencing.” The Fourth Circuit had reached a similar result under an earlier version of the rule, treating its deadline as “a time-related directive rather than a jurisdictional condition” where the defendants were on notice before sentencing (Martin), and the Eleventh Circuit had found a missing preliminary order harmless where the defendant had notice and a chance to contest the forfeiture (United States v. Farias, 836 F.3d 1315 (11th Cir. 2016)).

General orders. If, before sentencing, the court “cannot identify all the specific property subject to forfeiture or calculate the total amount of the money judgment,” it may enter a general order that lists identified property, describes the rest in general terms and “will be amended under Rule 32.2(e)(1)” once the property or amount is known (Rule 32.2(b)(2)(C)). A general order leaves part of the forfeiture to be decided after the judgment, which creates the separate-appeal problem discussed in the appeal section below.

Seizure and preservation. The preliminary order authorizes the Attorney General to seize the specific property, and the court may add “conditions reasonably necessary to preserve the property’s value pending any appeal” (Rule 32.2(b)(3)). The order must then be announced at the federal sentencing hearing with the rest of the sentence (Rule 32.2(b)(4)).

How is a forfeiture money judgment calculated — and challenged?

A forfeiture money judgment is an order requiring the defendant personally to pay the United States a sum equal to the forfeitable property, whether or not that property still exists. Rule 32.2 builds it into the procedure: the court determines the amount ((b)(1)(A)), the indictment need not state it ((a)), and no ancillary proceeding is required for it ((c)(1)).

The Fourth Circuit treats money judgments as settled law and holds that indigence does not prevent one. “It is well settled that nothing in the applicable forfeiture statutes ‘suggests that money judgments are forbidden,'” and “The fact that a defendant is indigent or otherwise lacks adequate assets to satisfy a judgment does not operate to frustrate entry of a forfeiture order. Forfeiture is calculated on the basis of the total proceeds of a crime, not the percentage of those proceeds remaining in the defendant’s possession at the time of the sentencing hearing” (Blackman). Mhana repeated the indigence point in 2026. Blackman comes with one warning: its holding that a defendant is liable for “the reasonably foreseeable criminal proceeds of the conspiracy” rested on United States v. McHan, which the Fourth Circuit says Honeycutt “clearly abrogated” (Chittenden). Blackman remains good authority on money judgments and indigence, not on co-conspirator liability.

The Ninth, Eleventh and Second Circuits have kept money judgments after Honeycutt. The Ninth Circuit declined to overrule its money-judgment precedent because it is not “clearly irreconcilable” with Honeycutt, but it limited enforcement: “when § 853(p) applies, the government may not enforce a personal money judgment through the same means it would use to enforce an ordinary in personam civil judgment” and must first return to the district court and establish the § 853(p) requirements before reaching untainted assets (United States v. Nejad, 933 F.3d 1162 (9th Cir. 2019)). The Eleventh Circuit reads Honeycutt as having “presumed the continued existence of in personam proceedings” (United States v. Elbeblawy, 899 F.3d 925 (11th Cir. 2018)); the Second Circuit allows money judgments only for property the defendant acquired (Elias).

Testing the government’s number

The challenge to a money judgment is usually a challenge to its arithmetic and its legal premises. Five questions organize it:

1. Which statute? It fixes the measure: proceeds the defendant obtained (§ 853(a)(1); § 982(a)(2)), gross or net proceeds under § 981(a)(2) and § 982(a)(7), or property “involved in” laundering (§ 982(a)(1)).
2. Who obtained the money? Under § 853(a)(1), forfeiture is limited to what the defendant himself obtained (Honeycutt), and in the Fourth Circuit § 982(a)(2) “does not permit courts to hold a defendant liable for proceeds that only her co-conspirator acquired” (Chittenden). Rank in the scheme is not the test (United States v. Moya, 18 F.4th 480 (5th Cir. 2021)). The Ninth Circuit measures what “came to rest” with each defendant (United States v. Thompson, 990 F.3d 680 (9th Cir. 2021)).
3. Did the money pass through the defendant’s hands? The circuits that have ruled treat money the defendant possessed or controlled, including in a jointly controlled account, as “obtained” even if it was passed on: Honeycutt‘s bar “applies only to co-conspirators who never possessed the tainted proceeds of their crimes” (United States v. Young, 108 F.4th 1307 (11th Cir. 2024), quoting United States v. Tanner, 942 F.3d 60 (2d Cir. 2019); accord Asomani (8th Cir. 2021); Cadden (1st Cir. 2020)). The Fourth Circuit has no published merits holding; it noted Cadden only in a footnote of an appeal-waiver decision (United States v. Boutcher, 998 F.3d 603 (4th Cir. 2021)).
4. Is the total counted once? Where joint liability is permitted, the government “may recover the $1.5 million total only once” (Young); the Second Circuit held that ordering the same proceeds forfeited twice was error (Tanner, 2d Cir. 2019).
5. Are the statutory deductions applied? Direct costs where § 981(a)(2)(B) applies, and repayment credit in loan fraud under § 981(a)(2)(C) (18 U.S.C. § 981(a)(2)).

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: When the government proposes a money judgment, the first question is which statute it rests on, because that fixes the measure before any argument about facts begins. The second is whose hands the money actually passed through. A scheme-wide total applied to every defendant is the figure to test first after Honeycutt and Chittenden — but in the circuits that have ruled, money that sat in the defendant’s account, even briefly, counts as obtained. So the firm builds the defendant’s own ledger from the bank records: what came in, from where, what went out, to whom, and when. That ledger, put in front of the court before sentencing, is what makes a Honeycutt objection specific enough to preserve and concrete enough to decide.

How far does Honeycutt reach? The circuit map

Honeycutt settles one statute. Under 21 U.S.C. § 853(a)(1), “Forfeiture pursuant to § 853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime,” so a conspirator cannot be held jointly and severally liable for proceeds a co-conspirator alone obtained (Honeycutt). The Court reasoned that “The adverbs ‘directly’ and ‘indirectly’ modify—but do not erase—the verb ‘obtain,'” and that Congress “authorized the Government to confiscate assets only from the defendant who initially acquired the property and who bears responsibility for its dissipation.” Whether that rule governs the other forfeiture statutes is being decided circuit by circuit in the federal courts of appeals. In the map, “extended” means the court held Honeycutt‘s rule governs that statute, “refused” means it held the rule does not, and “not decided” means it reserved the question; unpublished decisions are labeled.

Circuit	Statute	Holding	Case and year
1st	18 U.S.C. § 1963(a)(3) (RICO)	Not decided — assumed it applies; control of a joint account means the defendant “actually acquired” the funds	United States v. Cadden (2020); Saccoccia v. United States (2020); United States v. Saccoccia (2021)
2d	§ 981(a)(1)(C) via 28 U.S.C. § 2461(c)	Extended — expressly “at odds with” the Sixth and Eighth Circuits	United States v. Elias (2025)
2d	§ 982(a)(1) context (laundering conspiracy)	Not decided; joint-and-several forfeiture allowed where each defendant possessed the full proceeds	United States v. Tanner (2019)
3d	§ 981(a)(1)(C) and § 1963	Extended	United States v. Gjeli (2017)
3d	§ 982(a)(1)	Not decided	United States v. Scarfo (2022)
4th	§ 982(a)(2)	Extended	United States v. Chittenden (2018)
4th	§ 981(a)(1)(C)	Not decided by published opinion — split acknowledged; government’s concession accepted	United States v. Dong, No. 17-4268 (4th Cir. Feb. 28, 2022) (unpublished); United States v. Limbaugh, No. 21-4449 (4th Cir. Jan. 6, 2023) (unpublished)
5th	§ 982(a)(7)	Extended — on the government’s concession, plain-error review	United States v. Sanjar (2017)
5th	§ 981(a)(1)(C)	Not decided (“need not pick a side”)	United States v. Reed (2018)
6th	§ 981(a)(1)(C)	Refused	United States v. Sexton (2018); reaffirmed in United States v. Agrawal (2024)
7th	Statute not reached	Not decided — argument not preserved	United States v. Bogdanov (2017)
8th	§ 981(a)(1)(C)	Refused (Honeycutt applied to the § 853 portion of the same judgment)	United States v. Peithman (2019); United States v. Asomani (2021)
9th	§ 981(a)(1)(C) via § 2461(c)	Extended	United States v. Thompson (2021)
10th	§ 981(a)(1)(C)	Not decided — no plain error given the split	United States v. Channon (2020)
11th	§ 982(a)(7)	Extended	United States v. Elbeblawy (2018); United States v. Young (2024)
11th	§ 982(a)(1) (“involved in”)	Refused — Honeycutt‘s “tainted property” requirement “does not apply”	United States v. Waked Hatum (2020); United States v. Philossaint (2025)
11th	§ 982(a)(2)	Not decided	United States v. Philossaint (2025)
11th	§ 981(a)(1)(C)	Not decided — “expressed doubt”; an unpublished panel said Honeycutt “appears” to apply	United States v. Goldstein (2021); cf. United States v. Carlyle (2017) (unpublished)
D.C.	§ 982(a)(1) and § 982(a)(7)	Not decided (“unclear whether Honeycutt’s logic extends”)	United States v. Bikundi (2019)

The real split: § 981(a)(1)(C)

The circuits are divided three to two on § 981(a)(1)(C), the statute behind most mail and wire fraud forfeiture. The Second, Third and Ninth Circuits apply Honeycutt; the Sixth and Eighth do not. The Sixth Circuit reasoned that “Unlike § 853(a)(1), 18 U.S.C. § 981(a)(1)(C) does not contain the phrase ‘the person obtained,’ which was the linchpin of the Supreme Court’s decision in Honeycutt” (Sexton), and the Eighth joined it (Peithman). The Ninth answered that “The textual differences between it and 21 U.S.C. § 853 appear to us to be immaterial” (Thompson), and in October 2025 the Second Circuit held that “The only property that a district court can order a defendant to forfeit in a criminal case under 18 U.S.C. § 981(a)(1)(C) is ‘tainted property acquired or used by the defendant’ as a result of the crime of conviction,” acknowledging that this “puts us at odds with the Sixth Circuit and the Eighth Circuit” (Elias).

The Fourth Circuit has not taken a side by published opinion. Chittenden decided § 982(a)(2), not § 981. In two unpublished decisions, which do not bind later panels, the court acknowledged the split (“a well-defined circuit split,” in Dong‘s words) and declined to choose: in Dong (2022) it vacated and remanded for reconsideration in light of Honeycutt, and in Limbaugh (2023) it accepted the government’s concession that Honeycutt applies and remanded for a forfeiture measured by “the portion of the conspiracy proceeds that actually ‘came to rest’ with Limbaugh herself.”

The government’s position narrows the split in practice. In its brief opposing certiorari in Peithman, the government stated that “[t]he government has agreed that Honeycutt’s reasoning applies to Section 981(a)(1)(C),” as Justice Sotomayor recorded in dissenting from the denial of review in 2019; the same dissent notes the government “maintains that there is an independent ground for the imposition of joint-and-several liability under §981(a)(1)(C)” (Peithman v. United States, 140 S. Ct. 340 (2019)). In Limbaugh, the government made the concession in the Fourth Circuit “consistent with its position in similar cases.” A concession binds no court and can change. The Supreme Court has not granted certiorari on any Honeycutt-extension question and denied review in Peithman over that dissent, so until it does, the answer depends on the circuit.

Money laundering: unsettled, not split

Forfeiture of property “involved in” laundering under § 982(a)(1) is not the subject of a true split. Only the Eleventh Circuit has decided it, holding that Honeycutt‘s tainted-property requirement does not apply because § 982(a)(1) “is materially different than the provision considered in Honeycutt” (Philossaint; Waked Hatum). The Third Circuit wrote, “We do not decide today whether Honeycutt also applies to 18 U.S.C. § 982(a)(1)” (Scarfo); the Second (Tanner) and D.C. (Bikundi) Circuits also reserved it. No circuit has applied Honeycutt to § 982(a)(1), and no Fourth Circuit decision addresses it. Different counts in one judgment can therefore follow different rules, as the Peithman row of the map shows.

When can the government take substitute assets?

Substitute assets are untainted property of the defendant that a court orders forfeited in place of tainted property the government cannot reach. Under 21 U.S.C. § 853(p), the substitute-property provision applies “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.” When one of those conditions is met, “the court shall order the forfeiture of any other property of the defendant,” up to the value of the unavailable property (§ 853(p)(2)); for property placed beyond the court’s jurisdiction, it may also order the defendant to return it (§ 853(p)(3)).

The defendant’s own act or omission is an element. Honeycutt held that Congress “did not authorize the Government to confiscate substitute property from other defendants or co-conspirators” (Honeycutt). Applying that reasoning, the Second Circuit found “no basis for a substitute asset order” against a defendant who obtained nothing, because § 853(p) “authorizes substitute asset judgments only against persons whose ‘act or omission’ has led to the unavailability of the forfeitable asset” (Elias). In the Fourth Circuit, courts “interpret this provision liberally so as to ‘thwart efforts by a defendant to circumvent the economic impact of an anticipated criminal forfeiture sentence,'” and in Alamoudi the court accepted a sworn FBI-agent affidavit describing the search for the missing property where the defendant “points to no evidence countering it, and other evidence in the record supports the affidavit’s allegations” (Alamoudi). The court held there that “the Sixth Amendment applies neither to criminal forfeitures in general nor to a district court’s order permitting the forfeiture of substitute assets in an appropriate case.”

Procedure. On the government’s motion, the court “may at any time enter an order of forfeiture or amend an existing order of forfeiture” to include substitute property (Rule 32.2(e)(1)). There is no jury right at this stage (Rule 32.2(e)(3)), a third party who claims the property gets an ancillary proceeding (Rule 32.2(e)(2)(B)), and an order adding property carries its own appeal (Rule 32.2(b)(4)(C)).

Can substitute assets be frozen before trial?

Not under § 853(e), in any circuit that has decided the question. The Fourth Circuit, sitting en banc, held in 2017 that “Section 853(e) does not by its terms permit pretrial restraint of substitute assets,” overruling In re Billman and United States v. Bollin, the decisions that had made it the only circuit to allow it (United States v. Chamberlain, 868 F.3d 290 (4th Cir. 2017) (en banc)). Other circuits had already reached that result under § 853(e) — United States v. Floyd, 992 F.2d 498 (5th Cir. 1993); United States v. Ripinsky, 20 F.3d 359 (9th Cir. 1994); United States v. Field, 62 F.3d 246 (8th Cir. 1995); United States v. Parrett, 530 F.3d 422 (6th Cir. 2008) — and under the parallel RICO provision (United States v. Gotti, 155 F.3d 144 (2d Cir. 1998); In re Assets of Martin, 1 F.3d 1351 (3d Cir. 1993)).

Two qualifications keep that rule from being absolute. First, lis pendens notices turn on state law: the Sixth Circuit held that “only state law may authorize the federal government to file notices of lis pendens on substitute assets prior to entry of the order of forfeiture” (Parrett), and the Tenth Circuit held such a notice improper under New Mexico law because the government has no ripened interest in substitute property until after conviction and a finding that the tainted property is out of reach (United States v. Jarvis, 499 F.3d 1196 (10th Cir. 2007)). Second, a different statute, 18 U.S.C. § 1345(a)(2)(B), expressly allows a court to restrain “any such property or property of equivalent value” in cases involving banking-law violations and federal health care offenses; Chamberlain noted that “when Congress intends to permit the government to restrain both tainted and untainted assets before trial, it has clearly provided for such authority.” Even then, the Sixth Amendment can limit a freeze of untainted funds needed for counsel: Luis v. United States, 578 U.S. 5 (2016), which arose under § 1345, produced no majority opinion — a four-Justice plurality (Breyer, J.) concluded that pretrial restraint of untainted assets needed to retain counsel of choice violates the Sixth Amendment, and Justice Thomas concurred only in the judgment (Luis). The discussion of Luis and Kaley on our main forfeiture page covers paying for a lawyer with restrained funds, and the page on bank account seizure covers frozen accounts before charges.

Forfeiture, restitution and fines: how do they differ?

Forfeiture takes the proceeds of the offense, or property used in or involved in it, and gives them to the United States; restitution repays victims for their losses; a fine punishes within a statutory ceiling and must account for the defendant’s finances. All three can be imposed in one sentence, and each is calculated differently.

	Criminal forfeiture	Restitution	Fine
Who receives it	The United States (21 U.S.C. § 853(a)); victims only through discretionary remission or restoration (§ 853(i)(1); 18 U.S.C. § 981(e)(6))	“to the victim of the offense or, if the victim is deceased, to the victim’s estate” (18 U.S.C. § 3663A(a)(1))	The United States; a fine is a sentence imposed under 18 U.S.C. § 3571
How it is measured	Proceeds; gross proceeds for § 982(a)(7) and § 981(a)(2)(A) categories; net of direct costs under § 981(a)(2)(B); property “involved in” laundering under § 982(a)(1) (§ 981(a)(2); § 982)	“the full amount of each victim’s losses as determined by the court” (§ 3664(f)(1)(A))	Up to the greatest of the offense statute’s amount, $250,000 per felony for an individual, or “twice the gross gain or twice the gross loss” (§ 3571(b), (d))
Does ability to pay matter?	No (Blackman; Mhana)	Not for the amount, which is set “without consideration of the economic circumstances of the defendant”; yes for the payment schedule (§ 3664(f)(1)(A), (f)(2))	Yes — the court “shall consider” income, earning capacity, financial resources and the burden on dependents (§ 3572(a))
Mandatory?	Yes, once its conditions are met: the court “shall order” it (28 U.S.C. § 2461(c)), “even when restitution is also imposed” (Mhana)	Yes for covered offenses with an identifiable victim who suffered physical injury or pecuniary loss (§ 3663A(a)(1), (c)(1)), subject to the (c)(3) exceptions	No — a defendant “may be fined” within the limits (§ 3571(b))
Can forfeited money pay it?	Not applicable — forfeited property belongs to the government (AFPM 2025, ch. 14, § II.B — policy, not law)	Only through the Attorney General’s discretionary restoration, or remission paid to victims and credited; courts and defendants cannot direct it (AFPM 2025, ch. 14, §§ II.A.7, II.B — policy, not law)	No: “No portion of the funds can be used to satisfy unpaid fines or assessments” (AFPM 2025, ch. 14, § II.B — policy, not law)
Can the court offset one against another?	Forfeiture cannot be withheld over “double payment” concerns (Mhana)	No reduction of restitution by forfeited property (Alalade, 4th Cir. 2000; Joseph, 11th Cir. 2014)	A fine is imposed “only to the extent that such fine or penalty will not impair the ability of the defendant to make restitution” (§ 3572(b))
Criminal punishment?	Yes — “an aspect of punishment” (Libretti)	Yes — “plainly criminal punishment” under the MVRA (Ellingburg, 2026)	Yes — and Apprendi applies to it (Southern Union)
Governing law	21 U.S.C. § 853; 18 U.S.C. §§ 981(a)(1)(C), 982; 28 U.S.C. § 2461(c); Rule 32.2	18 U.S.C. §§ 3663A, 3664; Rule 11(b)(1)(K)	18 U.S.C. §§ 3571, 3572

Restitution is punishment too. In January 2026 the Supreme Court unanimously held that “Restitution under the MVRA is plainly criminal punishment for purposes of the Ex Post Facto Clause,” and restated that forfeiture under § 982(a)(1) is criminal punishment as well (Ellingburg v. United States, 607 U.S. 153 (2026)). The difference is who receives the money and how it is measured, not whether one is a penalty. The Fourth Circuit’s stated rationale for keeping them separate — “restitution functions to compensate the victim, whereas forfeiture acts to punish the wrongdoer” (Bennett, quoting Blackman) — predates Ellingburg but still governs offset.

No offset. The MVRA gives a court no discretion to reduce restitution by the value of property the government kept through administrative forfeiture (United States v. Alalade, 204 F.3d 536 (4th Cir. 2000)), and the Eleventh Circuit, holding that a court “generally has no authority to offset” restitution by forfeited property, lists the Fourth, Seventh, Eighth, Ninth and Tenth Circuits as agreeing (United States v. Joseph, 743 F.3d 1350 (11th Cir. 2014)). Whether criminal forfeiture counts as an “other monetary penalty” that yields to restitution under § 3572(b) is an open question in the Fourth Circuit (Bennett).

How forfeited money can still reach victims. Two discretionary procedures exist. Remission lets the Attorney General “grant petitions for mitigation or remission of forfeiture, restore forfeited property to victims,” or otherwise protect innocent persons (21 U.S.C. § 853(i)(1)); the regulation requires, among other things, a pecuniary loss “directly caused by the criminal offense,” and caps payment at the victim’s share of the net forfeiture proceeds (28 C.F.R. § 9.8). Restoration “enables the Attorney General to transfer forfeited funds to a court for satisfaction of a criminal restitution order” where the victims qualify for remission (AFPM 2025, ch. 14, § I — policy, not law). The Policy Manual adds that forfeited assets “may not be used to satisfy the restitution order if other assets are available for that purpose” and that prosecutors may not represent that forfeited funds “will be used to satisfy restitution” (ch. 14, §§ II.B, II.B.2). The Second Circuit has held the Attorney General is not required to apply a forfeited substitute asset to restitution (Romeo). Restitution itself is collected from the defendant, including through the Bureau of Prisons’ program described on our page on restitution in federal prison; that program collects restitution, not forfeiture.

What does a forfeiture term in a plea agreement commit you to?

A forfeiture term is a sentencing stipulation. It usually fixes the property and the amount, supplies the facts the judge will rely on, and often waives every challenge to the forfeiture, including on appeal. Before accepting a guilty plea, the court must “inform the defendant of, and determine that the defendant understands,” among other things, “any applicable forfeiture,” “the court’s authority to order restitution,” and “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence” (Fed. R. Crim. P. 11(b)(1)(J), (K), (N)). Our page on the plea agreement covers the rest of the Rule 11 process.

What the stipulation does. The court may base its forfeiture determination on “evidence already in the record, including any written plea agreement” (Rule 32.2(b)(1)(B)). Construing former Rule 11(f), Libretti held that “the District Court is not obliged to inquire into the factual basis for a stipulated forfeiture of assets embodied in a plea agreement”; if voluntariness is questioned, “the relevant inquiry is whether the sentencing stipulation was informed and uncoerced on the part of the defendant, not whether it is factually sound” (Libretti). The Court added that it did not “mean to suggest that a district court must simply accept a defendant’s agreement to forfeit property, particularly when that agreement is not accompanied by a stipulation of facts supporting forfeiture.”

What it often waives. The Fourth Circuit enforced a plea in which the defendant agreed “to waive all constitutional and statutory challenges in any manner (including direct appeal, habeas corpus, or any other means) to any forfeiture carried out in accordance with this Plea Agreement” (United States v. Agyekum, 846 F.3d 744 (4th Cir. 2017)), and held another defendant “precluded by his forfeiture appeal waiver from challenging the amount of forfeiture on appeal” (Boutcher). Silence does not help either: where a plea agreement specified an exact forfeiture amount without mentioning substitute assets, the government had not waived them (Alamoudi).

What the Asset Forfeiture Policy Manual expects (policy, not law). A defendant “may consent to forfeiture of any asset for which the forfeiture is both statutorily authorized and factually supported by the counts of conviction”; prosecutors must put the agreement in writing and have the defendant stipulate “to all facts supporting the forfeiture” and waive “all defenses to the forfeiture”; and “To the extent that the defendant preserves any rights, exceptions should be expressed explicitly and the rights preserved should be identified” (AFPM 2025, ch. 10, § VI). Prosecutors are also told to avoid “an agreement that appears to reduce prison time in exchange for forfeiture, or vice versa” (ch. 10, § VIII.B).

What it cannot do. A plea forfeits only the defendant’s interest: the Policy Manual says a plea agreement “may bind only the parties thereto and not third parties” (AFPM 2025, ch. 10, § VI — policy, not law), and Libretti explains that “Congress has determined that §853(n), rather than Rule 11(f), provides the means by which third-party rights must be vindicated.” A spouse or co-owner protects an interest by filing a timely petition in the ancillary proceeding described on our innocent owner defense page.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: In plea negotiations, forfeiture and restitution are two separate debts, and the defendant usually wants the same dollars to count once. A court cannot order that, and the Policy Manual forbids prosecutors to promise it. What the Policy Manual does allow is a written commitment that the U.S. Attorney’s Office will ask the Criminal Division to apply forfeited funds to restitution, qualified by the governing regulations. That commitment, a stated forfeiture amount, specifically identified property, and any reserved arguments — a Honeycutt objection, an Excessive Fines challenge — written out expressly, are what the firm looks for in the forfeiture paragraph before a plea is signed. Once the agreement waives all challenges to the forfeiture, the appellate options narrow sharply.

Is there a constitutional limit on criminal forfeiture?

Yes, but its reach depends on the circuit. “[A] punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense,” and courts “must compare the amount of the forfeiture to the gravity of the defendant’s offense,” with the courts of appeals “reviewing the proportionality determination de novo” (United States v. Bajakajian, 524 U.S. 321 (1998)). The threshold question is whether the forfeiture is punitive at all — and the circuits disagree about proceeds.

The Fourth Circuit applies Bajakajian to proceeds forfeiture. In Jalaram it held “that the forfeiture of criminal proceeds is punitive and so subject to scrutiny under the Eighth Amendment’s Excessive Fines Clause,” that a forfeiture violates the Clause “only if it is (1) punitive, and (2) grossly disproportional to the gravity of the defendant’s offense,” and that the defendant carries the burden of showing gross disproportionality. It weighs four factors drawn from Bajakajian: the amount of the forfeiture and its relationship to the authorized penalty, the nature and extent of the criminal activity, the relationship between the crime charged and other crimes, and the harm the crime caused (United States v. Jalaram, Inc., 599 F.3d 347 (4th Cir. 2010)). Applying the test, the Fourth Circuit reversed the district court’s excessiveness ruling in Jalaram, found “no Eighth Amendment problem” in Blackman, and rejected a plain-error challenge to a $14,306,842 forfeiture in Bennett.

The Fifth and Eighth Circuits do not. The Eighth Circuit held that “Forfeiture of proceeds cannot be considered punishment, and thus, subject to the excessive fines clause, as it simply parts the owner from the fruits of the criminal activity” (United States v. Alexander, 32 F.3d 1231 (8th Cir. 1994)). The Fifth: “the Eighth Amendment has no application to forfeiture of property acquired with drug proceeds” (United States v. Betancourt, 422 F.3d 240 (5th Cir. 2005)). Even within the Fourth Circuit, a judge concurring in the judgment in Jalaram would have joined that side.

The Second Circuit adds a livelihood factor. Courts there may consider “whether the forfeiture would deprive the defendant of his livelihood,” but “may not consider as a discrete factor a defendant’s personal circumstances, such as age, health, or present financial condition” (United States v. Viloski, 814 F.3d 104 (2d Cir. 2016)).

The Supreme Court is reconsidering how gravity is measured. In Jouppi v. Alaska, No. 25-246, granted July 20, 2026 and set for argument December 1, 2026, the question is “whether, in determining whether a fine contravenes the Excessive Fines Clause, courts may consider the gravity of the underlying offense purely in the abstract or should consider the gravity of the specific defendant’s wrongdoing” (question presented; docket). The case arises from a state forfeiture, but its answer may shape how federal courts apply Bajakajian. Timbs v. Indiana, 586 U.S. 146 (2019), which applied the Clause to the states, is discussed in the Eighth Amendment section of our main forfeiture page.

When and how can a forfeiture order be appealed?

A defendant can appeal a criminal forfeiture order as part of the sentence. The order becomes final as to the defendant at sentencing, the time to appeal it runs from entry of the judgment, and any later order adding property or fixing the amount carries its own appeal clock. Federal appellate practice generally is covered on our federal appeals lawyer page; this section covers what is specific to forfeiture.

When the clock starts

“At sentencing—or at any time before sentencing if the defendant consents—the preliminary forfeiture order becomes final as to the defendant” (Rule 32.2(b)(4)(A)). The rule then fixes the appeal timing: “The time for the defendant or the government to file an appeal from the forfeiture order, or from the court’s failure to enter an order, begins to run when judgment is entered. If the court later amends or declines to amend a forfeiture order to include additional property under Rule 32.2(e), the defendant or the government may file an appeal regarding that property under Federal Rule of Appellate Procedure 4(b). The time for that appeal runs from the date when the order granting or denying the amendment becomes final” (Rule 32.2(b)(4)(C)).

The appellate rule supplies the period. “In a criminal case, a defendant’s notice of appeal must be filed in the district court within 14 days after the later of: (i) the entry of either the judgment or the order being appealed; or (ii) the filing of the government’s notice of appeal” (FRAP 4(b)(1)(A)). The government gets 30 days (FRAP 4(b)(1)(B)). On “a finding of excusable neglect or good cause,” the district court may extend the time “for a period not to exceed 30 days from the expiration of the time otherwise prescribed” (FRAP 4(b)(4)). A judgment is “entered” when “it is entered on the criminal docket” (FRAP 4(b)(6)), and a motion to correct the sentence under Rule 35(a) “does not suspend the time for filing a notice of appeal” (FRAP 4(b)(5)) — see our page on the Rule 35 motion. Missing the period has consequences: the First Circuit held that a defendant who had not timely appealed the original judgment could not later argue the court lacked authority to impose a money judgment, because the challenge was “untimely” under FRAP 4(b) (United States v. Zorrilla-Echevarría, 671 F.3d 1 (1st Cir. 2011)). The mechanics of the notice itself are on our page on how to appeal a federal conviction.

The government can appeal too, including from a refusal to order forfeiture: in Mhana it cross-appealed after the district court declined forfeiture, and the Fourth Circuit reversed, holding that the district court could not withhold forfeiture on equitable grounds (Mhana).

Later forfeiture orders may need their own notice of appeal

When the forfeiture amount is fixed, or property is added, after the judgment, a notice of appeal filed earlier may not reach it. The Supreme Court established the principle for restitution: “a defendant who wishes to appeal an order imposing restitution in a deferred restitution case must file a notice of appeal from that order,” a requirement that is “at least a mandatory claim-processing rule” (Manrique v. United States, 581 U.S. 116 (2017)). The Eleventh Circuit applied the same logic to forfeiture in an unpublished decision: a premature notice of appeal “became effective to appeal the final judgment and conviction,” but “it could not become effective to appeal the forfeiture order because the district court determined the forfeiture amount separately,” and the forfeiture portion of the appeal was dismissed (United States v. Montemayor, No. 19-12047 (11th Cir. May 29, 2020) (unpublished)). The reverse is also true: an appeal from an amendment does not reopen the original order, because “the simple fact that a judgment was amended does not somehow open the entire judgment up to attack” (Zorrilla-Echevarría). The Fourth Circuit has not addressed the question. The safe course is a separate or amended notice of appeal from every later forfeiture order, especially after a Rule 32.2(b)(2)(C) general order.

A related problem arises when no forfeiture order exists until after the appeal is filed. The Sixth Circuit vacated an order entered months after the defendant’s notice of appeal, holding that “The district court therefore lacked authority to enter its forfeiture order months after Carman had filed her notice of appeal” (United States v. Carman, 933 F.3d 614 (6th Cir. 2019)).

What if forfeiture was left out of the oral sentence or the judgment?

The rule requires both. “The court must include the forfeiture when orally announcing the sentence or must otherwise ensure that the defendant knows of the forfeiture at sentencing. The court must also include the forfeiture order, directly or by reference, in the judgment, but the court’s failure to do so may be corrected at any time under Rule 36” (Rule 32.2(b)(4)(B)). The 2009 amendment that added this language was meant “to respond to conflicting decisions in the courts regarding the application of Rule 36 to correct clerical errors” (Committee Note). The circuits still treat the problem differently depending on what happened at sentencing:

• Fourth Circuit: missing the rule’s deadline “does not deprive a district court of jurisdiction to enter orders of criminal forfeiture so long as the sentencing court makes clear prior to sentencing that it plans to order forfeiture” (Martin).
• Sixth Circuit: the court must “affirmatively impose forfeiture at the point of sentencing. It is not enough to notify the defendant merely of the possibility of forfeiture”; Rule 36 can fix a judgment that omits a forfeiture imposed by sentencing, but cannot add one imposed for the first time afterward; and the requirement is a time-related directive reviewed for harmlessness (United States v. Harrell, 180 F.4th 888 (6th Cir. 2026)).
• Third Circuit: where the forfeiture orders were left out of the judgments, “a clerical error occurred,” requiring remand for correction under Rule 36 (United States v. Gjeli, 867 F.3d 418 (3d Cir. 2017)).

The Supreme Court did not reach Rule 32.2(b)(4)(B) in McIntosh. In the Fourth Circuit, a defendant should not expect an omission from the written judgment to void a forfeiture that was made clear before sentencing.

Can the forfeiture be stayed while the appeal is pending?

It can, at the district court’s discretion. “If a defendant appeals from a conviction or an order of forfeiture, the court may stay the order of forfeiture on terms appropriate to ensure that the property remains available pending appellate review. A stay does not delay the ancillary proceeding or the determination of a third party’s rights or interests. If the court rules in favor of any third party while an appeal is pending, the court may amend the order of forfeiture but must not transfer any property interest to a third party until the decision on appeal becomes final, unless the defendant consents in writing or on the record” (Rule 32.2(d)). The Fourth Circuit has not announced a standard. A Maryland district court, noting that gap, applied four factors other courts use: likelihood of success on appeal, whether the assets will depreciate, the assets’ intrinsic value to the defendant, and the expense of maintaining the property (United States v. Mosby, No. 1:22-cr-00007-LKG, 2024 WL 3877613 (D. Md. Aug. 19, 2024)). That court denied a stay; a Fourth Circuit panel later granted one, and the court ultimately vacated the forfeiture along with the conviction it depended on (Mosby, 143 F.4th 264 (4th Cir. 2025)) — one of the consequences described on our page on what happens if you win a federal appeal. A stay of forfeiture is separate from release pending appeal, which concerns custody.

Does an appeal waiver cover forfeiture?

In the Fourth Circuit, ordinarily yes. “Orders of restitution and forfeiture in a criminal case constitute part of the defendant’s sentence” (Boutcher), and the court enforces a waiver “if it is valid and if the issue being appealed falls within” its scope (Boutcher, quoting United States v. Beck, 957 F.3d 440 (4th Cir. 2020)). Boutcher enforced a forfeiture-specific waiver and did not decide whether a general waiver of the right to appeal the sentence, standing alone, reaches forfeiture; an unpublished 2025 decision held that a broad waiver barred a constitutional challenge to a forfeiture money judgment and treated a challenge to its amount as ordinary legal error within the waiver (United States v. Johnson, Nos. 23-4770, 23-4772 (4th Cir. Nov. 14, 2025) (unpublished)). Two general limits on appeal waivers are relevant here. The Fourth Circuit reviews claims that a sentence “exceeded the court’s statutory authority” despite a waiver (United States v. Taylor-Sanders, 88 F.4th 516 (4th Cir. 2023)). And in June 2026 the Supreme Court recognized a miscarriage-of-justice exception to sentence-appeal waivers; its first example is a sentence exceeding what the statute allows, and it described the standard as a “high bar” that ordinary errors in applying sentencing law do not meet (Hunter v. United States, 146 S. Ct. 1702 (2026)). Hunter does not mention asset forfeiture; three concurring Justices would include orders imposing remedies the law does not permit, citing a restitution case. Other circuits read ambiguous waivers against the government: the Sixth Circuit declined to apply one to forfeiture because “[p]lea agreements are to be interpreted strictly, with ambiguities construed against the government” (United States v. Droganes, 728 F.3d 580 (6th Cir. 2013), quoting United States v. Jones, 569 F.3d 569 (6th Cir. 2009)). Our page on the appeal waiver explains how these provisions are read generally.

Why a § 2255 motion usually cannot reach a forfeiture order

Section 2255 is a custody remedy, available to “[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released” (28 U.S.C. § 2255(a)), and a forfeiture order does not keep anyone in custody. The Fourth Circuit has not decided the forfeiture question in a published opinion. Its controlling decision concerns restitution: joining “the virtual consensus in the federal circuits,” it held that “by its plain terms § 2255 provides no avenue to challenge a restitution order” (United States v. Mayhew, 995 F.3d 171 (4th Cir. 2021)). Courts apply the same reasoning to forfeiture: a district court in the Fourth Circuit rejected an ineffective-assistance attack on a real-property forfeiture because “This relief is unavailable under § 2255” (United States v. Blackmon, No. 3:23-cr-00156 (W.D.N.C. Nov. 3, 2025), amended Jan. 27, 2026), and the Ninth Circuit, in an unpublished decision, held that a “forfeiture claim is not a cognizable § 2255 claim, because it does not seek release from custody” (United States v. Finze, 428 F. App’x 672 (9th Cir. 2011) (unpublished)). The narrow exception in Mayhew is an ineffective-assistance claim that also lengthened the prison term, which remains cognizable to that extent; see our page on ineffective assistance at sentencing.

A forfeiture issue left off the direct appeal is usually lost. The Eleventh Circuit held that defendants who “needed to raise their Honeycutt claims on direct appeal to avoid procedural default” could not raise them later, even assuming coram nobis might otherwise be available (United States v. Bane, 948 F.3d 1290 (11th Cir. 2020)); the Eleventh Circuit there, and the First Circuit in Saccoccia v. United States (2020), only assumed without deciding that coram nobis can reach a forfeiture judgment. Our page on claims a 2255 motion cannot fix explains the custody requirement, and the comparison of a direct appeal versus a 2255 motion explains why the direct appeal is the vehicle for forfeiture.

How the court of appeals reviews forfeiture findings

“In criminal forfeiture proceedings, we review the district court’s findings of fact for clear error and the district court’s legal interpretations de novo” (Martin, citing United States v. Morgan, 224 F.3d 339 (4th Cir. 2000)), a formulation the Fourth Circuit repeated in Mhana. What the defendant obtained, nexus and amounts are fact findings; what a statute allows, including Honeycutt‘s reach, is a legal question. Proportionality under the Excessive Fines Clause is reviewed de novo (Jalaram). The standard changes if the argument was not made below: a defendant who objected to the amount but did not raise the specific arguments pressed on appeal got only plain-error review (Bennett). Under plain error, an unsettled question is hard to win; the Tenth Circuit found no plain error in joint-and-several liability under § 981(a)(1)(C) precisely because the circuits are split (Channon). In the Fourth Circuit, where that question remains open, an unpreserved Honeycutt argument under § 981(a)(1)(C) faces the same problem. Our pages on standards of review and the grounds for a federal appeal cover these questions generally.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: On appeal, a forfeiture issue is only as strong as the sentencing record, and four things decide whether it survives. First, a specific objection on the record to the nexus finding or the money-judgment figure, stating each ground; an objection to “the amount” does not preserve a Honeycutt argument or an Excessive Fines argument that was never made. Second, at trial, a request under Rule 32.2(b)(5)(A) to retain the jury, made before deliberations begin; it cannot be made afterward. Third, a forfeiture stated in the oral sentence and written into the judgment, so there is no question about what was imposed or when the appeal clock started. Fourth, a calendar entry for every later order that fixes the amount or adds property, because each may need its own notice of appeal. Appellate counsel reads the record. The record is made in the district court.

What happens to property that belongs to someone else?

A criminal forfeiture order takes only the defendant’s interest. A spouse, co-owner, lender or other third party is heard separately, after the order is entered, in the ancillary proceeding under 21 U.S.C. § 853(n), and § 853(k) bars third parties from intervening “in a trial or appeal of a criminal case involving the forfeiture of such property under this section.” In a criminal case, the petition must be filed within 30 days of the final publication of notice or the petitioner’s receipt of notice, “whichever is earlier” (§ 853(n)(2)). Under § 853(n)(6), the petitioner must prove by a preponderance an interest that was vested or superior at the time of the offense, or bona fide purchaser status. There is no innocent owner defense as such in criminal forfeiture: “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. Fleet, 498 F.3d 1225 (11th Cir. 2007)); the innocent owner defense in 18 U.S.C. § 983(d) applies only “under any civil forfeiture statute.” A third party who misses the window loses the right to object, because a third party may not “object to the final order on the ground that the third party had an interest in the property” (Rule 32.2(c)(2)). The full process is on our innocent owner defense page.

What changed in 2024–2026

Since April 2024 the Supreme Court has decided three cases that bear on criminal forfeiture, the Second Circuit deepened the Honeycutt split, the Fourth Circuit issued a published decision on forfeiture and restitution, and the Justice Department replaced its policy manual. Rule 32.2 itself has not changed: its text was last amended effective December 1, 2009 (Rule 32.2 and notes), and the federal judiciary’s list of pending rules amendments shows no Rule 32.2 change through December 1, 2028.

Date	Development	What it means in a criminal forfeiture case
April 1, 2024	United States v. Agrawal (6th Cir.)	Reaffirms that Honeycutt does not extend to § 981(a)(1)(C) in the Sixth Circuit
April 17, 2024	McIntosh v. United States (unanimous)	A missed preliminary-order deadline does not bar forfeiture; harmless-error review; object before sentencing
May 5, 2025	United States v. Romeo (2d Cir.)	The Attorney General is not required to apply forfeited assets to restitution
July 2, 2025	United States v. Philossaint (11th Cir.)	Reaffirms that Honeycutt does not limit § 982(a)(1) laundering forfeiture
July 9, 2025	United States v. Dermen (10th Cir.)	Preponderance for nexus; Rules of Evidence do not apply at the forfeiture stage of sentencing
July 11, 2025	United States v. Mosby (4th Cir.)	Forfeiture falls with the conviction it rests on; a stay pending appeal had been granted
2025	Asset Forfeiture Policy Manual 2025 (policy, not law)	Supersedes all prior editions; Chapter 14 governs remission and restoration, Chapter 10 plea agreements
October 8, 2025	United States v. Elias (2d Cir.)	Honeycutt applies to § 981(a)(1)(C); split deepened to three against two
December 5, 2025	United States v. Ng Chong Hwa (2d Cir.)	$35.1 million forfeiture affirmed under Bajakajian and Viloski
January 20, 2026	Ellingburg v. United States (unanimous)	MVRA restitution is criminal punishment; restitution can no longer be described as non-punitive
May 12, 2026	United States v. Mhana (4th Cir., published)	Forfeiture is mandatory even with restitution; the indictment need not identify property or amount
June 18, 2026	Hunter v. United States, 146 S. Ct. 1702 (8–1)	Miscarriage-of-justice exception to sentence-appeal waivers, described as a high bar
July 2, 2026	United States v. Harrell (6th Cir.)	Forfeiture must be affirmatively imposed at sentencing; limits on Rule 36 corrections
July 20, 2026 (granted); December 1, 2026 (argument)	Jouppi v. Alaska, No. 25-246	Pending: how the Excessive Fines Clause measures the gravity of the offense
August 2026	United States v. Shah (7th Cir.)	Challenge an overbroad pretrial restraint promptly or face plain-error review

Related Pages

• federal asset forfeiture attorney — the main forfeiture page: civil and criminal forfeiture compared, seizures, Luis and Kaley, and the Eighth Amendment.
• notice of seizure — which track a seizure letter puts you on and how the claim deadline is set.
• bank account seizure — frozen and seized accounts, restraining orders and hardship release.
• motion for return of property — property taken in a search when no forfeiture case names it.
• innocent owner defense — third-party petitions, spouses and co-owners, civil and criminal rules side by side.
• how to appeal a federal conviction — the notice of appeal and the steps that follow.
• plea agreement — Rule 11, stipulations and waivers before a plea is entered.
• white collar crime lawyer — the fraud, laundering and health care charges behind many forfeiture allegations.
• federal criminal defense attorney — representation from investigation through trial, where the forfeiture record begins.

Why Work With Elizabeth Franklin-Best, P.C.

Criminal forfeiture is decided at sentencing and tested on appeal, so for a defendant choosing a criminal forfeiture attorney after conviction, the relevant record is appellate. Elizabeth Franklin-Best, P.C. is a boutique federal criminal defense and appellate firm founded in 2019 — a national federal practice run on an intentionally small caseload, with offices in Columbia and Mount Pleasant, South Carolina, serving clients nationwide.

• Admissions. Elizabeth Franklin-Best is admitted to the U.S. Supreme Court and twelve of the thirteen U.S. Courts of Appeals — every regional circuit (1st–11th) plus the D.C. Circuit — and has been admitted pro hac vice in federal courts from Montana to Florida.
• Appellate experience. More than 20 years of federal and appellate criminal defense experience; more than 330 federal proceedings, over 100 of them appeals, and sixteen published decisions as counsel of record.
• Independent recognition. Best Lawyers in America 2027 — Appellate Practice; Criminal Defense: White Collar; Criminal Defense: General Practice. Chambers USA 2026 — Litigation: White-Collar Crime & Government Investigations (Band 2, South Carolina).
• Appellate advocacy and writing. Co-Vice Chair, NACDL Amicus Curiae Committee (Fourth Circuit); author of Reversing Your Criminal Conviction: Develop Your Winning Strategy (2023); co-author of “Harjo v. City of Albuquerque: A Road Map for Challenging Government Forfeiture Programs” (with David B. Smith), The Champion (NACDL), May 2019.

Schedule a Consultation

What can be argued about a forfeiture order on appeal is fixed by the record made before and at sentencing, and the time to appeal starts when the judgment is entered on the docket, so the time to get advice is before sentencing rather than after it. To discuss your situation with Elizabeth Franklin-Best, schedule a consultation or call (843) 620-1100. Reading this page does not create an attorney-client relationship; it is general information, not legal advice for your case.

Frequently Asked Questions About Criminal Forfeiture

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·October 2026