The Government’s Motion for a Preliminary Order of Forfeiture

After a criminal sentencing, the court will consider the Government’s Motion for Preliminary Order of Forfeiture.

Rule 32.2 of the Federal Rules of Criminal Procedure provides that “[a]s soon as practical after a verdict or finding of guilty, or after a plea of guilty or nolo contendere is accepted, on any count in an indictment or information regarding which criminal forfeiture is sought, the court must determine what property is subject to forfeiture under the applicable statute.” Fed. R. Crim. P. 32.2(b)(1)(A).

Once a court “finds that property is subject to forfeiture, it must promptly enter a preliminary order of forfeiture setting forth the amount of any money judgment, directing the forfeiture of specific property, and directing the forfeiture of any substitute property if the government has met the statutory criteria.” Fed. R. Crim. P. 32.2(b)(2)(A).

The preliminary order of forfeiture would be premature before the court accepts the defendant’s plea. See Fed. R. Crim. P. 32.2(b)(1)(A). In those cases, the court will defer ruling on the Government’s Motion for Preliminary Order of Forfeiture until after the Court has had an opportunity to further address the defendant’s guilty plea—specifically, the maximum possible fine the defendant faces by pleading guilty.

If the Court accepts the defendant’s guilty plea in a future order or at sentencing, the Court will then address the issue of a preliminary order of forfeiture.

The motion might seek forfeiture pursuant to 21 U.S.C. § 853 and 18 U.S.C. § 982(a)(1) as alleged in the Forfeiture Allegation of the Indictment which identifies property.

The Government might also seek a forfeiture money judgment from the defendant.

Objections to the Motion for Final or Preliminary Forfeiture

Any claimant might file an objection to the Preliminary Order of Forfeiture on the basis that the defendant has no interest in the property that is the subject of the instant Motion for Preliminary Order of Forfeiture.

The Federal Rules of Criminal Procedure and the relevant statutes governing criminal forfeiture ihave established a procedure for asserting third party interests in property subject to a criminal forfeiture allegation. See Fed. R. Crim. P. 32.2; 21 U.S.C. § 853; 18 U.S.C. § 982.

Under Fed. R. Crim. P. 32.2(b)(2)(A), “[t]he court must enter the [preliminary] order without regard to any third party’s interest in the property. Determining whether a third party has such an interest must be deferred until any third party files a claim in an ancillary proceeding under Rule 32.2(c).”)

Under 21 U.S.C. § 853(n)(2), “[a]ny person, other than the defendant, asserting a legal interest in property which has been ordered forfeited to the United States pursuant to this section may, within thirty days of the final publication of notice or his receipt of notice under paragraph (1), whichever is earlier, petition the court for a hearing to adjudicate the validity of his alleged interest in the [*14] property.”