Criminal Asset Forfeiture in Federal Cases

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

A federal conviction can cost a defendant more than liberty. Through criminal asset forfeiture, the government can take property connected to the offense — the proceeds of the crime and, in some cases, the property used to commit it. Forfeiture is a powerful tool, it is broad, and it is frequently misunderstood. It is also, like every other part of a sentence, subject to real legal limits.

At Elizabeth Franklin-Best, P.C., we treat forfeiture as a contest, not a foregone conclusion. Our principal attorney, Elizabeth Franklin-Best, and Managing Director Christopher Zoukis have spent years litigating the financial side of federal cases, where a forfeiture allegation often threatens more property than the offense ever touched. Criminal forfeiture is governed by statutes including 21 U.S.C. § 853 and 18 U.S.C. § 982, and 28 U.S.C. § 2461(c) extends criminal forfeiture to most offenses that carry civil forfeiture authority.

This guide explains criminal asset forfeiture — what it is, what property can be forfeited, the difference between proceeds and substitute assets, money judgments, the rule of Honeycutt v. United States, third-party rights, and how a forfeiture can be limited or contested. If you are facing a federal case with a forfeiture allegation, forfeiture deserves the same scrutiny as any other part of the sentence.

Quick Answer

Question	Answer
What is criminal asset forfeiture?	The process by which the government takes property connected to a criminal offense — proceeds, and in some cases instrumentalities — as part of a defendant’s sentence.
What property can be forfeited?	Property constituting or derived from the proceeds of the offense, and in some cases property used to commit or facilitate it.
What are substitute assets?	Other property of the defendant the government may forfeit to satisfy a money judgment when the directly forfeitable property is unavailable, under specific § 853(p) conditions.
What is the Honeycutt rule?	Criminal forfeiture does not permit joint and several liability — a defendant generally forfeits only what the defendant actually obtained, not a co-conspirator’s share.
Can third parties protect their interest?	Yes. A third party with a legal interest in forfeited property can assert it through the ancillary proceeding.

Key Takeaways

• Criminal asset forfeiture is the government’s taking of property connected to a federal offense as part of the sentence.
• Forfeiture generally reaches the proceeds of the offense and, in some cases, instrumentalities used to commit it.
• A forfeiture money judgment captures the value of forfeitable property that is no longer available.
• Substitute assets — even property unconnected to the offense — can be forfeited under the specific § 853(p) conditions.
• Under Honeycutt v. United States, criminal forfeiture does not permit joint and several liability.
• Criminal forfeiture, imposed against the defendant, is distinct from civil forfeiture against the property itself.
• Third parties with a legal interest in forfeited property can assert it through the ancillary proceeding.
• Forfeiture can be contested on traceability, the Honeycutt limit, the substitute-asset conditions, valuation, and Excessive Fines grounds.

What Is Criminal Asset Forfeiture?

Criminal asset forfeiture is the process by which the government takes property connected to a criminal offense as part of a defendant’s sentence. It is a penalty, imposed against the defendant, and it is tied to the criminal conviction.

Criminal forfeiture is authorized by a network of statutes. Section 853 of Title 21 governs forfeiture in drug cases and is incorporated by reference into many other forfeiture provisions; Section 982 of Title 18 authorizes forfeiture for money laundering and a range of other offenses. Together, these statutes give the government broad authority to forfeit property in connection with federal crimes.

It is important to distinguish forfeiture from the other financial consequences of a sentence. A fine is a penalty paid to the government; restitution is compensation paid to victims; forfeiture is the government’s taking of property connected to the offense. A single case can involve all three, calculated separately under different rules — and because the two payments answer to different masters, most courts will not credit what a defendant forfeits against what that same defendant owes in restitution.

What Property Can Be Forfeited

The reach of criminal forfeiture is defined by the forfeiture statutes, and it generally extends to two categories of property.

• Proceeds. Property constituting, or derived from, the proceeds the defendant obtained, directly or indirectly, as a result of the offense. This is the core of forfeiture — the gains of the crime.
• Instrumentalities. In some cases, property used, or intended to be used, to commit or facilitate the offense. The scope of instrumentality forfeiture depends on the specific statute.

The concept of “proceeds” is broad — it can reach property derived indirectly from the offense, not only the money first received. The government also benefits from the relation-back doctrine: under the forfeiture statutes, the government’s interest in forfeitable property is treated as vesting at the time of the act giving rise to forfeiture, which can affect transfers that occurred afterward.

Because forfeiture turns on the connection between property and the offense, that connection is exactly where the defense focuses. Whether particular property genuinely constitutes proceeds, whether it is properly traceable to the offense, and whether the statute actually reaches it are all questions that can be contested.

How Criminal Forfeiture Proceeds: Indictment to Final Order

Criminal forfeiture follows a defined procedural track, and each stage presents decisions that matter. It begins with notice: the indictment or information must tell the defendant that the government will seek forfeiture, and under Federal Rule of Criminal Procedure 32.2 that notice is the gateway to everything that follows.

Before trial, the government can ask the court to restrain forfeitable property under § 853(e) so it remains available if a conviction comes. That power has a constitutional limit: in Luis v. United States, 578 U.S. 5 (2016), the Supreme Court held — in a plurality decision joined by a concurrence in the judgment — that the Sixth Amendment forbids the pretrial freeze of legitimate, untainted assets a defendant needs to retain counsel of choice. When a restraining order sweeps in clean money that would otherwise pay for the defense, Luis is the objection.

After a conviction, the court — not the jury, unless one is timely requested on specific property — determines the connection between the property and the offense, with courts generally applying a preponderance standard at the forfeiture phase. The court then enters a preliminary order of forfeiture, which becomes final as to the defendant at sentencing and is included in the judgment. Third parties cannot litigate their interests at this stage; their turn comes afterward, in the ancillary proceeding discussed below.

Money Judgments and Substitute Assets

Two mechanisms extend forfeiture beyond specific, identified property: money judgments and substitute assets.

A forfeiture money judgment is an order for a sum of money representing the value of the forfeitable property — used when the directly forfeitable property is no longer available or cannot be identified. Courts have allowed money judgments so that a defendant cannot escape forfeiture simply by spending or dissipating the proceeds.

Substitute assets are other property of the defendant that the government may forfeit to satisfy a money judgment. Under 21 U.S.C. § 853(p), the court orders forfeiture of substitute property — up to the value of the directly forfeitable property — where, as a result of an act or omission of the defendant, the directly forfeitable property cannot be located on the exercise of due diligence, has been transferred to or deposited with a third party, has been placed beyond the court’s jurisdiction, has been substantially diminished in value, or has been commingled with other property that cannot be divided without difficulty. Substitute-asset forfeiture can reach property that has no connection to the offense at all — which is precisely why the § 853(p) conditions must be carefully examined.

Applied Insight: Substitute-asset forfeiture is where forfeiture reaches “clean” property — a home, a retirement account, savings unconnected to the offense. But the government must satisfy the specific § 853(p) conditions before it can. Holding the government to those conditions, and to the value limit, is one of the most important — and most overlooked — defenses in a forfeiture case.

The Honeycutt Rule: No Joint Liability

One of the most important limits on forfeiture comes from the Supreme Court’s 2017 decision in Honeycutt v. United States, 581 U.S. 443.

In Honeycutt, the Supreme Court held that criminal forfeiture under 21 U.S.C. § 853(a)(1) does not permit joint and several liability. A defendant cannot be ordered to forfeit property that a co-conspirator obtained from the crime but that the defendant himself did not actually acquire. The Court reasoned that the statute limits forfeiture to property the defendant himself obtained — and “obtained” means brought into the defendant’s own possession or use.

The practical significance is substantial, especially in multi-defendant cases. Before Honeycutt, the government sometimes sought to hold each conspirator liable for the full proceeds of an entire scheme. After Honeycutt, a defendant in a conspiracy generally can be ordered to forfeit only the proceeds that the defendant actually obtained — not the share that went to others. For a defendant who played a limited part in a larger scheme, the Honeycutt rule can dramatically reduce a forfeiture exposure, and courts have extended its reasoning to other forfeiture provisions.

Criminal vs. Civil Forfeiture

It is worth distinguishing criminal forfeiture, the subject of this guide, from civil forfeiture, which works very differently.

Criminal forfeiture is part of a criminal case. It is imposed against the defendant, as a consequence of a conviction, and it is litigated within the criminal proceeding. Civil forfeiture, by contrast, is an action brought against the property itself — the property is the defendant — and it can proceed without any criminal conviction, under its own procedures and burdens.

The two can overlap, and property can be the subject of both. But the procedures, the protections, and the strategy differ. This guide addresses criminal forfeiture; a person facing a separate civil forfeiture action should understand that it is a distinct proceeding with its own rules.

Third-Party Rights in Forfeited Property

Criminal forfeiture is imposed against the defendant — but property is often connected to other people. A spouse, a business partner, a family member, or a lender may have a genuine interest in property the government seeks to forfeit.

The vehicle is the ancillary proceeding under § 853(n). After the preliminary order of forfeiture is entered, the government publishes notice and, where practicable, sends direct notice to known claimants. A third party then has 30 days from the earlier of the final publication of notice or receipt of direct notice to petition the court for a hearing. The petition must be signed under penalty of perjury and describe the nature, extent, and timing of the claimed interest; the hearing is held before the court without a jury. To prevail, the petitioner must establish by a preponderance of the evidence either a legal interest that was vested in the petitioner — or superior to the defendant’s — at the time of the offense conduct, or status as a bona fide purchaser for value who was reasonably without cause to believe the property was subject to forfeiture. Outside this proceeding, § 853(k) bars third parties from intervening in the criminal case or filing a separate suit over the property.

For families and business associates, third-party rights can be critically important. When property that belongs, in whole or in part, to someone other than the defendant is swept into a forfeiture, that person should understand that a legal avenue to protect their interest exists — and that it must be pursued correctly and on time.

The Excessive Fines Limit: Bajakajian and Timbs

The Eighth Amendment’s Excessive Fines Clause is a constitutional ceiling on forfeiture, because a punitive forfeiture is a “fine” within the meaning of the Clause. The governing test comes from United States v. Bajakajian, 524 U.S. 321 (1998): a punitive forfeiture is unconstitutional if it is grossly disproportional to the gravity of the defendant’s offense. In Bajakajian itself, the Court struck down the forfeiture of $357,144 in unreported — but lawfully earned — currency, because the crime was a reporting violation and the punishment dwarfed it.

Two decades later, Timbs v. Indiana, 586 U.S. 146 (2019), confirmed the Clause’s reach, holding that the Excessive Fines Clause applies to the states through the Fourteenth Amendment and reaffirming that forfeitures that are even partly punitive fall within its protection. Timbs arose from the forfeiture of a Land Rover over a modest drug sale — a fact pattern that captures the proportionality concern.

For the defense, the gross-disproportionality argument fits best where the property dwarfs the offense: an instrumentality forfeiture that takes a home or business over limited conduct, a reporting or regulatory violation generating a large forfeiture, or a minor participant facing the loss of significant assets. Courts compare the forfeiture against the gravity of the offense, the statutory maximums, and the harm caused — and the comparison is reviewed without deference on appeal.

Challenging and Limiting Forfeiture

Forfeiture is broad, but it is not unlimited. There are several ways to contest or limit a forfeiture.

• Traceability. The defense can contest whether particular property genuinely constitutes, or is derived from, proceeds of the offense.
• The Honeycutt limit. The defense can argue that the defendant may forfeit only what the defendant actually obtained, not a co-conspirator’s share.
• The substitute-asset conditions. The defense can hold the government to the specific § 853(p) conditions before clean property is reached.
• Valuation. The defense can contest the value attributed to forfeitable property or the amount of a money judgment.
• Excessive Fines. In appropriate cases, the defense can raise whether a forfeiture is so grossly disproportionate to the offense that it violates the Eighth Amendment’s Excessive Fines Clause.
• Third-party interests. Third parties can assert their interests through the ancillary proceeding.

Forfeiture litigation is detailed and fact-intensive, and it deserves the same rigor as any other sentencing issue. Because forfeiture can reach a defendant’s home, accounts, and family property, the value of limiting it correctly is significant and lasting.

How Our Firm Addresses Forfeiture

A forfeiture allegation is litigation, and we staff it that way. Our principal attorney, Elizabeth Franklin-Best, has handled more than 330 federal proceedings, including over 100 appeals, and is admitted to the United States Supreme Court and all twelve federal circuits — a depth of federal experience that matters when a forfeiture count puts a client’s home, accounts, and family property in play. Chambers USA 2026 ranks her for Litigation: White-Collar Crime & Government Investigations, and Best Lawyers in America 2026 names her a “Best Lawyer” in Appellate Practice — a pairing that counts in forfeiture work, where the fight at sentencing and the record for appeal must be built at the same time.

Our forfeiture work includes testing the traceability of property to the offense, applying the Honeycutt rule to limit forfeiture in multi-defendant cases, holding the government to the substitute-asset conditions, contesting valuation and money-judgment amounts, raising Excessive Fines arguments where they fit, and helping affected third parties understand and pursue their rights. Through pro hac vice admission, our forfeiture defense reaches federal courtrooms in every circuit.

Forfeiture is one piece of a larger financial picture. Start with our federal sentencing overview, then see how the federal restitution order and the Guidelines loss calculation interact with a forfeiture judgment in the same case.

Talk With a Federal Defense Lawyer

Criminal asset forfeiture can reach a defendant’s proceeds, and through substitute assets even property unconnected to the offense. But forfeiture has real limits — traceability, the Honeycutt rule, the substitute-asset conditions, valuation, and third-party rights. Those limits are worth enforcing.

Our engagement starts with a paid, one-hour initial consultation in which we review the indictment’s forfeiture allegation, assess what property is genuinely at risk, and chart the defense. If the government is reaching for your property, schedule that conversation before the preliminary order is on the docket.