Preliminary Order of Forfeiture

In a federal criminal case, the government might seek to forfeit property as part of the criminal prosecution of the case. At the time of the plea or sentencing, the government might file a “Motion for a Preliminary Order of Forfeiture.” The court then grants the “Preliminary Order of Forfeiture” or POF.

The POF must be served on the defendant and any third party with a propriety interest in the property subject to the preliminary order of forfeiture. The defendant only has fourteen (14) days to file a “Notice of Appeal” to contest the POF. If the defendant misses that 14 day window, the POF becomes final as to the defendant.

Any third party with an interest in the property has the right to file a claim seeking an ancillary hearing to determine their rights before a final order of forfeiture (FOF) is entered by the court.

Read more about third party claims in ancillary hearings after a preliminary order of forfeiture is filed in the U.S. District Court.

The preliminary order of forfeiture for specific assets or substitute assets, triggers the following deadlines:

• first – the Defendant only has 14 days to file a notice of appeal (or an additional 30 days with a showing of good cause or excusable neglect);
• second – any third party with an interest in the property must file a judicial petition in the underlying criminal case for a hearing to adjudicate their interest in the property within the deadline announced in their notice of seizure published shortly after sentencing.

The property seized for criminal forfeiture and subject to the POF will be listed in the POF. Before the POF is issued, you can find out what property might be included by looking at the forfeiture section of the indictment. The Assistant United States Attorney (AUSA) might also list the property subject to criminal asset forfeiture in a subsequent pleading called the “bill of particulars.”

The attorney you hire to file your ancillary claim should be familiar with the rules authorizing the court to enter the preliminary order of forfeiture, as described in Rule 32.2(b)(2). The procedures governing the ancillary proceeding for third parties are outlined in 21 U.S.C. § 853(n) and Fed. R. Crim. P. 32.2(c).

If you have a claim to the property as a third party to the criminal case, you must file a valid judicial petition for ancillary proceedings before the deadline announced in the seizure notice. If the third party fails to file the judicial petition at the courthouse, the government takes the property when the court enters a final order.

Guess what? The attorneys for the government know most third party claimants will miss the deadlines. One could argue the system is set up that way by design.

When the third party manages to file a valid claim on time, the court will schedule a hearing during which the burden of proof is on the third party to demonstrate that they fall within one of two categories of third-party claimants.

Attorney for a Preliminary Order of Forfeiture in Federal Court

If you were served with a preliminary order of forfeiture as a third party with an interest in property, contact an experienced asset forfeiture attorney at Sammis Law Firm. We represent clients throughout the federal courts in Florida in civil and criminal asset forfeiture cases.

We can help you file a valid petition for judicial ancillary proceedings on your third party claim. We can also represent you at the ancillary hearing. Our main office is located in downtown Tampa, FL. Contact us for a free and confidential consultation.

Call 813-250-0500.

Petition for Judicial Ancillary Proceedings on Third Party Claim

If you are a third party with an interest in the property, you might receive notice from the government that says:

NOTICE OF FORFEITURE

Enclosed you will find a Preliminary Order of Forfeiture for the above-referenced case in a U.S. District Court. You are receiving this notice because you may have an interest in property included in the Motion for Preliminary Order of Forfeiture and in the attached Order.

Any person, other than the defendant(s) in this case, asserting a legal interest in property that has been ordered forfeited to the United States pursuant to 21 U.S.C. § 853, may within 30 days of the final publication of notice or within 30 days of his/her receipt of this direct notice, petition the Court to adjudicate the validity of his/her alleged interest in the property.

The petition must be filed with the Clerk of the Court, at the following address: __________.

The petition shall be signed by the petitioner under penalty of perjury and shall set forth:

• the nature and extent of the petitioner’s right, title or interest in the forfeited property;
• the time and circumstances of the petitioner’s acquisition of the right, title, and interest in the forfeited property; and
• any additional facts supporting the petitioner’s claim and the relief sought, under 21 U.S.C. § 853(n).

This serves as notice of the pending forfeiture action, and the enclosed document provides directions for filing a claim. If you wish to discuss this matter, please contact the Assistant United States Attorney at ________.

In response, you can file a Petition for Judicial Ancillary Proceedings on your third party claim pursuant to Rule 32.2 of the Federal Rules of Criminal Procedure and 21 U.S.C. § 853(n)(1).

Your petition must describe the property you are claiming and your ownership or proprietary interest in that property. You must explain when and how you acquired the interest in the forfeited property.

The Government’s Motion for a Order of Forfeiture

The United States might file a “Motion for an Order of Forfeiture.” The motion is filed pursuant to 18 U.S.C. § 982(a)(7) and Rule 32.2(b)(2) of the Federal Rules of Criminal Procedure. In the motion, the the United States of America moves for an order of forfeiture against the defendant. The amount is usually listed in the plea agreement and often represents the amount of proceeds the defendant personally obtained as the result of the underlying crime or conspiracy to commit the crime.

In accordance with Rule 32.2(b)(4) and the defendant’s plea agreement, the United States asks that the order of forfeiture be made final as to the defendant at the time it is entered.

The first step in the government obtaining an order of forfeiture is listing the property to be forfeited in the Indictment or Bill of Particulars, which might list a forfeiture allegations notified the defendant that, under 18 U.S.C. § 982(a)(7), the United States intended to forfeit any property constituting, or derived from proceeds the defendant obtained, directly or indirectly, as a result of such violation, including, but not limited to, an order of forfeiture for the amount listed in the indictment or Bill of Particulars.

When the defendant pleads guilty to a count in the Indictment, the plea is often pursuant to a written plea agreement. If the court accepts the plea, the defendant will be adjudicated guilty. In the plea agreement, the defendant might admit that he personally a certain amount of proceeds from the crime or a conspiracy to commit the crime.

In the plea agreement, the defendant might admit and agree that pursuant to a particular subsection of 18 U.S.C. § 982, the United States was entitled to an order of forfeiture in the amount list in the Indictment or Bill of Particulars, which might represent the amount of proceeds the defendant personally obtained as a result of the crime or a conspiracy to commit the crime.

In the plea agreement, the defendant might be asked to agree that the United States is entitled to forfeit any of the defendant’s property as substitute assets to satisfy the Order of Forfeiture and that the order of forfeiture would be final upon entry.

The defendant might also be asked to agree that since the criminal proceeds have been transferred to third parties and cannot be located by the United States upon the exercise of due diligence, the preliminary and final orders of forfeiture should authorize the United States Attorney’s Office to conduct discovery (including depositions, interrogatories, requests for production of documents, and the issuance of subpoenas), pursuant to Rule 32.2(b)(3) of the Federal Rules of Criminal Procedure, to help identify, locate, and forfeit substitute assets. Id. at 10.

The Motion for an Order of Forfeiture will list the court’s authority to enter an order of forfeiture against a defendant. In many cases, that authority is found in 18 U.S.C. §982 and Federal Rule of Criminal Procedure 32.2.

The United States may criminally forfeit, pursuant to that the authority listed in the applicable statute to the gross proceeds traceable to the commission of the underlying crime or a conspiracy to commit that crime.

Court’s Determination of Forfeiture

Rule 32.2, Federal Rules of Criminal Procedure, governs the criminal forfeiture of property based on a defendant’s conviction for the offense giving rise to the forfeiture. Rule 32.2(b)(1) requires that as soon as practical after a verdict or finding of guilty, or after a plea of guilty is accepted, the court must determine what property is subject to forfeiture under the applicable statute. Fed. R. Crim. P. 32.2(b)(1)(A).

The Court’s determination may be based on evidence already in the record, or any additional evidence submitted by the parties and accepted by the Court as relevant and reliable. Fed. R. Crim. P. 32.2(b)(1)(B)

Because the United States could not locate any of the specific property traceable to the defendant’s offense, the United States seeks an order of forfeiture against the defendant in the amount listed in the plea agreement pursuant to Federal Rule of Criminal Procedure 32.2(b)(2).

The fee agreement might allege that the defendant personally obtained a certain amount of property which represented proceeds as a result of the offense. If the Court finds that the defendant obtained at least that amount as a result of his participation in the offense and that the defendant has dissipated those proceeds, then it is appropriate for the Court to enter an order of forfeiture against the defendant in that amount pursuant to Rule 32.2(b)(2).

For the reasons stated the in the government’s motion for order of forfeiture, the United States might request:

• the court, pursuant to 18 U.S.C. § 982 and Rule 32.2(b)(2), Federal Rules of Criminal Procedure, that the court enter an Order of Forfeiture against the defendant in the amount listed in the Indictment or plea agreement;
• in accordance with the plea agreement, the order of forfeiture become final as to the defendant at the time it is entered
• the court include the forfeiture when orally pronouncing the sentence and include the forfeiture order, directly or by reference, in the judgment as required by Federal Rule of Criminal Procedure 32.2(b)(4)(A)-(B);
• the court retain jurisdiction to address any third-party claim that may be asserted in these proceedings, to enter any further order necessary for the forfeiture and disposition of such property, and to order any substitute assets forfeited to the United States up to the amount of the order of forfeiture; and
• the court retain jurisdiction to address any third-party interest that may be asserted and to complete the forfeiture and disposition of the property.

Writ of Execution in a Criminal Forfeiture Case

After the motion for forfeiture becomes final, the government might file an Application for Writ of Execution. If granted, the court might direct the Clerk of Court to issue the requested Writ of Execution and Clerk’s Notice.

The order might also direct the United States Marshal to levy upon the Subject Property without delay and to serve the necessary parties with copies of the Application for Writ of Execution, the Writ of Execution, the Clerk’s Notice, and the Notice of Levy.

This article was last updated on Friday, May 8, 2026.