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 (“POF”). Once the POF motion is filed, the Court might grant the Preliminary Order of Forfeiture.

The POF must be served on the defendant and any third party with a property interest in the property subject to the preliminary order of forfeiture. The defendant only has fourteen (14) days to file a notice of appeal of the POF. After that, 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 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 victims 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 POF 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. Let us help you get your property back.

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.

This article was last updated on Tuesday, December 10, 2024.