First Circuit Notes Split Re Procedure for Government Enforcement of Money Judgment as Part of a Forfeiture Order

Per U.S. v. Edison Misla-Aldarondo, --- F.3d ----, 2007 WL 625124 (Mar. 02, 2007):

If the government seeks, and the court grants, a money judgment as part of the forfeiture order, then “the government need not prove that the defendant actually has the forfeited proceeds in his possession at the time of conviction.” Hall, 434 F.3d at 59. If the government has proven that there was at one point an amount of cash that was directly traceable to the offense, and that thus would be forfeitable under 18 U.S.C. § 982(a), that is sufficient for a court to issue a money judgment, for which the defendant will be fully liable whether or not he still has the original corpus of tainted funds-indeed, whether or not he has any funds at all.

The question of how the government can enforce that judgment is a somewhat different question, however. There is a split of authority as to whether the government can seize assets with a money judgment just as any judgment creditor could, or whether the government must follow the substitute assets provisions of 21 U.S.C. § 853(p) . . . .

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If the government [] acts to enforce the money judgment without using the substitute assets provisions of § 853(p), it raises the question of whether that is permitted, which is a question we need not reach here. The question is important, since § 853(p) places a greater burden on the government before assets can be seized. There is some split of authority among the circuits on whether the government must follow the procedures of § 853(p) or not. See, e.g., United States v. Vampire Nation, 451 F.3d 189, 202 (3d Cir.2006) (“[T]he in personam forfeiture judgment may also be distinguished from a general judgment in personam. The judgment in personam here is one in forfeiture and is limited by the provisions of [§ 853].”); Hall, 434 F.3d at 59 (noting that a forfeiture money judgment is equivalent to a civil judgment, though that issue was not directly before the court).