First Circuit Notes Split Over How the Government May Enforce a Money Judgment Granted As Part of a Forfeiture Order

Per U.S. v. Misla-Aldarondo, 478 F.3d 52 (1st Cir. 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) (we discuss the dispute briefly below).

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If the government instead 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).

In summary, a court may properly issue a money judgment as part of a forfeiture order, whether or not the defendant still retains the actual property involved in the offense, or any property at all. Furthermore, the money judgment can be used in the future to seek forfeiture of substitute assets by court order under § 853(p) and Rule 32.2, even where the government has not expressed an intent to do so at any time before it seeks such an order. We leave for another day the question of whether, in seeking to seize assets to satisfy that judgment, the government is required to do so under the substitute assets provisions of § 853(p), or whether it may use the judgment to attach assets just like any other judgment creditor could.