Restraining Assets Before Trial

Forfeiture is imposed at the end of a case, and the government's difficulty is that assets move in the meantime. The answer Congress supplied is a set of orders that freeze property while the case runs. They are not interchangeable. Section 853(e) contains three of them, section 853(f) adds a warrant, and section 983(j) supplies the civil-side equivalent. What separates them is what the government must prove and how long the order survives.

The order once charges exist

Section 853(e)(1)(A) is the ordinary instrument. On the filing of an indictment or information charging a violation for which forfeiture may be ordered, and alleging that the property would be subject to forfeiture, the court may enter a restraining order or take other action to preserve the availability of the property. The statute requires nothing further. No affidavit of hardship, no balancing, no evidentiary showing about the strength of the case. The grand jury's finding of probable cause on the charged offense supplies the predicate, and the forfeiture allegation supplies the connection.

That design explains the shape of most litigation over these orders. An application supported only by the indictment is difficult to answer on its own terms, so the arguments run to scope: whether the property described falls within the forfeiture allegation, whether the order sweeps in assets that are not traceable to the offense, and whether the restraint extends beyond what preservation requires.

Relation back under section 853(c) sits behind the whole arrangement, since title vests in the United States on the commission of the act giving rise to forfeiture rather than on the entry of any order. Prosecutors and seizing agencies describe restraint as protecting an interest that already exists. Defense organizations and academic commentators describe it as enforcing an interest that no court has yet found, and several state legislatures have limited pretrial restraint under state law. The statutory text supports each of those descriptions of what the order does.

Restraint before an indictment

Section 853(e)(1)(B) governs the harder case. Before an indictment or information has been filed, an order may issue only after notice to persons appearing to have an interest and an opportunity for a hearing. The court must find two things: that there is a substantial probability that the United States will prevail on the forfeiture issue and that failure to enter the order would result in the property being unavailable for forfeiture; and that the need to preserve availability outweighs the hardship on any party against whom the order is to be entered.

An order entered on that basis is time-limited. It lasts not more than ninety days, unless it is extended by the court for good cause shown or an indictment or information has been filed. The pairing of a real showing with a short life is deliberate: the government can act before charges, but only briefly and only after the person affected has been heard. Section 853(e)(2) covers the gap in between, permitting a temporary restraining order ex parte on application, which expires in fourteen days unless extended for good cause or a hearing on the longer order is held first.

Warrants and the civil side

Section 853(f) allows the government to take custody rather than merely to freeze. A seizure warrant issues where the court determines that there is probable cause to believe the property would, in the event of conviction, be subject to forfeiture, and that a restraining order under section 853(e) may not be sufficient to assure its availability. The second finding is the operative one, and it is why the choice between an order and a warrant is a question about the property rather than about the offense. Cash, portable goods and vehicles invite a warrant; recorded interests and accounts more often draw an order.

On the civil side, section 983(j) supplies restraining orders, injunctions and other actions to preserve availability in a civil forfeiture proceeding, and the general civil forfeiture statute governs when property may be seized with and without a warrant. How those instruments differ from the underlying seizure power is set out in the seizure of property and the basis it requires.

Real property is the exception to all of it. Section 985 bars seizure of real property before an order of forfeiture is entered and requires the government to proceed by complaint, posting notice on the property and serving the owner. The owner is not evicted while the action runs. Seizure before judgment is available only on probable cause together with a showing that less restrictive measures would not suffice, and it must be followed by a prompt post-seizure hearing.

Assets needed to retain counsel

Freezing assets before trial affects the defendant's ability to hire a lawyer, and the constitutional rule that has emerged draws a line between two categories of property. Where the restrained assets are untainted, meaning not traceable to the alleged offense, and are needed to retain counsel of choice, the Supreme Court has held that the Sixth Amendment entitles the defendant to a hearing before the restraint may stand. Where the assets are traceable to the offense, no such entitlement follows, and the grand jury's probable cause finding on the charge itself is not open to challenge at that hearing.

The line is clean in statement and difficult in application. Circuits differ on when the hearing must be held and on what form it takes, some treating it as an evidentiary proceeding and others resolving it on affidavits. They also differ on how tainted and untainted funds are traced through a commingled account, where accounting conventions can decide whether what remains is treated as offense proceeds or as something else. The tracing dispute, rather than the constitutional principle, usually decides whether chosen counsel can be paid. Who may be heard at all is treated in the ownership interest a claimant must establish.

Who may be heard and when

Section 853(k) forecloses a third party from intervening in the criminal case or from filing a separate action about the validity of an interest in the property once an indictment has been returned. The ancillary proceeding after a preliminary order is the designated route, which means a spouse, a lender or a business partner whose assets are frozen at the outset may wait a long time for a forum. On the civil side the sequence is different, because the property owner is a party from the start and a statutory route exists to seek possession during the case, described in the release of property for hardship during a case.

That asymmetry is one reason the choice between a civil action and a criminal count matters so much to everyone involved, a choice explained in the three routes a forfeiture can take. Section 982 directs forfeiture as part of the sentence in the offenses it lists, and section 2461(c) makes criminal forfeiture available wherever civil forfeiture is authorized, so the same property can often be pursued either way. The restraint provisions follow the route selected, and so does the timing of any hearing the affected person will get.