2245

Criminal Forfeiture Settlement Procedures

NOTE: In any plea settlement, a claimant/defendant may only consent to the forfeiture of his or her interest in the property. Forfeiture of the defendant's interest in property held by nominees can proceed criminally, but the potential for an ancillary claim by the nominee must be anticipated. A settlement that purports to "forfeit" the property may only bind the parties to it and transfers only that interest which the claimant or defendant possesses. Substitute assets may only be forfeited when the applicable statute permits it and when all statutory requirements have been met (e.g., 18 U.S.C. §§ 982(b)(1)(A), 1963(m) and 21 U.S.C. § 853(p)). It is recommended that there be a provision for substitute assets included in the indictment.