In any plea agreement, a 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/defendant possesses.

The following procedures must be followed to ensure that a valid forfeiture results from a plea settlement:

1. • There must be a forfeiture count or allegation in the indictment or information, otherwise forfeiture is legally impossible. To the extent property is known to be subject to forfeiture, it should be listed in the indictment, information, or in a subsequent Bill of Particulars. The United States Attorney's Office must ensure that its criminal pleadings are in compliance with Rule 32.2 of the Federal Rules of Criminal Procedure.
2. • The United States Attorney must comply with the requirements applicable to third party interests (e.g., 21 U.S.C. § 853(n)(1)-(7)), including notice of the forfeiture and the right of third parties to obtain an adjudication of their interests in the property.
3. • The settlement to forfeit property must be in writing, and the defendant must concede facts supporting the forfeiture.
4. • The court must issue a Final Order of Forfeiture that incorporates the settlement and must include the forfeiture order in the judgment at sentencing.
5. • Wherever possible, in order to avoid protracted litigation of ownership issues in the context of ancillary hearings, the United States should agree to accept unencumbered property only, with the exception of valid financial institution liens, or at the very least, the plea agreement should require the defendant to convey clear title to the government. See JM 9-113.107 (Forfeiture Settlements Involving Partial Payments). Seealso Chapter 11 of the Asset Forfeiture Policy Manual ("Plea Agreements Incorporating Criminal Forfeiture").

[updated May 2010]