By Kelsey Kolb

This past Friday, in United States v. McCrea, the Fourth Circuit affirmed the Western District of Virginia’s amended order of forfeiture, which included the defendant’s residence. In doing so, the Fourth Circuit found that the Government can seize a defendant’s residence to satisfy a money judgment against him, as a “substitute asset” under 21 U.S.C. § 853(p), when he makes unavailable the primary forfeiture source: the proceeds of his offense.

In general, substitute assets are reachable when the defendant cannot otherwise pay the forfeiture money judgment. If the defendant’s conviction involved a conspiracy and the proceeds from that conspiracy are unavailable, § 853(p) mandates forfeiture of any other property that the defendant owns to satisfy the money judgment.

McCrea’s drug conspiracy and money laundering violations resulted in a $76,062.63 money judgment against him, for which it was undisputed that he did not have the money to pay. The Government then looked to any other property that McCrea owned to satisfy the money judgment. Thus, the Fourth Circuit affirmed the district court’s grant of the Government’s motion to substitute McCrea’s residence for forfeiture under § 853(p).

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