Second Circuit Adds to Circuit Split on Forfeiting Property Defendants Never Actually Acquired

Can a court order a criminal defendant to forfeit property the defendant never actually obtained? 

That was the central question facing the U.S. Court of Appeals for the Second Circuit in United States v. Elias, decided on October 8, 2025. 

Defendant Matthew Elias was a getaway driver in a heist of a stash house. Overall, Elias and his co-conspirators stole about $20,000 in cash, a gun, and some cannabis. Unfortunately for Elias, he was arrested on the night of the robbery and never received his share of the purloined loot.

Elias was convicted of the robbery. The judgment against Elias ordered him to pay $10,000—his pro rata share of the ill-gotten gains. Elias appealed this judgment, arguing he should not have to forfeit what he never actually acquired.

Federal courts impose forfeiture penalties in criminal cases pursuant to statute. In Elias’ case, the district court relied on three statutes—18 U.S.C. § 981, 28 U.S.C. § 2461, and 21 U.S.C. § 853—to impose the penalty of forfeiture. 

Under 18 U.S.C. § 981, criminal forfeiture may be ordered of any property “which constitutes or is derived from proceeds traceable” to identified crimes. “Proceeds” are defined in relevant part as “property of any kind obtained directly or indirectly, as the result of the commission of the offense giving rise to forfeiture.” 18 U.S.C. §§ 981(a)(1)(C), (a)(2)(A). 

Under 21 U.S.C. § 853, forfeiture may be ordered of “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation.” (emphasis added). In its 2017 opinion in Honeycutt v. United States, the U.S. Supreme Court held that forfeiture pursuant to Section 853 is limited to property tainted by the offense and actually acquired by the defendant. The Court concluded that under Section 853, a defendant may not be held jointly and severally liable for “property that his co-conspirator derived from the crime but that the defendant himself did not acquire.”

A key question before the Second Circuit in Elias was whether Honeycutt’s limitation on forfeiture under 21 U.S.C. § 853 should extend to forfeiture under 18 U.S.C. § 981. In its unanimous opinion, the Second Circuit applied Honeycutt’s reasoning to 18 U.S.C. § 981, reasoning that the two statutes were “functionally the same.” The panel held that a criminal defendant could not be ordered to forfeit property that the defendant’s co-conspirators acquired but the defendant never actually received. The court also distinguished criminal forfeiture from restitution, noting that restitution is appropriate regardless of whether the perpetrator gained anything because it serves to restore property lost by victims of crimes.

With its opinion in Elias, the Second Circuit joined the Third, Ninth, and Eleventh Circuits in holding that a criminal defendant needs to personally acquire an asset before that asset can be subject to forfeiture under 18 U.S.C. § 981(a)(1)(C). 

By contrast, the Sixth and Eighth Circuits distinguished between the forfeiture statutes, reasoning that unlike 21 U.S.C. § 853(a)(1), the absence of the phrase “the person obtained” in 18 U.S.C. § 981 meant that Honeycutt did not control the outcome of forfeitures ordered under Section 981. These circuits have concluded that the statutes were materially different given the lack of a reference to a “person” in Section 981. See, e.g., United States v. Sexton; Peithman v. United States. The Second Circuit disagreed with the Sixth and Eighth Circuits, noting that the two statutes were functionally similar and that criminal forfeiture may be imposed only in relation to a specific defendant’s offenses.

Ultimately, the Second Circuit vacated the forfeiture order imposed against Elias, writing that it would “saddle Elias with the burden of forfeiting property that a different perpetrator obtained and kept.” With its decision in Elias, the Second Circuit has deepened the circuit split on criminal forfeiture statutes.