Our entering class of C.D. Cal. federal prosecutors back in 1992 was made up of an interesting cast of characters. Those Assistant United States Attorneys went on to become general counsels, judges, professors, and lowly bloggers. Most of the cohort came from BigLaw. Young lawyers were willing to halve their Skadden/Munger/Gibson/A&P etc. salaries so that they could acquire trial experience. But one of our classmates had taken a different route. He had labored for a while in the asset forfeiture division of the U.S. Attorney’s Office. That division was just across the plaza, but a million miles away in terms of the nature of the experience. What did we know about asset forfeiture cases in those salad days? Pretty much nothing. Our colleague regaled us with tales of successful forfeiture actions against drug kingpins, showering the U.S. Treasury with millions of dollars and lots of flashy cars. Who knew that the USAO could be a profit center? It seemed both righteous and cool.
Now that we mostly operate on the defense side of the v, we have developed skepticism about the government’s aggressive deployment of asset forfeiture actions. That brings us to today’s case, United States v. Ahmed, 2026 WL 2654883 (D. R.I. Sept. 9, 2026). Ahmed is an interesting Food Drug, and Cosmetic Act criminal ruling by a magistrate judge. The plaintiff had entered into a plea deal involving a misdemeanor drug misbranding charge. The government was attempting to enforce a $100,000 forfeiture provision in the plea agreement. Obviously, our ears perked up when we heard that drug misbranding might lead to asset forfeiture.
It turns out that the government can be mighty aggressive when it comes to asset forfeiture. Maybe too aggressive. The court in Ahmed held that forfeiture is not authorized against defendants like Ahmed who introduced misbranded drugs into interstate commerce in violation of 21 U.S.C. section 331(a). And even if forfeiture was authorized, the government had not established by a preponderance of the evidence that $100,000 was the true value of the property that was unavailable due to acts or omissions by the criminal defendant.
How did we get to those results? A statutory puzzle had to be pieced together, and then the government’s math appeared to be sloppy and inconsistent. Let’s start with the puzzle:
Fed. Crim. Pro. 32.2(b) requires the court to determine whether forfeiture is authorized in a particular case, if so, what property is subject to forfeiture, and the amount of money to be paid.
21 U.S.C. section 334, is part of the FDCA, and is entitled “Seizure.” It provides that misbranded drugs may be ordered to be disposed of by destruction or sale.
28 U.S.C. section 2461(c) authorizes criminal forfeitures against defendants charged with crimes for which civil forfeiture of property is authorized.
21 U.S.C. section 853(p) authorizes forfeiture of substitute property when the actual property is unavailable as a result of any act or omission of the defendant.
The problem with the government’s argument is in that first step. It all depends on whether 21 U.S.C. section 334 is a civil forfeiture statute. Only if it is does 28 U.S.C. section 2461 swoop in to apply it in a criminal case, and then 21 U.S.C. section 853(p) allows substitution of property for forfeiture. The Ahmed court was “unconvinced that 21 U.S.C. section 334 is a civil forfeiture statute.” The only federal court that had analyzed this issue was the Second Circuit in United States v. Fishman, 157 F.4th 143 (2d Cir. 2025). In Fishman, the court vacated a forfeiture order and held that “21 U.S.C. section 334 is not a civil forfeiture statute within the meaning of 28 U.S.C. section 2461(c).” The court reasoned that forfeiture statutes are typically intended to enable the “disgorgement of the fruits of illegal conduct” to penalize unlawful conduct and make it unprofitable and to compensate the government for investigation and enforcement expenditures, whereas the FDCA, by contrast, permits both the destruction of condemned goods and an owner’s retention of those goods after bringing them into regulatory compliance. The very different remedies took section 334 out of forfeiture land.
Now it is true that when the government comes calling, it can be hard to push back on their positions and requests. But if the government starts threatening asset forfeiture based on alleged FDCA violation, push back you must.
As for the government’s sloppy math, it seems like $100,000 was a nice, round, attention-getting number, but not one that was grounded in reality. It literally did not add up. The government asserted that the defendant had realized approximately $80,500 of sales of the misbranded drugs. To suggest that $80K is in the neighborhood of $100K really does illustrate the old saw of “close enough for government work.” But the court thought it was not close enough. Nor was the court impressed by the government’s position that $100,000 was the “negotiated amount” reached by the parties. A court will not order an asset forfeiture that lacks proof.
Accordingly, the Ahmed court denied the government’s motion for an order of forfeiture.
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