Whether property can be forfeited as substitute property under § 853(p) without first determining whether it is tainted or untainted

QUESTIONS PRESENTED In 18 U.S.C. § 982, which incorporates portions of 21 U.S.C. § 853, Congress established procedures governing criminal forfeiture of a person’s property. Congress created a distinction between “tainted” property that is derived from criminal activity and “untainted” property that is not. The statute affords property owners additional protections before the government can forfeit untainted property. The Third, Fifth, and Tenth Circuits have honored the distinction between tainted and untainted property. Under their precedents, untainted property can only be substituted to satisfy a criminal forfeiture judgment when tainted property becomes unavailable to satisfy the judgment. The Ninth Circuit below disagreed. Joining the First Circuit, it held that either tainted or untainted property may be forfeited as substitute property. This case presents an ideal vehicle to address this Circuit split and resolve two significant questions: Whether property can be forfeited as substitute property under § 853(p) without first determining whether it is tainted or untainted. Whether untainted property can be forfeited when tainted property is available.