United States v. Rivera: No Constitutional Right to a Pre‑Restraint Evidentiary Hearing on Traceability and the Low Probable‑Cause Threshold for Commingled Assets

United States v. Rivera: No Constitutional Right to a Pre‑Restraint Evidentiary Hearing on Traceability and the Low Probable‑Cause Threshold for Commingled Assets

I. Introduction

The Eleventh Circuit’s unpublished per curiam decision in United States v. David Rivera, No. 24‑11161 (11th Cir. Dec. 12, 2025), addresses the intersection of criminal forfeiture, pretrial asset restraint, and constitutional protections under the Fifth Amendment. The case arises out of an ongoing prosecution alleging that David Rivera engaged in unauthorized political activities in the United States on behalf of the Venezuelan government, failed to register as a foreign agent, engaged in money laundering, and conducted financial transactions with criminally derived property.

The appeal is interlocutory and focuses narrowly on one issue: the pretrial restraint of a Florida condominium (Unit 20C at 3663 S. Atlantic Ave., New Smyrna Beach, Florida) that the government seeks to forfeit if Rivera is convicted. The district court issued a protective order under 21 U.S.C. § 853(e)(1)(A), restraining the property based on a finding of probable cause that some of the purchase funds were traceable to the charged offenses.

On appeal, Rivera raises two primary challenges:

  1. That the district court’s failure to hold an evidentiary hearing on whether the property was traceable to the alleged crimes violated his Fifth Amendment rights to due process and to grand jury protections; and
  2. That the district court erred in finding probable cause that $141,494 used to acquire the property was traceable to the charged offenses, particularly in the context of commingled tainted and untainted funds.

The Eleventh Circuit affirms the restraint. In doing so, it clarifies three important points for criminal forfeiture practice:

  • An indicted defendant has no constitutional or statutory right to a pre‑restraint evidentiary hearing on traceability, even when the district court (rather than the grand jury) makes the probable‑cause determination.
  • In the absence of controlling precedent, any failure to provide such a hearing cannot constitute plain error on appeal.
  • The probable‑cause standard for restraining allegedly tainted property, including commingled funds, is low, and may be satisfied by a government agent’s tracing declaration, even in the face of a competing defense expert affidavit.

Although the opinion is designated “Not for Publication” and thus is not binding precedent under Eleventh Circuit rules, it provides a clear, structured application of existing forfeiture doctrine and will be persuasive authority in future disputes over pretrial restraints, especially where taint must be proven through complex financial tracing.

II. Summary of the Opinion

Rivera was indicted in November 2022 on:

  1. Conspiracy to commit an offense against the United States;
  2. Failure to register as a foreign agent;
  3. Conspiracy to commit money laundering; and
  4. Four counts of engaging in monetary transactions in criminally derived property.

The indictment included standard forfeiture allegations. Initially, the government identified certain of Rivera’s assets as “substitute property” under 21 U.S.C. § 853(p) — i.e., assets that could be forfeited if directly forfeitable (tainted) property was unavailable. Rivera’s New Smyrna Beach condominium (the “Property”) was originally categorized as such a substitute asset.

The government recorded lis pendens notices on that property and other assets. Rivera moved to lift the lis pendens, arguing that pretrial restraint of substitute property is impermissible. A magistrate judge agreed and released the lis pendens on July 6, 2023.

Within days, the government changed course. Citing further forensic analysis, it claimed that the Property was not mere substitute property after all, but had in fact been purchased in part with criminally derived funds and was therefore directly forfeitable “tainted” property. The government moved ex parte for a protective order under § 853(e)(1)(A), supported by an IRS agent’s tracing declaration using a first‑in, first‑out (FIFO) methodology to tie $141,494 in deposits and transfers to the offenses.

The district court initially granted the ex parte motion, but, after a hearing and concerns about government “gamesmanship” (for not disclosing the taint evidence earlier to the magistrate judge), vacated its initial order and directed full briefing. Rivera:

  • Argued that commingling of tainted and untainted funds rendered the property a substitute asset under § 853(p)(1)(E), and thus not subject to pretrial restraint;
  • Challenged the FIFO tracing methodology as unreliable and results‑oriented; and
  • Submitted a competing affidavit from his forensic accounting expert asserting that it was “impossible from an accounting standpoint” to separate tainted from untainted dollars in the account.

The government then obtained a superseding indictment adding tax charges, but did not list the Property as a forfeiture asset in that indictment. Instead, it filed a Bill of Particulars that specifically identified the Property as forfeitable, explaining that it had deliberately not presented the nexus to the grand jury because the issue was already being litigated in the district court.

After a non‑evidentiary hearing, the district court again granted the government’s § 853(e) application, finding probable cause that $141,494 of the purchase price was traceable to the charged conspiracy and related crimes. The court later:

  • Denied Rivera’s motion for reconsideration; but
  • Granted Rivera leave to sell the Property, provided that the $141,494 “tainted” portion was preserved.

On appeal, the Eleventh Circuit:

  1. Holds that Rivera’s Fifth Amendment arguments for a mandatory evidentiary hearing were not preserved, and thus subject only to plain‑error review.
  2. Concludes that, because no Supreme Court or Eleventh Circuit precedent requires an evidentiary hearing on traceability in this pre‑restraint, post‑indictment setting, there is no “plain” error in denying one.
  3. Affirms the district court’s probable‑cause finding based on Agent George’s declaration, rejecting Rivera’s reliance on In re Rothstein, Rosenfeldt, Adler, P.A. as misplaced in the pretrial probable‑cause context.

The panel thus affirms the district court’s order restraining the Property pending Rivera’s trial (then set for February 2026).

III. Analysis

A. Precedents and Authorities Cited

1. Jurisdiction and Standard of Review

  • 28 U.S.C. § 1292(a)(1): The Eleventh Circuit reiterates that it has jurisdiction over interlocutory appeals from orders “granting, continuing, modifying, refusing, or dissolving injunctions.” Pretrial protective orders preserving assets for possible forfeiture qualify as such injunctions.
  • United States v. Kaley (Kaley I), 579 F.3d 1246 (11th Cir. 2009): Cited for the proposition that protective orders restraining forfeitable assets are “injunctions” within the meaning of § 1292(a)(1), permitting interlocutory review.
  • Gonzalez v. Governor of Georgia, 978 F.3d 1266 (11th Cir. 2020): Provides the standard of review: abuse of discretion for the injunction itself; de novo for underlying legal conclusions; clear error for factual findings.
  • United States v. Alfonso, 104 F.4th 815 (11th Cir. 2024): For the general rule that constitutional questions are reviewed de novo—subject here to the overlay of plain‑error review when the issue was not preserved below.

2. Plain Error and Preservation of Issues

  • United States v. Brown, 934 F.3d 1278 (11th Cir. 2019): Used to explain that while parties are not rigidly confined to the exact formulations used below, they cannot advance a new legal theory on appeal that differs materially from their position in the district court.
  • Gould v. Interface, Inc., 153 F.4th 1346 (11th Cir. 2025): Quoted for the related principle that a party generally cannot argue that a text (e.g., a statute or rule) should be interpreted differently on appeal than argued below, though it may cite new authorities to support the same interpretive position.
  • United States v. Morales, 987 F.3d 966 (11th Cir. 2021): Central to the court’s plain‑error analysis. Morales holds that, where the explicit language of a statute or rule does not itself resolve an issue, there can be no “plain error” in the absence of directly controlling precedent from the Supreme Court or the Eleventh Circuit. Rivera’s due‑process claim was thus doomed under plain‑error review because no precedent squarely mandates an evidentiary hearing on traceability in his procedural posture.
  • United States v. Campbell, 26 F.4th 860 (11th Cir. 2022) (en banc), and United States v. Castillo, 899 F.3d 1208 (11th Cir. 2018): Cited for the rule that arguments raised for the first time in a reply brief are deemed abandoned and will not be considered on appeal. The court uses this to reject Rivera’s attempt—raised only in reply—to treat his reconsideration motion as a distinct, post‑restraint basis for claiming a hearing right.

3. Criminal Forfeiture and Pretrial Restraint

  • 21 U.S.C. § 853: Governs criminal forfeiture of property “constituting, or derived from, any proceeds” of specific crimes. The sections centrally implicated are:
    • § 853(e)(1)(A): Authorizes pretrial restraining orders “upon the filing of an indictment or information” that (1) charges a qualifying offense and (2) alleges that specified property would be forfeitable upon conviction.
    • § 853(e)(1)(B): Governs pre‑indictment restraints and expressly requires that the property owner be afforded an “opportunity for a hearing.”
    • § 853(p)(1)(E): Defines when “substitute property” may be forfeited, including where tainted property “has been commingled with other property which cannot be divided without difficulty.” Rivera invoked this to argue the property must be treated as substitute (and thus non‑restrainable) because tainted funds could not be separated from untainted funds.
  • United States v. Monsanto, 491 U.S. 600 (1989): The Supreme Court held that pretrial restraint of assets that are traceable to the crime is permissible if supported by probable cause that the property is forfeitable, and that such restraint may reach assets needed to hire counsel (subject to later developments like Luis v. United States, 578 U.S. 5 (2016), concerning untainted assets). Monsanto also left open, in footnote 10, whether due process requires an evidentiary hearing before a pretrial restraining order is imposed — a question still unresolved and central to many recent asset‑restraint disputes.
  • United States v. Bissell, 866 F.2d 1343 (11th Cir. 1989): A foundational Eleventh Circuit precedent. Bissell held that:
    • An indicted defendant has no right to a pre‑restraint hearing before the government restrains assets under § 853(e)(1)(A); and
    • Due process is satisfied so long as the defendant ultimately receives a hearing, even if that hearing coincides with or occurs at trial. Bissell used a balancing test (similar to speedy‑trial analysis) to determine when delay between restraint and hearing is constitutionally reasonable.
    • Bissell also held that where a grand jury or a judge has already made a probable‑cause determination, there is no improper denial of the defendant’s Sixth Amendment right to counsel of choice simply because funds are restrained.
  • United States v. Kaley (Kaley II), 677 F.3d 1316 (11th Cir. 2012), aff’d, Kaley v. United States (Kaley III), 571 U.S. 320 (2014):
    • Kaley II: Clarified the scope of post‑restraint hearings and held that an indicted defendant’s attempt to relitigate the grand jury’s probable‑cause finding (as to the commission of the offense) is foreclosed.
    • Kaley III: The Supreme Court affirmed, holding that the grand jury’s finding of probable cause that the defendant committed the offense cannot be revisited in a pretrial hearing on asset restraint. The Court emphasized that:
      • Probable cause is a “low bar” that determines only whether there is a sufficient basis to proceed to trial; and
      • Probable cause can be found after “hearing only the prosecutor’s side.”
      • Traceability is a “technical matter” distinct from the grand jury’s core function of deciding whether a crime was committed.

4. Probable Cause and Commingled Funds

  • Gerstein v. Pugh, 420 U.S. 103 (1975): Cited for the proposition that probable cause does not require the “fine resolution of conflicting evidence” demanded by higher standards such as proof beyond a reasonable doubt or even a preponderance of the evidence.
  • In re Rothstein, Rosenfeldt, Adler, P.A., 717 F.3d 1205 (11th Cir. 2013): A post‑conviction case involving a dispute between the government and a bankruptcy trustee over funds in law firm accounts commingling massive Ponzi scheme proceeds with legitimate law‑practice income. Rivera relied on Rothstein to argue that commingled funds could not be traced and therefore should be treated as substitute property. The court distinguishes Rothstein as:
    • A post‑conviction, civil priority dispute; and
    • Not addressing the probable‑cause standard for pretrial restraint of commingled assets.
    The panel thus holds that Rothstein provides no basis to invalidate the district court’s probable‑cause finding at the pretrial stage.

5. Forfeiture Pleadings: Indictment vs. Bill of Particulars

  • Fed. R. Crim. P. 32.2(a): The rule explicitly states that an indictment “need not identify the property subject to forfeiture.” The Eleventh Circuit uses this to reject any suggestion that the government’s failure to identify the Property in the superseding indictment deprived Rivera of grand jury protections or precluded a § 853(e)(1)(A) restraint.

B. The Court’s Legal Reasoning

1. Procedural Setting: Pre‑Restraint vs. Post‑Restraint

A critical framing move by the panel is to classify Rivera’s challenge as a pre‑restraint challenge to the government’s application for a protective order. The district court had initially granted an ex parte order, but then:

  1. Vacated that order; and
  2. Allowed full adversarial briefing and a non‑evidentiary hearing before issuing the new paperless protective order now on appeal.

Because the earlier ex parte order was vacated, the panel deems Rivera’s later objections to be directed at the application for the (second) order, not at an already‑existing restraint. That matters because under:

  • § 853(e)(1)(A) and Bissell, an indicted defendant has no right to a pre‑restraint evidentiary hearing on the government’s application to restrain assets.
  • § 853(e)(1)(B) does require an “opportunity for a hearing,” but only for pre‑indictment restraints — which is not Rivera’s situation.

In other words, although the district court in practice provided notice and an opportunity to submit written materials and argument, it was not required to hold a full evidentiary hearing with live testimony before it could issue a protective order once an indictment was on file.

2. No Preserved Fifth Amendment Right to an Evidentiary Hearing

Rivera argued on appeal that the district court’s denial of an evidentiary hearing violated:

  • His Fifth Amendment Due Process Clause rights; and
  • His Fifth Amendment grand jury rights (because a grand jury did not find probable cause as to the taint of the Property, and the property was instead specified via a Bill of Particulars).

The panel first addresses preservation. It carefully reviews the record and finds that Rivera never clearly:

  • Asserted that he had a right — constitutional or otherwise — to a hearing; or
  • Argued that the denial of a hearing would itself violate the Fifth Amendment.

Instead, Rivera:

  • Conditioned his requests for a hearing on the court’s sense that the record was inadequate (“if the record evidence … is insufficient … an evidentiary hearing is necessary”); and
  • Framed the potential hearing as a matter of the court’s preference for additional factfinding rather than as a mandated procedural safeguard.

Under Brown and Gould, shifting from “the court might want more evidence” to “the Constitution entitles me to a hearing before restraint” is a change in legal theory, not just in supporting citations. Thus, the court holds that Rivera’s constitutional challenge is unpreserved and subject only to plain‑error review.

3. Plain Error Analysis: No Controlling Right to a Pre‑Restraint Evidentiary Hearing

Applying Morales, the panel states that, absent clear statutory language, there is no “plain” error unless either:

  • The Supreme Court, or
  • The Eleventh Circuit

has already directly resolved the specific question at issue.

For Rivera, that question is essentially: Does the Fifth Amendment require that an indicted defendant receive an evidentiary hearing on traceability before a district court may restrain property under § 853(e)(1)(A), when the grand jury has not itself passed upon the taint of that particular property?

The panel answers “no” for present purposes, not by deciding the constitutional question on the merits, but by concluding that:

  • No statute (including § 853(e)(1)(A)) requires such a hearing post‑indictment; and
  • No controlling precedent has recognized such a requirement.

To the contrary:

  • Monsanto expressly declined to decide whether due process requires a hearing before entry of a restraining order.
  • Bissell held that indicted defendants are not entitled to a pre‑restraint evidentiary hearing and that due process can be satisfied by a hearing that occurs later (even at trial).
  • Kaley III described traceability as a “technical matter” removed from the core grand jury function and reaffirmed that the probable‑cause standard is low.

Accordingly, even if one might argue (as a policy or doctrinal matter) that such a hearing should be required, the omission of such a hearing cannot be “plain error” under Eleventh Circuit standards. Rivera therefore cannot prevail on his Fifth Amendment hearing claim.

The panel also notes that Rivera’s attempt in his reply brief to re‑characterize his reconsideration motion as a post‑restraint hearing request comes too late. Under Campbell and Castillo, issues raised for the first time in a reply brief are abandoned. Thus, the court does not engage in a separate post‑restraint due‑process analysis.

The court closes this portion with a reassurance drawn from Kaley II: Rivera will ultimately receive a “thorough hearing” on all the evidence at his trial, at which time the government must prove forfeitability under a higher standard than probable cause.

4. Grand Jury Rights and the Bill of Particulars

Rivera’s Fifth Amendment argument also hints at a grand jury concern: because the superseding indictment did not list the Property as a forfeiture asset, but the Bill of Particulars did, Rivera suggested that a judge’s probable‑cause determination could not substitute for a grand jury’s probable‑cause finding regarding traceability.

The Eleventh Circuit dismisses this line of attack by pointing to:

  • Fed. R. Crim. P. 32.2(a), which explicitly states that the indictment “need not identify the property subject to forfeiture.”
  • The government’s legitimate procedural choice to use a Bill of Particulars to specify the property while forfeiture litigation was ongoing, especially in light of the district court’s prior criticism of “gamesmanship.”

If the indictment need not list the property at all, then the absence of the Property from the superseding indictment cannot itself create a grand jury problem. The probable‑cause determination as to taint can be made by the district court on the basis of the government’s evidentiary submissions, at least for purposes of § 853(e)(1)(A) restraint.

5. Probable‑Cause Determination on Traceability and Commingled Funds

Turning to the second main issue, the panel evaluates whether the district court correctly found “probable cause to believe” that $141,494 used to purchase the Property was traceable to the charged offenses, thereby justifying pretrial restraint under § 853(e)(1)(A).

The court emphasizes that:

  • Probable cause is a “low bar” that “determines only whether adequate grounds exist to proceed to trial” (Kaley III);
  • It “does not require the fine resolution of conflicting evidence” that higher standards demand (Gerstein); and
  • A probable‑cause determination may be based on the government’s showing alone, without full evidentiary balance (Kaley III).

Here, the government’s showing consisted of IRS Agent Stephan George’s declaration, which:

  • Identified deposits of criminally derived funds into Rivera’s bank accounts;
  • Applied a first‑in, first‑out (FIFO) accounting methodology to trace those tainted deposits through the account; and
  • Tied a $15,000 deposit and an additional $126,494 payment to the acquisition of the Property, for a total of $141,494 in allegedly tainted funds.

Rivera countered with:

  • An expert declaration by CPA/forensic accountant Stanley Foodman asserting that:
    • It was “impossible from an accounting standpoint” to separate tainted from untainted funds in the commingled account; and
    • The government’s use of FIFO was a “self‑selected, result‑oriented device” that ignored over $200,000 in allegedly untainted funds present in the account at the time of the relevant transfers.
  • Legal reliance on Rothstein to argue that commingling meant the Property should be treated as substitute property under § 853(p)(1)(E).

The Eleventh Circuit rejects Rivera’s Rothstein-based argument for two reasons:

  1. Different posture: Rothstein was a post‑conviction, civil dispute about entitlement to already‑forfeited funds in a bankruptcy context, where the government and a trustee vied for priority. It did not involve the low probable‑cause standard or the propriety of pretrial restraint.
  2. No bar on tracing commingled funds at the probable‑cause stage: The panel notes that nothing in Rothstein suggests that commingling categorically prevents the government from tracing or from securing a pretrial protective order. The question in Rivera’s case is simply whether the government’s evidence meets the minimal threshold of probable cause — not whether its tracing is correct beyond a reasonable doubt.

Given:

  • The agent’s detailed declaration tracing tainted deposits to the property purchase; and
  • The modest nature of the probable‑cause standard, which tolerates some conflicting evidence and does not require full adversarial testing at this stage,

the Eleventh Circuit finds no error in the district court’s conclusion that there was probable cause to believe $141,494 of the purchase price was traceable to the conspiracy and related offenses. The existence of a competing expert report, in the court’s view, does not negate probable cause — it merely previews evidence that can be tested at trial or in later forfeiture proceedings.

C. Impact and Significance

1. Due Process and Pretrial Hearings on Asset Restraint

This decision reinforces — and arguably extends — the Eleventh Circuit’s already restrictive approach to pretrial hearings in the asset‑restraint context:

  • No categorical right to an evidentiary hearing before assets are restrained under § 853(e)(1)(A) once an indictment has issued, even where:
    • The property was not specified in the indictment;
    • The government proceeds on an ex parte basis initially; or
    • The probable‑cause determination on taint is made by a judge rather than a grand jury.
  • Plain error is difficult to show absent clear, on‑point precedent or statutory language — and none exists recognizing a constitutional right to such a hearing in this posture.
  • Even where the district court provides some process (as here, with briefing and a non‑evidentiary hearing), the Constitution does not require a live‑witness evidentiary hearing on traceability prior to restraint.

For criminal defense practitioners, this underscores the importance of:

  • Clearly articulating constitutional theories and explicitly asserting rights (rather than merely suggesting that a hearing would be helpful) at the district‑court level; and
  • Recognizing that pretrial challenges to forfeiture restraints will often be limited to the sufficiency of the government’s showing on probable cause, not to entitlement to full‑blown evidentiary hearings.

2. Grand Jury, Indictment Drafting, and Bills of Particulars

The opinion also offers practical comfort to prosecutors:

  • They are not required to present detailed forfeiture nexus evidence to the grand jury for each specific asset; and
  • They may rely on a Bill of Particulars to clarify which assets they will seek to forfeit, consistent with Fed. R. Crim. P. 32.2(a), without forfeiting their ability to secure pretrial restraints on those assets.

This flexibility may encourage prosecutors, particularly in complex white‑collar and foreign‑influence cases, to:

  • Refine and adjust their forfeiture theories as financial investigations continue; and
  • Use civil tools like lis pendens initially, then pivot to § 853(e) protective orders once they develop stronger tracing evidence.

At the same time, the district court’s earlier criticism of “gamesmanship” — though not central to the panel’s legal analysis — serves as a cautionary note: courts retain discretion to scrutinize the government’s strategic decisions and may, in appropriate cases, limit or condition relief if they perceive tactical abuse.

3. Tracing Commingled Funds and the Low Evidentiary Threshold

From a forfeiture‑law standpoint, Rivera reinforces that:

  • Commingling of legal and illegal funds does not, by itself, bar pretrial restraint of property purchased with those funds.
  • Government agents may rely on recognized accounting methods such as FIFO tracing to establish probable cause that specific payments were funded by criminal proceeds.
  • Defense experts may contest those methodologies, but their disagreement generally does not defeat probable cause — it simply frames issues for higher‑standard proof later.

The practical effect is to:

  • Empower the government to restrain expensive assets (like real estate) purchased with partially tainted funds, despite substantial commingled legitimate funds; and
  • Signal to district courts that they may credit forensic accounting affidavits without live testimony when deciding whether probable cause exists to restrain property pretrial.

For defendants whose assets are commingled, this opinion suggests that:

  • The best defense practice is to attack the government’s tracing methods in detail and early, while preserving explicit due‑process arguments; but
  • They should realistically expect that, absent glaring defects, courts will often find at least probable cause based on agents’ declarations.

4. Distinguishing Post‑Conviction Cases Like Rothstein

By distinguishing Rothstein as a post‑conviction, civil priority dispute, the panel emphasizes a doctrinal divide between:

  • Post‑conviction forfeiture and distribution of assets, where courts and parties often demand rigorous tracing and confront competing claimant rights; and
  • Pretrial restraints, where probable cause suffices, and many tracing complexities are deferred to the merits stage.

This distinction is significant for bankruptcy trustees, victims, and other third‑party claimants who may be tempted to leverage pretrial decisions into later priority disputes. Rivera suggests that minimal pretrial findings on probable cause will not easily translate into binding determinations about ownership or distributive rights after conviction.

IV. Complex Concepts Simplified

1. Criminal Forfeiture, Tainted Property, and Substitute Property

  • Criminal forfeiture is an in‑personam penalty imposed on a convicted defendant. It allows the government to take property that:
    • Is the direct proceeds of the crime (e.g., money paid as a bribe); or
    • Was used to facilitate the crime (e.g., a house used to conduct illegal meetings); or
    • Is a substitute for such property if the tainted property is gone or unreachable.
  • Tainted (directly forfeitable) property is property that has a direct connection to the criminal conduct — such as funds derived from the crime used to purchase a home.
  • Substitute property (under § 853(p)) is untainted property that can be forfeited only after conviction if the direct proceeds:
    • Cannot be located;
    • Have been transferred to others;
    • Have been substantially diminished; or
    • Have been commingled with other property “which cannot be divided without difficulty.”

The distinction matters because, under Supreme Court caselaw, the government may generally restrain tainted property pretrial (even if needed for counsel or living expenses), but may not restrain untainted property needed to hire counsel (see Luis). Rivera tried to put his property in the “substitute” (untainted) category by arguing the funds were too commingled to trace, but the Eleventh Circuit held that the government’s tracing was sufficient at the probable‑cause stage to classify at least $141,494 as tainted.

2. Pretrial Restraining Orders Under § 853(e)

  • A pretrial restraining order under § 853(e) is an injunction that freezes assets before trial to prevent dissipation of property the government seeks to forfeit if it secures a conviction.
  • Before indictment (§ 853(e)(1)(B)), the government must provide an “opportunity for a hearing” before restraining assets.
  • After indictment (§ 853(e)(1)(A)), however, no explicit hearing requirement exists, and the Eleventh Circuit, in cases like Bissell and now Rivera, has held that indicted defendants have no constitutional right to a full evidentiary hearing prior to restraint.

3. Probable Cause

  • Probable cause is a low standard used at early stages of criminal proceedings. It asks whether there are reasonable grounds to believe that:
    • A crime was committed; and
    • A particular property is related to that crime (for forfeiture).
  • It is not a finding of guilt. It does not resolve conflicts in the evidence or require the defense to be heard in full. Courts may base probable‑cause findings on:
    • Government affidavits;
    • Hearsay; or
    • Incomplete records.

4. Commingled Funds and FIFO Tracing

  • Commingled funds arise when legitimate and illegitimate money are mixed in the same account. For example, salary and criminal proceeds deposited into the same bank account.
  • Tracing methodologies, like FIFO (first‑in, first‑out), are accounting conventions used to infer which dollars fund particular withdrawals. Under FIFO, the earliest deposits are presumed to be the source of the earliest withdrawals.
  • These methods are approximations. At trial, they may be heavily contested through expert testimony. But at the probable‑cause stage, courts often accept them as sufficient to show that some portion of a payment was likely derived from criminal proceeds.

5. Lis Pendens

  • A lis pendens is a notice recorded in local land records indicating that a specific property is subject to pending litigation that may affect title.
  • It does not itself seize property but can effectively freeze its marketability because potential buyers are warned of existing claims.
  • Here, the government first used lis pendens on Rivera’s property while treating it as “substitute” property. After the magistrate judge ordered the lis pendens removed, the government shifted to the § 853(e) protective‑order strategy based on new tracing analysis.

6. Bill of Particulars vs. Indictment Allegations

  • The indictment must charge the crimes and give adequate notice of the alleged criminal conduct, but under Rule 32.2(a), it “need not identify the property subject to forfeiture.”
  • A Bill of Particulars supplements the indictment by providing additional detail so the defendant can prepare a defense and avoid surprise. It can, as here, identify specific assets the government intends to forfeit.
  • The use of a Bill of Particulars to specify the property does not undermine the grand jury’s role or create a per se constitutional problem; the grand jury’s central function is to assess probable cause that a crime has been committed, not to resolve technical tracing questions for each asset.

V. Conclusion

United States v. Rivera reinforces several important principles within Eleventh Circuit forfeiture jurisprudence:

  • An indicted defendant has no constitutional right to a pre‑restraint evidentiary hearing on the traceability of property to the offense; due process is satisfied by an eventual full hearing, typically at trial.
  • Absent clear statutory text or controlling precedent, the failure to hold such a hearing cannot be “plain error” on appeal, especially where the defendant did not clearly assert a constitutional entitlement to it in the district court.
  • The probable‑cause standard for pretrial restraint of property is modest and can be met by a government agent’s tracing declaration, even when funds are commingled and the defense offers a competing forensic opinion.
  • Rothstein and similar post‑conviction tracing cases do not control the lower‑threshold inquiry for pretrial restraints under § 853(e).
  • The government may identify specific forfeitable property in a Bill of Particulars rather than in the indictment itself, without impairing its ability to seek pretrial restraint or violating the defendant’s grand jury protections, given Rule 32.2(a)’s clear text.

Though unpublished, Rivera will likely be cited for its clarification that in the Eleventh Circuit:

  1. Pretrial restraint of allegedly tainted property is procedurally robust but not hearing‑centric; and
  2. Commingling and technical tracing disputes will almost always be litigated at the merits stage, not as threshold barriers to pretrial asset preservation.

For prosecutors, the decision validates a flexible, evidence‑driven approach to tracing and pretrial restraint in complex financial cases. For defendants, it underscores the importance of early, precise preservation of constitutional arguments and realistic expectations about the limited nature of probable‑cause review in the forfeiture context.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

Comments