Remand Required When a § 853(n) Petition Is Dismissed Without Addressing Leave to Amend, Especially for Pro Se Claimants

I. Introduction

United States v. Calderin-Pascual (1st Cir. Apr. 3, 2026) addresses the pleading standards and procedural safeguards governing third-party challenges to criminal forfeiture under 21 U.S.C. § 853(n) and Fed. R. Crim. P. 32.2(c). The forfeited property was a 25-foot Avanti center-console boat listed in a preliminary forfeiture order entered after Osvaldo Calderin-Pascual pleaded guilty to a drug conspiracy alleged to have begun “in or about May 2019.”

The appellant and claimant, David Calderin-Pascual (Osvaldo’s brother), filed a pro se petition asserting he was the boat’s “sole and rightful owner” and sought an ancillary hearing to establish his interest. The government moved to dismiss for failure to state a claim, arguing the petition did not allege the time and circumstances of David’s acquisition as required by § 853(n)(3). After counsel appeared, David opposed and alternatively requested time to amend. The district court dismissed the petition without addressing the amendment request. The First Circuit vacated and remanded.

The key issues were: (1) what a § 853(n) petitioner must plead to survive dismissal under Rule 32.2(c)(1)(A); (2) whether untranslated Spanish documents can be considered; and (3) whether the district court must explain (or reconsider) the denial of leave to amend where the record does not reveal the basis for that denial—particularly given pro se status and § 853’s liberal-construction directive.

II. Summary of the Opinion

The First Circuit held that David’s filings, as submitted, did not state a plausible claim because they failed to allege that his interest in the boat was acquired before the onset of the charged conspiracy (May 2019) and relied on attachments that the court could not credit (untranslated Spanish documents) or that were illegible. Nonetheless, the court vacated the dismissal and remanded because the district court did not address David’s alternative request for leave to amend and the record did not make the reason for denying that request apparent. On remand, the district court must “take into account” David’s prior pro se status and the statutory instruction that § 853 be “liberally construed,” 21 U.S.C. § 853(o).

III. Analysis

A. Precedents Cited

• United States v. Catala, 870 F.3d 6 (1st Cir. 2017)
  Role in the opinion: Catala supplies the operative framework for § 853(n) ancillary proceedings in the First Circuit: third-party claimants petition after a preliminary order, and dismissal may occur at the pleading stage. The panel relied on Catala for (i) the proposition that the petition must satisfy a plausibility standard, and (ii) the merits requirement that a claimant generally must show an interest that existed before the offense leading to forfeiture. That temporal requirement directly drove the court’s conclusion that David’s petition was deficient because it did not allege pre-2019 acquisition.
• Libretti v. United States, 516 U.S. 29 (1995)
  Role in the opinion: Libretti is cited for the foundational rule that third-party claimants can vindicate interests in forfeited property only via the § 853(n) ancillary hearing procedure. This anchors the importance of the petition as the gateway to adjudicating third-party rights.
• Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)
  Role in the opinion: Twombly provides the “plausible on its face” standard used to test the sufficiency of a § 853(n) petition when the government moves to dismiss under Rule 32.2(c)(1)(A).
• United States v. Pacheco, 921 F.3d 1 (1st Cir. 2019)
  Role in the opinion: Pacheco is used to enforce 48 U.S.C. § 864, which “prohibits federal courts from considering untranslated documents.” This precedent was decisive in rejecting David’s Spanish-language attachments as a basis to infer a pre-2019 ownership interest at the motion-to-dismiss stage.
• United States ex rel. Kelly v. Novartis Pharms. Corp., 827 F.3d 5 (1st Cir. 2016) and Carmona v. Toledo, 215 F.3d 124 (1st Cir. 2000)
  Role in the opinion: These cases supply the appellate standard for when a district court’s reasons need not be stated explicitly—only if they are “apparent from the record.” The panel distinguished Novartis (where reasons were “readily apparent” from an immediately preceding opposition memorandum) and invoked Carmona to conclude the record here did not disclose why leave to amend was effectively denied.
• McDonald v. Hall, 579 F.2d 120 (1st Cir. 1978)
  Role in the opinion: McDonald provides the remedial template: where the basis for a denial is not disclosed, remand may be necessary for the district court to “explain and/or reconsider” its decision. The panel used McDonald to justify vacatur and remand regarding the unaddressed amendment request.

B. Legal Reasoning

1. Pleading content required by § 853(n)(3) and Catala’s temporal priority rule.
   Section 853(n)(3) requires the petition to set forth “the time and circumstances” of acquisition. Catala further indicates that to prevail, a claimant must establish an interest that existed before the crime leading to forfeiture. The First Circuit treated these points as linked: to state a plausible claim warranting a hearing, the petition must allege facts showing acquisition prior to the offense period (here, prior to May 2019).
2. Application to David’s petition.
   David’s pro se petition alleged only that, “at the time of the seizure,” he was the “sole and rightful owner,” and that his interest was “superior to the government.” The court held this was insufficient because it did not allege when he acquired title, and thus did not plausibly allege pre-2019 ownership.
3. Untranslated or unusable exhibits cannot cure a deficient petition.
   The court refused to consider the Spanish attachments for lack of translation under 48 U.S.C. § 864 as enforced by Pacheco. It also refused to credit the later-filed “transfer” document because it was in Spanish and illegible, leaving no competent allegation or exhibit establishing a pre-2019 transfer.
4. Why the dismissal was vacated anyway: silence as to leave to amend.
   Although the First Circuit agreed the record to date failed the plausibility threshold, it held the district court’s dismissal could not stand because the court did not address David’s alternative request for time to amend, and the appellate record did not make the basis for denying that request “apparent.” The government’s post hoc rationales on appeal did not cure that problem, particularly because those rationales were not presented below and the government’s own motion had suggested dismissal or direction to file an amended petition.
5. Remand instructions: pro se status and liberal construction.
   The panel directed the district court on remand to account for David’s pro se posture when he initially filed and for § 853(o)’s instruction that § 853 “be liberally construed,” signaling a more claimant-protective approach to procedural opportunities (like amendment) even where the existing pleading is inadequate.

C. Impact

• District-court process in ancillary forfeiture proceedings.
  The decision pressures district courts to explicitly address requests to amend § 853(n) petitions (or to make their reasons unmistakably apparent) when dismissing at the Rule 32.2(c)(1)(A) stage, reducing the likelihood that dismissals will be affirmed solely on unexplained procedural grounds.
• Practical pleading guidance for claimants.
  Claimants must plead concrete facts—especially dates and circumstances—showing a qualifying ownership interest that predates the criminal conduct. Conclusory ownership assertions tied to “time of seizure” are insufficient.
• Translation compliance is dispositive in Puerto Rico federal practice.
  The court reaffirmed that untranslated Spanish documents cannot be considered. In forfeiture practice, where title and registry records are often Spanish-language, the failure to submit translations can be outcome-determinative at the dismissal stage.
• More amendments, fewer forfeiture-by-default outcomes.
  By emphasizing pro se status and liberal construction on remand, the opinion may lead to more opportunities to cure pleading defects, potentially increasing the number of ancillary hearings and reducing premature extinguishment of potentially valid third-party interests.

IV. Complex Concepts Simplified

Criminal forfeiture (21 U.S.C. § 853(a)(1))

A post-conviction remedy requiring a defendant to surrender property that constitutes or was derived from crime proceeds.

Preliminary order of forfeiture (Fed. R. Crim. P. 32.2(b)(2)(A))

An initial forfeiture order entered “without regard to any third party’s interest.” It preserves the property for forfeiture while third-party claims are handled separately.

Ancillary proceeding (Fed. R. Crim. P. 32.2(c)(1); 21 U.S.C. § 853(n))

The procedure where third parties (not the convicted defendant) assert ownership or other legal interests in forfeited property. It is the exclusive vehicle for such claims (Libretti).

Motion to dismiss for failure to state a claim (Fed. R. Crim. P. 32.2(c)(1)(A))

Before any hearing, the court may dismiss a petition if, assuming the petition’s factual allegations are true, they still do not plausibly show entitlement to relief (Twombly; Catala).

48 U.S.C. § 864 (untranslated documents)

A rule applied in the First Circuit that prevents federal courts from considering documents in Spanish unless an English translation is provided (Pacheco).

“Vacate and remand”

The appellate court nullifies the challenged order (vacates it) and sends the case back to the district court (remands) for further action consistent with the appellate guidance.

V. Conclusion

United States v. Calderin-Pascual delivers two practical lessons in criminal forfeiture ancillary litigation: first, a § 853(n) petition must plausibly allege—through competent, court-considerable materials—the time and circumstances of acquisition establishing a pre-offense interest; untranslated or illegible exhibits will not suffice. Second, even when dismissal is substantively justified on the existing record, an appellate court may require vacatur and remand if the district court does not address (and the record does not reveal) the basis for denying a claimant’s request to amend—particularly where the claimant initially proceeded pro se and where Congress directed that § 853 be “liberally construed.”