United States v. Younes Nasri

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 22-55685 Plaintiff-Appellee, D.C. No. 3:21-cv-01134- v. WQH-BLM YOUNES NASRI, OPINION Claimant-Appellant, v. $1,152,366.18 IN FUNDS FROM BENDURA BANK AG, PORTFOLIO NUMBER XX5.280, Held in The Name of Golden Castle Technology Limited; $53,020.18 IN FUNDS FROM BENDURA BANK AG, PORTFOLIO NUMBER XX3.200, Held in The Name of Younes Nasri, Defendants. Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding 2 USA V. NASRI Argued and Submitted December 18, 2025 Pasadena, California Filed September 2, 2026 Before: Jay S. Bybee, Mark J. Bennett, and Roopali H. Desai, Circuit Judges. Opinion by Judge Desai; Concurrence by Judge Bybee; Concurrence by Judge Desai; Dissent by Judge Bennett SUMMARY* Civil Forfeiture The panel vacated the district court’s order in a civil forfeiture action granting the United States’s motion to strike under the fugitive disentitlement statute Younes Nasri’s claim of innocent ownership over assets in a foreign bank account. Nasri is a Canadian citizen residing in Dubai. After indicting Nasri on criminal racketeering and drug conspiracy charges, the government brought this civil forfeiture action alleging that Nasri’s Canadian-based company, Phantom Secure, sold encrypted Blackberry phones to criminals. According to the complaint, Phantom Secure operated across * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  USA V. NASRI 3 the world, including in the Southern District of California. Nasri opened a personal bank account and an account for a shell company in Liechtenstein to house Phantom Secure’s proceeds. The government moved to strike Nasri’s claim to the assets under the fugitive disentitlement statute, 28 U.S.C. § 2466. The district court, purporting to exercise in rem jurisdiction over the assets, granted the government’s motion to strike Nasri’s claim. As an initial matter, the panel held that neither forfeiture nor the party presentation principle barred review of the claims in this case. Nasri argued—both in the district court and on appeal—that the district court’s exercise of jurisdiction over the assets violated due process because both he and the assets lacked connection with the United States. And in any event, although personal jurisdiction may be waived, this court has not held that in rem jurisdiction in a civil forfeiture case, which concerns the rights of the rest of the world to the property, can be waived. The panel held that the district court’s exercise of in rem jurisdiction without finding that it has control or constructive control over the defendant property violates the Due Process Clause. Under 28 U.S.C. § 1355(b)(2), a civil forfeiture action may be brought “[w]henever property subject to forfeiture under the laws of the United States is located in a foreign country, or has been detained or seized pursuant to legal process or competent authority of a foreign government” in the district in which the acts giving rise to the forfeiture occurred. No cases have squarely addressed whether the statutory language of § 1355 comports with the fundamental due process requirements of in rem jurisdiction. The panel held that the Due Process Clause requires a court to have control or constructive control over property in a forfeiture action to establish in rem jurisdiction. Here, the 4 USA V. NASRI district court expressly declined to evaluate whether it had control or constructive control over the assets. Accordingly, the panel held that the district court’s exercise of in rem jurisdiction violated the Due Process Clause, and remanded for the district court to evaluate whether it had control or constructive control over the assets. Concurring, Judge Bybee agreed with the majority opinion in full because proceeding in rem without the property itself violates the Fifth Amendment’s Due Process Clause. Further, because the United States does not hold the property, the proceeding is premature and nonjusticiable. Concurring, Judge Desai wrote that the majority opinion’s requirement that the district court have control or constructive control over the assets satisfies Article III’s justiciability requirements and cures the problems identified by Judge Bybee’s concurrence. Dissenting, Judge Bennett wrote that the majority opinion’s holding—that that application of 28 U.S.C. § 1355(b)(2) violates the Due Process Clause of the Fifth Amendment whenever the district court lacks actual or constructive control over the res—overrides the political branches’ delicate judgments in the realm of foreign affairs and interferes with the government’s ability to fight crime, including organized crime, at home and abroad. Worse still, the majority opinion does so in contravention of binding circuit and Supreme Court precedent, and in violation of the party presentation principle.  USA V. NASRI 5 COUNSEL Daniel E. Zipp (argued), Assistant United States Attorney, Chief, Appellate Section, Criminal Division; David Rawls, Assistant United States Attorney; Randy S. Grossman, Adam Gordon, and Tara K. McGrath, United States Attorneys; Office of the United States Attorney, United States Department of Justice, San Diego, California; for Plaintiff-Appellee. Edward H. Williams II (argued), E.H. Williams II Law & Strategy PLLC, Alexandria, Virginia; John C. Lemon II, Law Offices of John C. Lemon, San Diego, California; for Claimant-Appellant. OPINION DESAI, Circuit Judge: The United States seeks to recover ill-gotten profits from a fugitive, Younes Nasri. After indicting Nasri on criminal racketeering and drug conspiracy charges, the government brought a civil forfeiture action against Nasri’s assets in a foreign bank account. Nasri filed a claim of innocent ownership over the assets, and the United States moved to strike the claim under the fugitive disentitlement statute. Nasri responded, challenging the court’s jurisdiction over the assets. He claimed that neither he nor the assets had ties to the United States. The district court, purporting to exercise in rem jurisdiction over the assets, granted the government’s motion to strike Nasri’s claim. We hold that the Due Process Clause requires a district court to establish control or constructive control over 6 USA V. NASRI property in a forfeiture action to exercise in rem jurisdiction over the property. Background Younes Nasri is a Canadian citizen residing in Dubai. The Department of Justice indicted Nasri and four others on RICO and drug trafficking conspiracy charges. The government alleged that Nasri led a Canada-based company, Phantom Secure, which sold encrypted Blackberry phones to criminals. The phones were marketed as uncrackable by law enforcement and could be wiped remotely to hide or destroy evidence. According to the complaint, Phantom Secure operated across the world, including in the Southern District of California. Several of Nasri’s alleged co-conspirators also operated in the Southern District. The complaint stated that Nasri was a “significant worldwide distributor” of Phantom Secure devices and laundered the enterprise’s profits through foreign shell companies. Nasri opened a personal bank account and an account for one such shell company, Golden Castle Technology, in Bendura Bank AG in Liechtenstein to house Phantom Secure’s proceeds. Nasri has purportedly never entered the United States. When the CEO of Phantom Secure, Vincent Ramos, was arrested in the United States, he entered into a plea agreement in which he agreed to turn over $80 million in illegal profits and implicated Nasri in the Phantom Secure conspiracy. The government indicted Nasri and initiated a civil forfeiture action against the assets pursuant to 18 U.S.C. § 981 and 21 U.S.C. § 881. In response, Nasri filed a verified claim asserting innocent ownership of the assets. The government and Nasri  USA V. NASRI 7 sought a global resolution of the criminal and civil claims, and the district court granted a stay during the negotiations. Negotiations failed, and the district court lifted the stay and ordered the parties to appear. But Nasri failed to appear, stating that he was “exercising his Fifth Amendment right against self-incrimination.” Nasri also failed to surrender in his criminal case. The government moved to strike Nasri’s claim to the assets under the fugitive disentitlement statute, 28 U.S.C. § 2466.1 Nasri opposed the motion, arguing that the court lacked jurisdiction over the assets because neither he nor the assets had any ties to the United States. He also asserted the fugitive disentitlement statute violates due process or, in the alternative, does not apply to him. The district court granted the government’s motion, finding that (1) it had in rem jurisdiction over the assets, (2) the fugitive disentitlement statute does not violate due process, and (3) Nasri qualified as a fugitive under the statute even if avoiding prosecution was not the “sole reason” he remained outside the United States. Nasri timely appealed. Standard of Review A district court’s rulings on personal jurisdiction are reviewed de novo. United States v. Obaid, 971 F.3d 1095, 1098 (9th Cir. 2020) (citing Myers v. Bennett L. Offs., 238 F.3d 1068, 1071 (9th Cir. 2001)). 1 The fugitive disentitlement statute allows the government to move to strike an individual’s claim to ownership in a civil forfeiture proceeding when he intentionally evades a criminal action against him related to the forfeiture. 28 U.S.C. § 2466. 8 USA V. NASRI Analysis I. The district court’s exercise of in rem jurisdiction violated the Fifth Amendment’s Due Process Clause. A federal court must have “the power to decide the claim before it (subject-matter jurisdiction) and power over the parties before it (personal jurisdiction).” See Lightfoot v. Cendant Mortg. Corp., 580 U.S 82, 95 (2017). Without personal jurisdiction, “the court is powerless to proceed to an adjudication.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999) (citation modified). When courts seek to exercise in rem jurisdiction, they must typically seize or constructively possess the defendant property before exercising in rem jurisdiction. But here, the government argues that the court can exercise jurisdiction over Nasri’s property, which is entirely outside of the court’s possession or control, without violating the Due Process Clause. We disagree. To explain our holding that federal courts must have control over defendant property before exercising in rem jurisdiction, we start with the historical requirements of in rem jurisdiction. Next, we consider our departure from these historical principles in cases brought pursuant to the civil forfeiture statute, 28 U.S.C. § 1355. But we ultimately conclude that the Fifth Amendment’s Due Process Clause requires district courts to establish control or constructive control over property in an in rem civil forfeiture action based on historical in rem principles and the Supreme Court’s recent “flexible” jurisdictional inquiry. See Fuld v. Palestine Liberation Org., 606 U.S. 1 (2025). Before addressing the merits, we explain why neither forfeiture nor the party presentation principle bars review of the claims in this case. The government and the dissent argue  USA V. NASRI 9 that Nasri forfeited the arguments at the heart of our ruling by failing to raise them in the district court and on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). For the same reasons, they insist that the party presentation principle prevents us from confronting the constitutional question this case presents. But Nasri argued—both in the district court and on appeal—that the district court’s exercise of jurisdiction over the assets violated due process because both he and the assets lacked connection with the United States. And in any event, although personal jurisdiction may be waived, this court has not held that in rem jurisdiction in a civil forfeiture case, which concerns the rights of the rest of the world to the property, can be waived. Cf. Scott v. McNeal, 154 U.S. 34, 46 (1894) (“[A] judgment in proceedings strictly in rem . . . . is wholly void if a fact essential to the jurisdiction of the court did not exist.”). To be sure, in some cases, an individual objection to in rem jurisdiction may be waived by a vessel that “actively participate[s] in the litigation . . . without challenging the court’s in rem jurisdiction.” See Barnes v. Sea Haw. Rafting, LLC, 889 F.3d 517, 529 (9th Cir. 2018). It does not follow that a claimant in an in rem forfeiture case can waive the rights of all other claimants to object to the district court’s exercise of in rem jurisdiction. Even the case that the dissent cites for the proposition that other circuits “have expressly held in the civil forfeiture context that in rem jurisdiction is waivable,” recognizes this nuance. United States v. Contents of Accts. Nos. 3034504504 & 144-07143 at Merrill Lynch, Pierce, Fenner & Smith, Inc., 971 F.2d 974, 983–84 (3d Cir. 1992). There, the Third Circuit concluded that a claimant waived his right to object to in personam and in rem jurisdiction in a civil forfeiture case. Id. But the district court nevertheless lacked in rem jurisdiction, and thus “it did 10 USA V. NASRI not . . . have the power to enter an adjudication determining that the government’s right to the res was superior to all potential claimants.” Id. at 984. In sum, although Nasri can raise or forfeit his own rights, he cannot raise or forfeit rights of others. Neither forfeiture nor the party presentation principle thus prevents us from addressing the fundamental and dispositive jurisdictional question at issue in this case. See U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993) (holding that a court does not “stray beyond its constitutional or prudential boundaries” by addressing “an issue antecedent to and ultimately dispositive of the dispute before it, even an issue the parties fail[ed] to identify and brief” (citation modified)). A. Historically, in rem jurisdiction required seizure or constructive control over the property. In rem jurisdiction allows parties to file actions and courts to enter judgments against property. United States v. Ten Thousand Dollars ($10,000.00) in U.S. Currency, 860 F.2d 1511, 1513 (9th Cir. 1988). When exercising in rem jurisdiction, a court can exercise control over the defendant property itself regardless of whether the property owner has ties to the forum. See Shaffer v. Heitner, 433 U.S. 186, 205 (1977). This is because, for most of American legal history, the basis for in rem jurisdiction has been “the presence of the subject property within the territorial jurisdiction of the forum state.” Hanson v. Denckla, 357 U.S. 235, 246 (1958); see Pennoyer v. Neff, 95 U.S. (5 Otto) 714, 722 (1877) (“[E]very State possesses exclusive jurisdiction and sovereignty over persons and property within its territory.”). The property’s presence in the forum ensured that the court had exclusive power to adjudicate rights to the property.  USA V. NASRI 11 Hanson, 357 U.S. at 246–47. In circumstances where the property cannot be seized, such as actions against real or intangible property, courts have found constructive possession sufficient to establish in rem jurisdiction. Miller v. United States, 78 U.S. 268, 296 (1870) (“An assertion of control, with a present power and intent to exercise it, is sufficient.”); Tyler v. Defrees, 78 U.S. 331, 349 (1870) (writ of attachment for real estate). The Supreme Court has repeatedly held that when a sovereign fails to secure property in an in rem proceeding, the resulting judgment is void. See Cooper v. Reynolds, 77 U.S. (10 Wall.) 308, 319 (1870) (“[T]he seizure of the property . . . is the one essential requisite to jurisdiction, as it unquestionably is in proceedings purely in rem. Without this the court can proceed no further.” (citation modified)); Scott, 154 U.S. at 46 (“[A] judgment in proceedings strictly in rem . . . . is wholly void if a fact essential to the jurisdiction of the court did not exist.”); Elliott v. Peirsol’s Lessee, 26 U.S. (1 Pet.) 328, 340 (1828) (“Where a Court has jurisdiction, it has a right to decide every question which occurs in the cause . . . . But, if it act[s] without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void.”); Hanson, 357 U.S. at 249–50. Its precedent is clear that when courts act without authority over property, the resulting judgment is void and violates due process.2 Hanson, 357 U.S. at 250. 2 The dissent minimizes the applicability of these cases because they predated the civil forfeiture statute, 28 U.S.C. § 1355, and do not address civil forfeiture actions against assets in a foreign country. Dissent at 116– 118. The dissent’s criticism highlights the very reason these cases are instructive. They illustrate the longstanding requirements for in rem 12 USA V. NASRI These jurisdictional rules were initially matters of state law. Id. at 249–50. But shortly after the passage of the Fourteenth Amendment, the Supreme Court clarified that the rules were tethered to the Constitution’s Due Process Clause. Pennoyer, 95 U.S. (5 Otto) at 736–37; Hanson, 357 U.S. at 249–50. In Pennoyer, the Court explained that the exercise of jurisdiction upon persons over whom a court has no power violates due process. 95 U.S. (5 Otto) at 733. Decades later, in Hanson v. Denckla, the Supreme Court confirmed the same principle applies to in rem jurisdiction.3 357 U.S. at 250 (“Since a State is forbidden to enter a judgment attempting to bind a person over whom it has no jurisdiction, it has even less right to enter a judgment purporting to extinguish the interest of such a person in property over which the court has no jurisdiction.”). In the several decades following Pennoyer, the Supreme Court expanded in personam jurisdiction, first holding due process was satisfied so long as the individual had minimum contacts with the forum state. Int’l Shoe Co. v. State of jurisdiction, which, as we explain below, courts appear to have abandoned after the § 1355 amendments without analyzing the constitutional implications. 3 Hanson invoked the Fourteenth Amendment’s Due Process Clause, whereas Nasri’s case invokes the Fifth Amendment’s Due Process Clause. The government insists that this distinction matters, but we are not persuaded. To be sure, the Supreme Court has held that in an in personam case, the Fifth Amendment imposes a “more flexible jurisdictional inquiry” than the Fourteenth Amendment. Fuld, 606 U.S. at 16. But the Court has never drawn this distinction in the in rem context. To the extent the Fifth Amendment Due Process Clause instead requires us to apply this “flexible” standard or analyze the “reasonableness” of the assertion of jurisdiction, as we explain below, the assertion of in rem jurisdiction without control or constructive control over the property does not satisfy either standard.  USA V. NASRI 13 Wash., Off. of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945). Then, in Shaffer v. Heitner, the Supreme Court expanded that rationale to quasi in rem cases, holding that quasi in rem jurisdiction—which really amounts to an exercise of jurisdiction over a person’s interest in property— also requires a showing of minimum contacts. 433 U.S. at 212. And more recently, the Supreme Court held that an even “more flexible” test than the Fourteenth Amendment’s minimum contacts test applies when evaluating personal jurisdiction—at least in personam—under the Fifth Amendment. Fuld, 606 U.S. at 16. But none of these developments disturb the requirements for in rem jurisdiction. In fact, in Shaffer, the court noted that although in personam jurisdiction had been expanded significantly since Pennoyer, “[n]o equally dramatic change ha[d] occurred in the law governing jurisdiction in rem.” 433 U.S. at 205. Against this backdrop, we turn to civil forfeiture cases. The Supreme Court has long recognized that civil forfeiture actions are in rem proceedings. The Palmyra, 25 U.S. (12 Wheat.) 1, 12–13 (1827); see also United States v. Bajakajian, 524 U.S. 321, 330 (1998) (“The theory behind such forfeitures was the fiction that the action was directed against ‘guilty property,’ rather than against the offender himself.”). And, as with all in rem proceedings, the Court requires control or constructive control over the defendant property. Republic Nat’l Bank of Miami v. United States, 506 U.S. 80, 87 (1992) (“[T]he court must have actual or constructive control of the res when an in rem forfeiture suit is initiated.” (citation modified)); Ten Thousand Dollars, 860 F.2d at 1513 (“A forfeiture action is in rem. . . . [T]he court’s jurisdiction is predicated on its control over an item of property or res.” (citation modified)). In the past three 14 USA V. NASRI decades, however, courts interpreting civil forfeiture statutes have often overlooked this essential constitutional requirement. B. Recently, courts have conducted strict textual analyses of the civil forfeiture statute without considering fundamental due process principles. The government may bring civil forfeiture actions pursuant to several statutes. See 28 U.S.C. § 1355; 21 U.S.C. § 881. The statute used by the government here to bring an action against Nasri’s assets is 28 U.S.C. § 1355. Prior to 1992, the statute “simply provided that district courts had subject matter jurisdiction over forfeiture proceedings.” United States v. All Funds on Deposit in Any Accts. Maintained in the Names of Meza or De Castro (“Meza”), 63 F.3d 148, 151 (2d Cir. 1995). In 1992, Congress amended the statute to make it easier to bring civil forfeiture actions by providing for nationwide venue and service of process. In its current form, the statute provides: (a) The district courts shall have original jurisdiction, exclusive of the courts of the States, of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress, except matters within the jurisdiction of the Court of International Trade under section 1582 of this title. (b)(1) A forfeiture action or proceeding may be brought in— (A) the district court for the district in which any of the acts or omissions  USA V. NASRI 15 giving rise to the forfeiture occurred, or (B) any other district where venue for the forfeiture action or proceeding is specifically provided for in section 1395 of this title or any other statute. (2) Whenever property subject to forfeiture under the laws of the United States is located in a foreign country, or has been detained or seized pursuant to legal process or competent authority of a foreign government, an action or proceeding for forfeiture may be brought as provided in paragraph (1), or in the United States District court for the District of Columbia. 28 U.S.C. § 1355. Section 1355(a) establishes subject matter jurisdiction over forfeiture actions. Id. § 1355(a). Section 1355(b) addresses where such an action may be brought, and § 1355(b)(2) contemplates the circumstances presented here. On its face, § 1355(b) does not make clear whether it establishes venue, personal (in rem) jurisdiction, subject matter jurisdiction, or some combination thereof. Several circuits have interpreted § 1355, but none squarely addresses whether the statutory language comports with the fundamental due process requirements of in rem jurisdiction. The Second Circuit comes the closest, finding that the statute requires constructive control because Congress did not intend to override well-settled 16 USA V. NASRI requirements of in rem jurisdiction. Meza, 63 F.3d at 152. But other circuits, including ours, engage in only a rote statutory analysis without considering the constitutional requirements of in rem jurisdiction. Notably, those decisions do not address the constitutional question presented here. To be sure, only the Second Circuit interpreted § 1355 in harmony with traditional in rem principles. Id. The question in Meza was whether Congress’s amendments to § 1355 eliminated the requirement to establish in rem jurisdiction because the statute provided for subject matter jurisdiction and venue. Id. at 151. The court held that the control or constructive control requirement must survive Congress’s amendment to the statute, despite the statute’s silence on the issue. Id. at 152. It explained that “[a]lthough Congress certainly intended to streamline civil forfeiture proceedings by amending § 1355, . . . we do not believe that Congress intended to fundamentally alter well-settled law regarding in rem jurisdiction.” Id. (citation modified). Other circuits that have considered § 1355, including ours, do not address the constitutional issue. Rather, they engage in a purely textual interpretation of the statute. See United States v. Approximately $1.67 Million (US) in Cash, Stock and Other Valuable Assets Held by or at: 1) Total Aviation LDT., 513 F.3d 991, 996–98 (9th Cir. 2008); United States v. All Funds in Acct. Nos. 747.034/278, 747.009/278, & 747.714/278 Banco Espanol de Credito, Spain (Banco Espanol), 295 F.3d 23, 26 (D.C. Cir. 2002); Contents of Acct. No. 03001288 v. United States, 344 F.3d 399, 403–05 (3d Cir. 2003). Indeed, in $1.67 Million, we held that the statute did not require control or constructive control over the property at issue in the civil forfeiture action. 513 F.3d at 996–98. But,  USA V. NASRI 17 notably, the parties did not raise, and we did not consider, whether such a rule comports with the constitutional requirements of in rem jurisdiction. In that case, the United States sought to recover the claimant’s assets in the Cayman Islands and obtained an order from the Grand Court of the Cayman Islands freezing the funds. Id. at 995. When the claimant challenged the district court’s jurisdiction over the forfeiture proceeding, the district court held that the Cayman’s cooperation was sufficient to give the court “constructive control” over the assets. Id. On appeal, both the claimant and the government argued that the statutory text does not require “constructive control.” Thus, the issue was not in dispute. We assumed the parties’ interpretation of the statutory text and adopted the government’s theory that § 1355(b)(2) alone provided the court with jurisdiction over the accounts. Id. at 996–98. In doing so, we explained that the statute provides for personal jurisdiction—rather than merely subject matter jurisdiction and venue—and the statute requires only that the government show an act or omission giving rise to the forfeiture occurred in the district. Id.; 28 U.S.C. § 1355(b)(1), (2). But again, our analysis and holding did not grapple with the constitutional requirements of in rem jurisdiction. In subsequent cases, we repeated $1.67 Million’s holding, which was nothing more than an interpretation of the statute’s text, without so much as a mention of the fundamental due process principles of in rem jurisdiction. In United States v. Obaid, for example, we noted that the statutory text of § 1355(b)(2) gives federal courts jurisdiction in forfeiture actions over property even if the 18 USA V. NASRI property is located in a foreign country.4 971 F.3d at 1102. And more recently, we conclusively held that § 1355(b)(2) “relaxed” traditional in rem jurisdiction requirements and that “[r]ead together, . . . $1.67 Million and Obaid establish that a district court has in rem jurisdiction over property not within its actual or constructive control, even when it lacks personal jurisdiction over the property’s owner.” United States v. PetroSaudi Oil Servs. (Venezuela) Ltd., 70 F.4th 1199, 1210 (9th Cir. 2023) (citation modified). But critically, in each of these cases, we did not address whether such an exercise of in rem jurisdiction comports with due process. See, e.g., $1.67 Million, 513 F.3d at 996. The dissent asserts that the $1.67 Million panel “reasoned that constitutional due process does not impose any requirement of actual or constructive control.” Dissent at 99. But $1.67 Million did not provide any reasoning about constitutional due process requirements related to in rem jurisdiction. Neither party argued that exercising jurisdiction over the proceeds violated due process. Both parties believed that the district court’s conclusion that it constructively controlled the assets was irrelevant, focusing only on the plain text of 28 U.S.C. § 1355. $1.67 Million, 513 F.3d at 996. We thus reject the notion that $1.67 Million implicitly answered a constitutional question that was neither raised by the parties nor addressed in the court’s reasoning. See Tate v. United States, 982 F.3d 1226, 1227–28 (9th Cir. 2020) 4 In Obaid, we addressed a different constitutional question—whether the court was required to determine that the claimant had minimum contacts with the forum to exercise jurisdiction over the claimant’s property. 971 F.3d at 1098. We held that the district court was not required to have minimum contacts with the claimant in an in rem suit. Id. at 1103–05. Although Nasri asks us to revisit this question, we have no authority to do so.  USA V. NASRI 19 (per curiam) (explaining that a court announces a “statutory, rather than a constitutional, rule,” when it “fram[es] its inquiry as ‘a question of congressional intent’” (quoting Rehaif v. United States, 588 U.S. 225, 228 (2019))). And this case squarely presents the question our prior cases neither considered nor answered: does exercising in rem jurisdiction over foreign property without establishing control or constructive control over the property violate the Due Process Clause? C. The Fifth Amendment’s Due Process Clause requires a court to have control or constructive control over property in a forfeiture action to establish in rem jurisdiction. The development of our case law in civil forfeiture actions has led to a constitutionally untenable result. Although civil forfeiture actions brought pursuant to 28 U.S.C. § 1355 are called “in rem” actions, they bear little resemblance to true in rem proceedings. That is, the court has not seized the property, nor has it engaged in any analysis of its constructive control over the property. Whether we apply the historical in rem principles or the Supreme Court’s more recent “flexible” jurisdictional inquiry, we arrive at the same conclusion: this arrangement violates the Due Process Clause. For starters, when the court has not seized or constructively seized the property, the interested parties lack sufficient notice. Notice is particularly important in an in rem suit because it is an action “against the world” to determine title to the property. See 4A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 1070 n.18 (4th ed. 2023). When property is seized for an in rem action, theoretically anyone who claims an interest in the 20 USA V. NASRI property will realize that someone else is currently possessing the property until the question of title is resolved. See Greene v. Lindsey, 456 U.S. 444, 452 (1982); Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 316 (1950). And if property is not capable of being seized, proper notice requires personal notice to known claimants and publication to the world. See Fed. R. Civ. P. Supp. R. G(4); Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 796 n.3 (1983) (“Our cases have required the State to make efforts to provide actual notice to all interested parties.”). The government argues that when the United States moves to forfeit property, due process requires only that potential claimants receive notice and an opportunity to be heard. This argument turns the inquiry inside out. Notice does not, as the government suggests, exempt courts from complying with the fundamental in rem jurisdiction requirements. Instead, compliance with the fundamental requirements ensures proper notice. See United States v. James Daniel Good Real Prop., 510 U.S. 43, 57–58 (1993) (“[I]n order to institute and perfect proceedings in rem, [the property] should be actually or constructively within the reach of the Court. . . . In the case of real property, the res may be brought within the reach of the court simply by posting notice on the property and leaving a copy of the process with the occupant.” (citation modified)). In other words, notice is the touchstone of due process in in rem proceedings, and constructive control has long been the notice required by the Constitution. Here, the scope of the notice provided by the government is unclear. The government did not serve Nasri personally, and understandably so, because he is a fugitive. Absent personal service, however, seizing the account is the best way to put potential claimants on notice of the action. And  USA V. NASRI 21 although Nasri received actual notice, we do not know whether other potential claimants received notice of the action.5 In its motion to strike, the government asserted that it “published notice” sufficient to satisfy due process. But without seizure of the property or further information about the published notice, we cannot evaluate whether the notice was “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.” Mullane, 339 U.S. at 314. Applying the traditional in rem jurisdiction requirements also prevents an “unbounded” exercise of personal jurisdiction. See Fuld, 606 U.S. at 18. In Fuld, the Court declined to adopt the petitioners’ argument that “the Fifth Amendment imposes no territorial limits on personal jurisdiction.” Id. (citation modified). There, the government acknowledged that “the theory is not easily confirmed as a historical matter,” nor should the Court accept it as a matter of policy. Id. We thus conclude that the Fifth Amendment imposes some “limits on the territorial jurisdiction of the federal courts.” Id. at 19. But without control or constructive control over the property, the court’s jurisdiction is virtually unbounded. Indeed, at oral argument, the government maintained that the statute allows a federal court to adjudicate title to foreign property—such as a private manufacturing plant—located in another country over which it has no control, authority, or access merely because the government filed a civil forfeiture action. Such an exercise 5 The dissent focuses on whether Nasri received proper notice. But since an in rem action is an action “against the world,” we are concerned with more than the notice provided to Nasri. See Wright & Miller, supra, § 1070. 22 USA V. NASRI of “in rem” jurisdiction is contrary to our most fundamental principles of due process. The government asks us to abandon these longstanding principles. In its view, Fuld requires us to apply a more “flexible” test under the Fifth Amendment. At the outset, we note that Fuld may not apply to this case at all because Fuld involved an in personam case, not an in rem case. 606 U.S. at 5. As explained above, the Supreme Court has recognized that despite changes to the in personam jurisdiction analysis, no similar change in law has occurred “governing jurisdiction in rem.” Shaffer, 433 U.S. at 205. And our court has declined to map the in personam requirements onto in rem cases. See Obaid, 971 F.3d at 1098. But to the extent Fuld’s approach applies, it only reinforces our conclusion. In Fuld, the Supreme Court considered whether the Promoting Security and Justice for Victims of Terrorism Act (“PSJVTA”) violates the Fifth Amendment’s Due Process Clause. 606 U.S. at 6–7. The PSJVTA allows American victims of terrorism to bring an action against the perpetrators for civil damages. 18 U.S.C. § 2334(e)(1), (5). The Act deems the Palestine Liberation Organization (“PLO”) and Palestinian Authority (“PA”) to have consented to personal jurisdiction in such an action in two circumstances: if the PLO or PA makes payments to imprisoned terrorists or their families, or when either organization maintains an office in the United States (other than at the United Nations). 18 U.S.C. § 2334(e)(1), (5); Fuld, 606 U.S. at 9. The Court held that the PSJVTA’s jurisdictional requirements satisfied the Due Process Clause for three reasons, none of which apply to § 1355, the statute at issue here.  USA V. NASRI 23 First, the Court held that the PSJVTA satisfies due process requirements because it “reflects the political branches’ balanced judgment of competing concerns over sensitive and weighty interests of national security and foreign affairs.” Id. at 20 (citation modified). The PSJVTA applies to a subset of cases that necessarily implicate national security and foreign affairs interests. See id. The civil forfeiture statute, on the other hand, is a general statute that applies broadly to domestic and foreign forfeitures alike. See 28 U.S.C. § 1355. Second, the PSJVTA is “suitably limited to achieving” its specific foreign affairs goals. Fuld, 606 U.S. at 20. The Court highlighted that the Act applies only to “a narrow category of claims that provide civil remedies only for Americans injured by acts of international terrorism.” Id. The civil forfeiture statute is not similarly limited or focused. Instead, it provides for jurisdiction over actions involving “any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress.” 28 U.S.C. § 1355(a). This is a far cry from the narrow category of cases—claims under the Anti-terrorism Act for Americans injured by acts of international terrorism—covered by the PSJVTA.6 6 The dissent insists that this category of