Supreme Court Examines Criminal Forfeiture Timing

In McIntosh v. U.S., the Supreme Court will decide whether a district court can enter a preliminary forfeiture order outside the time limitation set forth in Federal Rule of Criminal Procedure 32.2(b)(2)(B).

Petitioner Louis McIntosh was indicted along with five others for Hobbs Act robbery and weapons-related offenses. McIntosh was convicted on all counts. At the sentencing hearing, the government asked for the first time for forfeiture of $75,000 cash and a BMW allegedly connected with certain robbery proceeds. In its written judgment, the district court stated that McIntosh was to forfeit the currency and the BMW, subject to the government’s submission of an Order of Forfeiture for the district court’s signature within one week. The government missed the deadline. In a later series of appeals and remands, McIntosh argued that the government had lost its right to seek forfeiture as a result of violating Federal Rule of Criminal Procedure 32.2(b)(2)(B). That rule generally requires a court to enter a preliminary order of forfeiture “sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final.” The Second Circuit held that although Rule 32.2 was a “time-related directive,” no consequences flowed from the missed deadline, essentially allowing the government to move forward with its forfeiture order.

In his merits briefing, McIntosh argued that the court of appeals erred in finding that Rule 32.2 contained only a “time-related directive” and that the Court should instead hold that the deadline is a “mandatory claims-processing rule” under the Supreme Court’s precedent. McIntosh emphasized Rule 32.2’s use of “must” and argued that the Court’s language regarding filing deadlines applies broadly to the rule. In response, the government argued that Rule 32.2 is best understood as a flexible time-related directive, because the text of the rule requires only that a request for a forfeiture be made “sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final,” which the government argued is what happened here. The government also argued that if the district court did violate Rule 32.2 in this case, the violation was harmless.

During oral argument, Justice Thomas questioned exactly how the government’s actions prejudiced McIntosh. Justice Gorsuch questioned how the harmless error rule fit into the analysis of Rule 32.2. Justice Jackson questioned whether there was a potential threshold procedural defect that would inhibit the Court’s ability to reach the merits of the case.

The case was argued on February 27, 2024. A decision is expected later in the term. Stay tuned for Dykema’s client alert discussing the Court’s opinion.

For more information, please contact Chantel Febus, James Azadian, Cory Webster, Christopher Sakauye, McKenna Crisp, Monika Harris, or Puja Valera.