In United States v. McIntosh, No. 22-7386 (U.S. Apr. 17, 2024), a unanimous Supreme Court held that a district court’s failure to enter a preliminary order of forfeiture prior to sentencing, as required by Fed. R. Crim. P. 32.2(b)(2)(B), “does not bar a judge from ordering forfeiture at sentencing subject to harmless-error principles on appellate review.”
McIntosh participated in a series of Hobbs Act robberies. During one of them, he took $70,000 in cash, and used part of that sum to buy a BMW. He was indicted for several counts of Hobbs Act robbery and corresponding 18 U.S.C. § 924(c) offenses. The indictment included a forfeiture allegation identifying robbery proceeds and the government also provided a bill of particulars identifying the BMW as forfeitable. McIntosh was convicted at trial. Prior to sentencing, the government did not seek, and the district court did not enter, the preliminary order of forfeiture required by Rule 32.2(b)(2)(B), which provides: “Unless doing so is impractical, the court must enter the preliminary order sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final.” However, at sentencing, the district court ordered forfeiture of the cash and the BMW.
The Second Circuit (after a few procedural twists and turns I’m eliding for simplicity’s sake) affirmed the forfeiture order, holding that Rule 32.2(b)(2)(B) is a mere “time-related directive” which “does not deprive a judge of the power to take the action to which the deadline applies if the deadline is missed.” The Circuit viewed this result as compelled by Dolan v. United States, 560 U.S. 605 (2010), which held that the 90-day deadline for ordering restitution following sentencing, 18 U.S.C. § 3664(d)(5), is likewise a time-related directive. The Supreme Court granted certiorari to resolve a Circuit split on the question whether Rule 32.2(b)(2)(B)’s deadline is: (i) jurisdictional, as the Eighth Circuit has held; (ii) a mandatory claims-processing rule, as the Sixth Circuit has held; or (iii) a mere time-related directive, as the Second, Fourth, and Seventh Circuits have held.
The Supreme Court agreed with the Second Circuit’s rule and affirmed, holding: “Rule 32.2(b)(2)(B) establishes a time-related directive. Accordingly, a district judge’s failure to enter a preliminary order prior to sentencing does not deprive a judge of the power to order forfeiture.” (slip op., at 7). Following Dolan, the Court held that three features of Rule 32.2(b)(2)(B) pointed to this result: (i) the Rule’s text (“unless doing so is impractical” and “sufficiently in advance of sentencing”) “contemplates flexibility regarding the timing of a preliminary order’s entry”; (ii) the Rule “does not specify a consequence for noncompliance with its timing provisions”; and (iii) the Rule “governs the conduct of the district court, not the litigants.” (slip op., at 8-10).
The Court noted that “in most cases, a timely objection required to preserve a claim of error likely will prompt the district court to enter the preliminary order and, if appropriate, postpone sentencing.” And “[i]f a timely objection is raised and no preliminary order is entered, at the very least, the violation of Rule 32.2(b)(2)(B) would be reviewed for harmlessness” pursuant to the ordinary Fed. R. Crim. P. 52(a) standard. Here, McIntosh had not challenged the Second Circuit’s holding that any error was harmless, and the Supreme Court agreed that he had not shown prejudice. He received notice of potential forfeiture in the indictment and the bill of particulars, and that he could have mitigated any prejudice from the depreciation of the BMW’s value between seizure and forfeiture by seeking an interlocutory sale.
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