Decision Alert: Supreme Court Unanimously Affirms Tardy Forfeiture Order

On April 17, 2024, the Supreme Court unanimously held in McIntosh v. U.S. that a district court’s failure to enter a preliminary order as required by Federal Rule of Criminal Procedure 32.2(b)(2)(B) does not bar a judge from later ordering forfeiture at the sentencing hearing. Justice Sotomayor delivered the opinion of the Court, which affirmed the Second Circuit’s decision.

As previously summarized in Dykema’s March 2024 edition, Louis McIntosh was indicted for Hobbs Act robbery and weapons-related offenses and 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 robbery proceeds. The district court agreed and ordered the forfeiture subject to the government’s later submission of a proposed order. The government missed the original deadline, but the district court still allowed the government to submit the order. On appeal, McIntosh argued that the district court was barred from proceeding with the forfeiture due to its failure to enter a preliminary order under Rule 32.2(b)(2)(B). The district court and Second Circuit found that Rule 32.2(b)(2)(B) was a “time-related directive,” and therefore failure to satisfy the Rule did not deprive the judge of the power to take action despite the missed deadline.

The Court’s decision notes three types of deadlines: (1) jurisdictional deadlines; (2) mandatory claim-processing rules; and (3) time-related directives. Jurisdictional deadlines, if missed, deprive a court of the authority to take relevant action and are not subject to waiver by the litigant. Mandatory claim-processing rules, such as filing deadlines, do not allow for the action to be taken after the deadline has passed. Time-related directives, on the other hand, direct a judge or public official to take action by a certain time but do not deprive the official of the power to take the action after the deadline, subject to harmless-error principles on appeal. The Court, looking at the plain language of Rule 32.2(b)(2)(B) and noting that the Rule governs the conduct of the district court and not litigants, concluded that the Rule is a time-related directive, and therefore the failure to enter a preliminary order by the deadline did not bar the district court from ordering forfeiture at the sentencing hearing. The Court was not persuaded by McIntosh’s argument that the Rule’s use of “must” makes it a mandatory claim-processing rule. The Court also did not agree that its holding deprives the Rule of any meaning because a court’s error in failing to timely enter a preliminary order can still be reviewed for harmlessness.

Takeaways

• A district court’s failure to timely enter a preliminary order under Rule 32.2(b)(2)(B) does not deprive it of the power to order forfeiture at a sentencing hearing.
• However, such orders are subject to harmless-error principles on appeal and thus can still be challenged on the grounds that any delay was prejudicial to defendants.

For more information, please contact Chantel Febus, James Azadian, Cory Webster, Christopher Sakauye, Monika Harris, Puja Valera, A. Joseph Duffy, IV., or Heming Xu.