Issues
Can a federal trial court enter a criminal forfeiture order outside the time limitation set forth in Federal Rule of Criminal Procedure 32.2(b)(2)(B)?
This case presents the Supreme Court with the question of whether a federal district court can order a criminal forfeiture of property when it failed to enter a preliminary order of forfeiture in the time frame required by Federal Rule of Criminal Procedure 32.2(b)(2)(B). Petitioner Louis McIntosh argues that Rule 32.2(b)(2)(B)’s timing requirement is a mandatory claims processing rule. The United States, as respondent, argues that failure to enter the preliminary forfeiture order should not deprive a district court of its authority to order forfeiture at sentencing. The Court's decision in this matter will affect the ability of criminal defendants to suggest changes to forfeiture orders and prosecutors’ discretion in filing such orders.
Questions as Framed for the Court by the Parties
Whether the district court possessed the authority to order forfeiture when it ordered forfeiture at sentencing and in the judgment of conviction but failed to enter a preliminary order of forfeiture under Federal Rule of Criminal Procedure 32.2(b) within the timeframe contained in that rule.
Facts
In 2011, the federal government issued an indictment against Petitioner Louis McIntosh (“McIntosh”) and several accomplices, charging them with multiple offenses of Hobbs Act robbery and firearms violations. United States v. McIntosh at 608. These charges were linked to a spree of violent robberies and attempts that took place from 2009 to 2011. Id. Furthermore, the indictment included a requirement for forfeiture demanding the relinquishment of any assets and proceeds gained from these criminal acts. Id. The forfeiture requirement stipulated that McIntosh must pay $75,000 and relinquish a BMW vehicle purchased with stolen funds, deducting proceeds from its sale from the forfeiture sum. Id.
In August 2013, a jury in the Southern District of New York found McIntosh guilty of all charges. Id. Following his conviction, the district court handed down a sentence of 720 months in prison along with a three-year term of supervised release. Id. At 609. Additionally, the court mandated, on August 8, 2017, that McIntosh compensate through restitution and relinquish the $75,000 along with his BMW and any other assets acquired with the proceeds from the robberies. Id.
Before taking away property or money through forfeiture, Federal Rule of Criminal Procedure 32.2(b) states that the court must “promptly enter a preliminary order.” Id. The preliminary order tells the defendant how much money needs to be paid and lists the specific property that must be given up. Id. The preliminary order is supposed to be entered before sentencing. Id. This way, both sides can ask for any changes before the order is set in stone. Id. Once sentencing is done, this initial decision is final and must be included in the official judgment. Id.
In McIntosh’s proceedings, the district court initially failed to issue an early forfeiture order before sentencing because the government hadn’t presented a proposed order. Id. During sentencing, the court verbally declared forfeiture and asked the government to draft a formal forfeiture order within the following week. Id. The government failed to fulfill that request, and a formal written order of forfeiture was not established. Id.
McIntosh filed an appeal after the judgment. Id. In 2016, without any opposition from McIntosh, the appellate court decided to send the case back to the lower court as per the guidelines from United States v. Jacobson, suggesting that the government should formally request a forfeiture order if it wanted to continue with the forfeiture process. Id. The government then put forward a proposed forfeiture order, which McIntosh contested. Id.
On August 8, 2017, the district court overruled McIntosh’s challenges and entered the government’s proposed forfeiture order. Id. According to this order, McIntosh was required to forfeit $75,000 and surrender the BMW, with the car’s sale proceeds being applied to the forfeiture amount. Id. The district court included an amended judgment against which McIntosh promptly filed an appeal. Id.
McIntosh appealed to the Second Circuit Court of Appeals, where the appellate court upheld the lower court’s decision and analysis. Id. at 613. The United States Supreme Court granted certiorari on September 29, 2023.
Analysis
WHETHER RULE 32.2(b)(2)(B) IS A MANDATORY CLAIMS-PROCESSING RULE OR TIME-RELATED DIRECTIVE
Petitioner Louis McIntosh argues that Rule 32.2(b)(2)(B) of the Federal Rule of Criminal Procedure 32.2(b)(2)(B) (“the Rule”) unequivocally requires that the court enter a preliminary order of forfeiture before sentencing the defendant. Brief of Petitioner, Louis McIntosh, at 13. The Rule states: “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 as to the defendant under Rule 32.2(b)(4).” Legal Information Institute, Rule 32.2 Criminal Forfeiture.
McIntosh contends that the Rule is not jurisdictional, meaning that even after the deadline has passed the court still has jurisdiction to order forfeiture if it chooses to do so. Id. at 13-14. Rather, McIntosh argues that the Rule is a mandatory claims-processing rule. Id. McIntosh asserts that mandatory claims-processing rules are designed to promote and enforce efficient and orderly litigation. Id. at 14-16. McIntosh contends that the Rule’s language makes it clear that the court needs to enter the preliminary order of forfeiture before sentencing. Id. at 17-18. McIntosh further argues that the use of the term “must” in the Rule makes it mandatory for the court to enter the preliminary order before sentencing. Id. McIntosh also argues that the Rule specifies what the court should do if it fails to satisfy the timing requirement set out in Rule 32.2(b)(4)(B), meaning that the Rule provides for a method to correct errors other than the one that occurred in this case. Id. at 19. McIntosh asserts that as a result, the method of correcting errors that occurred in this case is impermissible. Id.
McIntosh also argues that the structure of the Rule distinguishes it as a mandatory claims-processing rule. Id. at 22-23. McIntosh contends that the Rule outlines the process for how to enter a judgment of forfeiture and the specific requirements for a court to do so. Id. at 23. Furthermore, McIntosh argues that the purpose of the Rule, as stated in the Rule itself, is to render a preliminary order far enough in advance of sentencing for the parties to suggest revisions to it before it becomes final. Id. at 27. Specifically, McIntosh asserts that the Rule is designed to ensure that criminal defendants receive due process before their property is forfeited to the government by giving the defendant fair notice that their property may be forfeited and a hearing on the issue. Id. at 28-29. The Rule, according to McIntosh, also protects third parties who may have a claim to the property as they can attend the hearing to contest the forfeiture. Id. at 31.
Finally, McIntosh argues that Supreme Court precedent confirms that the Rule should be read as a mandatory claims-processing rule. Id. at 32. McIntosh asserts that in several cases, the Supreme Court has held that filing deadlines are claim-processing rules, even when they are addressed to courts rather than addressed to parties to the litigation. Id. at 33-34. McIntosh notes that for example, in Eberhart v. United States, the Supreme Court held that a seven-day limit for filing a motion for a new trial under Federal Rule of Criminal Procedure 33(b)(2) was a “rigid” claims-processing rule. Id. at 33. McIntosh further contends that the Supreme Court in United States v. Robinson held that Federal Rule of Criminal Procedure 45(b)’s prohibition on certain extensions of time is “mandatory” and that is a parallel rule. Id.
In response, Respondent the United States argues that the Rule is not a mandatory claim-processing rule but rather that it is a time-related directive. Brief of Respondent, the United States, at 22. The United States argues that failure to satisfy a time-related directive does not prevent the court from taking the action that is governed by the rule, in this case ordering forfeiture, at a later date. Id. The United States agrees that the Rule is not jurisdictional but also contends that the Rule is intended only to spur the court to set out a preliminary forfeiture order before sentencing and not to prevent the court from ordering forfeiture at sentencing. Id. at 23. Specifically, the United States argues that because the Rule does not specify a consequence for failing to comply with its timing provisions, none was intended, and the court should not create its own. Id. at 24.
Moreover, the United States argues that the text of the Rule does not revoke the court’s power to order forfeiture if the court fails to comply with the rule, which distinguishes it from an adjacent provision which expressly limits a court’s power as a result of the court’s failure to follow a similar requirement. Id. 24. This parallel, the United States asserts, indicates that Congress did not intend to revoke the court’s power to order forfeiture as a result of noncompliance with the timing rule. Id. at 25. Furthermore, the United States argues that the Rule imposes an obligation on the court rather than the parties, which makes it more likely to be a time-related directive than a claim-processing rule. Id. at 26. The United States argues that all of the claim-processing rules that McIntosh cites that are addressed to courts involve rules that govern procedures dictating how and when parties must act, rather than deadlines for the court to take action. Id. The United States argues that this distinction is based on the theory that when parties fail to take an action, only their own rights are affected. Id. at 27. In contrast, the United States argues, when the courts fail to take an action, the rights of the public are affected. Id.
Additionally, the United States argues that the structure of the Rule requires the court to enter a preliminary order of forfeiture before sentencing “unless doing so is impractical,” so it does not set out a hard-and-fast requirement that the court enters a preliminary order of forfeiture before sentencing in all cases. Id. at 27. The United States also contends that the Rule does not set out a specific amount of time before sentencing for the court to issue the draft order. Id. at 28. The United States instead notes that the Rule requires that the court issue a preliminary order “sufficiently in advance” of sentencing to let parties suggest modifications. Id. The United States argues that this feature of the Rule suggests some flexibility with regards to the timeline. Id. Furthermore, the United States argues that other parallel rules in the Federal Rules of Criminal Procedure set out steps that the court must take to impose a sentence but do not disable the court from acting to impose that sentence if it fails to follow the steps exactly. Id. at 28-29.
Finally, the United States argues that the statutes governing forfeiture specify that forfeiture is a mandatory part of the sentence for some crimes, whether or not it is ordered in advance of sentencing. Id. at 34. The United States asserts that, in fact, the statutes specifically require that forfeiture is imposed at sentencing, rather than before. Id. at 35. The United States contends that if a court forgets to send out the draft order of forfeiture in advance of sentencing, and as a result forfeiture is waived, the statutory goals of the forfeiture statutes are controverted. Id. at 37.
Discussion
FINALITY
The New York Council of Defense Lawyers (“The NYCDL”), in support of McIntosh, contends that the principle of finality is crucial for our criminal justice system, benefiting both the government and defendants by ensuring that sentences, once final, can only be changed in rare cases. Brief of Amicus Curiae, The NYCDL in Support of Petitioner at 31-32. The NYCDL argues that the principle of finality is central to the Federal Rules of Criminal Procedure, which limit sentence alterations post-finalization. Id. at 32. The NYCDL asserts that the Second Circuit’s interpretation of Rule 32.2(b) allows for late forfeiture orders, a punishment aspect, contradicting the principle that such orders should be made promptly. Id. at 32-33. The NYCDL claims that the district court’s allowance of late orders undermines the fairness and finality expected in legal proceedings. Id. The NYCDL maintains that this discrepancy is particularly concerning forfeitures, where the law suggests a stricter adherence to procedures by the government. Id. The NYCDL concludes that the Second Circuit’s approach risks introducing delays in forfeiture orders, diverging from the purpose of ensuring prompt justice and equitable treatment for both defendants and the government. In consequence, the NYCDL fears that the Second Circuit’s approach challenges the integrity of the principle of finality. Id. at 33-35.
The United Statesmaintains that prosecutors and the government should be afforded some flexibility in filing forfeiture orders, as strict adherence to procedural timelines may not always reflect the complexities and realities of legal proceedings. Brief of Respondent, the United States, at 40-42. The United States argues that treating the Rule as a mandatory claim-processing rule because it uses “must” rather than “may” overlooks the broader legal principle that the use of such language does not automatically preclude actions beyond a missed deadline. Id. at 39-41. The United States claims that this more flexible approach respects the rule’s language while acknowledging practical considerations, such as ensuring victims’ protection and maintaining the rule’s significance in the criminal forfeiture process. Id. at 40-42.
Furthermore, the United States contends that the government’s ability to recompense victims through forfeiture underscores the importance of not rigidly enforcing deadlines that could prevent victims from receiving compensation. Id. at 41-43. The United States concludes that allowing some leeway in filing forfeiture orders aligns with the principle that missed deadlines should not detrimentally impact innocent third parties or undermine the statute’s objectives— regardless of any impact on “finality.” Id. at 41-45.
DOUBLE STANDARD
The NYCDL, in support of McIntosh, argues that the Second Circuit’s approach to handling the government’s non-compliance with preliminary forfeiture order requirements is far too lenient and allows for exceptions unless there's a “wholesale disregard” of Rule 32.2. Brief of Amicus Curiae, the NYCDL, in Support of Petitioner at 8. The NYCDL states that the Second Circuit’s standard contrasts starkly with the strict standards applied to property owners, including innocent third parties, who must rigorously adhere to all procedural requirements to protect their interests in forfeited property. Id. at 9-10. The NYCDL claims that a failure to timely challenge forfeiture or request a jury determination often leads to waiver of rights or limited appellate review. Id. The NYCDL argues that third parties missing the 30-day deadline for filing petitions post-preliminary order face the loss of property rights, regardless of their legitimate interest or circumstances. Id. The NYCDL concludes that this discrepancy in standards creates an inequitable legal landscape, privileging the government over individuals. Id. at 10-11.
The United States, as respondent, argues that the stipulation within the Rule concerning the timing for the government to request forfeiture in criminal proceedings is designed not as an inflexible mandate but as a guideline to prompt preliminary action by the court prior to sentencing. Brief of Respondent, the United States, at 23-25. The United States claims that the Second Circuit’s interpretation of the provision aligns with the Supreme Court’s jurisprudence regarding similar statutes. Id. at 24-26. The United States contends that this judicial latitude serves the overarching aim of ensuring the fairness of forfeiture outcomes over strict adherence to procedural timelines. Id. at 25-29. The United States concludes that the Rule aims to mirror judicial realities rather than impose uniform deadlines on both the government and defendants, asserting that rigid adherence to equal standards would subvert the essential goals of criminal forfeitures. Id. at 25-31.
Conclusion
Acknowledgments
Additional Resources
- Evan T. Barr, SCOTUS to Decide If the Feds Have to Follow the Forfeiture Rules, New York Law Journal (January 3, 2024)
- Peter Hayes, High Court to Consider Timing Provisions of Forfeiture Rule, Bloomberg Law (Sept 29, 2023)