Supreme Court Rejects Strict Criminal Forfeiture Timelines

In McIntosh v. United States, 601 U.S. ____ (2024), the U.S. Supreme Court held that a district court’s failure to comply with Federal Rule of Criminal Procedure 32.2(b)(2)(B)’s requirement to enter a preliminary order imposing criminal forfeiture before sentencing does not bar a judge from ordering forfeiture at sentencing subject to harmless-error principles on appellate review.

Facts of the Case

Petitioner Louis McIntosh was indicted on multiple counts of Hobbs Act robbery and firearm offenses. The indictment set forth the demand that McIntosh “shall forfeit . . . all property . . . derived from proceeds traceable to the commission of the [Hobbs Act] offenses.” The Government also later provided McIntosh with a pretrial bill of particulars that included as property subject to forfeiture $75,000 in cash and a BMW that McIntosh purchased just five days after one of the robberies.

After a jury convicted McIntosh, the District Court imposed a forfeiture of $75,000 and the BMW at the sentencing hearing. Although the District Court also ordered the Government to submit an order of forfeiture for the court’s signature within a week from the hearing, the Government failed to do so. On appeal, the Government moved for a limited remand to supplement the record with a written order of forfeiture. The Second Circuit granted the unopposed motion.

Back in District Court, McIntosh argued that the court could not proceed with forfeiture because it failed to comply with Federal Rule of Criminal Procedure 32.2(b)(2)(B). Rule 32.2(b)(2)(B) provides that, “[u]nless doing so is impractical,” a federal district court “must enter the preliminary order [of forfeiture] sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final as to the defendant.”

The District Court overruled McIntosh’s objections, finding that the Rule is a time-related directive, and that the failure to enter a preliminary order of forfeiture before sentencing did not prevent the court from ordering forfeiture because the missed deadline did not prejudice McIntosh. The Second Circuit Court of Appeals affirmed.

Supreme Court’s Decision

The Supreme Court unanimously affirmed. “In light of the Rule’s text and relevant precedents, this Court holds that the failure to enter a preliminary order does not bar a judge from ordering forfeiture at sentencing subject to harmless-error principles on appellate review,” Justice Sonia Sotomayor wrote on behalf of the Court.

In reaching its decision, the Court discussed three types of deadlines: (1) jurisdictional deadlines; (2) mandatory claim-processing rules; and (3) time-related directives. As Justice Sotomayor explained, noncompliance with a jurisdictional deadline can’t be excused. A claim-processing rule is a mandatory deadline that regulates the timing of motions or claims before the court; however, unlike jurisdictional deadlines, is subject to waiver and forfeiture by the litigant. Finally, a time-related directive is a deadline that seeks speed by directing a public official to act by a certain time and that, if missed, does not deprive the official of “the power to take the action to which the deadline applies.”

In this case, McIntosh claimed that Rule 32.2(b)(2)(B) is a claim-processing rule, while the Government argued that Rule 32.2(b)(2)(B) is a flexible time-related directive. The Court ultimately agreed with the Second Circuit and the Government that 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.

In support, Justice Sotomayorfirstcited the plain language of Rule 32.2(b)(2)(B), which contemplates flexibility regarding the timing of a preliminary order’s entry, providing the indeterminate command that a preliminary order be entered “sufficiently in advance of sentencing” “[u]nless doing so is impractical.” According to the Court, this flexibility takes the Rule further away from the category of a “rigid” and “inflexible claim-processing rule.”

Justice Sotomayor also emphasized that Rule 32.2(b)(2)(B) does not impose a specific consequence for non-compliance, in contrast to other parts of Rule 32.2. Additionally, Rule 32.2(b)(2)(B) governs the conduct of the district court, not the litigants. “Recall that time-related directives typically spur public officials to act within a specified time. Mandatory claim-processing rules, by contrast, ordinarily ‘requir[e] that the parties take certain procedural steps at certain specified times.’ Henderson v. Shinseki, 562 U.S. 428, 435 (2011) (emphasis added). That distinction holds even in the examples that McIntosh identified of claim-processing rules addressed to courts,” she wrote.

Lastly, the Court confirmed that noncompliance with Rule 32.2(b)(2)(B) is a procedural error subject to harmlessness review. Because McIntosh did not challenge the lower courts’ harmlessness analysis in either his certiorari petition or his opening brief, the Court did not revisit it.