Justices Rule Criminal Forfeiture Deadline Isn't Absolute

By Katie Buehler | April 17, 2024, 10:23 AM EDT ·

The U.S. Supreme Court held Wednesday that courts can issue forfeiture orders at sentencing in criminal cases even if prosecutors fail to submit a draft request prior to the court-ordered date, ruling noncompliance with the rule doesn't strip judges of the authority to direct defendants to hand over ill-gotten gains.

In a unanimous decision, the justices rejected New York defendant Louis McIntosh's argument that prosecutors had waived their right to collect a car he allegedly bought with proceeds from a string of bank robberies by missing Federal Rule of Criminal Procedure 32.2(b)(2)'s deadline for submitting preliminary forfeiture orders "sufficiently in advance of sentencing."

The rule is a time-related directive that, if missed, doesn't bar the trial court from issuing an order, Justice Sonia Sotomayor wrote for the court. Defendants can object to the government's failure to submit a draft order, and the misstep can be fixed either by the trial court's delay of sentencing or by an appellate court's review of the error for harm, she said.

Justice Sotomayor also said the court wasn't persuaded by McIntosh's argument that treating the rule as a strict deadline would promote judicial economy.

"If anything, judicial economy is better served by allowing courts some flexibility to ensure the accuracy and completeness of the final forfeiture order and address an inadvertent failure to enter a preliminary order in advance of sentencing," she wrote.

McIntosh, who was convicted in 2013 of several robbery charges, had asked the Supreme Court to wipe out a federal judge's order requiring him to hand over a BMW he allegedly bought with proceeds from the robberies on top of serving a prison sentence. He argued the government had waived its right to collect the car when prosecutors failed to submit a preliminary order ahead of his 2014 sentencing. Prosecutors instead announced at McIntosh's sentencing that they were seeking forfeiture of the car, and a federal judge granted the request.

McIntosh argued the government's failure to comply with Rule 32.2(b)(2) was prejudicial because it failed to provide him with adequate notice of the property the government was looking to collect. The rule calls on courts to file the draft orders to "allow parties to suggest revisions or modifications before the order becomes final," he added.

The government contended the mistake was a harmless error that didn't need correcting. As long as prosecutors prove beyond a reasonable doubt that a defendant committed crimes punishable by forfeiture — like robbery — courts are allowed to issue orders requiring the defendant to hand over property, it claimed.

In Wednesday's opinion, Justice Sotomayor said it would be strange to treat Rule 32.2(b)(2) as a fixed, mandatory claim-processing deadline — as McIntosh suggested — because it lacks any mention of consequences for noncompliance. Meanwhile, other sections of Rule 32.2 provide clear consequences, including prohibiting judges from ordering forfeiture if the government fails to include the allegation in a defendant's indictment.

In McIntosh's case, the forfeiture allegation was included in his charging documents.

Additionally, rules that "spur public officials to act within a specified time" are usually considered time-related directives, she noted. Those that require parties to take certain actions are typically classified as mandatory claim-processing rules.

Despite Rule 32.2(b)(2) instructing the government to take an action, the rule is directed at the judge's ability to order forfeiture, Justice Sotomayor said.

"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 Sotomayor wrote.

McIntosh's attorney, Steven Yurowitz of Newman & Greenberg LLP, told Law360 that he was disappointed with the court's decision.

He said the court "failed to recognize the critical distinctions between punitive forfeiture at issue in this case and the restorative restitution statute at issue" in the Supreme Court's 2010 decision in Dolan v. United States , a case Justice Sotomayor cited several times in Wednesday's opinion that described the differences between time-related directives and mandatory claims-processing rules.

"Moreover, the court ignored entirely the question of harm suffered by third-party claimants due to the government's inaction and inexcusable delays," Yurowitz said, referring to McIntosh's claim that the seized BMW wasn't his but his mother's.

Counsel for the government couldn't immediately be reached for comment.

McIntosh is represented by Steven Y. Yurowitz and William J. Dobie of Newman & Greenberg LLP and Devi M. Rao of the Roderick & Solange MacArthur Justice Center.

The federal government is represented by Matthew Guarnieri of the U.S. Solicitor General's Office.

The case is McIntosh v. United States, case number 22-7386, in the Supreme Court of the United States.

--Editing by Daniel King.

Update: This story has been updated with additional information from the court's ruling and comment from McIntosh's attorney.

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