McIntosh v. United States:  Failure to comply with Rule 32 requiring preliminary order of forfeiture before sentencing does not bar forfeiture

By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender

           Even though Rule 32.2 requires a district court to enter a preliminary order of forfeiture before sentencing, failure to do so does not bar the court from ordering forfeiture, the U.S. Supreme Court held April 17 in McIntosh v. United States.

            Federal Rule 32.2(b)(2)(B) provides that a district court “must enter” a preliminary order of forfeiture sufficiently in advance of sentencing to allow the parties to respond unless doing so is “impractical.”

           Louis McIntosh was convicted of a robbery, in which $70,000 in cash was stolen.  He later bought a BMW for $10,000.

           The indictment for the offense sought forfeiture of all property traceable to the robbery.  The Government gave McIntosh a bill of particulars listing the BMW as subject to forfeiture.

           After McIntosh was convicted at trial, the Government did not mention forfeiture in its sentencing memorandum, and the district court did not enter a preliminary order before sentencing.

           McIntosh argued the failure to comply with Rule 32.2 meant the district court could not order forfeiture.

           The district court overruled McIntosh’s objection.  It ruled that Rule 32.2 is merely a time-related directive, not a jurisdictional deadline or mandatory claim-processing rule.

           The Second Circuit affirmed.

Holding

           The Supreme Court, in a unanimous opinion, held that Rule 32.2’s timing requirement is only a directive to district courts, and failure to comply with it doesn’t bar forfeiture absent a showing of prejudice. 

           There are three types of deadlines, the Court said.

           “Jurisdictional deadlines” render a court “completely powerless” to take any action if they are missed.

           “Claim-processing rules,” such as filing deadlines, regulate the timing of motions or claims brought before the court.  Unlike jurisdictional deadlines, claim-processing rules are subject to waiver and forfeiture by a litigant.

           “Time-related directives” seek speed by directing judges to act by a certain time.  But missing that kind of deadline does not deprive the court of the power to take action to which the deadline applies, the Court said.

           Rule 32.2 is a time-related directive for three reasons, the Court said.

           First, the plain language of the Rule states that a preliminary order must be entered unless doing so is “impractical.” 

           “As such, the Rule anticipates that, in some circumstances, it may be ‘impractical’ to enter a preliminary order of forfeiture before sentencing”, the Court said.

           Second, the Rule doesn’t specify any consequence for noncompliance. 

           Third, the Rule governs the conduct of the district court, not the parties.  Claim-processing rules usually require the parties take certain steps at certain specified times, the Court said.

           Noncompliance with Rule 32.2’s timing requirement is a procedural error subject to harmlessness review, the Court concluded.

           McIntosh alleged he was prejudiced by the lack of a preliminary order before sentencing because the BMW lost value in the time leading up to forfeiture. 

           But McIntosh knew from the indictment and bill of particulars that the Government sought forfeiture of the BMW, and could have sold the car earlier if he was concerned about it losing value, the Court said.