On April 17, 2024, the United States Supreme Court decided the cases of McIntosh v. U.S. The principal issue concerned the required procedure for a judge to order a forfeiture as part of a criminal sentencing.
Justice Sotomayor wrote for a unanimous Court in relevant part: 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 failure to comply with Federal Rule of Criminal Procedure 32.2(b)(2)(B)—which provides that “unless 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”—meant that the District Court could not proceed with forfeiture at all.
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 dead line did not prejudice McIntosh. The Second Circuit affirmed in relevant part.
Courts often focus on whether the challenging party was prejudiced as opposed to whether the other party should be deterred. Knowing this, prosecutors often disregard court rules because the failure to follow them has no consequences.
