Sentencing and Forfeiture (Part 1)

by | Mar 20, 2025 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

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.

Excellent rating
Based on 288 reviews
Google star 1Google star 2Google star 3Google star 4Google star 5
Google star 1Google star 2Google star 3Google star 4Google star 5
He has helped numerous people stay out of trouble
Christopher B
Google star 1Google star 2Google star 3Google star 4Google star 5
I wholeheartedly recommend the legal services of Frederick Sisto. Mr. Sisto brings with him a wealth of knowledge, experience, and professionalism - qualities that make him highly effective at providing legal counsel.
John D
Google star 1Google star 2Google star 3Google star 4Google star 5
Thanks for sharing this information.
Joe F
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred is fast, attentive and excels at what he does. He provides reasonable and professional advice when your are dealing with complex and stressful legal situations. He is straight to the point and does not wast time. I would use him again and definitely recommend.
1093Nj
Google star 1Google star 2Google star 3Google star 4Google star 5
Very professional and knowledgeable, also awesome communication and very down to earth guy. Would highly recommend to anyone. Matter was resolved with the best possible outcome that I could've hoped.
Mike A
Google star 1Google star 2Google star 3Google star 4Google star 5
Mr Sisto did an excellent job in defending my innocence in court. He got me the best result possible. Along with his professionalism and timely responses he was a terrific choice.
Emily F
Google star 1Google star 2Google star 3Google star 4Google star 5
I love the insight! It helps to keep my kids out of troubel!
Michael G
Google star 1Google star 2Google star 3Google star 4Google star 5
Fred Sisto is a great asset & a life saver!
Matthew P
Google star 1Google star 2Google star 3Google star 4Google star 5
I was very content with Fred’s services. He was extremely communicative throughout the entire process and I am happy with our results.
Lidia D
Google star 1Google star 2Google star 3Google star 4Google star 5
Affordable, knowledgeable, efficient.
Deb W