McIntosh v. United States
The Supreme Court unanimously ruled that a federal judge who misses the procedural deadline to issue a preliminary forfeiture order before sentencing does not lose the authority to order forfeiture — the missed deadline is a fixable procedural error, not a fatal one.
The decision resolves a split among lower courts and means defendants cannot automatically escape forfeiture of ill-gotten gains simply because a court skipped a pre-sentencing paperwork step, as long as the defendant cannot show real harm from the delay.
How it got here: The district court ordered forfeiture at sentencing without issuing the required preliminary order; the Second Circuit affirmed; McIntosh asked the Supreme Court to review, which agreed to hear the question of whether the missed deadline barred forfeiture.
The Case in Depth
What happened
Louis McIntosh was convicted of a series of violent robberies in New York, including one in which he and two others held a man at gunpoint, tied him up, and stole $70,000 from his home. Five days later, McIntosh bought a BMW with cash. At sentencing, the judge ordered him to forfeit $75,000 and the BMW, but the court had never issued the preliminary forfeiture order that federal procedural rules require before sentencing takes place.
The question before the Court
Does a federal court lose its power to order forfeiture of a convicted person's property if the court missed the deadline to issue a required preliminary forfeiture order before sentencing?
The Court's answer
No — the Court ruled that a federal judge who misses the deadline to issue a preliminary forfeiture order before sentencing does not lose the power to order forfeiture. The relevant rule, Federal Rule of Criminal Procedure 32.2(b)(2)(B), is a "time-related directive" — a deadline designed to spur prompt action rather than to permanently strip the court of authority if missed. Nothing in the rule specifies what happens if the deadline is not met, and the rule itself builds in flexibility by requiring the order only when issuing it is "practicable" and "sufficiently in advance of sentencing."
Missing the deadline is still an error, but a correctable procedural one: appellate courts review it for harmlessness, meaning the forfeiture stands unless the defendant can show real, concrete prejudice from the delay. McIntosh knew from his indictment and a pretrial notice that the government sought forfeiture of the cash and the BMW. Because he did not challenge the lower courts' conclusion that he suffered no actual harm, the forfeiture was upheld.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Convicted defendants who face forfeiture of money or property tied to their crimes cannot use a judge's missed pre-sentencing deadline as an automatic escape hatch. Courts retain flexibility to correct the procedural gap, and defendants must show they were actually harmed — not just that a step was skipped — to get a forfeiture thrown out on appeal.
What changes now
The Second Circuit's judgment is affirmed, and McIntosh's forfeiture of $28,000 and the BMW remains in place. Lower courts across the country now have a uniform rule: a missed preliminary-order deadline under Rule 32.2(b)(2)(B) does not automatically void a forfeiture, and any violation is subject to harmless-error review on appeal. The decision resolves a genuine circuit split on this procedural question.
What this does not decide
The Court explicitly did not address the separate requirement in Rule 32.2(b)(4)(B) that forfeiture be imposed at sentencing, which a footnote signals may be treated differently — possibly as a claim-processing rule with stricter consequences. That harder question remains open for future cases.
How the Court got there
The legal reasoning, step by step
- The Court began by sorting the missed deadline into one of its three recognized categories of time limits. Jurisdictional deadlines strip courts of all power and cannot be excused. Mandatory claim-processing rules — typically filing deadlines for parties — bar action once a party objects, and noncompliance is presumed harmful. Time-related directives push public officials to act promptly but do not eliminate their authority if the deadline slips.
- The Court looked to its earlier decision in Dolan v. United States (2010), which held that a criminal sentencing statute's 90-day deadline for ordering restitution was a time-related directive. Dolan established that when a timing rule does not specify a consequence for missing the deadline, courts presume the official retains authority to act — a principle the Court has applied consistently across many contexts.
- Three features of Rule 32.2(b)(2)(B) led the Court to classify it as a time-related directive, not a rigid claim-processing rule. First, the rule's own text builds in flexibility: it requires a preliminary order only 'unless doing so is impractical' and only 'sufficiently in advance of sentencing' — vague, case-specific language far removed from a fixed, hard deadline.
- Second, Rule 32.2(b)(2)(B) specifies no penalty for noncompliance, while a neighboring provision, Rule 32.2(a), explicitly bars forfeiture if the government fails to include a forfeiture allegation in the indictment. The contrast between the two provisions signals that the drafters knew how to impose a hard consequence when they wanted one — and chose not to do so in (b)(2)(B).
- Third, the rule is directed at the court, not the parties. Mandatory claim-processing rules typically require parties to take steps by set deadlines; time-related directives typically tell judges or other officials what to do by a certain time. McIntosh could not identify a single precedent where a rule governing only the court's own conduct was treated as a mandatory claim-processing rule.
- Because the rule is a time-related directive, noncompliance is a procedural error reviewed for harmlessness on appeal. The lower courts found McIntosh suffered no real prejudice — he had advance notice of the forfeiture from the indictment and a pretrial bill of particulars, and he could have asked for an interim sale of the BMW to preserve its value. Since McIntosh did not challenge that harmlessness finding before the Supreme Court, the forfeiture stood.
Doctrinal impact
Cases affected by this decision
Reaffirms Dolan v. United States (560 U.S. 605)
The Court follows Dolan's framework for classifying missed sentencing-related deadlines as time-related directives that preserve judicial authority.