McIntosh v. United States
Headline: Court allows judges to impose criminal forfeiture even when a required preliminary order was missed, limiting defendants’ ability to block forfeiture and allowing appellate harmlessness review.
Holding: A district court's failure to comply with Rule 32.2(b)(2)(B)'s requirement to enter a preliminary order before sentencing does not bar a judge from ordering forfeiture at sentencing subject to harmless-error principles on appellate review.
- Allows judges to order forfeiture despite missed preliminary order.
- Timing errors in forfeiture proceedings are reviewed for harmlessness on appeal.
- Defendants must object promptly to preserve claims about forfeiture timing.
Summary
Background
A convicted robber named Louis McIntosh was charged in federal court for a series of violent robberies and gun offenses. The indictment and a pretrial bill said the government would seek forfeiture of proceeds, listing $75,000 and a BMW as property tied to the crimes. A jury convicted him and at sentencing the district judge ordered forfeiture of $75,000 and the BMW, and instructed the government to submit a written order within a week. Prosecutors failed to file the promised order, the Second Circuit later remanded to allow the district court to enter a formal order, and the district court ultimately entered an agreed preliminary order for $28,000 and the BMW.
Reasoning
The question was whether the court’s failure to enter the preliminary order before sentencing meant the judge could not order forfeiture at all. The Court examined Rule 32.2(b)(2)(B), which asks courts to enter a preliminary forfeiture order sufficiently in advance of sentencing unless impractical. The Justices concluded this language is a timing directive that prompts prompt action but does not strip a judge of power if missed. Therefore a late or missing preliminary order does not automatically block forfeiture; instead appellate courts review such errors for harmlessness.
Real world impact
The decision means trial judges can still impose criminal forfeiture even when the preliminary order deadline was missed, but appellate review will examine whether the missed timing actually harmed the defendant. Courts and prosecutors should still follow the Rule and defendants should raise timely objections to preserve claims about timing. This ruling resolves a split among appeals courts in favor of treating the Rule as a flexible timing rule.
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