McIntosh v. United States
The Supreme Court unanimously ruled that a judge who misses the deadline for issuing a required preliminary forfeiture order before sentencing does not lose the power to order criminal forfeiture — the procedural lapse is reviewed for harmlessness, not treated as a permanent bar.
The decision resolves a split among federal appeals courts and means defendants cannot use a judge's missed paperwork deadline as a loophole to escape forfeiture of ill-gotten gains, as long as the delay caused no real harm.
“In sum, Rule 32.2(b)(2)(B) is a time-related directive that, if missed, does not deprive the judge of her power to order forfeiture against the defendant.”
The Court's core holding on what happens when a judge misses the preliminary forfeiture order deadline.
How it got here: The district court and the Second Circuit both ruled the missed deadline did not bar forfeiture; McIntosh asked the Supreme Court to resolve a split among federal appeals courts on the question.
The Case in Depth
What happened
Louis McIntosh was convicted of a string of violent armed robberies in New York. Prosecutors sought to confiscate $75,000 in cash and a BMW he bought just five days after one heist. A federal judge ordered the forfeiture at sentencing but had not first issued the preliminary forfeiture order that court rules require in advance of the sentencing hearing. McIntosh argued that this procedural misstep stripped the court of any power to impose the forfeiture at all.
The question before the Court
If a judge skips a required pretrial paperwork step before sentencing a convicted defendant, can the judge still order that defendant to give up property gained through the crime?
The Court's answer
No — a judge who forgets to issue the required preliminary forfeiture order before sentencing does not permanently lose the power to order forfeiture. The Court held that the rule setting this deadline is a "time-related directive" — a procedural instruction aimed at keeping things moving efficiently — rather than a hard-and-fast rule that strips the court of authority if missed. Missing a time-related directive does not void the judge's power to act; it simply means any resulting error is reviewed on appeal for whether it actually caused the defendant harm.
Because McIntosh could not show he was genuinely harmed by the delay — he had known about the government's forfeiture demand since his indictment years earlier — the forfeiture stands.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Defendants convicted of robbery, drug trafficking, and other crimes that carry forfeiture can no longer argue that a judge's failure to issue a preliminary forfeiture order ahead of sentencing automatically wipes out the forfeiture. They must show they were actually hurt by the delay — and courts have found that difficult to prove when defendants knew about the forfeiture from the indictment onward.
What changes now
The Second Circuit's ruling is affirmed, and McIntosh's forfeiture of roughly $28,000 and the BMW remains in effect. Going forward, defendants in federal criminal cases who were not given a timely preliminary forfeiture order before sentencing must demonstrate they were actually prejudiced by the delay to win any relief. The decision also settles a conflict among several federal appeals courts that had reached different conclusions on this question.
What this does not decide
The Court explicitly declined to decide whether a separate requirement — that forfeiture be announced at the oral sentencing hearing itself — has the same flexible character, or whether that rule might instead be a stricter mandatory claim-processing rule. That question was not before the Court and remains open.
How the Court got there
The legal reasoning, step by step
- The Court used a three-category framework for classifying legal deadlines: jurisdictional deadlines (missing one strips all power to act, no exceptions), mandatory claim-processing rules (missing one bars action once a party invokes the protection), and time-related directives (missing one does not take away the power to act; the error is reviewed for harmlessness on appeal). The Court confirmed the question was whether Rule 32.2(b)(2)(B) fell into the second or third category.
- The Court relied on Dolan v. United States (2010), which held that when a statute requires a sentencing court to act by a deadline but does not spell out a consequence for missing it, the court still retains power to act after the deadline passes. That principle was reinforced by a line of earlier cases across different federal programs, all reaching the same result.
- Three features of Rule 32.2(b)(2)(B) pointed toward time-related directive rather than mandatory claim-processing rule. First, the rule's language is flexible — it contains an 'impracticality' exception and the open-ended command that the order be entered 'sufficiently in advance of sentencing,' neither of which resembles the rigid, no-exceptions language typical of claim-processing rules.
- Second, the rule specifies no consequence for noncompliance, whereas other parts of Rule 32.2 explicitly prohibit forfeiture when the government fails to follow them. The Court reasoned that if drafters wanted a missed preliminary-order deadline to bar forfeiture, they would have said so directly, as they did elsewhere in the same rule.
- Third, the rule governs what the court must do, not what the parties must do. Mandatory claim-processing rules typically regulate the steps parties must take at certain times; time-related directives typically push public officials to act promptly. Because Rule 32.2(b)(2)(B) is addressed entirely to the sentencing judge — not to prosecutors or defendants — it fits the time-related-directive mold.
- McIntosh's arguments did not change the analysis. The word 'must' in the rule doesn't automatically create a mandatory claim-processing rule. The rule retains real effect: a timely objection will usually prod the court to issue the order before sentencing, and any violation is still reviewable for harmless error, giving defendants a meaningful remedy when the delay actually hurts them.
Doctrinal impact
Cases affected by this decision
Reaffirms Dolan v. United States (560 U.S. 605)
Reaffirmed as the controlling framework for deciding when a missed sentencing deadline strips a court of power to act.