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Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
May 6, 2024 | Volume 31, Issue 10
This Report summarizes opinions issued on April 12, 16, and 17, 2024 (Part I).
Opinion
McIntosh v. United States, 22-7386.
Federal Rule of Criminal Procedure 32.2(b)(2)(B) requires a federal district court to enter a preliminary order of criminal forfeiture “sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final as to the defendant.” The Court unanimously held that a district court’s failure to comply with Rule 32.2(b)(2)(B) “does not bar a judge from ordering forfeiture at sentencing subject to harmless-error principles on appellate review.”
During a two-year crime stint, petitioner Louis McIntosh committed, or attempted to commit, various violent robberies. During one such completed crime, McIntosh and his cohorts obtained at gunpoint $70,000 from a victim; just five days later, McIntosh purchased a BMW with cash and money orders. In 2011, McIntosh was indicted “on multiple counts of Hobbs Act robbery and firearm offenses.” In the indictment and a subsequent bill of particulars, the Government sought forfeiture of currency obtained from the charged crimes and the BMW, which it alleged was derived from offense proceeds. Eventually, a jury convicted McIntosh. “As part of the sentence, the District Court imposed a forfeiture of ‘$75,000 and the BMW’ as ‘fruits of the crime[s],’ and ordered the Government to ‘submit an order of forfeiture’” within a week for the court’s signature. The Government failed to do so. On appeal, the Second Circuit granted the Government’s unopposed motion for a remand to the district court to supplement the record with a formal forfeiture order and allow McIntosh to contest the timeliness of said order. The district court, over McIntosh’s objection, entered a restitution and forfeiture order based on its conclusions that, because “Rule 32.2(b)(2)(B) is a time-related directive,” it “retained the power to order forfeiture,” and the Government’s failure to comply with this directive did not prejudice McIntosh. The Second Circuit affirmed in relevant part on similar grounds. In an opinion by Justice Sotomayor, the Court affirmed.
As an initial matter, the Court noted that, of its three previously identified categories of time limits, this case involved only two: (1) mandatory claim-processing rules, and (2) time-related directives. On the one hand, McIntosh argued that Rule 32.2(b)(2)(B) is a mandatory claim-processing rule, which by its nature “‘regulate[s] the timing of [parties’] motions or claims brought before the court,’” is “subject to waiver and forfeiture by a litigant,” and noncompliance is presumptively prejudicial. Conversely, the Government asserted that the rule is a time-related directive, which generally encourages speedy decision-making by directing judges to act within a certain time and, as relevant to this case, is subject to harmless-error appellate review.
In agreeing with the Second Circuit and the Government that Rule 32.2(b)(2)(B) is a time-related directive, the Court first discussed its prior precedent in which it had recognized “that certain deadlines, if missed, do not deprive a public official of the power to take the action to which the deadline applies.” The common thread in those cases was “timing provisions that did not specify a consequence for the public officials’ noncompliance with the prescribed deadlines.” Without specified consequences, courts will not ordinarily “impose their own . . . coercive sanction . . . nor typically attribute ‘intent to limit an [official’s] power to get a mandatory job done merely from a specification to act by a certain time.’” Next, the Court listed Rule 32.2(b)(2)(B)’s features demonstrating that it was a time-related directive. First, the plain language of the rule provides an “impracticality exception” and a “sufficiently-in-advance” of sentencing condition, which show its contemplated “flexibility regarding the timing of a preliminary order’s entry.” Second, like the Court’s prior precedent noted above, Rule 32.2(b)(2)(B) “does not specify a consequence for noncompliance with its timing provisions.” (Quotation marks omitted.) Lastly, like other typical time-related directives, the rule here governs the district court’s conduct rather than that of the litigants.
In reaching this conclusion, the Court was not persuaded by McIntosh’s reliance on the rule’s inclusion of the word “must” as evidence of its mandatory nature. To the contrary, the Court recounted occasions in which it had held that a statute was a time-related directive despite its inclusion of a mandatory term such as “shall.” Finally, because McIntosh failed to raise it at the certiorari or briefing stages, the Court would not consider the correctness of the lower courts’ determination that he had failed to establish prejudice from the untimely preliminary order.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Melissa Patterson, Supreme Court Fellow
- Amanda Schwartz, Supreme Court Fellow
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