High Court to Consider Timing Provisions of Forfeiture Rule

The US Supreme Court agreed Friday to consider whether a federal trial court may enter a forfeiture in a criminal case outside the time limits of the federal forfeiture statute.

Petitioner Louis McIntosh says the forfeiture order in his case should be vacated because the district court failed to enter a preliminary forfeiture order before sentencing, and waited two-and-a-half years after sentencing to submit a final order of forfeiture, in violation of Federal Rule of Criminal Procedure 32.2(b)(2)(B).

The US Court of Appeals for the Second Circuit denied McIntosh’s argument, finding the requirements of 32.2(b) are “time-related directives” that didn’t prevent the court from ordering forfeiture even if a deadline was missed. The appeals court likened the case to a restitution case where the high court concluded that a 90-day statutory deadline to order restitution was a time-related directive.

McIntosh urged the high court to hear the case because a “clear circuit split exists.” While the Second and Fourth Circuits have held the requirements of 32.2(b) are time-related directives, the Sixth and Eighth Circuits have denied forfeiture where the timing provisions of the rule were violated, he said.

McIntosh was convicted of Hobbs Act robbery and firearm offenses in the Southern District of New York. The forfeiture included a BMW and $75,000, with a credit against the $75,000 for the value of the car.

Newman & Greenberg LLP represents the petitioner.

The case is McIntosh v. United States, U.S., No. 22-7386, cert granted 9/29/23.