Facts of the Case

Petitioner Louis McIntosh was charged with multiple counts of Hobbs Act robbery and firearm offenses, with the indictment specifying that McIntosh would forfeit “all property… derived from proceeds traceable to the commission of the (Hobbs Act) offenses.” The Government later provided a pretrial bill of particulars, listing $75,000 in cash and a BMW, purchased by McIntosh five days after one of the robberies, as assets subject to forfeiture.

After McIntosh was convicted, the District Court ordered the forfeiture of the $75,000 and the BMW at the sentencing hearing. Although the court instructed the Government to submit a forfeiture order for its signature within a week, the Government failed to do so. On appeal, the Government requested a limited remand to add a written forfeiture order to the record, which the Second Circuit granted without opposition.

Upon return to the District Court, McIntosh contended that the court could not proceed with the forfeiture due to non-compliance with Federal Rule of Criminal Procedure 32.2(b)(2)(B). This rule requires that, “(u)nless doing so is impractical,” a preliminary order of forfeiture must be entered by the federal district court sufficiently before sentencing to allow the parties to propose revisions or modifications.

The District Court rejected McIntosh’s objections, ruling that the Rule was a guideline related to timing, and that the failure to enter a preliminary order before sentencing did not prevent the court from ordering forfeiture, as the missed deadline did not prejudice McIntosh. The Second Circuit Court of Appeals upheld this decision.

Supreme Court’s Decision

The Supreme Court unanimously upheld the lower court’s decision. Justice Sonia Sotomayor, writing for the Court, stated that based on the text of the Rule and relevant precedents, the failure to issue a preliminary order does not prevent a judge from ordering forfeiture at sentencing, provided that any error is subject to harmless-error review on appeal.

In its ruling, the Court examined three types of deadlines: (1) jurisdictional deadlines, which cannot be excused; (2) mandatory claim-processing rules, which are strict deadlines governing the timing of motions or claims but can be waived or forfeited by the litigant; and (3) time-related directives, which are deadlines intended to ensure timely action by a public official but do not remove the official’s authority to act if missed.

McIntosh argued that Rule 32.2(b)(2)(B) is a claim-processing rule, while the Government contended it is a flexible time-related directive. The Court sided with the Second Circuit and the Government, determining that Rule 32.2(b)(2)(B) constitutes a time-related directive. Thus, the failure to issue a preliminary order before sentencing does not strip a judge of the power to impose forfeiture.

Justice Sotomayor pointed to the language of Rule 32.2(b)(2)(B), which allows for flexibility in timing, requiring that a preliminary order be issued “sufficiently in advance of sentencing” unless it is impractical to do so. This flexibility indicates that the Rule is not a rigid claim-processing rule.

Additionally, Justice Sotomayor noted that Rule 32.2(b)(2)(B) does not specify any particular consequence for non-compliance, unlike other parts of Rule 32.2, and it governs the conduct of the district court rather than the litigants. She explained that time-related directives generally prompt public officials to act within a certain timeframe, whereas mandatory claim-processing rules usually require litigants to meet specific procedural deadlines.

Finally, the Court confirmed that noncompliance with Rule 32.2(b)(2)(B) is a procedural error that can be reviewed for harmlessness. Since McIntosh did not challenge the lower courts’ harmlessness analysis in his certiorari petition or opening brief, the Court did not revisit the issue.