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February 27, 2024
SCOTUS seems quite disinterested in blocking federal sentencing forfeitures due to court's procedural error
I have not been following closely McIntosh v. United States, the Supreme Court case argued today. The question presented — "Whether a district court may enter a criminal-forfeiture order outside the time limitations set forth in Federal Rule of Criminal Procedure 32.2" — seemed quite minor and not especially consequential. And today's argument seemed to confirm that McIntosh is likely to be forgotten as soon as it is decided. Here are excerpts from this Bloomberg Law piece, headlined "Justices Doubt Strict Deadlines for Criminal Forfeiture Orders," which provides a feel for the argument:
The US Supreme Court didn’t seem to agree that there are strict time limits on a district court’s ability to order convicted criminals to forfeit property as part of a punishment.
The Federal Rule of Criminal Procedure say courts must enter a preliminary forfeiture order before sentencing. Because the government didn’t prepare a preliminary order and one wasn’t entered in Louis McIntosh’s case, he argues he can’t be forced to forfeit anything related to his crime....
Several of the justices from across the court’s ideological divide were skeptical of McIntosh’s claim that the rule is mandatory and appeared to question why he didn’t just object to the court’s final forfeiture order. “I guess I’m not understanding,” Justice Elena Kagan said. “If the person objects at the time of sentencing and then the court says, ‘You know, you’re right, I should enter a preliminary order’ and then enters a preliminary order, then you have no complaint.”
Justice Clarence Thomas wanted to know how McIntosh was prejudiced by not getting a preliminary order first. “Didn’t the petitioner have actual notice that the government was going to seek forfeiture?” he asked....
After he was convicted in a series of violent robberies in New York and of weapons charges, McIntosh was ordered as part of his sentence to forfeit $75,000 and a BMW that was allegedly purchased with the proceeds of one of his robberies....
Federal appeals courts are split on the issue. Like the Second Circuit, the Fourth Circuit said the timing requirement for a forfeiture order is no different from the statutory deadline for restitution in the Mandatory Victims Restitution Act, which the Supreme Court said in Dolan v. United States is a “time-related directive.” The Sixth and Eighth Circuits, however, have denied forfeiture in cases where there was no preliminary order....
Signaling support for the government’s position, Justice Neil Gorsuch noted that the statute says there “shall be forfeiture.” “That’s Congress’s directive to us and often government agencies and courts miss deadlines,” he said. “But Dolan kind of recognized what I’ll call a better late than never rule in complying with congressional directives.”
February 27, 2024 at 09:46 PM | Permalink
Comments
I am sure that the "better late than never" rule of Dolan (criminal restitution) will also be adopted by the Supreme Court in McIntosh (criminal forfeiture). I have an acquaintance who ended up with the Dolan problem in his own criminal restitution order in the Southern District of New York. The District Judge said at sentencing (the sentence was 1 year and 1 day) that he would enter a restitution order at later date, after the Government submitted it's proposed calculations. The Government did not submit proposed numbers within the statutory time limit, and the Judge was about 7 months past the deadline when he finally entered a restitution order -- but under the Dolan holding, it is still a valid order! Notably, the Judge ordered restitution to the wrong parties, thoroughbred racetracks, when the actual victims were other bettors, who would have each had increased winnings had defendants not altered betting tickets inside the betting computer, during the 10 minute time between the completion of a race and the time the results were certified as official at the tracks. Those individual bettors, however, could not be identified, so the Judge gave the restitution money to the tracks where they had made their bets. This case generated several articles in the New York "Times", and the sentencing Judge said that it was the most clever crime he had ever sentenced anyone for committing. The Government waited years to try to collect the restitution. Defendant had completed his prison sentence and Supervised Release, when the Government finally served a Garnishment on his wages -- he worked for a computer software company owned by his father. They set up a segregated account to place the garnished amounts in from each bi-weekly paycheck, until the full amount of the restitution had been deposited. Several years have now gone by, and neither the Government nor the Court has directed the employer to pay the money into the registry of the Court or to pay it over to the U.S Attorney's Office, so it is just sitting in an account, waiting.
Posted by: Jim Gormley | Feb 28, 2024 11:13:43 AM
The Dolan Supreme Court decision is an excellent example of the saying that "hard facts make bad law"! In Dolan, the District Judge plainly entered the restitution order outside the statutory time limit (following the sentencing), but if the Supreme Court had found that the deadline was jurisdictional, the victim would not have received restitution for his medical bills for very serious personal injuries caused by the defendant. IT would have been extraordinarily harsh for the Court to have found that the deadline was jurisdictional and thus denied the victim, who had tens of thousands of dollars in medical bills, any restitution with which to pay those bills. So, the Court found that the time limit was not jurisdictional, but really just a suggestion!
Posted by: Jim Gormley | Feb 28, 2024 11:20:14 AM
Another interesting criminal forfeiture issue that remains open is whether the Supreme Court's decision in Honeycutt v. United States, 581 U.S. ____, 137 S. Ct. 1626 (2017) is retroactively applicable on collateral review, such that select defendants might recover assets previously taken from them pursuant to joint and several liability as a co-conspirators, where they actually had no control over bank accounts or operations of the conspiracy and received little if any actual proceeds from the conspiracy. Such defendants who have completed their sentences might seek to recover by filing a Petition for a Writ of Error Coram Nobis, based upon the new Supreme Court decision in Honeycutt being retroactive.
Posted by: Jim Gormley | Feb 28, 2024 12:28:44 PM
