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April 17, 2024

SCOTUS rules unanimously that federal forfeiture errors as subject to harmless-error review

The Supreme Court handed down one opinion in a criminal case this morning in US v. McIntosh, No. 22–7386 (S.Ct. Apr. 17, 2024) (available here).  This case was argued just over six weeks ago, and anyone who listened to the oral argument would have predicted this shiny apple result.  Here is how the Court's opinion, authored by Justice Sotomayor, gets started:

In certain criminal cases, Congress has authorized the Government to seek forfeiture of a defendant’s ill-gotten gains as part of the defendant’s sentence.  Federal Rule of Criminal Procedure 32.2 sets forth specific procedures for imposing criminal forfeiture in such cases.  In particular, Rule 32.2(b)(2)(B) provides that, “[u]nless doing so is impractical,” a federal district court “must enter the preliminary order [of 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 question presented in this case is whether a district court that fails to comply with Rule 32.2(b)(2)(B)’s requirement to enter a preliminary order before sentencing is powerless to order forfeiture against the defendant.  In light of the Rule’s text and relevant precedents, this Court holds that the failure to enter a preliminary order does not bar a judge from ordering forfeiture at sentencing subject to harmless-error principles on appellate review.

April 17, 2024 at 10:16 AM | Permalink


Things do get quiet around here when the defendant loses.

Posted by: Bill Otis | Apr 18, 2024 1:11:54 PM

i heard a pin drop…

Posted by: da man | Apr 18, 2024 9:45:12 PM

Is there all that much to discuss when SCOTUS adopts a rule applied in nearly every circuit that says forfeiture procedural error can be found harmless?

Posted by: Doug B | Apr 18, 2024 10:00:13 PM

Doug --

There was enough to discuss to get the case heard on the merits by the Supreme Court, something that's exceedingly rare.

Like I say, things get quiet around here when the defendant loses.

Posted by: Bill Otis | Apr 19, 2024 12:14:17 AM

Footnote 3 of the opinion reveals why cert was granted, Bill, as the petitioner did a good job convincing the Court there was a long-standing circuit split to resolve on a technical timing procedural issues in the federal rules of criminal procedure. Footnote 6 highlights, accurately I believe, that the circumstances at issue "are a rare occurrence." (Interestingly, that footnote also reports that "the Government admits that McIntosh’s prosecutors failed to adhere to [DOJ] guidance multiple times over.")

In short, on an unusual set of facts where federal prosecutors and a federal district judge messed up a small procedural timing issue, the Supreme Court sensibly (and quickly) ruled that the harmless error doctrine it has applied in other similar timing settings ought to apply here.

And so I will ask again, Bill, what do you think is substantively interesting to discuss in McIntosh? Did you face this issue a lot when you were in DOJ? Especially with so little at stake, I bet almost nobody has even bothered to carefully read the opinion (you included).

Posted by: Doug B | Apr 19, 2024 8:47:51 AM

Things get lively around here when Bill points out that things get quiet! I listened to the oral argument and thought the case was interesting since it involved a trip to the court of appeals and back to the district court followed by a second appeal and a cert petition thereafter. All that led Justice Jackson to ask whether cert should have been sought from the first Second Circuit decision such that there was nothing for them to decide now. That concern seems to have fallen away.

Posted by: Da Man | Apr 19, 2024 11:35:46 AM

I concur, Da Man, that the case was a procedural cluster****. I suppose what I find interesting is how such a "dog" case on a tiny issue got a cert grant when thousands of other more important cases get turned away. I suspect a really good cert petition and a notable cert pool memo turned McIntosh into a big apple which does not seem worth biting.

Posted by: Doug B | Apr 19, 2024 11:54:00 AM

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