McIntosh v. U.S.: Supreme Court holds that the failure to enter a preliminary order of forfeiture is not fatal.

On April 17, 2024, the Supreme Court issued its opinion in McIntosh v. United States.   In a unanimous opinion written by Justice Sotomayor, the Court agreed with the Government, the district court, and the Second Circuit that Rule 32.2(b)(2)(B) is a “time-related directive” and that a trial court’s failure to follow the rule by entering a preliminary order of forfeiture prior to sentencing does not bar the entry of a forfeiture order at sentencing.  At most, the Court said, the court’s failure to follow the rule would allow the defendant to object to the forfeiture under the harmless error standard.  The court nevertheless admonished the government prosecutors for failing to remind the district court of its obligation to enter a preliminary order prior to sentencing by submitting a proposed order.

A complete analysis of the opinion and a comment on how this affects the split in the circuits on the separate but related question regarding Rule 32.2(b)(4)(B), which requires the entry of a final order of forfeiture at sentencing, appears in the May issue of the Money Laundering and Forfeiture Digest, which is excerpted here, along with a copy of the Opinion of the Court.