What is the Time Limit for the Federal Government to File for Criminal Forfeiture? The Supreme Court has Agreed to Settle this Big Question

What is the deadline for the government to file a motion for forfeiture in a criminal case? In a case where the government filed a motion for criminal forfeiture two-and-a-half years after sentencing, the U.S. Court of Appeals for the Second Circuit concluded this was perfectly fine and upheld the forfeiture. But not every federal court is on the same page. In fact, the courts are deeply divided over this question.

Since the federal courts can’t agree on whether a criminal forfeiture motion filed after sentencing can be granted, the Supreme Court agreed today to hear the case this upcoming term. This could significantly change how the government takes people’s property, often with no option to contest the taking. This is especially true when the forfeiture was requested by the government after sentencing, since the courts routinely rubber-stamp forfeiture motions by the government.

The deadline for the government’s request for forfeiture in a criminal case is found in Federal Rule of Criminal Procedure 32.2(b)(2)(B), which states:

“Unless doing so is impractical, the court must enter the preliminary order sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final as to the defendant under Rule 32.2(b)(4).”

As noted in the petition for certiorari filed in the Supreme Court, the courts are divided over this, some saying the deadline for forfeiture is merely a “directive” the courts should try to follow (as the court held in this case), and other courts saying the deadline is a jurisdictional bar that forbids forfeiture after sentencing.

Here’s the reasoning by the U.S. Court of Appeals for the Second Circuit in holding that the Rule 32.2 criminal forfeiture deadline doesn’t prevent the government from filing for forfeiture even years after sentencing:

“First, Rule 32.2 does not specify a consequence for noncompliance with its timing provisions. Second, the Federal Rules Advisory Committee’s notes on the revised rule make clear that the deadline to enter the preliminary order is intended to give the parties time to advise the court of omissions or errors in the order before it becomes final because there is limited opportunity to do so after judgment is finalized. At the same time, the comments make no mention of an interest in giving defendants certainty as to the amount to be forfeited before sentencing. This focus on accuracy, not the defendant’s repose, is consistent with the substantive purpose of forfeiture, which is to deprive criminals of the fruits of their illegal acts and deter future crimes. Third, because forfeited funds frequently go to the victims of the crime, preventing forfeiture due to the missed deadline would tend to harm innocent people who are not responsible for the oversight. Fourth, consistent with examples cited in Dolan, interpreting the deadline rigidly here would disproportionately benefit defendants. And finally, as in Dolan, a defendant concerned about possible delays or mistakes can remind the district court of the preliminary order requirement any time before sentencing.”

United States v. McIntosh, 24 F.4th 857, 860-61 (2d Cir. 2022)

However, the Supreme Court granted certiorari based on the following question presented in the petition, which is quoted verbatim below:

Whether a district court may enter a criminal forfeiture order outside the time limitations set forth in Rule 32.2, Fed.R.Crim.P.?

The appellate courts are divided on this issue.  The Court of Appeals below rejected petitioner’s argument that the district court’s forfeiture order was invalid where the government failed to submit a preliminary order of forfeiture until more than two and a half years after sentencing, and the government also failed to comply with the district court’s direction that it provide a formal order of forfeiture within one week of sentencing.  Compare United States v. Maddux, 37 F.4th 1170 (6th Cir. 2022) (rejecting the decision below and concluding that Rule 32.2 was a mandatory claim-processing rule preventing forfeiture in that case); and United States v. Shakur, 691 F.3d 979 (8th Cir. 2011) (Rule 32.2’s mandates are jurisdictional, and a court lacks the power to enter forfeiture once Rule 32.2’s deadlines have passed); and United States v. Martin, 662 F.3d 301 (4th Cir. 2011) (concluding that Rule 32.2’s deadlines are simply ‘time-related directive[s]’).

Louis McIntosh v. United States, No. 22-7386 (cert granted Sept. 29, 2023)

If decided in the petitioner’s favor, I don’t see this case opening the floodgates to let people challenge old forfeiture orders that were entered long after sentencing. However, I do see this adding an extra burden on federal prosecutors to make sure forfeiture is requested ahead of sentencing. I also see an additional burden on defense counsel to ensure forfeiture is timely filed by the government to avoid an ineffective-assistance-of-counsel claim down the road.

The Supreme Court typically decides criminal cases before its three-month summer break, so I expect a decision around June 2024.

Dale Chappell is an expert on federal postconviction relief and the author of hundreds of articles and several books on challenging illegal and wrongful convictions and sentences. He is a former staff writer for Criminal Legal News Magazine and the author of the blog zenlawguy.com.

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