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Welcome to scot Discust, a project
of the Federalist Society for Law and Public

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Policy Studies. Our contributors joined us
from around the country to bring you expert

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commentary on US Supreme Court cases as
they are argued and the decisions are issued.

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The Federalist Society takes no position on
particular legal or public policy issues.

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All expressions are those of the speaker. Hello, and welcome to SCO Discust.

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I'm your host, Kyle hammernis On, behalf of the Faculty division of

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the Federalist Society. We are here
today to discuss McIntosh versus United States,

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in which the Supreme Court issued a
nine zero decision on April seventeenth, twenty

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twenty four. It is my honor
to introduce our guests today, Stephan Cassella.

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Stephen serves as an expert witness and
consultants law enforcement agencies and the private

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sector as the CEO of Asset Forfeiture
Law LLC. Previously, he was the

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Deputy Chief and then the Chief of
the Asset Forfeiture and Money Laundering Section in

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the US Attorney's Office in Baltimore,
Maryland. And with that, I'd like

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to turn things over to our guest
to discuss the overview of the case and

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the court's decision. Well, thank
you very much. This was a criminal

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forfeiture procedural decision, and the Court
has not made many decisions on that particular

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aspect of asset forfeiture, so it's
unusual in that regard. But it's strictly

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a case of statutory interpretation, and
in fact it's a case of the interpretation

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of a rule of criminal procedure that
was last amended in two thousand and nine,

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and this is the first time the
Supreme Court has had any occasion to

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write about it. The criminal forfeiture
is part of the sentence in a criminal

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case. So just as the account
of time a defendant might be incarcerated for

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the amount of fine he might pay
or the amount of restitution he might be

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ordered to pay, the amount of
a criminal forfeiture or whether there's even going

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to be a criminal forfeiture does not
come up until there's a conviction at that

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time. According to the rules,
and the rule in question is Rule thirty

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two point two Federal Rules of Criminal
Procedure, there are three things that the

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court needs to do after there's a
conviction in a case. In which forfeiture

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is requested by the government. The
first is to ascertain whether the defendant wants

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the jury retained to consider the forfeiture. The second is to enter a preliminary

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order of forfeiture sufficiently in advance of
sentencing to allow the parties to comment and

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to suggest any corrections. And the
third is at sentencing to include the forfeiture

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in the oral announcement of the sentence
and in the written judgment. And it's

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the second of those that was issue
here. The rule says that unless doing

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so is impractical, the trial judge
should enter a preliminary order of forfeiture in

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advance of sentence, sufficiently in advanceive
sentence to allow the parties to comment and

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to suggest corrections. And the court
did not do that in Macintosh's case.

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So when it came to sentencing,
there was some interlocatory appeal up to the

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Supreme Court and back again, but
that's not relevant up to the Court of

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Appeals, but that's not relevant here. When it came to sentencing, the

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court went ahead and entered the forfeiture
order, and mister Macintosh's counsel argues that

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because the court didn't follow the rule
about entering preliminary orders, that that was

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fatal and that the court was now
barred from entering the order. The District

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Court disagreed and said, no,
it's requirement in the rule about entering your

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preliminary order as a time related directive. It's not a mandatory, rigid rule,

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and it does not bar me from
going ahead and entering the forfeiture order

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subject to a harmless error analysis,
and the court found any error was harmless.

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The defendant was well aware from the
indictment and from all the proceedings during

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the case he'd gotten a bill of
particulars that the government was going to seek

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porpraiture, and so this didn't apprejudice
him that the court didn't enter the puliminary

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He appealed to the Second Circuit.
The Second Circuit agreed with the District Court,

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there was no error, and he
filed a third petition and the case

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goes to the Supreme Court. Was
argued just a few weeks ago. A

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unanimous court says the lower courts were
both correct. This was a time related

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directive and there was no fatal error
that precluded the district Court from entering the

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forfeiture order, which, of course
is significant because mister Macintosh had been convicted

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of several hobst robberies. He had
obtained seventy five thousand dollars in proceeds and

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it had used the money to buy
a BMW, and the government wanted to

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take the BMW and it would have
been a windfall to him if the district

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court's failure to enter the preliminary order
of forfeiture barred the forfeiture. So the

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court says there was not There was
an error, certainly, but it was

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not a fatal error, and there
was no reason the court could not proceed,

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so the property was forfeited. So
what's unusual about this case is that

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generally the Supreme Court only grants cert
to resolve a split in the circuits,

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were to resolve a constitutional issue.
There's no constitutional issue here. It's purely

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a matter of procedure, and the
Court found that as a matter of procedure

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interpreting the rule, that this was
not anything more than a time related directive.

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They had three reasons for that,
by the way. That one was

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that the rule itself says unless doing
so is impractical, which suggests that this

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is not a rigid rule. A
second that the rule is directed at what

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the court should do, not at
what the government should do. So it

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wasn't the government's violation, it was
the judges violation. And then also there

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was no provision in Rule thirty two
point two which suggests in any way what

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the sanction should be for the court's
failure to do this. In other situations

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in which the Court has found a
rule to be rigid and requires somewhere severe

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sanction, the rule itself provides for
that, and there was no such provision

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in this rule that suggests any kind
of detriment to the government's forfeiture action if

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the rule is not followed. So, for all those reasons, the court

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said there was no preclusion of the
forfeiture. But why did they grantser when

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there was no split in the circuits
on this question. In fact, every

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court that has addressed the issue has
found exactly the same way, And the

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reason is that the defendant mister Macintosh, in making his cert petition, conflated

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two different rules. There is another
Remember I said there were three different stages

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in the preceding. The third stage
is what the what the rule says the

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court must do at the sentencing hearing
itself, and if the court fails to

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make the forfeiture part of the oral
announcement of the sentence and included in the

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judgment. The circuits are split as
to whether that is fatal or is not

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fatal. Some courts say that if
the court doesn't impose it as part of

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his sentence, that's too late to
fix it later. Other courts say otherwise.

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Now, that's a question on which
the Court might have have someday to

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grant to resolve a split in the
circuits, but it didn't do that in

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this case because that wasn't the issue
in this case. In this case,

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the issue was the preliminary order,
and there was no split in the circuits.

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But it appears from the cert petition
that Council cited the cases on the

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latter rule in suggesting that there was
a split in the circuits, and the

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Court took the case and then found
that there was no significant controversy. In

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fact, there's a footnote that Justice
Sodo Mayor, who wrote the opinion for

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the unanimous court drops it says,
it looks like there's less than meets the

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eye when it comes to a split
in the circuits, and what she's referring

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to was exactly the point that I'm
making that the split was on a different

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rule, not on this one.
Now the only other. So one other

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interesting thing about the opinion is that
the court says, well, while the

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error was the judge's error, and
while the rule doesn't play any responsibility on

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the government in this instance, Justice
Department policy is nevertheless to tell its prosecutors

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to remind judges of their duty to
do what the rule requires. Justice Department

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policy requires or instructs its prosecutors to
submit a proposed preliminary order in advance of

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sentence so that the court is reminded
of its duty to do so. And

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the government did not do that in
this case. And the court says,

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we hope, well, I think
her phrase just as so too. My

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ours phrase is this is an instance
which the government failed to follow its policy,

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which this court considers to be a
rare occurrence, suggesting that the court

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would look with this favor if this
kind of problem occurs frequently in the future.

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And so that's something that Justice Department, I'm sure will be reminding its

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prosecutors about. That was a great
overview of just the case in general,

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and the decision I did want to
ask right about you know, what you

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see or what you may want to
predict going forward, especially regarding the litigation

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surrounding that other section that you mentioned, but also what before we get to

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that, what would be the remedy
for for mistake like this that happens,

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right, I mean, whether it's
the judges or now possibly if the prosecutors

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fail to remind the judges, what
what would be the remedy for that?

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Well, what the court says is
that it's still subject to harmless error analysis.

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So if you have a situation where
you come to sentencing and the and

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the defendant had no clue that the
government was seeking forfeiture, he is totally

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surprised that he could argue prejudice because
he could say, the court was supposed

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to enter a preliminary order before sentenced
to give me no notice of what was

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going to happen here, and my
councilor would have then had time to suggest

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that the amount of the money judgment
the government was seeking, or the forfeiture

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of the BMW or whatever it is, was mistaken for whatever reason lack of

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sufficient evidence to meet the preponderance standard, or they just named the wrong asset

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or they calculated it wrong, then
he could argue that the error was not

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harmless and so that would be the
remedy. But in this case, the

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government had included a forfeiture notice in
the indictment and had served him with a

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bill of particulars indicating that it was
seeking the forfeiture of his BMW. They

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just hadn't reminded the judge that was
supposed to enter a preliminary order before sentencing.

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And the court said, in that
instance, it's a harmless error.

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Ah, right, And then regarding
the other section right, section B of

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that or sorry section four before before. Yeah, So do you expect to

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see them grant sert on a case
in the coming years or do you think

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that this is so rare that it
that it really will not get up to

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the court. I think that they'll
probably let the issue percolate in the in

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the circuits for a while longer,
because now there is some guidance for the

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court from the court on what the
considerations are. Remember, I said there

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were three factors that they considered in
determining that the rule in question, the

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preliminary order rule which rule be two
was not was only a time to rated

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related directive. Two of those suggest
the violation of the of the third part

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will BE four would be time related
as well. It doesn't include any sanction

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uh in the rule itself, and
it is directed at something the court should

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do, it doesn't. It's not
directed to some the litigants should do,

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and that the government is certain to
argue of citing those two points in Macintosh

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that the failure to enter the order
of forfeiture as part of the oral announcement

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its sentencing likewise is only a time
related directive, and that the failure to

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enter it is not fatal and it
will make that argument in all of the

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circuits where the issue has not yet
been resolved, and that's most of them.

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Only two circuits have held that it's
a fatal error. But in support

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of the argument that it's a fatal
error, defendants are likely to argue the

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third point, which is that,
whereas the Prilminary Order provision talks about unless

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doing so is impractical and has vague
language like sufficiently in advance of sentence,

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Rule BE four is very specific.
The court must enter the the forfeiture is

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part of the oral announcement of the
sentence and must include it in the judgment,

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and defendants will argue that means that
a defendant is entitled to know all

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aspects of his sentence at one time. How long am I going to jail,

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what's the period of supervisory release,
what fine shall I pay? What

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special assessment, what restitution? And
what forfeiture order? All at one time.

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So there will be some tension because
the three factors that the court through

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Justice Sodo mayor considered go two different
ways when you apply them to rule before

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and so will there continue to be
a split in the circuits. Will the

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two circuits that said that this is
a fatal rule, I'm sorry, a

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fatal error change their minds now that
they've seen the analysis in Macintosh? Or

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will other circuits say that those courts
were correct now that they've seen the analysis

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in Bank McIntosh. And I suspect
we'll see a continue its continuous evolution of

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the law. Unfortunately, it's not
all that rare. It's not all that

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rare for a judge to sentence the
defendant and fail to enter the forfeiture order.

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Then in there either because the prosecutor
forgets to remind the judge, or

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because the prosecutor brings it up,
but the judge says, I'm not ready.

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Why don't we do it next week? Or you know, something else

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like that happens. I mean,
there was a famous, famous among forfeiture

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practitioners colloqui one time where the judge
says to the prosecutor, what about the

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forfeiture is at the sentencing hearing,
And the prosecutor says, oh, your

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honor, they will take care of
that later, meaning somebody else in the

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office who handles forfeitures. And no, they don't handle that later. It

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has to be the rule says,
do it at sentencing. Now, there

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is a provision in the rules elsewhere
that says if it's not possible to calculate

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the exact amount of the forfeiture judgment, or not possible to identify all the

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specific property, the court can enter
and order at sentencing. In general terms,

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in other words, the defendant shell
forfeit all proceeds of his crime and

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leave the amount of the calculation to
a later hearing that would comply with the

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rule. Then everybody agrees, they'd
be no fatal error. But if the

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judge does nothing and just and then
then a week later, a month later,

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a year later, the prosecutor says, oh, by the way,

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you're honor you remember that sentencing we
did some time ago. We never got

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a forfeiture order. That's the situation
where some courts say too late, and

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some courts say it's okay, all
right. Well, thank you so much

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for breaking it down for us.
Steph really really enjoyed having you on.

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Thank you so much. Thank you
for listening to this episode of SCO Discast.

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