Draft:McIntosh v. United States

McIntosh v. United States (Docket No. 22-7386) is a pending United States Supreme Court case relating to the Federal Rules of Criminal Procedure.

Factual background
In 2011, Louis McIntosh was indicted along with five codefendants for Hobbs Act robbery and weapons offenses committed in the Southern District of New York. McIntosh's indictment contained a forfeiture allegation, but it did not specify any specific property to be forfeited. Eight months later, the government notified McIntosh of its intent to forfeit a BMW that was seized at the time of McIntosh's arrest. Other than the BMW, no other property—including money—was identified by the government in its forfeiture bill of particulars.

McIntosh went to trial in August 2013. Prosecutors pursued a theory that McIntosh had purchased the BMW using the proceeds from a robbery committed five days prior. At trial, evidence showed that the car had been purchased with money orders by McIntosh's mother. After being convicted on all counts, the jury was discharged and did not make any findings regarding the forfeitability of the BMW. Nor did the government make any reference to a proposed forfeiture in its sentencing memorandum, or file any preliminary order of forfeiture.

At sentencing, the government informed the court that it was requesting, in addition to $75,000 in restitution, a $75,000 forfeiture money judgment, and the BMW (which it alleged was purchases with proceeds from the robbery). McIntosh's defense counsel objected, stating that there was no evidence presented at trial connecting the BMW to the proceeds of the robbery. The government posited that the timing of the purchase in relation to the offense established the necessary connection. In the end, McIntosh was sentenced to 720 months' imprisonment and ordered to pay $75,000 in restitution, and (at the court's direction) "forfeiture of $75,000, plus a BMW." The court then directed the government to "submit an order of forfeiture for signature by the Court within a week" and found "that the $75,000 and the BMW are the fruits of the [funds] derived from the crimes." In its written judgment, the court erroneously indicated that McIntosh was to forfeit "$95,000 in U.S. currency and a BMW." In its amended written judgment, the court acknowledged that the reference to $95,000 was a "clerical error", but once again directed that "[t]he government will submit an Order of Forfeiture for the Court's signature within one week." Despite this, the government never supplied an order of forfeiture to the court.

Preliminary appeal
On appeal, McIntosh first challenged the lower court's restitution and forfeiture orders, noting that the government had never submitted an order of forfeiture. At the request of the government, the United States Court of Appeals for the Second Circuit granted a limited remand of the case back to the district court. On remand, the District Court entered an order directing the government to submit its order of forfeiture by December 23, 2016, two and a half years after the original sentencing proceedings. McIntosh objected to the government's proposed preliminary order of forfeiture on two grounds. First, he argued that the government's order was not timely under Federal Rule of Criminal Procedure 32.2. Second, he argued that he was prejudiced by the government's delay due to the fact that the value of the BMW—which the government agreed to credit against the value of the monetary judgment—continued to decrease. The court overruled McIntosh's objections, corrected its original clerical error, and reduced the amount of restitution from $75,000 to $4,598.

Subsequent appeal
McIntosh again appealed to the Second Circuit. It affirmed in part, reversed and vacated in part, and remanded for resentencing. McIntosh petitioned the Supreme Court for certiorari. The Court granted, vacated, and remanded the judgment of the Second Circuit for further consideration in light of its decision in United States v. Taylor. On remand, the Second Circuit, relying on United States v. Dolan, rejected McIntosh's timeliness objection and affirmed the District Court's authority to order forfeiture. The case was then remanded back to the District Court for recalculation of the forfeiture amount; its published opinion noted that the $75,000 figure was improperly based on theories of joint and several liability, which the government conceded was not available.

McIntosh was resentenced on May 3, 2023. The District Court entered a new preliminary order of forfeiture in the amount of $28,000, with credit from the sale of the BMW. On September 20, over twelve years after the BMW was seized, the District Court entered a final order of forfeiture as to the car. The order noted that the government's intent to forfeit the vehicle was first published on April 25, 2023.

Supreme Court
On April 24, 2023, McIntosh petitioned the Supreme Court to hear his case. On September 29, the Court granted certiorari. Oral arguments are scheduled for February 27, 2024.