SCOTUS seems quite disinterested in blocking federal sentencing forfeitures due to court’s procedural error

I have not been following closely McIntosh v. United States, the Supreme Court case argued today.  The question presented — “Whether a district court may enter a criminal-forfeiture order outside the time limitations set forth in Federal Rule of Criminal Procedure 32.2” — seemed quite minor and not especially consequential.  And today’s argument seemed to confirm that McIntosh is likely to be forgotten as soon as it is decided.  Here are excerpts from this Bloomberg Law piece, headlined “Justices Doubt Strict Deadlines for Criminal Forfeiture Orders,” which provides a feel for the argument:

The US Supreme Court didn’t seem to agree that there are strict time limits on a district court’s ability to order convicted criminals to forfeit property as part of a punishment.

The Federal Rule of Criminal Procedure say courts must enter a preliminary forfeiture order before sentencing. Because the government didn’t prepare a preliminary order and one wasn’t entered in Louis McIntosh’s case, he argues he can’t be forced to forfeit anything related to his crime….

Several of the justices from across the court’s ideological divide were skeptical of McIntosh’s claim that the rule is mandatory and appeared to question why he didn’t just object to the court’s final forfeiture order. “I guess I’m not understanding,” Justice Elena Kagan said.  “If the person objects at the time of sentencing and then the court says, ‘You know, you’re right, I should enter a preliminary order’ and then enters a preliminary order, then you have no complaint.”

Justice Clarence Thomas wanted to know how McIntosh was prejudiced by not getting a preliminary order first. “Didn’t the petitioner have actual notice that the government was going to seek forfeiture?” he asked….

After he was convicted in a series of violent robberies in New York and of weapons charges, McIntosh was ordered as part of his sentence to forfeit $75,000 and a BMW that was allegedly purchased with the proceeds of one of his robberies….

Federal appeals courts are split on the issue. Like the Second Circuit, the Fourth Circuit said the timing requirement for a forfeiture order is no different from the statutory deadline for restitution in the Mandatory Victims Restitution Act, which the Supreme Court said in Dolan v. United States is a “time-related directive.” The Sixth and Eighth Circuits, however, have denied forfeiture in cases where there was no preliminary order….

Signaling support for the government’s position, Justice Neil Gorsuch noted that the statute says there “shall be forfeiture.” “That’s Congress’s directive to us and often government agencies and courts miss deadlines,” he said. “But Dolan kind of recognized what I’ll call a better late than never rule in complying with congressional directives.”