Petition for Writ of Certiorari — Louis McIntosh, aka Lou D, Petitioner v. United States

Supreme Court briefApr 24, 2023

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APPENDIX A

a-1

United States v. McIntosh, 58 F.4th 606 (2023)

as a matter of apparent first impression, district court's failure

to enter preliminary order of forfeiture does not deprive

district court of power to order forfeiture, and

58 F.4th 606

United States Court of Appeals, Second Circuit.

UNITED STATES of America,

Appellee-Cross-Appellant,

Louis MCINTOSH, aka Lou

D, aka Lou Diamond, aka G,

Defendant-Appellant-Cross-Appellee,

Edward Ramirez, aka Taz, Terrence Duhaney,

aka Bounty Killer, Turhan Jessamy, aka Vay,

Quincy Williams, aka Capone, Tyrell Rock, aka

Smurf, Neil Morgan, aka Steely, Defendants.

defendant did not show reasonable probability of different

result in absence of plain error arising from lack of proof that

defendant had known of his status as felon when he possessed

firearms.

Affirmed.

Opinion, 24 F.4th 857, superseded.

*607 Appeal from the United States District Court for the

Southern District of New York. (Sidney H. Stein, J.)

Attorneys and Law Firms

Nos. 14-1908, 14-3922, 17-2623

August Term 2020

Argued: October 15, 2020

Decided: January 31, 2022

Amended: January 25, 2023

Steven Yurowitz, Newman & Greenberg LLP, New York, NY,

for Defendant-Appellant-Cross-Appellee Louis McIntosh.

Sarah Krissoff, Assistant United States Attorney (Thomas

McKay, Assistant United States Attorney, on the brief), for

Geoffrey S. Berman, United States Attorney for the Southern

District of New York, New York, NY, for Appellee-CrossAppellant United States of America.

Synopsis

Background: Defendant was convicted, in the United States

District Court for the Southern District of New York, of

Hobbs Act robbery and being a felon in possession of

firearm, and at sentencing, criminal forfeiture was ordered

orally, without a preliminary order of forfeiture before

sentencing. Defendant appealed. The Court of Appeals

granted government's unopposed motion to remand, and

instructed government to ask the District Court to enter a

formal order of forfeiture. On remand, the District Court,

Sidney H. Stein, Senior District Judge, 2017 WL 3396429,

entered preliminary order for forfeiture of $75,000 and a

vehicle purchased with robbery proceeds, and the order was

included in an amended judgment. Defendant appealed.

Holdings: The Court of Appeals, Walker, Circuit Judge, held

that:

Before: Walker, Lohier, Circuit Judges, and Stanceu, Judge.*

Opinion

John M. Walker, Jr., Circuit Judge:

*608 Louis McIntosh appeals various issues arising from

his 2017 amended judgment of conviction for Hobbs Act

robbery and firearm offenses in the Southern District of New

York (Sidney H. Stein, J.).1 In this opinion, we address two

of McIntosh's arguments—first, that the order of forfeiture

entered against him should be vacated because the district

court failed to enter a preliminary order prior to sentencing,

as required by Federal Rule of Criminal Procedure 32.2(b)(2)

(B); second, that he was improperly convicted of possessing

firearms as a felon, Counts Twelve through Fourteen, because

the government did not prove that he knew that he was a felon.

As to these issues, we AFFIRM the judgment of the district

court. We address his remaining arguments in a separate

summary order filed concurrently with this opinion.

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United States v. McIntosh, 58 F.4th 606 (2023)

order required McIntosh to pay $75,000 in forfeiture and

to turn over the BMW, with funds from the sale of the car

BACKGROUND

In 2011, Appellant Louis McIntosh and several others were

indicted on multiple counts of Hobbs Act robbery and

related firearms charges. The charges arose from a series

of violent robberies and attempted robberies that occurred

between 2009 and 2011. The indictment contained a forfeiture

allegation, consistent with 18 U.S.C. § 98l(a)(1)(C) and 28

U.S.C. § 2461(c), requiring the forfeiture of all proceeds and

property resulting from the offenses.

In August 2013, a jury in the Southern District of New

York convicted McIntosh on all counts.2 The district court

sentenced McIntosh to 720 months’ imprisonment and three

years of supervised release. The district court also ordered

McIntosh to pay restitution and to forfeit $75,000 and a BMW

that McIntosh had purchased with robbery proceeds.

Before imposing forfeiture, Federal Rule of Criminal

Procedure 32.2(b) requires the district court to “promptly

enter a preliminary order of forfeiture setting forth the amount

of any money judgment ... [and] directing the forfeiture of

specific *609 property.”3 “Unless doing so is impractical,”

this preliminary order “must” be entered “sufficiently in

advance of sentencing to allow the parties to suggest revisions

or modifications before the order becomes final.”4 The

preliminary order becomes final at sentencing and must be

included in the judgment.5

In this case, the district court did not enter a preliminary

order prior to sentencing, apparently because the government

did not submit a proposed order. At sentencing, after

verbally ordering forfeiture, the district court instructed the

government to propose a formal order of forfeiture within one

week, which the government also failed to do. As a result, no

written order of forfeiture was entered.

After the entry of judgment, McIntosh timely appealed. In

2016, on the government's unopposed motion, we remanded

the case pursuant to United States v. Jacobson6 and instructed

the government, if it wished to pursue forfeiture, to ask

the district court to enter a formal order of forfeiture. The

government then filed a proposed order, and McIntosh raised

several challenges in response.

On August 8, 2017, the district court denied McIntosh's

objections and entered a preliminary order for forfeiture. The

being credited against the $75,000.7 The order was included

in an amended judgment filed the same day. McIntosh timely

appealed the amended judgment.

DISCUSSION

On appeal, McIntosh challenges the forfeiture order, which

he says should be vacated because the district court failed

to enter a preliminary forfeiture order before sentencing, as

required by Federal Rule of Criminal Procedure 32.2(b)(2)

(B). We disagree.

Nothing in the federal rules sets forth the consequences of

a failure by the district court to issue the preliminary order

prior to sentencing. We find the Supreme Court's decision in

Dolan v. UnitedStates, however, to be instructive.8 There, in

a restitution case, the Supreme Court laid out a framework for

analyzing “the consequences of [a] missed deadline” when

not specified in the relevant statute.9 The Court described

three kinds of deadlines: “jurisdictional rules” that present

an absolute prohibition; “claims-processing rules” that can

bar certain actions but also may be waived; and “time-related

directives” that are “legally enforceable but [do] not deprive

a judge or other public official of the power to take the action

to which the deadline applies if the deadline is missed.”10

The Dolan Court concluded that a 90-day statutory deadline

to order restitution was a time-related directive. The Court

considered a number of relevant circumstances. *610 It

stated that when “a statute does not specify a consequence

for noncompliance with its timing provisions, federal courts

will not in the ordinary course impose their own coercive

sanction.”11 It examined the text and structure of the statute

and determined that the deadline “is primarily designed to

help victims of crime secure prompt restitution rather than to

provide defendants with certainty as to the amount of their

liability.”12 The Court was mindful that preventing restitution

would harm victims, “who likely bear no responsibility for

the deadline's being missed and whom the statute also seeks to

benefit.”13 This suggested that the deadline is not meant to be

a firm prohibition. The Court also cited other cases in which

deadlines were interpreted flexibly in order to preserve their

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United States v. McIntosh, 58 F.4th 606 (2023)

purpose or to avoid disproportionally benefiting convicted

defendants. Finally, it noted that defendants who wished to

avoid delay were always free to remind the district court of the

statutory deadline.15 Taken together, these circumstances led

the Supreme Court to conclude that the restitution deadline

is a time-related directive. As a result, so long as the district

court makes clear prior to the deadline expiring that it

intends to impose restitution, “a sentencing court that misses

the 90-day deadline nonetheless retains the power to order

restitution.”16

We think the considerations that pertained to the restitution

order in Dolan similarly apply to the Rule 32.2(b) deadline for

forfeiture. The Fourth Circuit adopted this view a year after

Dolan when, in United States v. Martin, it applied Dolan’s

considerations to a previous version of Rule 32.2(b) and

found its deadline to be a time-related directive.17 For several

reasons, we agree with the reasoning in Martin and believe it

applies with equal force to the current version of the rule.

First, Rule 32.2 “does not specify a consequence for

noncompliance with its timing provisions.”18 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.”20 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.21 Fourth, consistent

with examples cited in Dolan, interpreting the *611 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.

Our analysis is reinforced by the decisions of sister circuits

that have also found the Rule 32.2(b) deadline to be nonjurisdictional.22 Thus, we conclude that Rule 32.2(b)(2)(B)

is a time-related directive. Accordingly, the district court's

failure to enter a preliminary order in time does not render the

forfeiture invalid.

McIntosh raises several counterarguments, none of which

are persuasive. He cites an Eleventh Circuit case for the

proposition that “strict compliance with the letter of the law

by those seeking forfeiture must be required.”23 But Rule

32.2(b)(2)(B) governs the conduct of the district court, not the

litigants. The issue here is whether the district court had the

authority to enter the order despite its failure to comply with

the timing requirements, not whether the government should

have been more diligent. Even if the government bears some

responsibility for the mistake, Rule 32.2(b)(2)(B)’s status as

a time-related directive means that it is not a fatal one.

McIntosh also asserts that forfeiture is unlike restitution,

which was at issue in Dolan, because restitution is intended

to assist the victims of crimes. It is true that forfeiture

and restitution serve different purposes: restitution is for

“remediating a loss,” while forfeiture is for “disgorging a

gain.”24 But that distinction is less material here. Forfeiture

also serves other important purposes, and we see no reason

why, for purposes of timing, restitution and forfeiture should

be treated differently under these circumstances.

McIntosh next argues that he was prejudiced by the delay

because his BMW lost value while the forfeiture issue was

litigated.25 But McIntosh knew that the district court would

order forfeiture, and as the district court pointed out, he could

have sought an interlocutory sale of the car if he had wished to

preserve its value. Doing so would have been consistent with

the structure of the rule, which permits the sale of property

prior to sentencing but only with the defendant's consent.26

McIntosh also argues that the government alone is responsible

for preserving the value of seized assets, but for support he

cites only to an inapposite customs statute.27 McIntosh has

not demonstrated prejudice sufficient to void the forfeiture

order.

McIntosh also points to the structure of Rule 32.2 to argue that

the preliminary order deadline must be interpreted strictly.

Should the court forget to include the forfeiture order in the

final judgment, Rule 32.2(b)(4)(B) permits the judgment to

be corrected under Rule 36, which governs the correction

of clerical errors. From this provision, McIntosh infers that

all the other requirements of the rule, which do not *612

have related correction provisions, are strictly enforceable.

But Rule 32.2(b)(4)(B) simply makes clear that forgetting

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United States v. McIntosh, 58 F.4th 606 (2023)

to incorporate the order in the final judgment is a clerical

error and should be treated as such. It sheds no light on the

treatment of procedural errors. Indeed, the statute at issue in

Dolan similarly stated that a sentence containing an order

of restitution can “subsequently be ... corrected under Rule

35.”28 This provision, however, did not transform the statute's

other requirements into ironclad limits, and neither does

reference to Rule 36 in Rule 32.2(b)(4)(B) do so here.

Finally, we reject McIntosh's claim that he should be credited

for the value of the BMW at the time it was seized,

not its eventual sale price. He cites no authority directly

supporting this point, instead relying on statutes that require

the government or courts to preserve the value of seized

assets. The statutes he cites deal with protecting the interests

of lienholders and others with claims on the property, not

the individual subject to the forfeiture order.29 Crediting

defendants for property depreciation that occurred during

litigation and which defendants could likely prevent by

requesting a sale would, in most cases, undermine forfeiture's

deterrent value and possibly shortchange victims.

On appeal, McIntosh argues that the district court committed

plain error when it failed to instruct the jury about the

knowledge element of these counts. Plain error arises when,

among other requirements, “there [is] a reasonable probability

that the error affected the outcome of the trial.”31

McIntosh's argument is foreclosed by the recent Supreme

Court decision Greer v. United States.32 In Greer, the

Supreme Court held that, to establish plain error under

Rehaif, a defendant must “make an adequate showing on

appeal that he would have presented evidence in the district

court that he did not in fact know he was a felon when

he possessed firearms.”33 McIntosh has offered no such

evidence. Consequently, we have “no basis to conclude that

there is a ‘reasonable probability’ that the outcome would

have been different absent the Rehaif error,” and so we cannot

find plain error.34

McIntosh argues that the district court's failure to instruct

the jury on the *613 point should, on its own, be enough

to establish plain error. But Greer has made clear that

“Rehaif errors fit comfortably within the general rule that a

constitutional error does not automatically require reversal of

a conviction.”35 McIntosh “must satisfy the ordinary plain-

McIntosh also contests his convictions on Counts Twelve

through Fourteen for possessing a firearm as a felon. At trial,

McIntosh stipulated that he had been convicted of a crime

punishable by a year or more in prison, but the stipulation did

not state that he was aware of this fact when he possessed the

firearms. The government, meanwhile, offered no evidence

suggesting that McIntosh was aware of his felon status, but

McIntosh did not object.

In Rehaif v. United States, the Supreme Court held that the

relevant statutes required the government to show “that the

defendant knew he possessed a firearm and also that he knew

he had the relevant [felon] status when he possessed it.”

error test.”36 He has not done so here, and so we affirm the

district court on Counts Twelve through Fourteen.

CONCLUSION

For the foregoing reasons, as to the issues discussed above,

we AFFIRM the judgment of the district court.

All Citations

58 F.4th 606

Footnotes

Senior Judge Timothy C. Stanceu, of the United States Court of International Trade, sitting by designation.

This opinion was originally filed on January 31, 2022, with a concurrently filed summary order. See United States v.

McIntosh, 24 F.4th 857 (2d Cir. 2022); United States v. McIntosh, No. 14-1908, 2022 WL 274225 (2d Cir. Jan. 31, 2022).

On July 26, 2022, McIntosh filed a petition for a writ of certiorari with the Supreme Court. On November 7, 2022, the

Supreme Court granted McIntosh's petition for a writ of certiorari, vacated our judgment, and remanded the case for

further consideration in light of United States v. Taylor, ––– U.S. ––––, 142 S. Ct. 2015, 213 L.Ed.2d 349 (2022), which

held that attempted Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c). See McIntosh v. United States,

a-5

United States v. McIntosh, 58 F.4th 606 (2023)

––– U.S. ––––, 143 S. Ct. 399, 214 L.Ed.2d 197 (2022). Because United States v. Taylor does not affect the analysis in

this opinion, we now reissue it, with only minor non-substantive changes.

After jury deliberations, the district court directed a judgment of acquittal on two counts. The district court's order as to

those counts has no bearing on the issues discussed in this opinion.

Fed. R. Crim. P. 32.2(b)(2)(A).

Fed. R. Crim. P. 32.2(b)(2)(B).

Fed. R. Crim. P. 32.2(b)(4)(A)-(B).

15 F.3d 19 (2d Cir. 1994).

In our accompanying summary order, we vacate the $75,000 forfeiture on other grounds and remand the case to the

district court for recalculation.

560 U.S. 605, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010).

Id. at 610, 130 S.Ct. 2533.

Id. at 610-11, 130 S.Ct. 2533.

Id. at 611, 130 S.Ct. 2533 (internal quotation marks omitted).

Id. at 613, 130 S.Ct. 2533.

Id. at 613-14, 130 S.Ct. 2533.

Id. at 614-15, 130 S.Ct. 2533.

Id. at 616, 130 S.Ct. 2533.

Id. at 608, 130 S.Ct. 2533.

662 F.3d 301 (4th Cir. 2011).

Dolan, 560 U.S. at 611, 130 S.Ct. 2533 (internal quotation marks omitted).

Fed. R. Crim. P. 32.2(b) advisory committee's note to 2009 amendment.

Martin, 662 F.3d at 309.

Id.

SeeUnited States v. Carman, 933 F.3d 614, 617 (6th Cir. 2019); United States v. Cereceres, 771 F. App'x 803, 804 (9th

Cir. 2019); United States v. Farias, 836 F.3d 1315, 1330 (11th Cir. 2016).

United States v. $38,000.00 in U.S. Currency, 816 F.2d 1538, 1547 (11th Cir. 1987).

United States v. Torres, 703 F.3d 194, 196 (2d Cir. 2012).

SeeUnited States v. Qurashi, 634 F.3d 699, 705 (2d Cir. 2011) (noting that Dolan permits us to take into account claimed

prejudices resulting from delays).

Fed. R. Crim. P. 32.2(b)(4)(A); Fed. R. Crim. P. 32.2(b) advisory committee's note to 2000 amendment.

19 U.S.C. § 1612 (requiring the prompt sale of property seized under customs law).

a-6

United States v. McIntosh, 58 F.4th 606 (2023)

18 U.S.C. § 3664(o)(1)(A).

See19 U.S.C. § 1612; Fed R. Civ. P., Supp. Rule G(7)(b); 18 U.S.C. § 981(g)(6).

––– U.S. ––––, 139 S. Ct. 2191, 2194, 204 L.Ed.2d 594 (2019).

United States v. Nouri, 711 F.3d 129, 139 (2d Cir. 2013) (quotation marks omitted).

––– U.S. ––––, 141 S. Ct. 2090, 210 L.Ed.2d 121 (2021).

Id. at 2097.

Id.

Id. at 2100 (quotation marks omitted).

Id.

Government Works.

End of Document

a-7

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