McIntosh v. United States

Brief Amicus Curiae of National Association of Criminal Defense Lawyers in Support of Petitioner

Brief filed: 12/04/2023


McIntosh v. United States

United States Supreme Court; Case No. 22-7386

Prior Decision

On Writ of Certiorari to the United States Court of Appeals for the Second Circuit


Rule 32.2 of the Federal Rules of Criminal Procedure sets forth carefully calibrated procedures to ensure the parties to criminal forfeiture proceedings – the government, the defendant and third parties with interests in the forfeited property – have a full and fair opportunity to make their case. Equally important, Rule 32.2 ensures efficiency and finality in the forfeiture phase of criminal proceedings by imposing numerous requirements on each of the parties. Many of the Rule’s requirements, couched in mandatory language, are strictly applied. For example, defendants have a limited opportunity to contest forfeiture. Third parties must wait until the conclusion of the criminal proceedings to file their ancillary petitions within a brief 30-day period. These requirements and others are triggered by the actions of the government – a party with a direct pecuniary interest in the outcome of the forfeiture proceedings. But to lawfully forfeit the property, the government must comply with the mandatory procedures set forth in Rule 32.2. Here, the government failed to comply with what is arguably the most critical requirement in the 4 entire criminal forfeiture process. It failed to timely secure a preliminary order of forfeiture for the property it sought to forfeit. The district court nevertheless held the government was entitled to forfeit the defendant’s property despite this failure. The Second Circuit affirmed. This Court granted Petitioner’s petition for certiorari. In his main Brief, Petitioner persuasively demonstrates that the language of Rule 32.2 and well reasoned decisions applying the rule make clear that the government’s failure to timely seek entry of a preliminary order of forfeiture is fatal to its criminal forfeiture claims. As amicus, NACDL focuses on the double standard inherent in the test used by the Second Circuit, strictly enforcing deadlines against defendants and third-party property owners imposed by Rule 32.2 while overlooking critical procedural failures by the government, by employing a test that purports to assess the government’s degree of compliance on a case-by-case basis. This approach is as unlawful as it is unworkable. It expressly contradicts the plain language of the Rule while creating uncertainty and imbalance in the application and enforcement of the Rule. It also contravenes the requirements of due process, efficiency and finality embodied by Rule 32.2. Further, the circuit court’s method misapplies this Court’s decision in Dolan v. 5 United States, 560 U.S. 605 (2010) and contravenes the principles of equal enforcement of forfeiture deadlines embodied by Congress in the Civil Asset Forfeiture Reform Act of 2000 (CAFRA)


David M. Porter, NACDL, Sacramento, CA; Steven L. Kessler, Law Offices of Steven L. Kessler, Harrison, NY

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