Supreme Court hears dispute over timing of forfeiture orders under Rule 32.2(b)

Counsel for the petitioner told the Supreme Court that Federal Rule of Criminal Procedure 32.2(b) “states in unequivocal terms that a district court must enter a preliminary order of forfeiture prior to sentencing,” and argued that failure to comply is a mandatory claims‑processing violation that can be fatal to the government’s ability to obtain forfeiture. The petitioner emphasized procedural due process and finality and warned that third‑party claimants are prejudiced when notice and a preliminary order arrive late.

Counsel for the United States conceded the timing requirement in Rule 32.2(b)(2)(B) is mandatory but urged the Court to focus on consequences: when a district court makes a procedural error at sentencing, the government said, the normal course is to apply Rule 52’s harmless‑error framework or to remand so the district court can “get it right.” Government counsel said the district court in this case orally ordered forfeiture at sentencing and that both the district court and the court of appeals found any omission harmless.

Justices repeatedly pressed both sides on practical consequences and remedies. One justice asked whether the defendant had actual notice the government intended to seek forfeiture; petitioner’s counsel pointed to notice in the indictment and bill of particulars but said the government was silent after the verdict and that the car at issue was titled in the defendant’s mother’s name—creating a potential third‑party claimant who lacked timely notice. Other justices questioned whether the phrase “impractical” in the rule’s exception provides district courts too much discretion to avoid the timing requirement.

Petitioner urged that because Rule 32.2 places the duty to enter a preliminary order on the court and because third parties’ rights are affected, harmless‑error review should not apply; the government responded that the statutory sentencing framework, this Court’s precedents (including Dolan and Montalvo‑Murillo), and practical considerations support treating the omission as subject to harmless‑error analysis and, if necessary, remanding for further proceedings rather than barring forfeiture altogether.

The justices also debated waiver and remedy. Several asked whether a defendant who did not object at later proceedings effectively forfeited the claim, and whether a ruling for petitioner would permit vacating the current forfeiture order that is pending appeal. Government counsel said the appropriate relief in a nonharmless case would be a remand to provide the forfeiture proceedings the rule contemplates; petitioner urged that the government’s failure to follow the rule in the original proceeding deprived the government of the right.

After rebuttal focused again on harmless‑error doctrine and third‑party interests, the Court submitted the case.