What 'Must' Means in a Criminal Forfeiture Rule: Consequences for a BMW and Other Matters

White Collar Defense and Investigations attorney Jonathan Halpern wrote an article for Westlaw discussing the U.S. Supreme Court's recent decision in McIntosh v. United States, which dealt with forfeiture at sentencing. The case arose because of a trial court's violation of the Federal Rules of Criminal Procedure, and concerned whether the court could still order forfeiture if it failed to enter a presentencing preliminary order. The article examines the Court's interpretation of the word "must" in Rule 32.2(b)(2)(B) and its determination that the trial court retained the power to order forfeiture despite failing to enter a preliminary order before sentencing. Mr. Halpern highlights the Court's reasoning, which considered factors such as the entire text of the rule, the intended addressee and the public interest in forfeiting proceeds of convicted crimes. The decision serves as a reminder that determining the meaning and effect of a rule or statute's commands requires a comprehensive analysis beyond the literal words of the text.

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