Background
Jeremy Wayne Harrell, a military veteran receiving disability unemployment benefits from the Department of Veterans Affairs (VA) since 2011, founded a nonprofit organization in January 2019 and worked approximately 40 hours per week there—rendering him ineligible for further VA benefits. Harrell never notified the VA of his employment status change and continued receiving unemployability benefits, ultimately accumulating $108,454.88 in wrongfully received funds.
A grand jury indicted Harrell on one count of theft of government funds under 18 U.S.C. § 641, with the indictment noting the possibility of criminal forfeiture. A jury convicted him. At sentencing on December 9, 2024, the district court orally imposed six months’ imprisonment, one year supervised release with six months home detention, a $100 special assessment, and restitution to be determined post-sentencing. However, the court did not mention forfeiture in its oral pronouncement, instead deferring that issue for later resolution, citing “the late hour.”
What followed was a procedural maze spanning six months. Harrell filed a supplemental brief objecting to forfeiture as duplicative of restitution. The court’s initial judgment (December 17, 2024) omitted forfeiture entirely. The government filed three successive motions to amend the judgment to include forfeiture. Only on June 10, 2025—over five months after sentencing—did the district court enter a second amended judgment imposing the $108,454.88 forfeiture order, this time relying on Federal Rule of Criminal Procedure 36 to correct what it deemed a “clerical error.”
The Court’s Holding
The Sixth Circuit affirmed the forfeiture sentence, holding that although the district court violated Federal Rule of Criminal Procedure 32.2(b)(4)(B)—which requires courts to announce forfeiture at sentencing and include it in the judgment—that rule violation did not warrant vacatur. The court classified Rule 32.2(b)(4)(B) as a “time-related directive” subject to harmless-error review, not a strict “claim-processing rule” requiring presumed prejudice.
The panel adopted reasoning from the Supreme Court’s recent decision in McIntosh v. United States (2024), which held that Rule 32.2(b)(2)(B)—requiring preliminary forfeiture orders before sentencing—was likewise a time-related directive. The court found that Rule 32.2(b)(4)(B)’s flexible language, including the provision allowing correction of judgment omissions “at any time under Rule 36,” contemplates flexibility inconsistent with rigid claim-processing rules. The panel also noted that Rule 32.2(b)(4)(B) governs only the district court’s conduct, not the parties’ obligations, further supporting its time-directive classification.
Under harmless-error review, the court found no error affecting Harrell’s substantial rights. The forfeiture amount was undisputed, Harrell received notice and opportunity to object, and there was absolute certainty that the same forfeiture would have been imposed had the district court complied with the rule at sentencing. The court also rejected arguments that the delayed forfeiture violated Harrell’s due process rights or his right to presence at sentencing under Rule 43(a).
Key Takeaways
- Rule 32.2(b)(4)(B) is a time-related directive: The Sixth Circuit held that procedural violations in announcing and memorializing forfeiture are subject to flexible harmless-error review, not the stricter presumed-prejudice standard for claim-processing rules. This abrogates prior Sixth Circuit precedent that treated all Rule 32.2 violations as mandatory claim-processing rules.
- Harmless error applies when forfeiture amount is undisputed: Even if a district court fails to announce forfeiture at sentencing or include it in initial judgments, the error is harmless where the defendant receives notice, opportunity to object, and the appellate court is certain the same forfeiture amount would be imposed on remand.
- Rule 36 clerical-error corrections have limits: While Rule 36 may permit courts to add omitted forfeiture orders to judgments, it cannot add forfeiture that was never imposed at sentencing. A forfeiture determination made months post-sentencing constitutes adding a substantive requirement, not correcting a clerical omission.
- Invited-error doctrine does not shield the court: When a district court itself proposes procedural error (here, deferring forfeiture) and the defendant merely acquiesces, the court cannot later blame the defendant for the resulting error.
Why It Matters
This decision significantly impacts criminal forfeiture practice by reducing the risk of automatic reversal based on procedural timing violations. Under the pre-McIntosh framework, any Rule 32.2 violation triggered presumed prejudice and often led to vacatur. Now, following McIntosh and this decision, appellate courts will scrutinize whether the forfeiture amount itself was fairly determined and whether the defendant had meaningful opportunity to contest it—even if timing niceties were violated. This creates practical breathing room for trial courts but preserves substantial rights protection where the forfeiture decision itself is questioned.
The decision also clarifies that district courts cannot use Rule 36’s clerical-error provision as a backdoor to impose forfeiture months after sentencing without announcing it. The distinction between correcting a judgment to reflect a forfeiture already imposed versus imposing forfeiture for the first time post-sentencing is now sharp. However, the harmless-error framework means such failures will not automatically mandate reversal if the underlying forfeiture was lawful and properly calculated.