Joint and Several Liability Among Co–Conspirators in Drug Conspiracies: A Sweet Forfeiture Deal for the United States Could Turn Bitter in Honeycutt v. United States
Jordan T. Shewmaker, KLJ Editor-in-Chief[1]
In the coming months, the United States Supreme Court will determine whether 21 U.S.C. § 853(a)(1) mandates joint and several liability among co–conspirators of the reasonably foreseeable proceeds from a drug conspiracy.[2]
Terry Honeycutt worked as a salaried employee at Brainerd Army Store owned by his brother.[3] Honeycutt, responsible for sales and inventory at the store, became concerned about “edgy looking folks” who were buying large amounts of Polar Pure, an iodine–based, water purification product.[4] Honeycutt called the Chattanooga Police Department to address his concerns and was informed that iodine is used in the production of methamphetamine and was instructed to refuse to sell iodine[5] if he felt uneasy about a transaction.[6]
However, adopting a “don’t ask, don’t tell” policy, Honeycutt and his brother continued to sell large amounts of iodine from behind the counter.[7] In fact, Brainerd Army Store sold as many as twelve bottles of Polar Pure[8] in a single transaction, enough product to purify six–thousand gallons of water.[9] In sum, Brainerd sold over 20,000 bottles of Polar Pure, generating around $269,000 in profit in a three–year period.[10] The Honeycutt brothers were the only employees that sold Polar Pure to customers.[11]After an investigation by state and federal authorities, Honeycutt was charged with various offenses for distributing iodine when he knew or reasonably should have known the iodine was being used to manufacture methamphetamine.[12] Subsequently, Honeycutt was convicted on eleven charges for conspiring to and knowingly distributing iodine in violation of 21 U.S.C. §§ 841(c)(2), 843(a)(6), and 846.[13] Honeycutt was sentenced to concurrent terms of 60 months of imprisonment for each count but the District Court did not order any forfeiture, “reasoning in particular that, as a salaried employee, Honeycutt did not reap the proceeds of the conspiracy.”[14]On appeal, the government argued that forfeiture should have been ordered pursuant to 28 U.S.C. § 2461(c), which states that forfeiture shall be ordered by the district court if the government includes notice of the forfeiture when charging an offense for which forfeiture is authorized.[15] However, the point of contention in Honeycutt was the statutory language of 21 U.S.C. § 853(a)(1), which states any person convicted of a violation of a federal drug offense shall forfeit to the United States “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such [drug conspiracy] violation.”[16]Ultimately, the Sixth Circuit held that forfeiture should have been ordered and ruled that joint and several liability can be used to hold co–conspirators responsible for the reasonably foreseeable proceeds from a drug conspiracy.[17] The Sixth Circuit interpreted § 853(a)(1) to mandate joint and several liability among co–conspirators in a drug conspiracy based on previous interpretation of the Racketeer Influenced and Corrupt Organizations Act (RICO)[18] statute which contains forfeiture language that is virtually identical to § 853(a)(1).[19] In Honeycutt, the court reasoned that it was bound by the previous interpretation in United States v. Corrado which found that the nearly identical statutory language in RICO mandated joint and several liability among co–conspirators.[20]However, the Sixth Circuit’s statutory interpretation in Honeycutt is contrary to the plain text of § 853(a)(1) and has been scrutinized.[21] Initially, the text of § 853(a)(1) neither directly mentions nor indirectly suggests that joint and several liability is mandated between co–conspirators in a drug conspiracy.[22][22] Furthermore, Judge Amul Thapar[23] analyzed the statutory text, logical purpose, and statutory history behind § 853(a)(1) in United States v. Solomon and determined “[t]ext, logic, and background law thus all agree: § 853 is not a joint-and-several-liability statute.”[24]Additionally, after an in–depth analysis, the D.C. Circuit held that § 853(a)(1) “appears, on its face, to embrace only property that a defendant has ‘obtained,’” and the government’s reliance on the term “indirectly” in § 853(a)(1) “reads the word obtained out of the statute.”[25]Even so, the circuit split is lopsided, with most federal circuits holding that § 853(a)(1) does mandate joint and several liability among co–conspirators.[26] The D.C. Circuit is the only federal circuit to hold that § 853(a)(1) does not impose joint and several liability.[27]Regardless, Honeycutt provides a ripe opportunity for the U.S. Supreme Court to resolve the circuit split on joint and several liability among co–conspirators in drug conspiracies. Persuasively, most circuits hold that § 853 mandates joint and several liability.[28] Conversely, joint and several liability is a tort law concept and is not directly authorized the text of § 853.[29]In summation, the Supreme Court’s ruling in Honeycutt will likely affect other federal criminal forfeiture statutes that contain nearly identical statutory language, such as RICO.[30] An affirmation of joint and several liability in § 853 will force defendants that obtained little, if any, financial benefit from a conspiracy to be liable for amounts of money disproportionate to their culpability in the crime which may violate the Eighth Amendment’s prohibition against excessive fines.[31] Alternatively, overruling Honeycutt may hamper the government’s ability to seize property gained from criminal conspiracies and burden courts by requiring forfeiture calculations based on culpability in drug conspiracy cases.[32] Ironically, the result in Honeycutt v. United States is likely to be unsavory with one scenario resulting in excessive penalties for some minor co–conspirators, like Terry Honeycutt, and another scenario making it more difficult for government to demand forfeiture of property gained as a result of drug conspiracies. [1] J.D. Expected May 2018.[2] United States v. Honeycutt, 816 F.3d 362 (6th Cir. 2016), reh’g en banc denied (6th Cir. May 31, 2016) and cert. granted, 85 U.S.L.W. 3287 (U.S. Dec. 9, 2016) (No. 16–142).[3] Id. at 369.[4] Id.[5] Iodine is defined by the Controlled Substances Act as a “list II chemical.” 21 U.S.C. § 802(35)(I) (2012). See 21 U.S.C. § 841(c)(2) (2012).[6] Honeycutt, 816 F.3d at 369.[7] Id.[8] Interestingly, Polar Pure can be purchased online easily and lists the United States Environmental Protection Agency, United States Department of Justice Drug Enforcement Administration, and National Recreation and Park Association as “partners” on its website. See Polar Pure Partners, Polar Pure, http://www.polarpurewater.com/polar-pure-challenge/ (last visited Jan. 23, 2017); see also Polar Pure Iodine Water Filter Purifier Sterilizes 2,000 Quarts, Amazon, https://www.amazon.com/Polar-Pure-Iodine-Purifier-Sterilizes/dp/B00N5AGT1Q (selling Polar Pure, crystalline iodine tablets for $19.99 per bottle) (last visited Jan. 23, 2017).[9] Honeycutt, 816 F.3d at 369.[10] Id.[11] Id.[12] Id. at 370.[13] Id. [14] Id. [15] 28 U.S.C. § 2461(c) (2012); United States v. Hampton, 732 F.3d 687, 690 (6th Cir. 2013). See 21 U.S.C. § 841(c)(2) (2012).[16] See Honeycutt, 816 F.3d at 378–82.[17] Id. at 380–81.[18] Compare 18 U.S.C. § 1963(a)(3) (2012) (requiring that a person violating the statute shall forfeit, “any property constituting, or derived from, any proceeds which the person obtained, directly or indirectly, from racketeering activity or unlawful debt collection in violation of § 1962.”), with 21 U.S.C. § 853(a)(1) (2012) (compelling forfeiture of “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation.”).[19] Honeycutt, 816 F.3d at 380. See also United States v. Corrado, 227 F.3d 543, 553–55 (6th Cir. 2000) (interpreting 18 U.S.C. § 1963(a)(3) to apply joint and several liability to forfeiture proceeds arising out of a RICO conspiracy).[20] See Corrado, 227 F.3d at 553–55.[21] See 21 U.S.C. § 853(a)(1) (2012); Honeycutt, 816 F.3d at 381–83 (Moore, J., concurring in the judgment but advocating for en banc review of Sixth Circuit interpretation of joint and several liability in RICO and § 853(a)(1)); United States v. Solomon, Nos. 13–40–ART–(5),(7),(8), 2016 WL 6435138, at *1, *4–12 (E.D. Ky. Oct. 31, 2016) (arguing that text, logic, and background law support the finding that § 853(a)(1) does not mandate joint and several liability).[22] 21 U.S.C. § 853(a)(1). See text supra ¶ 5 for statutory language.[23] The Honorable Amul R. Thapar is a District Judge serving on the United States District Court for the Eastern District of Kentucky. Amul R. Thapar, District Judge, U.S. District Ct. for Eastern District of Ky., http://www.kyed.uscourts.gov/?q=judge-art (last visited Jan. 25, 2016). Judge Thapar was one of four judges interviewed by President Donald Trump for nomination to the United States Supreme Court. Jordyn Phelps, Inside the Selection Process for Trump's Supreme Court Pick, ABC News (Feb. 1, 2017, 12:32 AM), http://abcnews.go.com/US/inside-selection-process-trumps-supreme-court-pick/story?id=45181457. See Donald J. Trump Finalizes List of Potential Supreme Court Justice Picks, Donald J. Trump for President (Sept. 23, 2016), https://www.donaldjtrump.com/press-releases/donald-j.-trump-adds-to-list-of-potential-supreme-court-justice-picks.[24] See Solomon, 2016 WL 6435138 at *4–12.[25] United States v. Cano–Flores, 796 F.3d 83, 91 (D.C. Cir. 2015).[26] See, e.g., Honeycutt, 816 F.3d at 378–81 (6th Cir. 2016); United States v. Roberts, 660 F.3d 149, 165 (2d Cir. 2011); United States v. Van Nguyen, 602 F.3d 886, 904 (8th Cir. 2010); United States v. Pitt, 193 F.3d 751, 765 (3d Cir. 1999); United States v. McHan, 101 F.3d 1027, 1043 (4th Cir. 1996).[27] Cano–Flores, 796 F.3d at 91.[28] See, e.g., Honeycutt, 816 F.3d at 379–80 (compiling cases on joint and several liability under § 853).[29] See 21 U.S.C. § 853(a)(1) (2012); Solomon, 2016 WL 6435138 at *4 (citing Restatement (Third) of Torts: Apportionment of Liab. § 25 (Am. Law Inst. 2000)).[30] See 28 U.S.C. § 2461(c) (2012).[31] See U.S. Const. amend. VIII; Solomon, 2016 WL 6435138 at *11 (Arguing that interpretation of joint and several liability in § 853 may violate the doctrine of constitutional avoidance by raising concerns about excessive fines in violation of the Eighth Amendment).[32] See, e.g., United States v. Simmons, 154 F.3d 765, 769–70 (8th Cir. 1998) (quoting United States v. Caporale, 806 F.2d 1487, 1508 (11th Cir. 1986) (“The government is not required to prove the specific portion of proceeds for which each defendant is responsible. Such a requirement would allow defendants ‘to mask the allocation of the proceeds to avoid forfeiting them altogether.’”)