While Justice Sonia Sotomayor’s stilted yet pedantic opinion, writing for a unanimous court (without Justice Gorsuch), bogged down in the dreaded textualism of 21 U.S.C. § 853, Honeycutt v. United States provided a break from two notions that the government has long taken for granted. The first is that they love them some forfeiture. The second is screw co-conspirators and individualized liability.
Maybe there is hope?
The case involved two brothers, one of whom owned a hardware store in Tennessee where the other worked. They sold a perfectly lawful product, an iodine-based water-purification product known as Polar Pure, which could be used to manufacture meth, in quantities far exceeding any legitimate use. After learning this, they continued to sell it anyway, so the DEA dropped the hammer on them.
Pursuant to the Comprehensive Forfeiture Act of 1984, §303, 98 Stat.2045, 21 U. S. C. §853(a)(1), which mandates forfeiture of“any proceeds the person obtained, directly or indirectly, as the result of ” drug distribution, the Government sought forfeiture money judgments against each brother in the amount of $269,751.98, which represented the hardware store’s profits from the sale of Polar Pure. Tony Honeycutt pleaded guilty and agreed to forfeit $200,000. Terry went to trial. A jury acquitted Terry Honeycutt of 3 charges but found him guilty of the remaining 11, including conspiring to and knowingly distributing iodine in violation of §§841(c)(2), 843(a)(6), and 846.
Why was Tony’s forfeiture limited to $200,000? It’s never said, though that left another $69,751.98 to be collected. The government does so want every penny that offends the sovereign.
While Terry contributed to the sales, he didn’t participate in the profits. This was reason for the district judge to refuse to impose an order of forfeiture on Terry for the balance, which the Sixth Circuit reversed.
The Court of Appeals for the Sixth Circuit reversed. As co-conspirators, the court held, the brothers are “‘jointly and severally liable for any proceeds of the conspiracy.’” 816 F. 3d 362, 380 (2016). The court therefore concluded that each brother bore full responsibility for the entire forfeiture judgment.
The argument that everybody involved in a conspiracy is culpable and liable for everything everyone else did (with the faux qualification that it be foreseeable, in the sense that if you know a guy sells drugs, then it’s obviously foreseeable that he will sell drugs). It’s the connection between the drug quantity dumped on the kid who fetches coffee for the nickel bag seller on the street corner and the boss who cuts the 100 kilos that end up in the glassines in the kid’s pocket.
The kid makes $100. The boss makes $1 million. But legally, they’re all in it together. They share the same drug quantities in the indictment and, if the plea doesn’t cover it, the Sentencing Guidelines. And when the feds demand the profits be disgorged, the kid will pay just like the boss.
The empathetic Latina doesn’t question the propriety of forfeiture, but rather recites the standard lines about its virtues.
Criminal forfeiture statutes empower the Government to confiscate property derived from or used to facilitate criminal activity. Such statutes serve important governmental interests such as “separating a criminal from his ill-gotten gains,” “returning property, in full, to those wrongfully deprived or defrauded of it,” and “lessen[ing] the economic power” of criminal enterprises. Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 629– 630 (1989).
However, the similarly-standard embrace of joint and several liability wasn’t greeted as warmly.
A creature of tort law, joint and several liability “applies when there has been a judgment against multiple defendants.” McDermott, Inc. v. AmClyde, 511 U. S. 202, 220– 221 (1994). If two or more defendants jointly cause harm, each defendant is held liable for the entire amount of the harm; provided, however, that the plaintiff recover only once for the full amount. See Restatement (Second) of Torts §875 (1977). Application of that principle in the forfeiture context when two or more defendants conspire to violate the law would require that each defendant be held liable for a forfeiture judgment based not only on property that he used in or acquired because of the crime, but also on property obtained by his co-conspirator.
This is the point in the opinion where the somber strains of God Bless America can be heard, where images of flags waving in the breeze appear on the page. But not this time.
An example is instructive.* Suppose a farmer masterminds a scheme to grow, harvest, and distribute marijuana on local college campuses. The mastermind recruits a college student to deliver packages and pays the student $300 each month from the distribution proceeds for his services. In one year, the mastermind earns $3 million.The student, meanwhile, earns $3,600. If joint and several liability applied, the student would face a forfeiture judgment for the entire amount of the conspiracy’s proceeds: $3 million. The student would be bound by that judgment even though he never personally acquired any proceeds beyond the $3,600. This case requires determination whether this form of liability is permitted under§853(a)(1). The Court holds that it is not.
The good news, maybe even great news, is that this instructive example applies just as well to almost every aspect of forfeiture, restitution and conspiracy culpability. This is the argument that has been made a million times, and shrugged off by judge and justice because of the two notions taken for granted set forth above.
The Supreme Court didn’t have a sudden epiphany that the entirety of its jurisprudence on joint and several liability was unfair. The example is not merely flagrantly obvious, but has been argued over and over. They just didn’t care, until now.
Does this represent a fundamental shift in the paradigm? This is where the rationale lapses into textualism.
An understanding of how these three provisions work to limit the operation of the statute is helpful to resolving the question in this case. First, the provision at issue here, §853(a)(1), limits forfeiture to “property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of ” the crime. Second, §853(a)(2) restricts forfeiture to “property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of,” the crime. Finally, §853(a)(3) applies to persons “convicted of engaging in a continuing criminal enterprise”—a form of conspiracy—and requires forfeiture of “property described in paragraph (1) or (2)” as well as “any of [the defendant’s] interest in, claims against, and property or contractual rights affording a source of control over, the continuing criminal enterprise.”
Despite the example given, which has broad if not universal application limiting the culpability and liability to the actual conduct, the actual profit, perhaps even the actual knowledge of that college student who got $300 per month to play the mule, the holding relies primarily on the word “obtained.” Change the word and the limiting concept disappears, even though the example of its unfairness, its inapplicability, remains every bit as accurate.
Recall, for example, the college student from the earlier hypothetical. The $3,600 he received for his part in the marijuana distribution scheme clearly falls within §853(a)(1): It is property he “obtained . . . as the result of ” the crime. But if he were held jointly and severally liable for the proceeds of the entire conspiracy, he would owe the Government $3 million. Of the $3 million, $2,996,400 would have no connection whatsoever to the student’s participation in the crime and would have to be paid from the student’s untainted assets. Joint and several liability would thus represent a departure from §853(a)’s restriction of forfeiture to tainted property.
So is it the concept of banging the kid for the boss’ conduct and profit the problem, or is it the word “obtained” in the statute? Is joint and several liability a wrong in itself, or is it only wrong this time? Or is it a misbegotten concept entirely, which should never apply to hold a defendant to greater culpability and liability then the facts, the conduct, warrant? The questions need answers, but the opinion fails to say.
Terry Honeycutt will emerge from his 60-month sentence without a future burden of paying off the forfeited sum. Whether anyone else will be relieved of the joint and several burden remains to be seen.
*I told you it was pedantic.