Supreme Court Passes On The Joint

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.

20 thoughts on “Supreme Court Passes On The Joint

      1. chloes1

        It really is! Without someone to explain all of the wording, I’d be utterly lost! Thank you.

  1. B. McLeod

    I am sure the empathetic Latina now considers herself an empathetic (and wise) Latinx.

    1. SHG Post author

      I wonder what’s become of that mean prosecutor-cum-Second Circuit judge before she became woke.

  2. PseudonymousKid

    Dear Papa SHG,

    You are confusing sometimes. For all the talk of “intellectual honesty,” you now seem to be asking the Court to reason beyond the law. If the Court was intellectually honest, why would it engage with the questions you are asking of it? The law says “obtained” and the government was trying to take what the kid didn’t actually obtain. Why do you feel the need to ask for more?

    Sure, the law can change and the thin protection against forfeiture could go away to, but you are always warning your readers that that could happen; a new administration or Congress can come in and sweep away rationality in the name of “feelz.” That’s always a danger.

    Laws should be made by legislatures and not legal fiat. We’re practically a civil law jurisdiction at this point anyway; most everything has been codified in one way or the other. Don’t like joint and several liability? Legislate it away. Please don’t beg the Court to do your dirty work for you just in the name of “feelz.”

    There’s just not as much pull for criminal law reform as there was for tort reform. Maybe try hurting rich people’s or business’s pocket-books more. Then it will start raining laws.

    Humbly Yours,


    1. SHG Post author

      Did I do something to make you stupider or did you come here this way?

      There are different approaches, theories if you will, to how best to interpret law and apply it to a given set of facts. For example, textualism is one approach, meaning that the words dictate the outcome despite the intent behind the law or the illogic of its application under a given set of facts and circumstances.

      If you had a basic understanding of jurisprudence, you would not have gone off the deep end by saying “you now seem to be asking the Court to reason beyond the law,” which is gibberish. If this is the result of your mother having dropped you on your head, then I apologize for my inappropriately high expectations of you.

      1. PseudonymousKid

        Dear Papa,

        The rules of statutory construction mean nothing to you. The law means nothing to you. You would rather pedantically preach than discuss anything. Is your echo chamber comfortable?

        There was no reason for the Court to reason beyond the text of the law here. This is how an intellectually honest court operates. Careful that you don’t beg them to do something that you’ll inevitably criticize them for later.

        You are no more honest than all the assholes you parade around here.

        Leave my mom out of this. She had to deal with me a lot longer than you.



        1. SHG Post author

          I don’t blame your mother. Kids can be slippery. And I do appreciate how badly you want to catch me and the assholes grown-ups being intellectually dishonest, but you’re going to have to work harder.

          The “rules” of statutory construction aren’t so much rules as they are conflicting doctrines, and the good part of being on the Supreme Court is that you get to make the rules, or at least pick and choose which rules you prefer to apply at any given time. Had Sotomayor left out her example and relief solely on a textual reading, it would have provided clarity in that this ruling applied only to 853 because of its language.

          But she didn’t. And because of the sordid history and precedent of forfeiture law, as well as conspiracy law, that’s morphed in its interpretation over the years despite no statutory changes, her example reflects a return to a prior jurisprudence where the legal doctrine was “the law abhors a forfeiture,” and will interpret statutory language as strictly as possible so as to preclude the imposition of culpability and liability beyond the specific role/profit of the individual defendant.

          You wouldn’t know about this because you were not yet a twinkle in Mom’s eye when this was the state of the law. Institutional memory of law enables us old guys to distinguish shifts in trends where young people see only the current flavor. It’s not your fault, but if you’re going to try to outsmart us assholes, you’re going to have to work harder.

          1. PseudonymousKid

            Dear Papa,

            Thanks for the perspective; it is helpful for those of us who haven’t yet seen the trends.

            Justice Sotomayor gave you some good dicta. There just isn’t more that she could have done with the narrow question before the Court. The parties weren’t asking the Court to do more than that.

            The Court punted like it should have.

            Speaking of slippery, I’ll catch you one of these days.

            Much Love,

          2. MonitorsMost

            The law abhors a forfeiture jurisprudence is fine for private parties, but is in clear conflict with the Judge Dredd jurisprudence normally employed by the State.

            1. SHG Post author

              The first forfeiture case I handled got laughed out of EDNY in 1984 by the judge, who smirked at the AUSA and told him, “didn’t anybody tell you that the law abhors a forfeiture? And I’m the law. Case dismissed.” I was defending a mobster’s home in an in rem proceeding.

              That was the last time any judge said those words in my presence.

  3. JME

    I won’t defend the writing style, but the focus on “obtained” is a good thing – the same word appears in 981 and 982, so those statutes should be covered, too.

  4. Pingback: Supreme Court Sees Criminal Asset Forfeiture Can Be Abused Too; Almost Does Something About It – Miller Trades

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