Does asset forfeiture apply to drug prosecution defendant who did not directly benefit from the criminal conspiracy?

In March of this year, I posted about an interesting Sixth Circuit case, United States v. Honeycutt.  There, two brothers – Terry and Tony Honeycutt – ran an Army surplus store in Chattanooga, out of which they sold a legal product called Polar Pure.  That product is a water purifier that contains iodine, and although it has other lawful uses, it is often used in making methamphetamine.  According to the court’s opinion, this store was the only one locally that sold Polar Pure, it was kept behind the counter, and it eventually became the store’s highest grossing-item.  After the store closed in the wake of an investigation, red phosphorous meth labs became “rare” and “fairly non-extent” in the region, according to a DEA agent.

Terry went to trial and was convicted on the ground that he knew, or had reasonable cause to believe, that he was selling Polar Pure to customers who were using it to manufacture meth.  The Sixth Circuit upheld the conviction on this ground.  Tony had earlier pleaded guilty.

Today, the Supreme Court granted certiorari in the Terry Honeycutt case.  The Court has agreed to review an issue distinct from the sufficiency of the evidence issue that I discussed in March.  The district court had declined to order forfeiture under 21 U.S.C. 853(a).  The Sixth Circuit reversed, applying joint and several liability under 853(a) and relying upon circuit precedent that interprets drug forfeiture and RICO forfeiture statutes co-extensively.  The lower court thus agreed with a number of other circuits which hold that forfeiture in the drug context is not limited to property that the defendant acquired by himself.  Rather, as the Fourth Circuit put it, and as the Sixth Circuit approved, forfeiture under section 853(a) applies even to property derived indirectly from other co-conspirators or those who acted in concert with the defendant.  See United States v. McHan, 101 F.3d 1027 (4th Cir. 1996).

Tony’s guilty plea resulted in his forfeiture of $200,000 in proceeds.  Terry’s case involves the remaining $70,000.

The Supreme Court will now consider whether the Sixth Circuit was correct, that joint and several liability applies to forfeiture through the drug crime statutes.  SCOTUSBlog’s page is here, with the cert petition and brief in opp.

 

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