Sunday, December 11, 2016

Cert grant: Criminal Forfieture

Last Friday, the Supreme Court granted cert on a criminal forfeiture question:
Does 21 U.S.C. § 853(a)(1) mandate joint and several liability
among co-conspirators for forfeiture of the reasonably foreseeable
proceeds of a drug conspiracy?  
The statute provides that a person convicted of violating a federal drug law must forfeit to the government “any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation.” Honeycutt v. United States presents a circuit split:  must the proceeds actually reach the defendant to incur joint and several liability?

Honeycutt worked in his brother's hardware store, and the store sold iodine water filters that could assist, if used in certain ways, in manufacturing methamphetamine. Convicted of a drug conspiracy at trial, Honeycutt was tagged with $70K forfeiture based on the store's total criminal take of $270,000. But he argued that, as a store employee, he personally saw none of the profits. The district court agreed with him, the Sixth Circuit did not, and the Court granted cert.

The cert petition compares the far-reaching Sixth Circuit opinion below with the more circumscribed (read: reasonable and fair) D.C. theory. In D.C., a defendant is required to forfeit only those “funds that actually reach the defendant.” United States v. Cano-Flores, 796 F.3d 83 (D.C.Cir. 2015). That, Honeycutt argues, is how the statute should be applied.  The Tenth Circuit is not cited in the survey. It appears that our circuit has not directly addressed this question, see United States v. Wilson, 244 F.3d 1208 (10th Cir. 2001) (holding drug coconspiritors liable for $4.5 million in sales), although district courts have applied joint and several liability in line with the Sixth Circuit's reasoning.

Forfeiture law can be difficult to sort out.. But we routinely see criminal forfeiture allegations in drug conspiracy cases seeking astronomical forfeiture amounts from low-level street dealers who are caught up in the same indictment. A joint-and-several forfeiture judgment could financially cripple a client long after release from prison. A ruling in favor of Honeycutt will, no doubt, favorably change criminal forfeiture practice in this Circuit.

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