Honeycutt v. United States

(Slip Opinion) OCTOBER TERM, 2016 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

HONEYCUTT v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 16–142. Argued March 29, 2017—Decided June 5, 2017

Terry Honeycutt managed sales and inventory for a Tennessee hard-

ware store owned by his brother, Tony Honeycutt. After they were

indicted for federal drug crimes including conspiracy to distribute a

product used in methamphetamine production, the Government

sought judgments against each brother in the amount of $269,751.98

pursuant to the Comprehensive Forfeiture Act of 1984, which man-

dates forfeiture of “any property constituting, or derived from, any

proceeds the person obtained, directly or indirectly, as the result of”

certain drug crimes, 21 U. S. C. §853(a)(1). Tony pleaded guilty and

agreed to forfeit $200,000. Terry went to trial and was convicted.

Despite conceding that Terry had no controlling interest in the store

and did not stand to benefit personally from the sales of the product,

the Government asked the District Court to hold him jointly and sev-

erally liable for the profits from the illegal sales and sought a judg-

ment of $69,751.98, the outstanding conspiracy profits. The District

Court declined to enter a forfeiture judgment against Terry, reason-

ing that he was a salaried employee who had not received any profits

from the sales. The Sixth Circuit reversed, holding that the brothers,

as co-conspirators, were jointly and severally liable for any conspira-

cy proceeds.

Held: Because forfeiture pursuant to §853(a)(1) is limited to property

the defendant himself actually acquired as the result of the crime,

that provision does not permit forfeiture with regard to Terry Hon-

eycutt, who had no ownership interest in his brother’s store and did

not personally benefit from the illegal sales. Pp. 3–11.

(a) Section 853(a) limits forfeiture to property flowing from,

§853(a)(1), or used in, §853(a)(2), the crime itself—providing the first

clue that the statute does not countenance joint and several liability,

2 HONEYCUTT v. UNITED STATES

Syllabus

which would require forfeiture of untainted property. It also defines

forfeitable property solely in terms of personal possession or use.

Section 853(a)(1), the provision at issue, limits forfeiture to property

the defendant “obtained, directly or indirectly, as the result of” the

crime. Neither the dictionary definition nor the common usage of the

word “obtain” supports the conclusion that an individual “obtains”

property that was acquired by someone else. And the adverbs “di-

rectly” and “indirectly” refer to how a defendant obtains the property;

they do not negate the requirement that he obtain it at all. Sections

853(a)(2) and 853(a)(3) are in accord with this reading. Pp. 3–7.

(b) Joint and several liability is also contrary to several other pro-

visions of §853. Section 853(c), which applies to property “described

in subsection (a),” applies to tainted property only. See Luis v. Unit-

ed States, 578 U. S. ___, ___. Section §853(e)(1) permits pretrial asset

freezes to preserve the availability of property forfeitable under sub-

section (a), provided there is probable cause to think that a defendant

has committed an offense triggering forfeiture and “the property at

issue has the requisite connection to that crime.” Kaley v. United

States, 571 U. S. ___, ___. Section 853(d) establishes a “rebuttable

presumption” that property is subject to forfeiture only if the Gov-

ernment proves that the defendant acquired the property “during the

period of the violation” and “there was no likely source for” the prop-

erty but the crime. These provisions reinforce the statute’s applica-

tion to tainted property acquired by the defendant and are thus in-

compatible with joint and several liability. Joint and several liability

would also render futile §853(p)—the sole provision of §853 that per-

mits the Government to confiscate property untainted by the crime.

Pp. 7–9.

(c) The plain text and structure of §853 leave no doubt that Con-

gress did not, as the Government claims, incorporate the principle

that conspirators are legally responsible for each other’s foreseeable

actions in furtherance of their common plan. See Pinkerton v. United

States, 328 U. S. 640. Congress provided just one way for the Gov-

ernment to recoup substitute property when the tainted property it-

self is unavailable—the procedures outlined in §853(p). And as is

clear from its text and structure, §853 maintains traditional in rem

forfeiture’s focus on tainted property unless one of §853(p)’s precondi-

tions exists. Pp. 9–10.

816 F. 3d 362, reversed.

SOTOMAYOR, J., delivered the opinion of the Court, in which all other

Members joined, except GORSUCH, J., who took no part in the considera-

tion or decision of the case.

Cite as: 581 U. S. ____ (2017) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 16–142

_________________

TERRY MICHAEL HONEYCUTT, PETITIONER v.

UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[June 5, 2017]

JUSTICE SOTOMAYOR delivered the opinion of the Court.

A federal statute—21 U. S. C. §853—mandates forfeit-

ure of “any property constituting, or derived from, any

proceeds the person obtained, directly or indirectly, as the

result of” certain drug crimes. This case concerns how

§853 operates when two or more defendants act as part of

a conspiracy. Specifically, the issue is whether, under

§853, a defendant may be held jointly and severally liable

for property that his co-conspirator derived from the crime

but that the defendant himself did not acquire. The Court

holds that such liability is inconsistent with the statute’s

text and structure.

I

Terry Michael Honeycutt managed sales and inventory

for a Tennessee hardware store owned by his brother,

Tony Honeycutt. After observing several “ ‘edgy looking

folks’ ” purchasing an iodine-based water-purification

product known as Polar Pure, Terry Honeycutt contacted

the Chattanooga Police Department to inquire whether

the iodine crystals in the product could be used to manu-

facture methamphetamine. App. to Pet. for Cert. 2a. An

2 HONEYCUTT v. UNITED STATES

Opinion of the Court

officer confirmed that individuals were using Polar Pure

for this purpose and advised Honeycutt to cease selling it

if the sales made Honeycutt “ ‘uncomfortable.’ ” Ibid.

Notwithstanding the officer’s advice, the store continued

to sell large quantities of Polar Pure. Although each bottle

of Polar Pure contained enough iodine to purify 500 gal-

lons of water, and despite the fact that most people have

no legitimate use for the product in large quantities, the

brothers sold as many as 12 bottles in a single transaction

to a single customer. Over a 3-year period, the store

grossed roughly $400,000 from the sale of more than

20,000 bottles of Polar Pure.

Unsurprisingly, these sales prompted an investigation

by the federal Drug Enforcement Administration along

with state and local law enforcement. Authorities exe-

cuted a search warrant at the store in November 2010 and

seized its entire inventory of Polar Pure—more than 300

bottles. A federal grand jury indicted the Honeycutt

brothers for various federal crimes relating to their sale of

iodine while knowing or having reason to believe it would

be used to manufacture methamphetamine. 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.

The District Court sentenced Terry Honeycutt to 60

months in prison. Despite conceding that Terry had no

“controlling interest in the store” and “did not stand to

Cite as: 581 U. S. ____ (2017) 3

Opinion of the Court

benefit personally,” the Government insisted that the

District Court “hold [him] jointly liable for the profit from

the illegal sales.” App. to Pet. for Cert. 60a–61a. The

Government thus sought a money judgment of $69,751.98,

the amount of the conspiracy profits outstanding after

Tony Honeycutt’s forfeiture payment. The District Court

declined to enter a forfeiture judgment, reasoning that

Honeycutt was a salaried employee who had not person-

ally received any profits from the iodine sales.

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. Ibid.

The Court granted certiorari to resolve disagreement

among the Courts of Appeals regarding whether joint and

several liability applies under §853.1 580 U. S. ___ (2016).

II

Criminal forfeiture statutes empower the Government

to confiscate property derived from or used to facilitate

criminal activity. Such statutes serve important govern-

mental 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). The statute at issue here—§853—mandates

——————

1 Compare United States v. Van Nguyen, 602 F. 3d 886, 904 (CA8

2010) (applying joint and several liability to forfeiture under §853);

United States v. Pitt, 193 F. 3d 751, 765 (CA3 1999) (same); United

States v. McHan, 101 F. 3d 1027 (CA4 1996) (same); and United States

v. Benevento, 836 F. 2d 129, 130 (CA2 1988) (per curiam) (same), with

United States v. Cano-Flores, 796 F. 3d 83, 91 (CADC 2015) (declining

to apply joint and several liability under §853).

4 HONEYCUTT v. UNITED STATES

Opinion of the Court

forfeiture with respect to persons convicted of certain

serious drug crimes. The question presented is whether

§853 embraces joint and several liability for forfeiture

judgments.

A creature of tort law, joint and several liability “applies

when there has been a judgment against multiple defend-

ants.” 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.

An example is instructive. Suppose a farmer master-

minds a scheme to grow, harvest, and distribute mari-

juana 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 sev-

eral liability applied, the student would face a forfeiture

judgment for the entire amount of the conspiracy’s pro-

ceeds: $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 determi-

nation whether this form of liability is permitted under

§853(a)(1). The Court holds that it is not.

A

Forfeiture under §853 applies to “any person” convicted

of certain serious drug crimes. Section 853(a) limits the

statute’s reach by defining the property subject to forfeit-

Cite as: 581 U. S. ____ (2017) 5

Opinion of the Court

ure in three separate provisions. 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 forfeit-

ure to “property constituting, or derived from, any pro-

ceeds 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.” These provisions, by their terms,

limit forfeiture under §853 to tainted property; that is,

property flowing from (§853(a)(1)), or used in (§853(a)(2)),

the crime itself. The limitations of §853(a) thus provide

the first clue that the statute does not countenance joint

and several liability, which, by its nature, would require

forfeiture of untainted property.

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 re-

striction of forfeiture to tainted property.

In addition to limiting forfeiture to tainted property,

§853(a) defines forfeitable property solely in terms of

6 HONEYCUTT v. UNITED STATES

Opinion of the Court

personal possession or use. This is most clear in the spe-

cific text of §853(a)(1)—the provision under which the

Government sought forfeiture in this case. Section

853(a)(1) limits forfeiture to property the defendant “ob-

tained . . . as the result of ” the crime. At the time Con-

gress enacted §853(a)(1), the verb “obtain” was defined as

“to come into possession of ” or to “get or acquire.” Ran-

dom House Dictionary of the English Language 995

(1966); see also 7 Oxford English Dictionary 37 (1933)

(defining “obtain” as “[t]o come into the possession or

enjoyment of (something) by one’s own effort, or by re-

quest; to procure or gain, as the result of purpose and

effort”). That definition persists today. See Black’s Law

Dictionary 1247 (10th ed. 2014) (defining “obtain” as “[t]o

bring into one’s own possession; to procure, esp. through

effort”); cf. Sekhar v. United States, 570 U. S. ___, ___–___

(2013) (slip op., at 4–5) (“Obtaining property requires ‘. . .

the acquisition of property’ ”). Neither the dictionary

definition nor the common usage of the word “obtain”

supports the conclusion that an individual “obtains” prop-

erty that was acquired by someone else. Yet joint and

several liability would mean just that: The college student

would be presumed to have “obtained” the $3 million that

the mastermind acquired.

Section 853(a)(1) further provides that the forfeitable

property may be “obtained, directly or indirectly.” The

adverbs “directly” and “indirectly” modify—but do not

erase—the verb “obtain.” In other words, these adverbs

refer to how a defendant obtains the property; they do not

negate the requirement that he obtain it at all. For in-

stance, the marijuana mastermind might receive pay-

ments directly from drug purchasers, or he might arrange

to have drug purchasers pay an intermediary such as the

college student. In all instances, he ultimately “obtains”

the property—whether “directly or indirectly.”

The other provisions of §853(a) are in accord with the

Cite as: 581 U. S. ____ (2017) 7

Opinion of the Court

limitation of forfeiture to property the defendant himself

obtained. Section 853(a)(2) mandates forfeiture of prop-

erty used to facilitate the crime but limits forfeiture to “the

person’s property.” Similarly, §853(a)(3) requires forfeit-

ure of property related to continuing criminal enterprises,

but contrary to joint and several liability principles, re-

quires the defendant to forfeit only “his interest in” the

enterprise.

Section 853(a)’s limitation of forfeiture to tainted prop-

erty acquired or used by the defendant, together with the

plain text of §853(a)(1), foreclose joint and several liability

for co-conspirators.

B

Joint and several liability is not only contrary to

§853(a), it is—for the same reasons—contrary to several

other provisions of §853. Two provisions expressly incor-

porate the §853(a) limitations. First, §853(c) provides that

“[a]ll right, title, and interest in property described in

subsection (a)”—e.g., tainted property obtained as the

result of or used to facilitate the crime—“vests in the

United States upon the commission of the act giving rise

to forfeiture.” Consistent with its text, the Court has

previously acknowledged that §853(c) applies to tainted

property only. See Luis v. United States, 578 U. S. ___,

___ (2016) (slip op., at 8).

Second, §853(e)(1) authorizes pretrial freezes “to pre-

serve the availability of property described in subsection

(a) . . . for forfeiture.” Pretrial restraints on forfeitable

property are permitted only when the Government proves,

at a hearing, that (1) the defendant has committed an

offense triggering forfeiture, and (2) “the property at issue

has the requisite connection to that crime.” Kaley v. United

States, 571 U. S. ___, ___ (2014) (slip op., at 3); see also

id., at ___, n. 11 (slip op., at 15, n. 11) (“[F]orfeiture ap-

plies only to specific assets”).

8 HONEYCUTT v. UNITED STATES

Opinion of the Court

Another provision, §853(d), does not reference subsec-

tion (a) but incorporates its requirements on its own

terms. Section 835(d) establishes a “rebuttable presump-

tion” that property is subject to forfeiture only if the Gov-

ernment proves that “such property was acquired by [the

defendant] during the period of the violation” and that

“there was no likely source for such property other than”

the crime. Contrary to all of these provisions, joint and

several liability would mandate forfeiture of untainted

property that the defendant did not acquire as a result of

the crime.

It would also render futile one other provision of the

statute. Section 853(p)—the sole provision of §853 that

permits the Government to confiscate property untainted

by the crime—lays to rest any doubt that the statute

permits joint and several liability. That provision governs

forfeiture of “substitute property” and applies “if any

property described in subsection (a), as a result of any act

or omission of the defendant” either:

“(A) cannot be located upon the exercise of due

diligence;

“(B) has been transferred or sold to, or deposited

with, a third party;

“(C) has been placed beyond the jurisdiction of the

court;

“(D) has been substantially diminished in value; or

“(E) has been commingled with other property

which cannot be divided without difficulty.”

§853(p)(1).

Only if the Government can prove that one of these five

conditions was caused by the defendant may it seize “any

other property of the defendant, up to the value of” the

tainted property—rather than the tainted property itself.

§853(p)(2). This provision begins from the premise that

the defendant once possessed tainted property as “de-

Cite as: 581 U. S. ____ (2017) 9

Opinion of the Court

scribed in subsection (a),” and provides a means for the

Government to recoup the value of the property if it has

been dissipated or otherwise disposed of by “any act or

omission of the defendant.” §853(p)(1).

Section 853(p)(1) demonstrates that Congress contem-

plated situations where the tainted property itself would

fall outside the Government’s reach. To remedy that

situation, Congress did not authorize the Government to

confiscate substitute property from other defendants or co-

conspirators; it authorized the Government to confiscate

assets only from the defendant who initially acquired the

property and who bears responsibility for its dissipation.

Permitting the Government to force other co-conspirators

to turn over untainted substitute property would allow the

Government to circumvent Congress’ carefully constructed

statutory scheme, which permits forfeiture of substitute

property only when the requirements of §§853(p) and (a)

are satisfied. There is no basis to read such an end run

into the statute.

III

Against all of this, the Government asserts the “bedrock

principle of conspiracy liability” under which “conspirators

are legally responsible for each other’s foreseeable actions

in furtherance of their common plan.” Brief for United

States 9; see also Pinkerton v. United States, 328 U. S. 640

(1946). Congress, according to the Government, must be

presumed to have legislated against the background prin-

ciples of conspiracy liability, and thus, “when the traceable

proceeds of a conspiracy are unavailable, [§]853 renders

conspirators jointly and severally liable for the amount of

the proceeds foreseeably obtained by the conspiracy.”

Brief for United States 10. Not so.

The plain text and structure of §853 leave no doubt that

Congress did not incorporate those background principles.

Congress provided just one way for the Government to

10 HONEYCUTT v. UNITED STATES

Opinion of the Court

recoup substitute property when the tainted property

itself is unavailable—the procedures outlined in §853(p).

And, for all the Government makes of the background

principles of conspiracy liability, it fails to fully engage

with the most important background principles underlying

§853: those of forfeiture.

Traditionally, forfeiture was an action against the tainted

property itself and thus proceeded in rem; that is,

proceedings in which “[t]he thing [was] primarily consid-

ered as the offender, or rather the offence [was] attached

primarily to the thing.” The Palmyra, 12 Wheat. 1, 14

(1827). The forfeiture “proceeding in rem st[ood] inde-

pendent of, and wholly unaffected by any criminal pro-

ceeding in personam” against the defendant. Id., at 15.

Congress altered this distinction in enacting §853 by

effectively merging the in rem forfeiture proceeding with

the in personam criminal proceeding and by expanding

forfeiture to include not just the “thing” but “property . . .

derived from . . . any proceeds” of the crime. §853(a)(1).

But as is clear from its text and structure, §853 maintains

traditional in rem forfeiture’s focus on tainted property

unless one of the preconditions of §853(p) exists. For those

who find it relevant, the legislative history confirms as

much: Congress altered the traditional system in order to

“improv[e] the procedures applicable in forfeiture cases.”

S. Rep. No. 98–225, p. 192 (1983). By adopting an in

personam aspect to criminal forfeiture, and providing for

substitute-asset forfeiture, Congress made it easier for the

Government to hold the defendant who acquired the tainted

property responsible. Congress did not, however, enact

any “significant expansion of the scope of property subject

to forfeiture.” Ibid.2

——————

2 Section 853(o) directs that “the provisions of [§853] shall be liberally

construed to effectuate its remedial purposes.” The Government points

to this as license to read joint and several liability into the statute. But

Cite as: 581 U. S. ____ (2017) 11

Opinion of the Court

IV

Forfeiture pursuant to §853(a)(1) is limited to property

the defendant himself actually acquired as the result of

the crime. In this case, the Government has conceded that

Terry Honeycutt had no ownership interest in his broth-

er’s store and did not personally benefit from the Polar

Pure sales. App. to Pet. for Cert. 60a. The District Court

agreed. Id., at 40a. Because Honeycutt never obtained

tainted property as a result of the crime, §853 does not

require any forfeiture.

The judgment of the Court of Appeals for the Sixth

Circuit is reversed.

It is so ordered.

JUSTICE GORSUCH took no part in the consideration or

decision of this case.

——————

the Court cannot construe a statute in a way that negates its plain text,

and here, Congress expressly limited forfeiture to tainted property that

the defendant obtained. As explained above, that limitation is incom-

patible with joint and several liability.