United States v. Terry Honeycutt
816 F.3d 362
6th Cir.2016Background
- Terry Honeycutt, a salaried employee managing sales/inventory at Brainerd Army Store, sold large quantities of Polar Pure (iodine) from 2008–2010; the product was kept behind the counter and sold primarily by Honeycutt and his brother.
- Law enforcement warned Honeycutt that Polar Pure was being diverted to methamphetamine production; he admitted adopting a “don’t-ask-don’t-tell” policy and continued substantial sales (over 20,000 bottles, >$269,000 profit to the store).
- DEA and local task-force investigation included surveillance, controlled buys, warnings to the brothers, and a 2010 search that seized inventory; regional red-phosphorus meth labs declined after the store closed.
- A grand jury indicted the brothers; Tony pled guilty; Honeycutt was tried, acquitted on some counts and convicted on eleven counts charging conspiracy and distribution in violation of 21 U.S.C. §§ 841(c)(2), 843(a)(6), and 846.
- The district court sentenced Honeycutt to concurrent 60-month terms but merged overlapping counts and declined to order forfeiture; the government cross-appealed on forfeiture and Honeycutt appealed various trial and sentencing rulings.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Honeycutt) | Held |
|---|---|---|---|
| Sufficiency of evidence for conspiracy and substantive §841(c)(2)/§843(a)(6) convictions | Evidence (sales records, concealment, warnings, admissions, large quantities) supports knowledge, participation, possession, and intent/reasonable cause to believe iodine would be used to make meth | Challenges waived under Rule 28; even if preserved, evidence insufficient to prove knowledge/participation | Affirmed: evidence sufficient for conspiracy and substantive convictions under §§841(c)(2) and 843(a)(6) |
| Multiplicity of §841(c)(2) and §843(a)(6) counts | Prosecution permissibly charged both; district court remedied multiplicity by merging at sentencing | Charging both statutes was redundant, confusing, reduced burden of proof, required election | No reversible error: district court’s post-verdict merger was proper (abuse-of-discretion standard); convictions treated as multiplicitous and merged |
| Jury instructions (mens rea phrasing, verdict form, entrapment-by-estoppel, deliberate-ignorance, List I determination) | Instructions properly presented law; entrapment-by-estoppel is affirmative defense (burden on defendant); deliberate-ignorance instruction was warranted by evidence; iodine’s List I status was undisputed | Jury was permitted to convict on “would be used” phrasing and condensed verdict form (constructive amendment); entrapment instruction shifted burden; jury should have found List I status | Held: no plain or reversible error. "Would" phrasing acceptable; verdict form not misleading; entrapment-by-estoppel instruction proper; deliberate-ignorance instruction proper and harmless at worst; omission of explicit jury finding on List I chemical not plain error because evidence was undisputed |
| Sentencing & Forfeiture (quantity attribution; statutory maximum; forfeiture liability) | Court could attribute iodine quantity by preponderance for Guidelines; §843(a)(6) max is 4 years; §853(a) mandates forfeiture and, under Sixth Circuit precedent, may impose joint-and-several liability among coconspirators | Quantity for Guidelines should be jury-determined where it affects punishment; sentences for §843(a)(6) exceeded statutory maximum; district court properly declined forfeiture because Honeycutt (a salaried employee) did not personally obtain proceeds | Held: quantity attribution affirmed for Guidelines (no Apprendi issue); vacated sentences on §843(a)(6) counts because they exceeded four-year maximum and remanded for resentencing; reversed district court on forfeiture and remanded to order forfeiture consistent with Sixth Circuit precedent (joint-and-several liability) |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty must be submitted to jury)
- Neder v. United States, 527 U.S. 1 (1999) (harmlessness of omission of an element when evidence undisputed)
- Pinkerton v. United States, 328 U.S. 640 (1946) (conspirator liability for foreseeable acts of co-conspirators)
- United States v. Corrado, 227 F.3d 543 (6th Cir. 2000) (RICO forfeiture: co-conspirators jointly and severally liable for proceeds)
- United States v. Swafford, 512 F.3d 833 (6th Cir. 2008) (multiplicity analysis of §§841(c)(2) and 843(a)(6))
- United States v. Dado, 759 F.3d 550 (6th Cir. 2014) (drug-quantity as element for statutory range in §841(b) context)
- United States v. Pritchett, 749 F.3d 417 (6th Cir. 2014) (mens rea for §841(c)(2) offenses)
- United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) (forfeiture burden and approaches to joint liability)