Lead Opinion
SILER, J., delivered the opinion of the court in which GIBBONS, J., joined, and MOORE, J., joined in the result.
MOORE, J. (pp. 381-83), delivered a separate opinion concurring in the judgment.
A jury convicted Defendant Terry Ho-neycutt (“Honeycutt”) of eleven counts of conspiring to and knowingly distributing iodine while knowing it would be used to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(c)(2), 843(a)(6), and 846. The district court sentenced Ho-neycutt to concurrent terms of 60 months’ imprisonment for each count, but declined to order any forfeiture. Honeycutt now appeals his conviction, and the Government cross-appeals on the issue of forfeiture. For the following reasons, we AFFIRM Honeycutt’s § 841(c)(2) "convictions, VACATE his sentences on the § 843(a)(6) convictions, and REVERSE the district court’s determination that forfeiture is not warranted.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Factual Background
Honeycutt worked as the salaried employee in charge of sales and inventory in the Brainerd Army Store—which was owned by his brother (and codefendant), Tony Honeycutt (“Tony”). In 2008, having noticed an increasing number of “edgy looking folks” purchasing Polar Pure, an iodine-based water purification product, Honeycutt called the Chattanooga Police Department to ask if the iodine in Polar Pure could be used to manufacture methamphetamine. H¿ spoke to Tommy Farmer, Director of the Tennessee Meth and Pharmaceutical Task Force, who confirmed that Polar Pure was being used to manufacture methamphetamine throughout the community and urged Honeycutt not to sell it “if [he] fe[lt] uncomfortable about it.” Afterwards, Director Farmer informed the Police Department and the Drug Enforcement Administration (“DEA”) that Honeycutt was selling Polar Pure.
The Brainerd Army Store was the only local retailer that stocked Polar Pure; the product was kept out of sight behind the sales counter, and only Honeycutt arid his brother sold it. Each bottle of Polar Pure contains about eight grams of iodine crystals that, if used as instructed, could purify up to five hundred gallons of water. Over time, Honeycutt sold increasing quantities of iodine, including as many as twelve bottles of Polar Pure in a single transaction (i.e., enough iodine to purify six thousand gallons of water).
In 2009, the DEA, in conjunction with state and local law enforcement, began investigating the Polar Pure sales at the store. The investigation involved surveillance, monitoring of iodine sales, controlled buys by an undercover agent, direct conversations with Honeycutt and his brother, attempts by officers to convince the brothers to stop selling the product to meth producers, and, ultimately, the execution of a search warrant in 2010.
The search revealed that in a three-year period, Polar Pure became the store’s highest-grossing item, generating upwards of $269,000 in profit from the sale of more than 20,000 bottles of Polar Pure. Upon questioning, Honeycutt indicated- that he and his brother had adopted a “don’t-ask-don’t-tell” policy after discussions with their iodine supplier... Pursuant to the warrant, agents seized the store’s inventory of 307 bottles of Polar Pure. Agent David Shelton testified that after the Brainerd Army Store closed, following the execution of the warrant, the meth labs using the red phosphorus method that required iodine dropped to an “insignificant level,” becoming “rare” and “fairly nonexistent” in the region.
A federal grand jury indicted the brothers for various offenses regarding their distribution of iodine while knowing or having reasonable cause to believe it would be used to manufacture methamphetamine. Tony pled guilty, and Honeycutt went to trial. Honeycutt was acquitted of three charges in the indictment, and convicted of the remaining’ eleven—which involved conspiring to and knowingly distributing iodine in violation of 21 U.S.C. §§ 841(c)(2), 843(a)(6), and 846—although at sentencing the district court merged the counts of the §§ 841(c)(2) and 843(a)(6) offenses that occurred on the same day.
The district court sentenced Honeycutt to concurrent terms of 60 months’ imprisonment for each count. It declined to order any forfeiture, reasoning im particular that, as a salaried employee, Honeycutt did not reap the proceeds of the conspiracy.
DISCUSSION
I. Sufficiency of the Evidence
A.Waiver
As a threshold matter, Honeycutt disputes the sufficiency of the evidence at various points in his appeal, and yet no sufficiency challenge appears in his statement of the issues. Federal Rulé of Appellate Procedure 28(a) explicitly states that an “appellant’s brief must contain ... a statement of the issues presented for review’.” Fed. R.App. P. 28(a)(5) (emphasis added); United States v. Baylor,
B. Standard of Review
Evidence is sufficient to support a conviction if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the .crime beyond a reasonable doubt” when “all of the evidence is ... considered.” Jackson v. Virginia,
C. Conspiracy to Violate §§ 841(c)(2) and 843(a)(6)
To prove the existence of the conspiracy alleged in Counts One and Two, “the government was required to prove, beyond a reasonable doubt, ‘(1) an agreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the conspiracy.’ ” United States v. Pritchett,
Regarding the first element, the evidence showed that Honeycutt and his brother jointly agreed to violate the drug laws by providing iodine for the manufacture of methamphetamine. On November 23, 2009, Tony said, in Honeycutt’s presence, “we really don’t ask and [the customers] don’t tell” why they are buying iodine—even though they had been warned that the type of iodine they were selling was preferred by meth cooks. In 2010,
As for the second and third elements, the evidence was more than adequate to establish Honeycutt’s knowledge of and willing participation in the conspiracy. For instance, the' placement’ of the iodine behind the counter out -of view of regular customers, as well as Honeycutt’s deceptive response to Agent Shelton’s request for an estimate of the monthly iodine sales reflected knowledge of the conspiracy to violate drug laws and possible intent to delay discovery of the conspiracy. Knowledge ’ of the conspiracy was also manifest in Honeycutt’s assertion of a limit on iodine sales that was repeatedly exceeded. Finally, his knowledge of and participation in the conspiracy was proven by his possession and distribution of extraordinary quantities of iodine; his responsibility for the store inventory and for ordering iodine from the supplier; and his engagement in direct sales. With the increasing sales in the face of multiple warnings from law enforcement officers, Honeycutt clearly demonstrated his knowledge about, and continued intent to participate in, the conspiracy.
D. Substantive. Violations of §§ 841(c)(2) and 843(a)(6)
The evidence also sufficed to support Honeycutt’s -substantive convictions under §§ 841(c)(2) and 843(a)(6). To prove a violation of § 841(c)(2), the Government must establish that a defendant (1) knowingly, or intentionally possessed a listed chemical while (2) knowing,-or-having reasonable cause to believe, that the listed chemical-would be used to manufacture a controlled, substance. See Pritchett,
With respect to the element of possession, the store's records reflected the sale of more than 20,000 bottles of iodine, and only Honeycutt and his brother sold it.
As for the element of knowing, or having reasonable cause to believe, that the iodine would be used to manufacture a controlled substance, Honeycutt was familiar with the manufacturing process for methamphetamine. He knew cooking meth requires pseudoephedrine, and he understood that although iodine is used in the process, it is not part of the finished product.,
Despite repeated warnings by several law enforcement officers that the iodine he was selling was flowing directly into the meth labs of the area, Honeycutt nonetheless continued to sell Polar Pure. And again, although it became the store’s bestselling product, he did-not display it openly, but rather hid it under the sales coun
II. Multiplicitous Convictions Under 21 U.S.C. §§ 841(c)(2) and 843(a)(6)
Honeycutt next argues that the district court erred by allowing the jury to consider the charged violations of both §§ 841(c)(2) and 843(a)(6). Asserting that “the district court erroneously treated [§§ 841(c)(2)] and [843(a)(6)] as redundant statutes,” he contends that § 841(c)(2) applies only to listed chemicals, while § 843(a)(6) applies only to “unlisted” chemicals. Because the facts of his case did not involve an “unlisted” chemical, Honeycutt ’ contends that “the ‘mirrored’ § 843(a)(6) counts . reduced the Government’s burden of proof, unduly confused the jury, and the result of the trial would have been different absent the § 843(a)(6) counts.” He is mistaken.
First, he erroneously states that de novo review is the applicable standard. If he were claiming that he had actually been convicted and sentenced for multiplicitous counts in violation of the Double Jeopardy Clause, we would apply a de novo review to determine the issue of multiplicity. See Swafford,
Second, our decision in Swafford does not support his view that § 843(a)(6) applies only to “unlisted” chemicals, nor does Swafford dictate a different outcome from the district court’s decision. In that case, we applied the test set forth in Blockburger v. United States,
We have previously held that multiplicity can be thus resolved. Throneburg,
III. The Jury Instructions and Verdict Form
A. Standard of review
Honeycutt challenges several of the jury instructions issued in this case. In reviewing" jury instructions, we must determine “whether the charge, taken as a whole, fairly and adequately submitted] the issues and applicable law to the jury.” Fencorp, Co. v. Ohio Kentucky Oil Corp.,
B. Constructive Amendment of the Mens Rea for the Offenses.
Honeycutt argues that the district court constructively amended the indictment, in that: (1) the jury instructions repeatedly described the violations as involving the possession and distribution of iodine while “knowing and having reasonable cause to believe that [it] would be used to manufacture methamphetamine,” and (2) the verdict form summarized the charged offenses as distribution or possession of chemicals “used to manufacture methamphetamine.” In Honeycutt’s view, the jury instructions and verdict form invited the jury , to convict him without proof of the requisite mens rea—that he knew or had reasonable cause to believe that the chemical “will be used to manufacture a controlled substance.”
Insofar as he is challenging the district court’s “would be used” phrasing— in light of the statutory language “will be used”—he did not raise that objection below. As “would” is the past tense' of “will,” see Oxford English Dictionary Online (3d ed.2012) (under “will” definition), and as the jury was charged to assess Honeycutt’s mens rea at the time of the offenses, the district court’s use of “would” was entirely appropriate. Moreover, the district court said “will” and not “would” when reading the statutes, and we have previously affirmed convictions under § 841(c)(2) where the jury was asked to decide whether the defendants possessed and distributed a listed chemical, “knowing and having reasonable cause to believe that the chemical would be used to manufacture methamphetamine.” Pritchett,
Regarding Honeycutt’s claim that the indictment was constructively amended because the verdict form did not exactly mirror its language, he raised that concern during the charge conference, and suggested that the jury should receive only the indictment and a generic form on which to mark guilty or not guilty for each count. The district court refrained from changing the verdict form, but instead invited defense counsel to inform the jury during closing argument that the verdict form was simply a “condensed” version of the indictment. In its charge to the jury, the district court mentioned that the verdict form presented fourteen questions that corresponded to the indictment’s fourteen counts, and emphasized that the verdict form did “not [contain] a complete statement, but a brief summary of the charges in the indictment.” .Moreover, after informing the jury that it would receive a copy of the indictment to review during deliberations, the district court reemphasized the summary nature of the verdict form. Therefore, Honeycutt cannot establish that the verdict sheet “so modif[ied] essential elements of the offense charged that there is a substantial likelihood that [he] may have been convicted of an offense other than that charged in the indictment.” United States v. Barrow,
C.. Constructive Amendment with the Term “Precursor Chemical”
Next, Honeycutt claims that, because the district court said “precursor chemicals” instead of “listed chemicals” at various points in its instructions and on the verdict form, “[t]he jury was permitted to assume that all ‘chemicals’ are treated alike in the law.” However, not only did the district court clearly use the term “listed chemical”- throughout its instructions, .but this is not .a case in which the jury heard evidence about multiple chemicals or controlled substances, not all of which would be sufficient to sustain a conviction; rather, iodine was the only “chemical” i at issue in this case, and uncontroverted evidence established that iodine was a listed chemical. Accordingly, as with the prior claim, Honeycutt has failed to prove any constructive amendment of the indictment.
D. Entrapment by Estoppel Instruction
Honeycutt asserts that the Sixth Circuit pattern instruction about entrapment by estoppel improperly shifted the Government’ burden of proof to him. However, given that entrapment by estoppel is ah affirmative defense, the district court properly required Honeycutt to bear the burden of proof on that issue.
The challenged pattern instruction— which is principally based on .the standard applied in United States v. Levin,
First, that an agent of the United States government announced that the charged criminal act was legal.
Second, that the defendant relied on .that announcement.
Third, that the defendant’s reliance on the announcement was reasonable.
Fourth, that given the defendant’s reliance, conviction would be unfair.
6th Cir. Pattern Crim. Jury Instr. 6.09 Entrapment by Estoppel (2015). The Supreme Court has repeatedly upheld‘ the practice of requiring a defendant to prove an affirmative defense by a preponderance of the evidence. See, e.g., Patterson v. New York,
Entrapment by estoppel is an affirmative defense that does not negate an element of either of the crimes charged here. As the Supreme Court has stated, “unless the text of the statute dictates a different result, the term ‘knowingly’ merely requires proof of knowledge of the facts that'constitute the offense.” Dixon v. United States,
By raising the defense of entrapment by estoppel, Honeycutt was not asserting that he did not know he was distributing iodine, nor that he did not know
Additionally, Honeycutt argues that the pattern instruction regarding entrapment by estoppel violates Due Process.
Moreover, laying the third and fourth factors aside, Honeycutt was unable to prove that any federal agent affirmatively “announced that the charged criminal act was legal,” much less that he reasonably relied on such an announcement. The agents did- not tell him his distribution of iodine was legal; rather, they repeatedly warned him that his customers were buying iodine to manufacture methamphetamine.
In any event, given that his challenge to the district court’s “refusal to give [his] specifically requested instruction is reviewed for abuse of discretion,” and the “judgment may be reversed only if the instructions, viewed as a whole, were confusing, misleading, or prejudicial,” Fen-corp;
E. Deliberate Indifference Instruction
Next, Honeycutt challenges the district court’s deliberate-ignorance instruction. This instruction “is appropriately given when it addresses an issue reasonably raised by the evidence, i.e., when two predicates are met: ‘(1) the defendant claims a lack of guilty knowledge; and (2) the facts and evidence support an inference of deliberate ignorance.’” 6th Cir. Pattern Crim. Jury Instr. 2.09 Deliberate Ignorance Commentary (2013 ed.) (quoting United States v. Mitchell,
The deliberate-ignorance instruction did not encourage the jury to convict Honey-cutt on less than beyond a reasonable doubt. Id. at 879. Moreover, as we have previously held, “at worst, any error in giving the instruction was harmless,” since “there is substantial evidence of actual knowledge,” Williams,
F. Jury Finding of Iodine’s Status as a List I Chemical
Honeycutt asserts that the specific listing of a chemical is an element of a § 841(c)(2) offense, because List I chemicals carry a higher statutory penalty; hence, he argues that the district court erred by not requiring the jury to determine whether iodine was, in fact, a List I chemical. Given that he did not' raise this issue below, it is reviewable only for plain error.
As an initial matter, Honeycutt’s 60-month sentence does not run afoul of Apprendi v. New Jersey,
As to whether iodine’s status as a List I chemical constitutes an element of a § 841(c)(2) offense, Honeycutt correctly notes that § 841(c)(2) establishes a twenty-year maximum penalty for a violation “involving a List I chemical” and a ten-year maximum for all other violations, and that “any fact that increases the penalty for a crime ... must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi,
Even where a district court improperly withholds an element of an offense from the jury, however, the Supreme Court has held that the error is harmless if “a defendant did not, and apparently could not, bring forth facts contesting the omitted element.” Neder v. United States,
Like Neder, this case is “one[ ] where a defendant did not, and apparently could not, bring forth facts contesting the omitted element,” and the “omitted element is supported by uncontroverted evidence.”
IV. Vagueness Challenge
Honeycutt also asserts that § 841(c)(2) is unconstitutionally vague. We review challenges to the constitutionality of a statute de novo, and “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” United States v. Caseer,
Honeycutt contends that, because list chemicals are not themselves controlled substances nor per se illegal, he may not be convicted without proof that he knew both that iodine is .a listed chemical and that it appears on List I. The district court rejected this argument, in particular because § 841(c) does not include a different knowledge requirement between List I and List II chemicals.
In support of his position, Honeycutt discusses at length our decision in Caseer, in which we held that, to satisfy the mens rea requirement of § 841(a) for an offense involving that, the United States needed to prove the defendant knew that khat contained a controlled substance—since khat did not appear on the listed controlled substances schedules.
Unlike khat, iodine is specifically listed' in the Controlled Substances Act and the Federal Register as a list chemical. See 21 U.S.C. § 802(35); 72 Fed.Reg. 35920-01. Further, Caseer’s concerns about a person of “ordinary intelligence” who “could unwittingly expose himself ... to criminal penalties,”
V. Honeycutt’s Sentencing
A. The Iodine Quantity Attributed to Honeycutt
At sentencing, the district court determined Honeycutt’s Guideline range based- upon a finding that his offenses involved “1.3 KG or more of Iodine” and a “List I chemical.” Citing United States v. Dado,
In the instant case, the evidence strongly, supported the district court’s analysis of the iodine quantity attributable to Honeycutt. The store records indicated sales of more than 21,000 bottles of Polar Pure, each containing roughly eight grams of iodine crystals. Further, any quantity above 1.3 kilograms of iodine yields the same offense level of 30. Since the record establishes a quantity of iodine over 1.3 kilogramo, the district court did not clearly err in its quantity determination.
B. Term in Excess of Statutory Maximum
Honeycutt asserts, and the Government concedes, that the district court’s sentence of concurrent terms of 60 months’ imprisonment for the three § 843(a)(6) violations exceeds the statutory maximum. Given that § 843(a)(6) does in fact establish a maximum penalty of four years’ imprisonment, we will vacate the sentence on those counts. Even though Honeycutt’s aggregate 60-month sentence remains unchanged in light of the § 841(c)(2) violations, we will remand this case to permit the district court to impose a sentence within the four-year maximum for the § 843(a)(6) counts.
VI. Forfeiture
In its cross-appeal, the Government asserts that the district court erred in refusing to order any forfeiture, given that the governing statute mandates the order of forfeiture if the requisite elements are satisfied. We review , a-district court’s interpretation of federal forfeiture law de novo, United States v. Hill,
Section 853(a)(1) states that “[a]ny person convicted- of a violation of this sub-chapter or súbchapter II of this chapter .shall forfeit . any property consti
The Sixth Circuit has not yet squarely addressed the issue of whether joint and several liability applies to forfeiture of proceeds under 21 U.S.C. § 853. Although under another statute we have previously reversed a district court’s forfeiture order based on insufficient proof that a defendant had received any proceeds from fraudulent activity, observing that “[i]t is well-established that a defendant ‘cannot be ordéred to' forfeit profits that he never received or possessed,’” United States v. McLaughlin,
A- number of other circuits that have addressed this issue have concluded that § 853 mandates joint and several liability among coconspirators for' the proceeds of a drug conspiracy. See, e.g., United States v. Roberts,
In United States v. Corrado,
Although Cortado did not specifically concern § 853, the relevant language and structure of the two statute’s forfeiture provisions are virtually identical: both contain the mandatory “shall forfeit” phrasing; both demand the forfeiture of “any property constituting, or derived from, any proceeds [that] the person obtained, directly or indirectly,” as result of the violation; and both dictate that their provisions “shall be liberally construed to effectuate [their] purposes.” Compare 21 U.S.C. § 853(a), (a)(1), (o), with 18 U.S.C. § 1963(a), (a)(3), and 18 U.S.C. § 3731. We find that-our holding and rationale in Corvado carries equal weight in the § 853 context. Moreover, neither the district court’s above-mentioned concerns nor Honeycutt’s arguments militate otherwise. See Warshak,
CONCLUSION
For the reasons stated above, we AFFIRM Honeycutt’s § 841(c)(2) convictions, VACATE Honeycutt’s sentences on the § 843(a)(6) convictions, REVERSE the district court’s determination that forfei
Notes
. He also asserts that the pattern instruction is an inaccurate and/or anomalous statement of the law. However, insofar as he indicates that the fourth factor is unique to the Sixth Circuit, he is mistaken. See, e.g., United States v. Villafane-Jimenez,
. Although Neder involved harmless error analysis under Rule 52(a), rather than plain error under Rule 52(b), that difference is immaterial because both standards require a showing that the error affected the defendant’s substantial rights. See United States v. Olano,
. It is also worth noting that the D.C. Circuit’s criticisms in Cano-Flores,
Concurrence Opinion
concurring in the judgment.
I agree that Terry Honeycutt’s convictions and his sentence should be affirmed, except insofar as we must vacate the sentences imposed for his § 843(a)(6) convictions as exceeding the applicable statutory maximum. I also agree that we must reverse the district court’s refusal to order forfeiture, bound as we are by a decision of a prior panel of this court that a statute involving identical language to 21 U.S.C. § 853(a) allows the imposition of joint-and-several forfeiture liability. I write to emphasize why that prior panel was likely incorrect, and to suggest that the full court consider the issue en banc.
In declining to order forfeiture, the district court focused quite reasonably on the dearth of evidence, regarding Honeycutt’s financial, motivations, for participating in this conspiracy. Honeycutt’s lack of ownership interest in the store and the absence of evidence describing what, if anything, Honeycutt himself gained from the sales of Polar Pure gave the district court pause. This concern would seem to flow directly from the forfeiture statute the district court was tasked with applying, which provides: “Any person convicted of a violation of this subchapter or subchapter II of this,chapter punishable by imprisonment for more than one year shall forfeit to the United States, irrespective of any provision of State'law—(1) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation.”. 21 U.S.C. § 853(a). The government “must prove forfeiture by a preponderance of the evidence,” United States v. Warshak,
As the majority explains, this seemingly clear statute has been interpreted otherwise. Although no published Sixth Circuit authority addresses the issue under 21 U.S.C. § 853(a), the forfeiture provision of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1963(a), contains identical language, and both provisions were enacted as part of the same law. See Comprehensive .Forfeiture Act of 1984 §§ 302-303, Pub.L. No. 98-473, 98 Stat. 2040-45 (1984). We previously interpreted that provision of RICO to allow for the imposition of joint-and-several forfeiture liability, United States v. Corrado,
As the district court’s concerns demonstrate, this holding seems to be contrary to the statute, which reaches only that property that a defendant “obtained.” 'Although many circuits have held that § 853(a) allows for joint-and-several liability, Maj. Op., at 379-80, and many others have held the same under § 1963(a),
Although no contrary authority' existed when we decided Corrado, the D.C. Circuit has recently questioned the circuit consensus, emphasizing the plain language of § 853(a). See United States v. Cano-Flores,
I find that the other reasons given by courts for applying joint-and-several liability are likely to be equally inadequate. Many rely on a Pinkerton v. United States,
In light of my concerns regarding the correctness of our decision in Corvado, I believe en banc consideration is appropriate to consider, whether Corvado should be overturned.
. See United States v. Edwards,