UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Terry Michael HONEYCUTT, Defendant-Appellant/Cross-Appellee.
Nos. 14-5790, 14-5850
United States Court of Appeals, Sixth Circuit
March 4, 2016
Rehearing En Banc Denied May 31, 2016
816 F.3d 362
SILER, MOORE, and GIBBONS, Circuit Judges.
Argued: Dec. 2, 2015.
C
What transpired between 1998 and 2014 corroborates the finality of Clark‘s convictions and sentences on counts 1, 2, 3, and 5 in 1998. Clark initiated several collateral attacks on the judgment under
Accordingly, because Clark‘s convictions and sentences became final before Apprendi and Alleyne were decided, the law of the case doctrine precluded Clark from relying on them to challenge his sentences on other counts of which he had been convicted. He was not entitled to a resentencing hearing before the district court entered the amended judgment so that he could make Apprendi- and Alleyne-based challenges to the sentences on other counts.
*
*
*
For the reasons explained, the amended judgment is AFFIRMED.
Before: SILER, MOORE, and GIBBONS, Circuit Judges.
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.
SILER, Circuit Judge.
A jury convicted Defendant Terry Honeycutt (“Honeycutt“) of eleven counts of conspiring to and knowingly distributing iodine while knowing it would be used to manufacture methamphetamine, in violation of
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. He 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 and 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
The district court sentenced Honeycutt to concurrent terms of 60 months’ imprisonment for each count. It declined to order any forfeiture, reasoning in 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.
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, 443 U.S. 307, 319 (1979).
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, 749 F.3d 417, 431 (6th Cir. 2014) (quoting United States v. Gibbs, 182 F.3d 408, 420 (6th Cir. 1999)). Here, the Government presented ample evidence for a rational juror to convict Honeycutt of conspiracy to violate
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
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 best-selling 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
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, 512 F.3d at 844. However, when a district court permits multiplicitous counts to go to a jury and then merges them post-verdict, we apply an abuse-of-discretion standard in reviewing that decision. See United States v. Throneburg, 921 F.2d 654, 657 (6th Cir. 1990) (“[T]he district court has discretion in deciding whether to require the prosecution to elect between multiplicitous counts.... [and] [w]e may reverse only for an abuse of discretion.“) (citing United States v. Reed, 639 F.2d 896, 904 n. 6 (2d Cir. 1981)).
Second, our decision in Swafford does not support his view that
We have previously held that multiplicity can be thus resolved. Throneburg, 921 F.2d at 657 (“[W]hen multiplicitous prosecutions and convictions occur, ‘the only remedy consistent with the congressional intent is for the district court, where the sentencing responsibility resides, to exercise its discretion to vacate one of the underlying convictions.‘“) (quoting Ball v. United States, 470 U.S. 856, 864 (1985)).
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 submit[ted] the issues and applicable law to the jury.” Fencorp, Co. v. Ohio Kentucky Oil Corp., 675 F.3d 933, 943 (6th Cir. 2012) (quoting
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
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, 118 F.3d 482, 488 (6th Cir. 1997) (quoting United States v. Hathaway, 798 F.2d 902, 910 (6th Cir. 1986)).
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” 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‘s burden of proof to him. However, given that entrapment by estoppel is an 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, 973 F.2d 463, 468 (6th Cir. 1992)—requires a defendant to prove the following factors by a preponderance of the evidence:
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, 432 U.S. 197, 210 (1977) (“Proof of the non-existence of all affirmative defenses has never been constitutionally required.“) (upholding a statute that required a defendant charged with murder to bear the burden of proof as to the affirmative defense of acting under extreme emotional distress).
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, 548 U.S. 1, 5 (2006). “Knowingly” does not require knowledge that the facts underlying the criminal violation were unlawful. See id. (contrasting “knowingly” with “willfully,” the latter of which “requires a defendant to have ‘acted with knowledge that his conduct was unlawful‘” (quoting Bryan v. United States, 524 U.S. 184, 193 (1998))). Thus, the Government needed only to establish that Honeycutt acted knowingly, not that he knew his conduct was illegal.
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.1 In particular, he focuses on the third and fourth prongs—the former, regarding reasonable reliance, and the latter concerning the unfairness of conviction for the crimes—although he has failed to show precisely how either factor is unconstitutionally burdensome.
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,” Fencorp, 675 F.3d at 943 (quoting Micrel, 486 F.3d at 881), his shot at this instruction falls well short of the mark. The pattern instruction about entrapment by estoppel did not render the instructions, as a whole, “confusing, misleading, or prejudicial,” and the district court did not abuse its discretion by declining to modify that instruction.
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, 681 F.3d 867, 876 (6th Cir. 2012)). “We have repeatedly held that this instruction is an accurate statement of the law.” Mitchell, 681 F.3d at 876 n. 51.
The deliberate-ignorance instruction did not encourage the jury to convict Honeycutt 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, 612 F.3d at 508 (quoting United States v. Mendoza-Medina, 346 F.3d 121, 134 (5th Cir. 2003)), and given our conclusion that “a deliberate ignorance instruction that properly states the law is harmless error,” id. (quoting United States v. Rayborn, 491 F.3d 513, 520 (6th Cir. 2007)).
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
As an initial matter, Honeycutt‘s 60-month sentence does not run afoul of Apprendi v. New Jersey, 530 U.S. 466 (2000), since it did not exceed “the statutory maximum that would have applied even without the enhancing factor.” United States v. Osborne, 673 F.3d 508, 512 (6th Cir. 2012) (quoting United States v. Burns, 298 F.3d 523, 544 (6th Cir. 2002)).
As to whether iodine‘s status as a List I chemical constitutes an element of a
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, 527 U.S. 1, 19 (1999).2 Likewise, we have held that “where the evidence regarding the omitted element is undisputed, ‘answering the
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.” 527 U.S. at 18-19. Therefore, the absence of a jury finding regarding iodine‘s status as a List I chemical did not affect Honeycutt‘s substantial rights, and the district court did not plainly err by not requiring the jury to make such a finding.
IV. Vagueness Challenge
Honeycutt also asserts that
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
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
Unlike khat, iodine is specifically listed in the
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, 759 F.3d 550, 570 (6th Cir. 2014), Honeycutt asserts that “drug quantity is an element of the offense in
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 kilograms, 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
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, 167 F.3d 1055, 1073 n. 13 (6th Cir. 1999), a district court‘s findings of fact for clear error, and the sufficiency of those facts de novo, United States v. Jones, 502 F.3d 388, 391 (6th Cir. 2007).
The Sixth Circuit has not yet squarely addressed the issue of whether joint and several liability applies to forfeiture of proceeds under
A number of other circuits that have addressed this issue have concluded that
In United States v. Corrado, 227 F.3d 543 (6th Cir. 2000), we determined that “coconspirators in a RICO enterprise should be held jointly and severally liable for any proceeds of the conspiracy.” Id. at 553. Echoing the rationale of sister circuits that had so concluded, we held that “[t]he government is not required to prove the specific portion of proceeds for which each defendant is responsible. Such a requirement would allow defendants ‘to mask the allocation of the proceeds to avoid forfeiting them altogether.‘” Id. (quoting United States v. Simmons, 154 F.3d 765, 769-70 (8th Cir. 1998) (quoting United States v. Caporale, 806 F.2d 1487, 1508 (11th Cir. 1986))).
Although Corrado did not specifically concern
CONCLUSION
For the reasons stated above, we AFFIRM Honeycutt‘s
KAREN NELSON MOORE, Circuit Judge, 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
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.”
As the majority explains, this seemingly clear statute has been interpreted otherwise. Although no published Sixth Circuit authority addresses the issue under
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
Although no contrary authority existed when we decided Corrado, the D.C. Circuit has recently questioned the circuit consensus, emphasizing the plain language of
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, 328 U.S. 640 (1946), theory that a conspirator is liable for the reasonably foreseeable actions of co-conspirators, Simmons, 154 F.3d at 770; McHan, 101 F.3d at 1043; Hurley, 63 F.3d at 22; Caporale, 806 F.2d at 1508, but the Pinkerton doctrine “speaks only to a defendant‘s substantive liability—not to the consequences of such liability,” Cano-Flores, 796 F.3d at 94, making it an especially thin basis for overruling the statute‘s plain text. Nor is the general rule that
In light of my concerns regarding the correctness of our decision in Corrado, I believe en banc consideration is appropriate to consider whether Corrado should be overturned.
SILER, J.
CIRCUIT JUDGE