United States v. Honeycutt

• Citation: 816 F.3d 362
• Decision Date: 04 March 2016
• Docket Number: 14–5850.,Nos. 14–5790,s. 14–5790
• Parties: UNITED STATES of America, Plaintiff–Appellee/Cross–Appellant, v. Terry Michael HONEYCUTT, Defendant–Appellant/Cross–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

816 F.3d 362

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.

Argued: Dec. 2, 2015.

Decided and Filed: March 4, 2016.

ARGUED:Josh Townley, Townley & Lindsay, LLC, Rossville, Georgia, for Appellant/Cross–Appellee. Jay Woods, United States Attorney's Office, Chattanooga, Tennessee, for Appellee/Cross–Appellant. ON BRIEF:Christopher A. Townley, Townley & Lindsay, LLC, Rossville, Georgia, for Appellant/Cross–Appellee. Jay Woods, United States Attorney's Office, Chattanooga, Tennessee, for Appellee/Cross–Appellant.

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.

OPINION

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 21 U.S.C. §§ 841(c)(2), 843(a)(6), and 846. The district court sentenced Honeycutt 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. 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 non-existent" in the region.

II. Procedural History

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 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. Federal Rule 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, 517 F.3d 899, 903 (6th Cir.2008). Because Honeycutt failed to list these evidentiary challenges among his nine issues presented on appeal, we could dismiss Honeycutt's sufficiency arguments as waived. See, e.g., Barrett v. Detroit Heading, LLC, 311 Fed.Appx. 779, 796 (6th Cir.2009) (holding that "[t]he provisions of Rule 28(a) are ... unambiguously mandatory," and deeming waived an argument not listed in the statement of issues presented). Even assuming that this issue was properly preserved, however, his arguments are plainly meritless.

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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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 §§ 841(c)(2) and 843(a)(6).

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, Honeycutt told Agent Shelton that they adopted their don't-ask-don't-tell policy based on the advice of Bob Wallace, their iodine supplier. Honeycutt and his brother both admitted selling iodine, and they were the only ones selling iodine at the store. The evidence thus showed that the brothers shared "a tacit or mutual understanding among the conspirators [that] is sufficient" to show an agreement to violate the drug laws. United States v. Gardner, 488 F.3d 700, 710 (6th Cir.2007).

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, 749 F.3d at 428. Similarly, § 843(a)(6) requires that the Government prove that a defendant possessed a chemical or other item which could be used to manufacture a controlled substance, and, at the time of such possession, knew, intended, or had reasonable cause to believe it would be used in the manufacture of a controlled substance. See United States v. Swafford, 512 F.3d 833, 845 n. 7 (6th Cir.2008). The main difference between the two provisions is that § 841(c)(2) requires...