Peithman v. United States

In Honeycutt v. United States , 581 U. S. ----, 137 S.Ct. 1626 , 198 L.Ed.2d 73 (2017), this Court held that joint-and-several liability is not permitted under 98 Stat. 2045 , 21 U.S.C. § 853 (a)(1), which mandates forfeiture of "property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of " certain drug crimes. 581 U. S., at ----, 137 S.Ct., at 1630 . The Court of Appeals for the Third Circuit has since held that the reasoning of Honeycutt "appl[ies] with equal force" to 18 U.S.C. § 981 (a)(1)(C), which is worded almost identically to 21 U.S.C. § 853 (a)(1). United States v. Gjeli , 867 F.3d 418 , 428 (2017).

In this case, the Court of Appeals for the Eighth Circuit reached a contrary conclusion. 917 F.3d 635 , 652-653 (2019). It upheld a joint-and-several forfeiture order against petitioners under § 981(a)(1)(C), reasoning that Honeycutt does not apply to that provision. See 917 F.3d at 652-653 . The Government now concedes error. According to the Government, there is no "distinguishing 18 U.S.C. 981 from 21 U.S.C. 853 for purposes of joint and several liability." Brief in Opposition 6; see also id., at 10 ("[T]he government has agreed that Honeycutt 's reasoning applies to Section 981(a)(1)(C)"). Nevertheless, the Government maintains that there is an independent ground for the imposition of joint-and-several liability under § 981(a)(1)(C). See id., at 6-9. The Eighth Circuit, however, never addressed that proffered alternative ground for affirmance.

Because the Government now concedes that the rationale of Honeycutt applies equally to § 981(a)(1)(C) as it does to § 853(a)(1), I would grant the petition for certiorari, vacate the judgment below, and remand the case to allow the Eighth Circuit to reconsider its decision in light of the Government's concession.