                                                                    FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                      TENTH CIRCUIT                           July 18, 2017

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

 v.                                                           No. 17-5012
                                                   (D.C. No. 4:13-CR-00028-JED-29)
 CORRY PURIFY,                                                (N.D. Okla.)

           Defendant - Appellant.



                                   ORDER AND JUDGMENT *


Before PHILLIPS, McKAY, McHUGH, Circuit Judges.


       In 2014, an indictment charged Defendant Corry Purify and more than fifty others

with a drug conspiracy, among other offenses. A forfeiture notice in the indictment

stated that any defendants convicted of the conspiracy would be required to forfeit a “sum

of money in an amount of at least $10 million, representing the proceeds of the drug

conspiracy, for which the defendants are jointly and severally liable.” (R. at 174.)

Defendant was arrested on August 19, 2014, and released on bond. Ten days later,

       *
         Neither party has requested oral argument. After examining the briefs and
appellate record, this panel has determined unanimously that oral argument would not
materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G.) The case is therefore ordered submitted without oral argument. This
order is not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value consistent with
Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
Defendant was arrested again. This time when he was arrested, local police seized

$2,688 from Defendant’s pockets.

       Eventually, Defendant pled guilty to the drug conspiracy. As part of the plea

agreement, Defendant “agree[d] to the entry of a criminal forfeiture money judgment

pursuant to 21 U.S.C. § 853(a) in the amount of $10,000,000,” which “represent[ed]

proceeds of the drug conspiracy.” (Suppl. R. at 5.) The plea agreement specified that

Defendant would be “jointly and severally liable” for the forfeiture judgment. (Id.)

Subsequently, Defendant was sentenced to 120 months’ imprisonment, and the district

court entered an order of forfeiture.

       In January 2016, Defendant sought the release of the $2,688 seized during his

second arrest. The government filed a motion for forfeiture of the $2,688 as a substitute

asset under 21 U.S.C. § 853(p) to satisfy, in part, the $10 million money judgment.

Defendant objected. He “admitt[ed] that he agreed to the entry of a criminal forfeiture

money judgment in the amount of $10,000,000.00 representing proceeds of the drug

conspiracy, which is jointly and severally liable between all of the defendants.”

(R. at 291.) But, he argued, the government had not established that the proceeds of the

drug conspiracy were unavailable due to “an act or omission of the defendant.”

(R. at 291–95.) In response, the government posited that § 853(p) did not require a

showing that the forfeitable property was unavailable due to Defendant’s act or omission.

Rather, it argued, “the doctrine of joint and several liability makes Defendant liable not

only for the forfeiture of the proceeds of the conspiracy, no matter who obtained them,

but also for the acts or omissions that resulted in the dissipation of those proceeds, no

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matter which coconspirator caused them to be dissipated.” (R. at 300.) The district court

granted the motion for forfeiture of the $2,688 as a substitute asset, agreeing with the

government that Defendant was liable for “the acts or omissions that resulted in the

dissipation of those proceeds, no matter which coconspirator caused them to be

dissipated.” (R. at 305.) Defendant appealed.

       After briefing in this appeal concluded, the Supreme Court decided Honeycutt v.

United States, No. 16-142, 2017 WL 2407468 (U.S. June 5, 2017.) The question

addressed by Honeycutt was “whether, under § 853, a defendant may be held jointly and

severally liable for property that his co-conspirator derived from the crime but that the

defendant himself did not acquire.” Honeycutt v. United States, 137 S. Ct. 1626, 1630

(2017). The answer was no. See id. “[S]uch liability,” the Court held, “is inconsistent

with the statute’s text and structure.” Id. It went on: “Congress did not authorize the

Government to confiscate substitute property [under § 853(p)] from other defendants or

co-conspirators; it authorized the Government to confiscate assets only from the

defendant who initially acquired the property and who bears responsibility for its

dissipation.” Id. at 1634 (emphasis added).

       In its brief filed before Honeycutt was decided, and citing pre-Honeycutt, out-of-

circuit precedent, the government asserted: “a defendant is also vicariously liable for the

acts or omissions of her co-defendants in causing the proceeds of the conspiracy to be

dissipated, commingled, or transferred, and thus to be unavailable for forfeiture.”

(Appellee’s Br. at 27 (emphasis in original).) Whether or not that was an accurate

statement of the law, it is certainly not today. The government now posits that “there is

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an alternative ground for the district court’s” conclusion. (Appellee’s Rule 28(j) letter at

2.) It points to the part of the plea agreement where Defendant admitted to have “sold

smaller quantities of drugs that [he] obtained from co-conspirators” and argues that “it

was reasonable for the district court to find that the defendant personally obtained at least

$2,688 in drug proceeds” and that the government’s “failure to locate that money . . . was

due to Defendant’s personal act or omission.” (Id. (emphasis omitted).) But the district

court made no relevant factual findings. And so, we must REVERSE and REMAND for

further proceedings in light of Honeycutt.

                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




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