United States v. Purify, 10th Cir. (2017)
United States v. Purify, 10th Cir. (2017)
United States v. Purify, 10th Cir. (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.
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,
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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order is not binding precedent, except under the doctrines of law of the case, res judicata,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
Eventually, Defendant pled guilty to the drug conspiracy. As part of the plea
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
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.
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
(R. at 29195.) In response, the government posited that 853(p) did not require a
showing that the forfeitable property was unavailable due to Defendants 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
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 statutes text and structure. Id. It went on: Congress did not authorize the
defendant who initially acquired the property and who bears responsibility for its
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
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 courts conclusion. (Appellees 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 governments failure to locate that money . . . was
due to Defendants personal act or omission. (Id. (emphasis omitted).) But the district
court made no relevant factual findings. And so, we must REVERSE and REMAND for
Monroe G. McKay
Circuit Judge
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