The Honeycutt brothers run an operation selling iodine to methamphetamine dealers. One brother makes $269,000 in total profits. The other brother gets paid a weekly salary, but otherwise takes home nothing. They are both charged in a drug conspiracy. The first brother reaches a plea deal with the government, and as a result gets to keep most of the money he made. The second brother loses at trial. At his sentencing, the trial court orders the second brother to forfeit (i.e. give back to the government) an amount equal to the total $269,000 in profits – even though he never saw a dime.

Should an individual co-conspirator be financially on the hook for everyone’s profits? This important question of criminal law has split the lower appellate circuits and is finally before the United States Supreme Court in the strange-but-true case of Honeycutt v. United States, described above. Oral arguments were heard on March 29, 2017. If the Supreme Court sides with the government, individuals who are minor participants in drug, RICO and white collar conspiracies may face forfeiture orders of thousands or millions of dollars.

To date, the majority of the appellate courts have adopted the government’s theory of conspiracy forfeiture. Yet the Supreme Court Justices’ questions on March 29 highlight the potential problems with this approach. Justice Sotomayor pointed out, for example, that the government’s rule could enable a drug kingpin to keep the proceeds of his crime while his co-conspirators pay, which runs afoul of the purpose of the forfeiture laws.

White collar attorneys and their clients would do well to keep an eye on Honeycutt. A defense win could signal a sweeping – and positive – change in criminal forfeiture law, while taking away one of the government’s strongest bargaining chips used to pressure conspiracy defendants into an untimely plea deal.