United States v. 5 Reynolds Lane

909 F.Supp.2d 131

UNITED STATES of America, Plaintiff,

v. ONE PARCEL OF PROPERTY LOCATED AT 5 REYNOLDS LANE, WATERFORD, CONNECTICUT, With All Appurtenances and Improvements Thereon, Defendant.[Claimants Seth Marder and Beth Marder].

No. 3:09–cv–543 (CSH).

United States District Court, D. Connecticut.

Dec. 3, 2012.

David X. Sullivan, Ndidi N. Moses, U.S. Attorney's Office, New Haven, CT, for Plaintiff.

William T. Koch, Jr., Lyme, CT, for Defendant.

ORDER

CHARLES S. HAIGHT, JR., Senior District Judge.

In a Ruling entered on October 3, 2012 [Doc. 44] reported at 895 F.Supp.2d 305, 2012 WL 4514490 (“Marder I ”), familiarity with which is assumed, the Court granted partial summary judgment to Plaintiff United States and held that the property located at 5 Reynolds Lane, Waterford, Connecticut, a residence owned jointly by Claimants Seth Marder and Beth Marder (“the Defendant Property”), is subject to forfeiture by the Government pursuant to the Controlled Substances Act, 21 U.S.C. § 881(a)(7), based upon a use of the Propertyto facilitate a violation of § 841(a) of the Act: specifically, the manufacture of marijuana.

The parties were directed to take steps preparatory for trial. Counsel for the Claimants couple submissions on points of evidence with a Request for a Stay of Proceedings [Doc. 50]. The Government's time within which to respond to that request has not yet elapsed, but the Court requires no response. This Ruling denies Claimants request for a stay, and then considers evidentiary and trial questions.

I. Claimants' Request for a Stay

Seth Marder and Beth Marder, the owners and Claimants of the Defendant Property, admit that they have grown marijuana plants on the Property and harvested marijuana crops. They assert that they each consume marijuana for medicinal reasons: Seth Marder to relieve the symptoms of bipolar disease, Beth Marder to relieve the symptoms of Lyme Disease.

The Claimants' Request for a Stay asserts that “Prior to November 6, 2012, seventeen states had passed laws legalizing marijuana for medical purposes,” and that “Marijuana is now completely legal in the State of Colorado and in the State of Washington.” [Doc. 50] at ¶¶ 1, 5. During the November 2012 elections, the legislatures of Colorado and Washington enacted laws decriminalizing possession of small amounts of marijuana for recreational purposes. The Marders and their attorney of record express the personal conviction that: “At this moment in the United States, the federal government must decide whether marijuana should be legal like alcohol and tobacco or remain in the same category as heroin, cocaine and the other most dangerous drugs.” Id. at ¶ 6. In order to give the Legislative Branch of the federal Government the opportunity to act responsibly in this area, Defendant (the Property) and the Claimants (who dwell therein) request “that this Court stay proceedings in this matter until the federal government acts to either block all state laws that recognize marijuana or legalize marijuana under federal law.” Id. at ¶ 10.

Such a stay, if granted by the Court, would be open-ended as to time. During at least the past two years, the Congress of the United States has proven itself incapable of enacting laws on almost any important subjects, and no discernible basis exists for believing or hoping that the Legislative Branch would in the near future deal in a meaningful manner with the sensitive and complex narcotics laws. Even if one assumes that the Judicial Branch has the authority to stay proceedings in a litigated case while waiting for the Legislative Branch to do something within its purview, a stay of unspecified and unmeasurable duration would not be favored.

However, that consideration of timing does not arise because the constitutional duty of a lower federal court such as this one is to conduct litigation in manners consistent Supreme Court instructions, not to instruct the Congress in how to legislate, or the Executive Branch in what sort of cases it should prosecute. The sincerity of the Marders' views, evidently shared by their attorney, is manifest. The request for a stay proclaims: “The federal government's continued inaction is arbitrary and hypocritical”; and counsel expresses his desire not to represent clients “who violated the federal marijuana laws and were the last people in the United States to have their home confiscated by the United States government, while people in Colorado and Washington grow and possess marijuana freely.” [Doc. 50] at ¶¶ 8, 9. The rights of the Claimants and their counsel to hold and express these opinions are secured by the First Amendment. But such views, however sincerely held or forcibly stated, can furnish no basis or justification for a United States District Court staying a forfeiture action commenced by the Department of Justice to enforce a narcotics statute enacted by the Congress.

In order to ascertain the governing rule of law, one need look no further than the Supreme Court's decision in Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). A California statute authorized limited marijuana use for medicinal purposes. Notwithstanding that state law, federal agents enforcing the federal Controlled Substances Act (“CSA”) (the same statute underlying the case at bar) seized and destroyed all cannabis plants cultivated by two California residents for medicinal purposes. The Supreme Court, construing the Commerce Clause, held that the power of Congress “to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally,” and that the federal CSA “is a valid exercise of federal power, even as applied to the troubling facts of this case.” 545 U.S. at 9, 125 S.Ct. 2195. Accordingly, the Court rejected the California residents' challenge to the federal action brought against them under the CSA.

In a reflection foreshadowing the position taken by the Claimants at bar, the Court in Gonzales said that those supporting “the medical necessity defense” for marijuana use might at some future time find an avenue to relief in “the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress. Under the present state of the law, however, the judgment of the Court of Appeals must be vacated.” 545 U.S. at 33, 125 S.Ct. 2195.¹ By “the present state of the law,” the Gonzales Court meant the narcotics laws enacted by Congress; and the CSA says now what it said then. While the Court's language indicates some sympathy for medicinal marijuana users, the case held that the federal statute trumped the contrary state law, and sustained seizure of the plants. Gonzales controls the case at bar a fortiori, since the Connecticut statutes, unlike those of California, prohibit the cultivation of marijuana for medicinal purposes: indeed, Seth Marder was prosecuted in a Connecticut court by state authorities for the acts underlying this federal forfeiture action.

A stay of this forfeiture action for the purpose of waiting to see if Congress changes the law would be beyond the powers of this Court, and contrary to the holding and rationale of Gonzales v. Raich and its progeny. Congress may at some future time change the law so as to decriminalize the use of marijuana for medicinal purposes. The Attorney General may at some future time decide not to prosecute such users or attempt forfeiture of their homes. ² Those possibilities, salutary as they may seem to some, lie within the discretion of the Legislative or Executive Branches of government. Implementing them falls outside the power of the Judicial Branch; and a court such as this one may not change the law, either directly or in the guise of staying proceedings under the federal CSA.

For these reasons, the Defendant/Claimants' application for a stay of these proceedings will be DENIED.

II. Trial Considerations

In Marder I, the Court granted the Government partial summary and held that the Defendant Property was subject to forfeiture under the CSA.³ That Ruling also stated that the Court “will consider separately the question whether the Excess Fine Clause of the Eighth Amendment bars forfeiture of both or either Claimant's interest in the Property.” 895 F.Supp.2d at 320, 2012 WL 4514490 at *15. To that end, counsel were directed to file “written submissions stating whether they wish to offer further evidence with respect to the constitutional question in the case” and, if so, to file detailed offers of proof describing the nature and source of the proffered evidence. Id.

The parties' responses to that direction [Docs. 45, 48 and 49] were modest, and the court had to prize a response out of the Government by means of a Supplemental Order [Doc. 47]. The present state of the record is that the Government has not specified any evidence it intends to offer on the constitutional question, and objects on relevance and admissibility grounds to four offers of proof by Claimants: (1) Claimants purchased the Defendant Property with the legal proceeds of the sale of their California home; (2) Since the seizure of the Defendant Property in April 2009, Claimants have reduced the balance of the mortgage on the property by $10,000; (3) Beth Marder has been truthful throughout the process; and (4) Seth Marder consumed marijuana for medical reasons and “as a result of the stress of this case and his mental illness, Seth Marder attempted to take his own life.” [Doc. 45] at 2–4.

With respect to Claimants' third offer of proof, the Government professes sympathy for Seth Marder's “health issues,” but contends that evidence of them (including a purported suicide attempt) is irrelevant and inadmissible on the forfeiture issues because the CSA's “prohibition of the ‘manufacture’ of marijuana does not create an exception for marijuana intended for personal use.” [Doc. 48] at 5.

I will address those...