United States v. One Parcel of Prop. Located At 5 Reynolds Lane

956 F.Supp.2d 349

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.

July 25, 2013.

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

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

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION

HAIGHT, Senior District Judge:

This is an in rem civil action wherein Plaintiff United States of America (“the Government”) seeks forfeiture of 5 Reynolds Lane, Waterford, Connecticut (“the Property”) pursuant to 21 U.S.C. § 881(a)(7) because the Property was used to commit, or facilitate the commission of, a violation of the Controlled Substances Act, 21 U.S.C. §§ 801 et seq. (“CSA”). The Property is a private residence jointly owned and occupied by its Claimants, Seth Marder and Beth Marder.

The Government's theory of the case is that it is entitled by the statutory scheme to forfeiture of the Property. The Claimants' theory of the case is that forfeiture of their home would violate the Constitution's prohibition of excessive fines.

I. INTRODUCTION

In a Ruling reported at 895 F.Supp.2d 305 (D.Conn.2012) (“Marder I ”), familiarity with which is assumed, the Court granted partial summary judgment to the Government, and held the Property is subject to forfeiture because it was in fact used to facilitate a violation of § 841(a) of the CSA, specifically, the manufacture of marijuana. In a subsequent Ruling reported at 909 F.Supp.2d 131 (D.Conn.2012) (“Marder II ”), familiarity with which is also assumed, the Court set the case down for a bench trial on the issue of “whether a forfeiture of the Claimants' interests in the Defendant Property passes muster under the Excessive Fines Clause” of the Eighth Amendment to the United States Constitution. 909 F.Supp.2d at 136.

That bench trial was held on April 9, 2013. Counsel for the Government and the Claimants summed up after closing of the proof. The Court now enters the following Findings of Fact and Conclusions of Law pursuant to Rule 52(a), Federal Rules of Civil Procedure.

II. FINDINGS OF FACT

1. The Property is a single-family residential building with a detached garage, located at 5 Reynolds Lane in the Town of Waterford, Connecticut. The parties stipulated at trial that “the current fair market value of the 5 Reynolds Lane, Waterford, Connecticut property is $200,000.” Tr. 11–12. ¹ The Court accepts that stipulation and finds that the current market value of the Property is established thereby, in the amount of $200,000.

2. The Claimants do not dispute that, as the Government alleges, during the relevant times Claimants used the Property to cultivate marijuana plants and manufacture the consumable marijuana that the plants, in the natural order of things, produced. In consequence, these Findings set forth those underlying facts in somewhat abbreviated form, but in sufficient detail to furnish the background for Claimants' contention that forfeiture of their home by the Government violates the Excessive Fines Clause of the Eighth Amendment. ²

3. Claimant Seth Marder (sometimes hereinafter “Seth”) was born in Kansas City, Missouri on September 28, 1961, and was 49 years old when the Government deposed him in this action on April 6, 2011. On that date, Seth was suffering from chronic depression and bipolar disorder, had been so afflicted for a number of prior years, and has these conditions today. When in his twenties, Seth was living in California, and at the suggestion of a friend began seeing a psychiatrist on a regular basis.

4. Seth had smoked marijuana when in high school, quit for ten years, and started again at about age 28, at which time, he testified at his deposition, “I knew that it helped my symptoms but I would say it was recreational because there were no laws on the books in California that said it was—you could have medical marijuana.” Dep. Tr. 17. That changed in 1996, when California passed a statute legalizing the use of marijuana for medical reasons, on a physician's written approval. Seth began his legalized medical use of marijuana in 1996 and continued that use thereafter; Exhibit 1 to his deposition is a Physician's Statement dated May 25, 2004, signed by Robert E. Sullivan, M.D., which states, inter alia, that Seth Marder, a resident of Yreka, California, “has a serious medical condition which, in my professional opinion, may benefit from the use of medical cannabis.” Seth signed a Patient's Declaration at the bottom of the document which acknowledges his understanding that “cannabis remains illegal under federal law.”

5. Seth Marder married Beth Marder ( nee Beth Greenhalgh, sometimes hereinafter “Beth”) in California in June 2003. Prior to and after their marriage, the Marders lived together in a house in Yreka that was in Seth's name only. Seth had no regular employment. Beth was working part time on the faculty of the Laurel Springs School, a private school in southern California, and part time for the California Department of Fish and Game. She still teaches at Laurel Springs, by means of online technology.

6. For as long as Beth knew Seth, Seth was growing and using marijuana for medicinal reasons, specifically, to control the mental disabilities attendant upon his underlying conditions. Seth cultivated marijuana plants at the home the Marders occupied in Yreka. Beth assisted him in that cultivation. Seth sold quantities of marijuana that exceeded his personal requirements to “marijuana clubs” in the Bay Area of California, which came into wider availability when California passed its 1996 law legalizing the use of marijuana for medical reasons. Seth Marder estimated at his deposition that from about the year 2000 until the Marders moved from California to Connecticut, he made approximately $100,000 by selling marijuana to marijuana clubs.

7. In July of 2005, the Marders sold the Yreka, California house and moved to the Property at 5 Reynolds Lane, Waterford, Connecticut, which they purchased jointly. Waterford had the advantage of being centrally located between the Cape Cod, Massachusetts home of Beth's mother (who was terminally ill) and the home of Seth's mother in Greenwich, Connecticut. The Property is accurately described in Marder I as “a single family two story wood and cement building with a detached barn-style garage.” 895 F.Supp.2d at 307.

8. Before departing for Connecticut, the Marders sold the Yreka, California house and held a yard sale for some of its contents. But the equipment used to grow and cultivate marijuana was not sold. The Marders kept that equipment and transported it to Connecticut, intending to grow and cultivate marijuana in their new home: an intention they promptly acted upon. Beth Marder testified that the Marders started growing marijuana at the Property “around the end of 2005, beginning of 2006” and continued to do so “until the [search] warrant was executed on March 18, 2009.” Tr. 67.

9. The Marders used a considerable amount of marijuana-growing equipment. The equipment included, for instance, 16 large devices referred to in the evidence as “white hooded lamps” or “grow lights.” These lamps were placed in the Property's garage. They cast a strong light upon marijuana plants and seedlings positioned beneath them, and assisted their growth. Moreover, each lamp was accompanied by a device called a “ballast,” whose necessity for the operation was explained by Beth Marder on cross-examination by counsel for the Government:

Q. Now, for every light that you had to grow marijuana, there was also a ballast; is that correct?

A. That's correct.

Q. And could you explain to the Court what a ballast is?

A. Yes. It's used to, almost like a battery, to power the lights themselves.

Q. And if you know, Mrs. Marder, why do you need a ballast to assist in, you know, operating these lights?

A. Well, as I stated, they're—that's, you can't just plug a light into a socket. It has to go through a, it's almost like a power generator.

Tr. 94. As this case exemplifies, the unusually high electrical consumption triggered by such operations can strengthen the suspicion of surveilling law enforcement officers that marijuana cultivation may be going on at a particular house.

10. Jon Rubinstein, an experienced DEA agent who participated in the search of the Property on March 18, 2009 under the circumstances related infra, surveyed the garage with its ranks of grow lights and ballasts, together with the other paraphernalia of marijuana cultivation (boxes, plants, seedlings, cut leaves, hoses, packaging, etc.), and praised the Marders' achievement at trial, with words they probably heard with mixed emotions:

Q. [by Government counsel] Now, based upon your training and experience, what was the size of this marijuana grow based upon those in which you've investigated in your past 23–year career?

A. [after objection, which was overruled] This was an operational grow that was, I've seen bigger, I've seen smaller. But this was a functioning, clean, well-thought out, well-concealed producing grow.

Q. And when you say “well-concealed,” what do you mean by that?

A. They took some steps to hide their operation. The windows were blackened out, covered with plastic in the grow garage.

Tr. 179–180.

11. The death knell for the Marders' “operational grow” was struck when during the week of March 9, 2009, an acquaintance visited the Property, observed the cultivation, consumption and sharing of marijuana, and passed that information on to DEA agents assigned to the agency's New Haven office. The agents designated their informant as “CC” for “concerned citizen”; the Marders would undoubtedly employ a different phrasing. This tip touched off a joint investigation conducted by DEA agents and Waterford Police Department officers which...