US v. Property Titled in the Names of Ponce

• Decision Date: 16 November 1990
• Docket Number: Civ. No. 89-00607 ACK.
• Citation: 751 F. Supp. 1436
• Parties: UNITED STATES of America, Plaintiff, v. PROPERTY TITLED IN THE NAMES OF Moises PONCE and Ramona Ponce, Husband and Wife, as Tenants by the Entirety, as Grantees, Tax Map Key No. 9-6-14-43, Being Lot 5, Block "C", Located at Palima and Paauau Iki, District of Kau, Island and County of Hawaii, State of Hawaii, Together with all Appurtenances and Improvements, Defendants.
• Court: U.S. District Court — District of Hawaii

751 F. Supp. 1436

UNITED STATES of America, Plaintiff, v. PROPERTY TITLED IN THE NAMES OF Moises PONCE and Ramona Ponce, Husband and Wife, as Tenants by the Entirety, as Grantees, Tax Map Key No. 9-6-14-43, Being Lot 5, Block "C", Located at Palima and Paauau Iki, District of Kau, Island and County of Hawaii, State of Hawaii, Together with all Appurtenances and Improvements, Defendants.

Civ. No. 89-00607 ACK.

United States District Court, D. Hawaii.

November 16, 1990.

Daniel Bent, U.S. Atty., Sharon B. Takeuchi, Honolulu, Hawaii, for plaintiff.

Roehrig, Roehrig Wilson Hara & Schutte, Andrew P. Wilson, Hilo, Hawaii, for defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DECREE OF FORFEITURE

KAY, District Judge.

FACTS

Claimants Moises and Ramona Ponce live on the defendant property, which is located on the island of Hawaii. Claimants purchased the property in 1963 and own it as tenants by the entirety. There is no mortgage currently on the property. The Ponce's have been married for forty-two years and have five grown adult children. Moises Ponce works at Ka'u Agribusiness Co. as an herbicide supply truck driver and Ramona Ponce works as a nut picker for Mac Farms of Hawaii.

On April 18, 1980, Moises and Ramona Ponce were arrested after 52 marijuana plants were seized from their property. Prosecution was declined because the seizure was not pursuant to a warrant. According to Ramona Ponce's affidavit, she had numerous discussions with her husband after the arrest about never bringing marijuana onto the property again and told him that she was opposed to growing and smoking marijuana.

During the week of May 21, 1987, Hawaii County Police received information from a reliable informant that marijuana seedlings were being grown on the Ponce's property. A state search warrant was obtained and executed on May 28, 1987. As a result, the police seized 1,448 marijuana seedlings in plastic containers that were in nine larger wooden trays. Also seized were 14 plastic trays, 270 green plastic containers, a wheelbarrow, a shovel, and a .357 caliber Dan Wesson revolver.

On January 28, 1988, the grand jury for the State of Hawaii, Third Circuit, indicted Moises and Ramona Ponce for Commercial Promotion of Marijuana in violation of Hawaii Revised Statutes § 712-1249.5. On March 3, 1988, Moises Ponce pled no contest to the charge, and he received a Deferred Acceptance of No Contest Plea on April 7, 1988. He was sentenced to 90 days in jail (suspended) and received a $5,000 fine.

Prosecution of Ramona Ponce was deferred for five years, on the condition that she does not become involved in any criminal activity during that period. Her husband testified at his deposition that he brought seeds home and planted them approximately one week before the arrest, and that this was done without Mrs. Ponce's knowledge or consent. Mrs. Ponce testified at her deposition that she first saw the marijuana on her property the day before she was arrested. Mrs. Ponce's affidavit states that when she first observed the plants, she immediately told her husband to destroy the plants and to get them off of the property. Her affidavit further states that she was going to give her husband one day to remove the plants, and, if he did not do so, she was going to destroy the plants "even if I was going to get lickings." The police arrested the Ponces the next day, before the plants were destroyed.

The government argues that Mrs. Ponce's statement given to the police at the time of her arrest, and her subsequent answers to interrogatories, contradict her contention that she only knew of the marijuana for one day. At the time of her arrest, Mrs. Ponce told the officers "I told my husband about the plants, but he says, `If everybody else can grow, I can grow too.'" In her interrogatory answer, Mrs. Ponce stated that "I knew of the marijuana and tried to discourage my husband from growing it, but I could not stop him."

The United States has instituted this forfeiture action pursuant to 21 U.S.C. § 881(a)(7), which empowers the government to seize real property "which is or intended to be used, in any manner or part, to commit, or to facilitate the commission of" a federal narcotics offense punishable by more than one year in prison. The government has moved for summary judgment in this case.

DISCUSSION

A. Summary Judgment Standard

Summary judgment shall be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The United States Supreme Court has declared that summary judgment must be granted against a party who fails to demonstrate facts to establish an element essential to his case where that party will bear the burden of proof of that essential element at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). "If the party moving for summary judgment meets its initial burden of identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact citations omitted, the nonmoving party may not rely on the mere allegations in the pleadings in order to preclude summary judgment." T.W. Electrical Serv. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). Instead, Rule 56(e) requires that the nonmoving party set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial. Id. At least some "significant probative evidence tending to support the complaint" must be produced. Id. Legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment. British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978).

The standard for a grant of summary judgment reflects the standard governing the grant of a directed verdict. See Eisenberg v. Ins. Co. of North America, 815 F.2d 1285, 1289 (9th Cir.1987), citing, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Thus, the question is whether "reasonable minds could differ as to the import of the evidence." Id.

The Ninth Circuit has established that "no longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." California Architectural Bldg. Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987). Moreover, the United States Supreme Court has stated that "when the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Indeed, "if the factual context makes the nonmoving party's claim implausible, that party must come forward with more persuasive evidence that would otherwise be necessary to show that there is a genuine issue for trial." Franciscan Ceramics, 818 F.2d at 1468 (emphasis original), citing, Matsushita, supra, 475 U.S. at 587, 106 S.Ct. at 1356. Of course, all evidence and inferences to be drawn therefrom must be construed in the light most favorable to the nonmoving party. T.W. Elec. Services, 809 F.2d at 630-31.

In United States v. One 56-Foot Motor Yacht Named Tahuna, the Ninth Circuit had the following to say about summary judgment and the law of forfeiture:

Although we evaluate every summary judgment by viewing the evidence and the inferences therefrom in the light most favorable to the party opposing the motion, ... the "summary judgment procedures ... must necessarily be construed in light of the statutory law of forfeitures, and particularly the procedural requirements set forth therein. Those procedures themselves are quite summary, especially when compared to normal civil actions."

702 F.2d 1276, 1281 (9th Cir.1983) (citations omitted).

B. Forfeiture of Real Property

Title 21, Section 881(a) of the United States Code states in pertinent part:

The following shall be subject to forfeiture to the United States and no property right shall exist in them:

. . . . .

(7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this title punishable by more than one year's imprisonment, except that no property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner.

21 U.S.C. § 881(a)(7) (emphasis added).

By virtue of 21 U.S.C. § 881(d), the burden of proof in this action is controlled by 19 U.S.C. § 1615. Under 19 U.S.C. § 1615, the government initially must demonstrate probable cause to believe that the property was used or was intended to be used to facilitate the commission of a drug offense. The government cites numerous cases regarding the probable cause issue, but the claimants do not contest that the government has carried that burden. The claimants do not dispute that the property was used to commit a drug felony.

Once the government meets its burden regarding probable cause, the burden shifts to the claimants to prove that the property is not forfeitable. United States v. One 56-Foot Motor Yacht Named Tahuna, 702 F.2d 1276, 1280 (9th Cir.1983). One way a property owner may carry this burden is by proving that he or she was an "innocent owner." United States v. Four Million Two Hundred Fifty-Five Thousand Dollars, 762 F.2d 895, 906-07 (11th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 772 (1985). Mr....