Von Hofe v. U.S.

• Decision Date: 27 June 2007
• Docket Number: No. 05-2969-cv.,05-2969-cv.
• Citation: 492 F.3d 175
• Parties: Harold E. VON HOFE, Kathleen M. von Hofe, Claimant-Appellants, Property, Parcel of, 32 Medley Lane, Branford, CT Defendant, v. UNITED STATES of America, Plaintiff-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

492 F.3d 175

Harold E. VON HOFE, Kathleen M. von Hofe, Claimant-Appellants, Property, Parcel of, 32 Medley Lane, Branford, CT Defendant, v. UNITED STATES of America, Plaintiff-Appellee.

No. 05-2969-cv.

United States Court of Appeals, Second Circuit.

Argued: March 13, 2007.

Decided: June 27, 2007.

Jonathan Einhorn, New Haven, Connecticut, for Claimant-Appellants.

David X. Sullivan, Assistant United States Attorney on behalf of Kevin J. O'Connor, United States Attorney for the District of Connecticut (Sandra S. Glover, Assistant United States Attorney for the District of Connecticut, on the brief), for Plaintiff-Appellee.

Before: McLAUGHLIN, WESLEY, Circuit Judges, SESSIONS, District Judge.^*

WESLEY, Circuit Judge:

Claimants Harold and Kathleen von Hofe appeal from a civil judgment ordering the forfeiture of their home, 32 Medley Lane. They contend the forfeiture violates the Excessive Fines Clause of the Eighth Amendment, which "limits the government's power to extract payments, whether in cash or in kind, as punishment for some offense." Austin v. United States, 509 U.S. 602, 609-10, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (internal citation and quotation marks omitted). We affirm the forfeiture of Mr. von Hofe's interest in 32 Medley Lane, but not the forfeiture of Mrs. von Hofe's interest. Because the extent of the forfeiture bears no correlation either with Mrs. von Hofe's minimal culpability or any harm she purportedly caused, the Excessive Fines Clause precludes forfeiture of her entire one-half interest in 32 Medley Lane.

I. Background

The property at issue, with an undisputed value of $248,000, consists of a ranch house located on a small wooded lot in Branford, Connecticut. The von Hofes have called 32 Medley Lane their home since 1979 and reside there with their two sons. They enjoy joint ownership of the property, unencumbered by any mortgage.

The Branford Police Department, acting on a tip from a confidential informant, began investigating the possible cultivation of marijuana at 32 Medley Lane in November 2000. Rooting through the von Hofes' trash for ten months produced no incriminating evidence, but subpoenaed electrical records indicated that 32 Medley Lane consumed more than twice as much electricity as nearby residences of similar size and square footage. Officers from the Branford Police Department, with the assistance of the Drug Enforcement Administration ("DEA"), executed a search warrant at 32 Medley Lane in December 2001. Sixty-five marijuana plants, a small postage scale with marijuana residue on its pan, a jar partially filled with marijuana buds, several glass marijuana pipes, and other items commonly associated with the indoor cultivation of marijuana were discovered in the basement of the house. Neither large amounts of cash, glassine bags, nor firearms — indicia of the drug trade — were found.

The State of Connecticut brought a variety of criminal charges against Harold and Kathleen von Hofe. Mr. von Hofe ultimately entered an Alford plea¹ under Conn. Gen.Stat. § 21a-277(b), to the "manufacture[], distribut[ion] . . . [of] any controlled substance," and received a three-year suspended sentence and a conditional discharge. Mrs. von Hofe entered an Alford plea under Conn. Gen.Stat. § 21a-279(c), to possession of "any quantity of any controlled substance," and received a nine-month sentence, execution suspended, and a conditional discharge. No fine was imposed on either of the von Hofes.

II. The Civil In Rem Forfeiture Action

Choosing not to indict and prosecute the von Hofes personally, the federal government instead instituted a civil in rem forfeiture action against 32 Medley Lane two days after the search. The Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, § 511, 84 Stat. 1276, permits forfeiture of "[a]ll real property . . . which is used . . . to commit, or to facilitate the commission of, a violation of the [Controlled Substances Act] punishable by more than one year's imprisonment." 21 U.S.C. § 881(a)(7). Under the Civil Asset Forfeiture Reform Act of 2000 ("CAFRA"), Pub.L. No. 106-185, 114 Stat. 202, "the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture." 18 U.S.C. § 983(c)(1). To carry its burden of proving the property facilitated a violation of a narcotics offense punishable by more than one year in prison, the government must "establish that there was a substantial connection between the property and the offense." 18 U.S.C. § 983(c)(2). To prevent forfeiture, a claimant may either rebut the government's proof of a substantial connection or raise an innocent owner defense under CAFRA. An innocent owner is a claimant who "did not know of the conduct giving rise to forfeiture; or upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property." 18 U.S.C. § 983(d)(2)(A). CAFRA requires a claimant prove by a preponderance of the evidence that he or she is an innocent owner. Id. § 983(d)(1).

At trial, the government alleged a substantial connection between 32 Medley Lane and violations of 21 U.S.C. § 841(a), which prohibits the manufacture, distribution, or possession with intent to distribute marijuana, and 21 U.S.C. § 846, which prohibits a conspiracy to commit a violation of 21 U.S.C. § 841(a). Mrs. von Hofe — but not her husband — raised an innocent owner defense under CAFRA, claiming she "did not know of the conduct giving rise to forfeiture." Id. § 983(d)(2)(A)(i). Mrs. von Hofe made no claim that she, "upon learning of the conduct giving rising to the forfeiture, did all that reasonably could be expected under the circumstances to terminate such use of the property." Id. § 983(d)(2)(A)(ii).

The "substantial connection" and "innocent owner" issues were presented to a jury. The government's evidence in favor of forfeiture fell into three categories: (1) testimony from law enforcement officials present during execution of the search warrant; (2) a videotape recorded during execution of the search warrant; and (3) testimony from Anthony Honeykutt, then incarcerated for possession of prescription medication not in its original container, to recount how he traded ketamine for marijuana and purchased a half-ounce of marijuana for $200 at the von Hofe residence from one of the von Hofe sons. Mrs. von Hofe testified in defense of the property; her husband did not.

Testimony from officials from the Branford Police Department and the DEA began with the location and extent of the marijuana cultivation occurring at 32 Medley Lane. Finding no marijuana plants on the first floor of the von Hofe residence, law enforcement officials discovered sixty-five marijuana plants in two small compartments of one of four rooms in the basement. In one compartment containing the house's oil tank, about thirty marijuana plants were potted in a three-by-five foot area. The remaining marijuana plants were in another compartment, which housed the hot-water heater. Large curtains closed off both compartments from the remainder of the room.

Law enforcement officials further testified to incriminating statements made by the von Hofes during execution of the search warrant. A Branford Police Department detective testified that he sat with Mrs. von Hofe at her kitchen table, where she admitted her husband's ownership of the marijuana plants but claimed she was not involved in the marijuana cultivation. A DEA agent testified that Mr. von Hofe admitted to owning the marijuana plants, to making marijuana available to his son and friends who smoked marijuana in the basement with him, and to bartering marijuana for household repairs. The DEA agent acknowledged that Mr. von Hofe corroborated his wife's lack of involvement in the marijuana cultivation.

During the forfeiture proceeding, Kathleen von Hofe testified to her lack of involvement and insisted that she had no knowledge of the sixty-five marijuana plants. Even though the marijuana plants were growing in two compartments of a room down the corridor from her bedroom Mrs. von Hofe contended she could not smell the marijuana plants over the incense her husband burned in his study. She further claimed to have no reason to go into the compartments containing the marijuana plants, testifying that the oil man only entered the room when he needed to refill the oil tank. Mrs. von Hofe further insisted that she was busy and had no time to monitor her husband. Unlike Mr. von Hofe, whose job afforded him plenty of free time, Mrs. von Hofe was the principal breadwinner for the family and worked more than seventy hours a week as a nurse for the Yale-New Haven Hospital. She told the jury that she only pleaded guilty to misdemeanor possession of marijuana to save her two sons; local authorities had threatened to press charges against her sons if she did not enter a plea. The government chose not to rebut Mrs. von Hofe's lack of involvement, pressing instead her knowledge of the marijuana in the basement.

The jury took less than an hour to find a substantial connection between 32 Medley Lane and a violation of the federal narcotics laws punishable by more than one year in prison and to reject Kathleen von Hofe's innocent owner defense. Fearing the loss of their home, the von Hofes submitted a $248,000 offer of judgment, under Fed. R.Civ.P. 68, in lieu of forfeiture. The government rejected their offer.

The district court then conducted an evidentiary hearing to determine whether forfeiture of 32 Medley Lane would violate the Excessive Fines Clause of the Eighth Amendment. Harold von Hofe testified on his wife's behalf. He defended his wife's lack of involvement, claiming she could not have known about the marijuana as he never discussed the matter with her. Mr. von Hofe further testified that he did his best to hide the marijuana from her,...