June 2007, FEAR bulletins with associated articles

Money damages under 41(g)

CA reversal of forfeiture judgment

Forfeiture of Wife's Share of Home Over Husband's Marijuana Is Found Excessive

A woman who insisted that she did not know her husband was growing marijuana in the basement of the home they had shared since 1979 should not forfeit her full half interest in the home, a federal appellate court has ruled.

The 2nd U.S. Circuit Court of Appeals on Wednesday vacated a decision ordering Kathleen M. von Hofe to forfeit her interest in the couple's $248,000 Branford, Conn. home.

The circuit in von Hofe v. United States, 05-2969-cv., said that the forfeiture of her interest violated the Excessive Fines Clause of the Eighth Amendment to the U.S. Constitution

Saying that Ms. von Hofe was guilty of, at most, "turning a blind eye" to her husband's activities, the court remanded the case to the district court for a determination of how much the forfeiture should be reduced or whether it should be eliminated entirely.

Since the court affirmed the forfeiture of her husband's interest, that would leave Ms. von Hofe and the government as co-owners.

Judges Joseph McLaughlin and Richard Wesley, along with Vermont U.S. District Judge William Sessions, sitting by designation, decided the appeal. Judge Wesley wrote for the court.

In December 2001, Branford police officers assisted by the Drug Enforcement Administration executed a search warrant at the home of Harold von Hofe and his wife. Inside, they found 65 marijuana plants and other items associated with marijuana cultivation and use.

Both husband and wife entered an Alford plea, whereby a defendant may enter a plea that includes protestations of innocence while still consenting voluntarily to a prison sentence.

Mr. von Hofe received a three-year suspended sentence and his wife a nine-month suspended sentence.

The government then launched an in rem forfeiture action in the District of Connecticut, at which Ms. von Hofe offered an "innocent owner" defense under the Civil Asset Forfeiture Reform Act of 2000 (CAFRA).

The marijuana plants were found in two, small compartments in one of four rooms in the basement. Ms. von Hofe said she was not involved in the marijuana cultivation and could not smell the plants over the incense her husband burned.

As the family's principal breadwinner, someone who worked 70 hours per week as a nurse at the Yale-New Haven Hospital, Ms. von Hofe said she only pleaded guilty to misdemeanor marijuana possession because the police had threatened to press charges against her two sons if she did not.

Mr. von Hofe, who said he grew the marijuana for his personal use, testified that he never discussed his crop with his wife and cultivated it only when she was away.

The jury rejected the innocent owner defense and the district court went on to find that the forfeiture of Ms. von Hofe's interest did not violate the Excessive Fines Clause.

At the circuit, Judge Wesley said the circuit determines excessiveness by considering "(1) the harshness, or gross proportionality, of the offense, giving due regard to (a) the offense committed and its relation to other criminal activity, (b) whether the claimant falls within the class of persons for whom the statute was designed, (c) the punishments available, and (d) the harm caused by the claimant's conduct; (2) the nexus between the property and the criminal offenses, including the deliberate nature of the use and the temporal and special extent of the use; and (3) the culpability of each claimant."

The court had little trouble determining that Mr. von Hofe's forfeiture was constitutional.

But as for Ms. von Hofe, where her half-share of the property "would amount to a $124,000 fine," Judge Wesley said the Eighth Amendment was violated.

'TURNING A BLIND EYE'

"Kathleen von Hofe bears minimal blame for the criminal activity that occurred at 32 Medley Lane. The record is devoid of any evidence indicating her use of drugs or her involvement in any criminal activity whatsoever," Judge Wesley said. "We also have no evidence to suggest Mrs. von Hofe encouraged or promoted the offensive conduct occurring at 32 Medley Lane ... and although Mrs. Von Hofe may have known her husband smoked marijuana with his friends or family, we are bound by the district court's finding that she was not 'aware that either her sons or husband were selling or bartering marijuana in her home.'"

Wesley said the court was not overlooking the fact that the jury concluded Ms. von Hofe was not an innocent owner, but he said "Mrs. von Hofe's culpability, falling at the low end of the scale, is best described as turning a blind eye to her husband's marijuana cultivation in their basement."

Her "offensive conduct," he said, "boils down to her joint ownership of 32 Medley Lane and silence in the face of her husband's decision to grow marijuana in their basement almost 30 years into their marriage. And yet she is being punished as if she were distributing drugs, when the district court concluded as a matter of fact that she had no knowledge of any distribution or renumeration."

Jonathan J. Einhorn of New Haven, who represented the van Hofeses, said the circuit "seems to be saying that, based on the record now, the government can't justify forfeiture at all -- but they also seem to be saying that a further development of the record might reveal something else."

Assistant U.S. Attorneys David Sullivan and Sandra Glover represented the government. A spokesperson for U.S. Attorney Kevin J. O'Connor said Thursday that prosecutors are reviewing the decision and weighing their options.

But Einhorn said he believes the government will appeal.

"My research on this case, and there are not a lot of forfeiture cases (on point) around the country, and this one is very detailed and very well written, and the Justice Department may be worried that this case will set the standard for forfeitures around the country and consider appealing," he said.

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Anciliary proceedings & unsecured property

Failure to put forfeiture order in final judgment= clerical error(???)