MARGARET M. MORROW, District Judge.
On November 18, 2005, the United States of America filed this action in rem against defendant Real Property in Santa Paula, California.
The defendant property is comprised of a residential house with five or six outbuildings along the driveway leading to the house.
In May 2005, the Ventura County Sheriff's Department received information from a citizen informant about an outdoor marijuana grow on the property.
In August 2005, Detective Lisa Panza obtained permission to enter the neighboring property, and was able to observe the outdoor marijuana grow described by the anonymous caller.
Detectives also found a sign on the outside of the makeshift dwelling that read, "Smile, you're on camera! Alarm is Sounding!"
Detectives entered the primary residence and did a protective sweep to secure the area.
The following items were seized from in and around the primary residence: (1) outside the residence, an alarm wire from the outdoor grow that led to the house; (2) in the living room in front of the fireplace, a television monitor that allegedly displayed the outdoor grow; (3) inside a cabinet in the living room next to the front door, a clear plastic bag containing approximately eighteen grams of processed marijuana; (4) on Griffiths' desk in his bedroom, a box of documents labeled "John Griffiths" that included two receipts from Foothill Hydroponics, a retailer of equipment and chemicals used for indoor plant growth;
The modular home for which a warrant was obtained was located in front of the primary residence such that anyone going to the primary residence had to drive past the modular home.
Indoor marijuana grow operations commonly use bright lighting from metal halide, high pressure sodium, or fluorescent bulbs.
_________________________________________ Read Date Total Usage Total Billed _________________________________________ 05/25/04 3862 $541.69 _________________________________________ 06/24/04 4443 $564.81 _________________________________________ 07/23/04 3856 $564.81 _________________________________________ 08/24/04 3116 $457.32 _________________________________________ 09/23/04 2381 $336.45 _________________________________________ 10/25/04 2172 $279.69 _________________________________________ 11/24/04 2337 $306.18 _________________________________________ 12/17/04 4297 $619.61 _________________________________________ 1/25/05 4465 $661.43 _________________________________________ 2/24/05 4637 $687.16 _________________________________________ 03/26/05 4130 $591.83 _________________________________________ 4/25/05 2732 $367.53 _________________________________________ 5/24/05 2225 $286.38 _________________________________________
6/23/05 2441 $347.94 _________________________________________ 7/25/05 1170 $275.85 _________________________________________ 8/23/05 3607 604.17 _________________________________________ 9/23/05 1843 $251.66 _________________________________________
During the search of the primary residence on September 1, 2005, an electrical bill bearing Griffiths' name was found in the box of documents in Griffiths' bedroom, together with the hydroponics bill and other personal papers belonging to Griffiths.
Griffiths asserts that when he purchased the property, he asked why the electrical bills were so high.
At his deposition, Griffiths testified that he "spent a lot of time away from the property."
During discovery, however, Griffiths produced a calendar and schedule showing that he was present at the defendant property for significant periods while marijuana cultivation, which is a labor-intensive activity,
Griffiths is aware of his son's prior conviction for attempting to smuggle "lots of marijuana" into the United States from Canada.
The day after his conversation with Jonathan, Griffiths left on a trip to San Francisco; upon his return, he checked Jonathan's bedroom and the plants were gone, although some electrical "stuff still appeared to be out in the hallway on the floor."
Between 2002 and August 2005, Griffiths consistently made cash deposits to CBC Federal Credit Union account that averaged $2,000 per month; at his deposition, Griffiths could not recall the source of many of the deposits.
In his declaration, Griffiths states that he never saw any plants that looked liked
Jonathan has submitted a declaration stating that he was primarily responsible for the care and upkeep of the defendant property.
A motion for summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. PROC. 56(c). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue as to which the nonmoving party will have the burden of proof, however, the movant can prevail merely by pointing out that there is an absence of evidence to support the nonmoving party's case. See id. If the moving party meets its initial burden, the nonmoving party must set forth, by affidavit or as otherwise provided
In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence. Rather, it draws all inferences in the light most favorable to the nonmoving party. See T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987). The evidence presented by the parties must be admissible. FED. R. CIV. PROC. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. Niagara Falls, 754 F.2d 49, 56 (2d Cir.1985); Thornhill Pub. Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979).
To prevail in an action under 21 U.S.C. § 881(a)(7), the government must prove by a preponderance of the evidence that the property is subject to forfeiture. See 18 U.S.C. § 983(c)(1) ("In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any property. . . the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture"); see also United States v. $100,348.00 in U.S. Currency, 354 F.3d 1110, 1116 (9th Cir.2004) (noting that the Civil Asset Forfeiture Reform Act ("CAFRA") raised the government's burden of proof from probable cause to a preponderance of the evidence); United States v. $80,180.00 in U.S. Currency, 303 F.3d 1182, 1184 (9th Cir.2002) ("CAFRA transferred the burden of proof from the claimant to the government and required the government to establish forfeiture by a preponderance of the evidence rather than by the lower probable cause standard").
This standard of proof requires that the government show that it is more likely than not that the property is subject to forfeiture. See United States v. Lawrence, 189 F.3d 838, 844 (9th Cir.1999). Where the government's theory of forfeiture is that the property was used to commit or to facilitate the commission of a criminal offense, or that it was involved in the commission of a criminal offense, the government must establish that there is a substantial connection between the property and the criminal offense. 18 U.S.C. § 983(c)(3). See generally United States v. 6250 Ledge Road, 943 F.2d 721, 725 (7th Cir.1991) (noting that, under § 881(a)(7), the government need "only demonstrate that the nexus [between the property and the drug offense] is more than incidental or fortuitous," cited with approval in United States v. 6380 Little Canyon Road, 59 F.3d 974, 985 n. 11 (9th Cir.1995), abrogation on other grounds recognized by United States v. $273,969.04 U.S. Currency, 164 F.3d 462, 466 n. 3 (9th Cir.1999)).
CAFRA "sets forth the procedures used in all civil forfeitures under federal law unless the particular forfeiture statute is specifically exempted in 18 U.S.C. § 983(i)(2). Section 983(d)(1) provides the following innocent owner defense to a civil forfeiture: `An innocent owner's interest in property shall not be forfeited under any civil forfeiture statute. The claimant shall have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence.'" See also United States v. 144,774 Pounds of Blue King Crab, 410 F.3d 1131, 1134 (9th Cir.2005) (citing 18 U.S.C. § 983(d)(1)); United States v. $80,180.00 in U.S. Currency, 303 F.3d 1182, 1184 n. 2 (9th Cir.2002) (CARA. . . made a number of other remedial
"An innocent owner defense requires proof, by a preponderance of the evidence, that a party `(i) did not know of the conduct giving rise to forfeiture; or (ii) 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.'" United States v. DAS Corp., Nos. 09-56645, 09-56792, 406 Fed.Appx. 154, 158, 2010 WL 5189226, *2 (9th Cir. Dec. 15, 2010) (Unpub. Disp.) (citing 18 U.S.C. § 983(d)(2)(A)); United States v. Real Property Located at 3846 Nisenan Lane, No. CIV. 06-1383 WBS DAD, 2009 WL 2777178, *4 (E.D.Cal. Aug. 28, 2009) ("An `innocent owner' is one who either `did not know of the conduct giving rise to forfeiture,' or, upon learning of the conduct, `did all that reasonably could be expected under the circumstances to terminate such use of the property,'" citing 18 U.S.C. § 983(d)(2)(A)); United States v. Section 18, 976 F.2d 515, 520 (9th Cir.1992) (holding, prior to CAFRA, that "no property is forfeited [under § 881(a)(7)] if the owner was without knowledge of the criminal activity or did not consent").
"Evidence of an owner's reasonable steps to terminate the illegal use may include notifying law enforcement authorities, revoking permission to use the property for those engaging in the illegal conduct, or other reasonable actions to prevent or discourage the illegal use." Real Property Located at 3846 Nisenan Lane, 2009 WL 2777178 at *4 (citing 18 U.S.C. § 983(d)(2)(B)(i) ("For the purposes of this paragraph, ways in which a person may show that such person did all that reasonably could be expected may include demonstrating that such person, to the extent permitted by law (I) gave timely notice to an appropriate law enforcement agency of information that led the person to know the conduct giving rise to a forfeiture would occur or has occurred; and (II) in a timely fashion revoked or made a good faith attempt to revoke permission for those engaging in such conduct to use the property or took reasonable actions in consultation with a law enforcement agency to discourage or prevent the illegal use of the property")).
A claimant bears the burden of proof on an "innocent owner" defense. Id. (citing § 983(d)(1)); see also United States v. $223,178.00 in Bank Account Funds, No. SACV06-444 DOC (MLGx), 2008 WL 4735884, *5 (C.D.Cal. Apr. 30, 2008) ("Under the innocent owner defense, `[t]he claimant shall have the burden of proving that the claimant is an innocent owner by a preponderance of the evidence.' This burden is satisfied where a claimant shows either that the owner `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 use of the property,'" citing 18 U.S.C. § 983(d)(1)(i)-(ii)).
Griffiths concedes that use of the property violated federal drug laws;
Plaintiff cites the following facts that it contends warrant the entry of summary judgment in its favor: (1) the maturity of the marijuana plants under cultivation at the time of the seizure shows that they had been growing for at least four months;
In support of its argument, plaintiff proffers the declaration and expert report of Joseph F. Bryson, a United States Drug Enforcement Administration Special Agent.
Bryson also asserts that "unexplained" cash deposits of approximately $2,000 into Griffiths' account are consistent with transactions in controlled substances.
"Because the innocent owner defense is an affirmative defense, it is not incumbent upon the government to prove that the owner had knowledge of the illegal activity. Rather, `it is the claimant's responsibility to prove the absence of actual knowledge.'" 16328 South 43rd East Ave., Bixby, Tulsa County, Okla., 275 F.3d at 1284-85 (citing United States v. Four Million, Two Hundred Fifty-Five Thousand, 762 F.2d 895, 907 (11th Cir. 1985)). The court is "not constrained to accept denials supported by a mere scintilla of evidence. Such bare denials—for example, where the defendant's alleged ignorance amounts to willful blindness, or where the owner's claims of ignorance are `inconsistent with the uncontested facts'— are insufficient to create a genuine triable issue." Id. (citing United States v. One Parcel of Prop., Located at 755 Forest Rd., 985 F.2d 70, 72-73 (2d Cir.1993)); United States v. Parcel of Land & Residence at 5 Bell Rock Rd., 896 F.2d 605, 611 (1st Cir.1990) (a "merely colorable" affidavit is insufficient as a matter of law to avoid summary judgment).
As noted, plaintiff contends that evidence of Griffiths' knowledge of the marijuana cultivation operation underway at the defendant property is "overwhelming" and "one-sided."
Griffiths' admissions alone show that there are no triable issues of fact regarding his knowledge of—or, at least, willful blindness to—Jonathan's unlawful use of the defendant property. Stated differently, Griffiths' "bare denials" of knowledge, to the extent clearly "inconsistent with uncontested facts," are insufficient to create genuine issues of fact. 16328 S. 43rd E. Ave., Bixby, Tulsa County, Okla., 275 F.3d at 1285 (affirming the entry of summary judgment in favor of the United States in a forfeiture case); One Parcel of Prop., Located at 755 Forest Rd., 985 F.2d at 72-73 (affirming the entry of summary judgment in favor of the United States in a forfeiture case based on evidence establishing that the owner was willfully blind to drug activity on the property).
In this regard, the facts of this case are similar to those considered by the Second Circuit in United States v. One Parcel of Property, Located at 755 Forest Road, Northford, Conn., 985 F.2d 70 (2d Cir. 1993). There, the district court granted summary judgment in favor of the government on a claim that a wife's residence was subject to forfeiture, despite the wife's submission of an affidavit stating that, although she knew of her husband's drug use, she was unaware of the presence of narcotics in the home and had requested that he not use or keep narcotics there. Id. at 72. The appellate court held that the wife's affidavit was "insufficient, as a matter of law, to establish the requisite lack of knowledge." Id. at 73. The court noted that the affidavit did "not contest the government's evidence that the drugs and drug paraphernalia were discovered throughout the bedroom she shared with her husband[—] . . . on top of a dresser, in a jewelry box on the top of the dresser, in a dresser drawer, and on a closet floor, places to which she had easy and continual access." Id. The fact that these items were in plain view, the court concluded, "utterly belie[d]" the wife's professed "ignorance of drug activities in the bedroom" and at best, constituted "`willful blindness' " to the activities going on in the house. Id. Given that the wife's claim of ignorance was "inconsistent with the uncontested facts," the court affirmed the district court's finding that "`more de-tailed factual substance in support of her claim of ignorance' was required for the wife to meet her burden" of proof on an innocent owner defense. Id.
Here, as in One Parcel of Property, Located at 755 Forest Road, Northford, Conn, Griffiths does not dispute—indeed concedes—that he saw cultivation equipment and plants that he suspected were marijuana in a room across the hallway from his bedroom, and that he saw the equipment was still in the hallway when he returned from a trip. Similarly, he does not dispute that there were receipts in a box on his desk in his bedroom from Foothill Hydroponics, a retailer of equipment and chemicals used for indoor plant growth. While Jonathan asserts that the receipts were his,
Since the court has concluded that there are no triable issues of fact regarding Griffiths' knowledge of illegal activity at the defendant property, it must consider whether, upon discovering the indoor growing operation in Jonathan's bedroom, Griffiths "`did all that reasonably could [have] be[en] expected under the circumstances to terminate such use of the property.'" DAS Corp., 406 Fed.Appx. at 158, 2010 WL 5189226 at *2 (citing 18 U.S.C. § 983(d)(2)(A)). To satisfy this requirement, the claimant must show that he took "all reasonable steps to prevent the illicit use of [the] premises once [he] acquire[d] knowledge of that use." 16328 South 43rd East Ave., 275 F.3d at 1285 (citing United States v. Lot Numbered One (1) of the Lavaland Annex, 256 F.3d 949, 953-54 (10th Cir.2001)); accord Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974) (noting that it might be unconstitutional to force an uninvolved property owner to forfeit his property when the owner "had done all that reasonably could be expected to prevent the proscribed use of his property"); United States v. $69,292. 00 in U.S. Currency, 62 F.3d 1161, 1165 (9th Cir. 1995) (citing Calero-Toledo, 416 U.S. at 680, 94 S.Ct. 2080); United States v. Property Identified as 1813 15th Street N. W., Washington D.C., 956 F.Supp. 1029, 1037 (D.D.C.1997) ("[T]o avoid summary judgment, the claimant must supply evidence to allow a reasonable juror to conclude that, under the circumstances, all reasonable steps were taken to curtail the illegal activity. . . . [E]vidence to prove some reasonable steps were taken is insufficient to preclude summary judgment" (emphasis original)).
It is undisputed that Griffiths told Jonathan to remove the plants from the room in the primary residence because he "guess[ed]" they were marijuana.
Plaintiff contends, as a matter of law, that Griffiths did not take all actions "that reasonably could [have] be[en] expected under the circumstances to terminate [illegal] use of the property."
Like Ms. Scott, Griffiths was periodically absent from the property.
As there are no triable issues regarding Griffiths' innocent owner defense, plaintiff's motion for summary judgment is granted. The government is entitled judgment forfeiting the defendant property.
See also United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.2002) ("[Rule 702] consists of three distinct but related requirements: (1) the subject matter at issue must be beyond the common knowledge of the average layman; (2) the witness must have sufficient expertise; and (3) the state of the pertinent art or scientific knowledge permits the assertion of a reasonable opinion"); Sterner v. U.S. Drug Enforcement Agency, 467 F.Supp.2d 1017, 1033 (S.D.Cal.2006) ("There are three basic requirements that must be met before expert testimony can be admitted. First, the evidence must be useful to a finder of fact. Second, the expert witness must be qualified to provide this testimony. Third, the proposed evidence must be reliable or trustworthy" (citations omitted)).
Before admitting expert testimony, the trial court must make "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In conducting this preliminary assessment, the trial court is vested with broad discretion. See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); United States v. Espinosa, 827 F.2d 604, 611 (9th Cir.1987) ("The decision to admit expert testimony is committed to the discretion of the district court and will not be disturbed unless manifestly erroneous").
"The party offering the expert bears the burden of establishing that Rule 702 is satisfied." Sundance Image Tech., Inc. v. Cone Editions Press, Ltd., No. CV 02-2258 JM (AJB), 2007 WL 935703, *4 (S.D.Cal. Mar. 7, 2007) (citing Allison v. McGhan Medical Corp., 184 F.3d 1300, 1306 (11th Cir.1999), in turn citing Daubert, 509 U.S. at 592 n. 10, 113 S.Ct. 2786); see also Walker v. Contra Costa County, No. C 03-3723 TEH, 2006 WL 3371438, *1 (N.D.Cal. Nov. 21, 2006) (same, citing Bourjaily v. United States, 483 U.S. 171, 172, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), and In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir.1994)). This showing must be by a preponderance of the evidence. See Daubert, 509 U.S. at 594 n. 10, 113 S.Ct. 2786 (citing Bourjaily, 483 U.S. at 175-76, 107 S.Ct. 2775). "In determining whether expert testimony is admissible under Rule 702, the district court must keep in mind Rule 702's broad parameters of reliability, relevancy, and assistance to the trier of fact." Sementilli v. Trinidad Corp., 155 F.3d 1130, 1134 (9th Cir.1998) (internal quotation marks omitted); see also Jinro Am. Inc. v. Secure Invests., Inc., 266 F.3d 993, 1004 (9th Cir.2001) ("Rule 702 is applied consistent with the `liberal thrust' of the Federal Rules and their general approach of relaxing the traditional barriers to opinion testimony" (internal quotation marks omitted)).
Bryson has been employed by the Drug Enforcement Administration for approximately eight years, and has completed more than 1,000 hours of training specifically related to marijuana enforcement, including marijuana identification, cultivation techniques, and pharmacology. (Bryson Decl., ¶ 1.) The training courses have been conducted by law enforcement experts, botanists, medical doctors, administrators of research programs, and other recognized experts in field. (Id.) In addition, Bryson has interviewed more than fifty people who have been arrested for marijuana offenses, and has read numerous books, periodicals, and research articles regarding marijuana use and cultivation. (Id.) Since 2003, Bryson has served as the Los Angeles Field Division Coordinator for the Drug Enforcement Administration's Domestic Cannabis Eradication/Suppression Program. (Id., ¶ 2.) In this role, he has investigated, assisted with, or provided advice regarding more than one hundred indoor marijuana cultivation operations, medical marijuana dispensary operations, and outdoor marijuana cultivation operations. (Id., ¶ 3.) He has instructed more than five hundred law enforcement officers and managers regarding such topics as investigation of indoor and outdoor cultivation, and of medical marijuana. (Id.)
Griffiths does not object to Bryson's testimony. Given his considerable experience in the field, the court is satisfied that Bryson's declaration meets the requirements of Rule 702. It will therefore consider Bryson's opinion in deciding the instant motion.
It is undisputed that a significant portion of the defendant property was in fact used for the cultivation of marijuana; the court is aware of no legal authority supporting the proposition that it is proper to determine which portions of a property were used unlawfully and which were not, and to order forfeiture of less than the entire property based on such an analysis. Rather, § 881(a)(7) subjects "the whole" of any property used for illegal activity to forfeiture; this has been interpreted to mean the entire tract "legally described." See 21 U.S.C. § 881(a)(7) ("subject to forfeiture "[a]ll real property, including any right, title, and interest in the whole of any lot or tract of land . . . which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of" a drug offense is forfeitable"); United States v. Santoro, 866 F.2d 1538 (4th Cir. 1989) (holding that two parcels of farm property bisected by a road and taxed separately were both subject to forfeiture, even though the illegal activity took place only on one of the parcels because the legal description of the property treated the whole of the land as one unitary tract that was held by one owner); see also United States v. 5 S 351 Tuthill Road, Naperville, Ill, 233 F.3d 1017, 1020 (7th Cir.2000) ("stating that property subject to forfeiture was the property "legally described as `Lots 14 and 15 in Block 3 of Arthur T. Mcintosh Co.'s DuPage Farms,'" but explaining that forfeiture process was complicated by the fact that the defendant property consisted of two separate parcels with different permanent index numbers and different legal owners); United States v. Spahi, 177 F.3d 748, 752-53 (9th Cir.1999) (holding that the government was not entitled to forfeiture of a parcel not included in the property's legal description under a "color of title" theory).
Nor is the court aware of legal authority supporting a partial or hybrid innocent owner defense that would permit it to find Griffiths failed to take all reasonable steps as to the house, but did not fail to take such steps as to the surrounding land. Indeed, 16328 South 43rd East Ave., Bixby, Tulsa County, Okla.
