Seizure of Pot Grower’s Property Upheld

A marijuana grower can be required to give up his entire property to the government even though he used only a small part of it for illegal activities, a federal appeals court ruled Friday.

In what is believed to be the first ruling on the scope of the nation’s tough new drug forfeiture law, the U.S. 9th Circuit Court of Appeals concluded that an accused Humboldt County marijuana grower can be ordered to forfeit his entire 40-acre property, even though he used less than two acres of it to grow marijuana.

“By specifying that property is subject to forfeiture if it was used ‘in any manner or part’ to commit or facilitate a drug offense, Congress plainly provided for forfeiture of property, even where only a portion of it is used for prohibited purposes,” a three-judge panel concluded.

A drug law adopted in 1984 allows federal prosecutors to seize drug-related assets as part of criminal prosecutions, simplifying a complex process that formerly required prosecutors to seek recovery of such assets by way of civil suits.

Several Applications

Though the courts have ruled on several applications of the law, Friday’s ruling represents the first time the appellate courts have looked at how broadly the government may reach for a drug felon’s assets, attorneys on both sides of the case said.

“This is the first case interpreting (that aspect of) the statute anywhere in the country,” said Assistant U.S. Atty. Sanford Svetcov of San Francisco.

Roscoe L. Littlefield was arrested in February, 1986, on drug charges after federal investigators found 700 marijuana plants growing on about of the 40 acres he owns in a remote section of Humboldt County near the Oregon border.

Prosecutors moved to seize Littlefield’s entire 40 acres and the house upon it, arguing that taking only the two cultivated acres would scarcely penalize Littlefield for growing marijuana plants whose value they estimated at about $700,000.

Littlefield’s property is valued at about $50,000.

Littlefield’s lawyer, federal public defender A. J. Kramer, argued that the law allowed the government to take only that land upon which the marijuana was growing, as well as any facilities relating to the cultivation, such as irrigation lines.

Review Case

A federal trial court judge agreed, ruling that only the two acres subject to cultivation could be forfeited. But Friday’s opinion, written by Judge Alex Kozinski, overturned the lower court’s ruling and ordered the trial court to review the case to determine precisely how much of the property may be forfeited.

Judges William C. Canby Jr. and William A. Norris concurred.

In addition to interpreting the language of the statute, the appellate panel also relied on Congress’ directive in passing the law that it be “liberally construed to effectuate its remedial purposes.”

“Here, where we have $700,000 worth of marijuana and only $50,000 worth of property,” Svetcov said, “it seems to me not unfair to make this part of the cost of engaging in illegal activity.”

But Kramer called the ruling a “scary” one because it opens the way for forfeitures greatly in excess of the value of any drug assets.

“You could carry it to the extreme of one marijuana plant growing on 5,000 acres. . . . That’s essentially the position the government advocated . . . that if any part of the property was used, the whole property should be forfeited,” he said.

Stopped Short

However, the court stopped short of a blanket ruling ordering all drug assets automatically subject to forfeiture, noting that there remain constitutional protections against “disproportionate punishments” that must be measured.

Thus, in the Littlefield case, the trial court will be required to examine the relative value of the property compared to the value of the marijuana plants and look at the “nexus” between the portion of the property used for cultivation and the rest of the land.

Because the ruling came before Littlefield’s trial on the charges, it is not appealable.

Kramer said he has struck an agreement with federal prosecutors in which the land will be sold back to Littlefield’s wife at the full $50,000 value in exchange for dismissal of the federal criminal charges. Littlefield still faces trial on state firearms charges.