USA v. 5 Reynolds Lane, Waterford et al

Filing 47

ORDER (see attached) - Directing Plaintiff to Respond to Claimants' Submission Regarding Further Evidence on the Excess Fine Clause of the Eighth Amendment. Signed by Judge Charles S. Haight, Jr. on 10/17/12. (Hornstein, A)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA
Plaintiff,
v.

3:09-cv-543 (CSH)

ONE PARCEL OF PROPERTY LOCATED
AT 5 REYNOLDS LANE, WATERFORD,
CONNECTICUT, WITH ALL
APPURTENANCES AND
IMPROVEMENTS THEREON,
Defendant.
[CLAIMANTS: SETH MARDER and
BETH MARDER]
.

ORDER DIRECTING PLAINTIFF TO RESPOND TO CLAIMANTS' SUBMISSION
REGARDING FURTHER EVIDENCE ON THE EXCESS FINE CLAUSE OF THE
EIGHTH AMENDMENT
HAIGHT, Senior District Judge:
This is an action by Plaintiff United States of America pursuant to 21 U.S.C. § 881(a)(7) to
forfeit the Defendant Real Property at 5 Reynolds Lane on account of the Property's use in a
violation of 21 U.S.C. § 841(a)(1). The Court held that the Real Property is subject to forfeiture in
a Ruling filed on October 3, 2012 [Doc. 44], familiarity with which is assumed. The facts and
circumstances of the case are recited in that Ruling. They are reiterated here only to the extent
necessary to explicate this Order, which addresses the need for a future evidentiary hearing.

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I. BACKGROUND
Seth Marder and Beth Marder, who are the Claimants of the Property and its owners and
residents, resist forfeiture. They previously sought an evidentiary hearing under Franks v.
Delaware, 438 U.S. 154 (1978), into the legality of the State of Connecticut search and seizure
warrant which preceded the United States' forfeiture action. [Doc. 31]. The Court concluded in its
prior Ruling [Doc. 44] that the Claimants are not entitled to a Franks evidentiary hearing in the case
at bar. [Doc. 44].
The Government, in turn, moved for summary judgment in its in rem action for forfeiture
against the Defendant Property. This Court followed the precedent set by Judge Kravitz in United
States v. One Parcel of Property Located at 32 Medley Lane, Branford, Connecticut, 372 F.Supp.2d
248 (D. Conn. 2005), aff'd in part and rev'd in part sub nom. von Hofe v. United States, 492 F.3d
175 (2d Cir. 2007), in which, presented with similar facts and claims, Judge Kravitz convened a jury
trial focused on two issues: (1) whether the property in question was subject to forfeiture; and (2)
whether one claimant was an innocent owner of said property.

372 F.Supp.2d at 250. Judge

Kravitz then dismissed his jury and took additional evidence on a third issue: whether forfeiture of
the property at issue was constitutional, a question that arose under the Excessive Fines Clause of
the Eighth Amendment to the United States Constitution, explaining in a Ruling reported at 2005
WL 465421 that "the Court should make the determination of whether the forfeiture is excessive
under the Eighth Amendment, not the jury." 2005 WL 465421 at *1 (D. Conn. Feb. 11, 2005).
Accordingly, in its prior Ruling in the case at bar, this Court considered both: (1) whether
the Defendant Property at 5 Reynolds Lane was subject to forfeiture to the United States; and (2)
whether Claimant Beth Marder was an innocent owner of that Property. [Doc. 44]. The Court

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granted summary judgement to the Government on both issues, holding that the Defendant Property
was subject to forfeiture, and that the defense of innocent owner was not available to Beth Marder.
Id. The Court further stated in its October 3, 2012 Ruling:
As in von Hofe, the Court will consider separately the question whether the Excess Fine
Clause of the Eighth Amendment bars forfeiture of both or either Claimant's interest in the
Property. That question has not yet been briefed by counsel, and counsel may suggest
additional evidence that it wishes to present with respect to it....
Counsel for the parties are directed to file and serve, on or before October 14, 2012, written
submissions stating whether they wish to offer further evidence with respect to the
constitutional question in the case. If additional evidence is sought to be adduced, the
proponent of the evidence is directed to submit a detailed offer of proof, describing in detail
the nature of the evidence and its source.
Id. at 26. The Court also directed Counsel for Plaintiff to file and serve, on or before October 14,
2012, a proposed Judgment in a form and substance consistent with the Court's October 3, 2012
Ruling. If so advised, the Court specified that Counsel for Claimants Seth Marder and Beth Marder
might file and serve a counter-Judgment on or before October 21, 2012. Id.
On October 12, 2012, pursuant to the Court's prior Ruling, Counsel for the Claimants
submitted a document concerning further evidence on the constitutional question.

See

Defendant/Claimants Submission Re: Further Evidence on the Eighth Amendment's Excessive Fines
Clause [Doc. 45]. Also on October 12, 2012, the Government submitted a Motion for Judgment of
Decree of Forfeiture, [Doc. 46], along with a proposed Judgment of Decree of Forfeiture. [Doc.461]. However, counsel for the Government did not comply with the Court's direction, as expressed
in its October 3, 2012 Ruling, that it file and serve a written submission stating whether the
Government wished to offer further evidence with respect to the constitutional question which
remains before the Court in the case at bar. See [Doc. 44]. The Court infers from the Government's
silence on the issue that the Government does not wish to offer any further evidence or offer of proof
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of its own regarding the Eighth Amendment question, to which the Court now turns its attention.
II.

CLAIMANTS' OFFER OF PROOF

The Document which Claimants' Counsel submitted to this Court on October 12, 2012,
Defendant/Claimants Submission Re: Further Evidence on the Eighth Amendment's Excessive Fines
Clause, [Doc. 45], purports to be an offer of proof. However, its apparent contents are part argument
and part actual offers of proof. The offers of proof that this document contains summarize additional
testimony that Claimants hope to offer from Claimant Beth Marder. Id.

Descriptions of this

proposed additional testimony may be found in ¶¶ 2, 4, 5, and 6, which read in pertinent part as
follows:
"Beth Marder seeks to testify that the defendant property was purchased with the legal
proceeds from the sale of their home in California." ¶2.
"The defendant property was not purchased with illegal proceeds." ¶2.
"[Claimants] will seek to introduce documents from the closing of the sale of the
Marder’s property in California and from the closing of the purchase of the defendant
property." ¶2.
"Beth Marder seeks to testify that the taxes and mortgage on the property and the cost of
maintaining the property have come from legitimate income and gifts from their parents."
¶2.
"Beth Marder will seek to introduce evidence that since the seizure of the defendant
property in April of 2009, the Marders have reduced the balance of the mortgage on the
property by roughly $10,000.00." ¶4.
"Beth Marder seeks to testify under oath before Your Honor, subject to Your Honor’s
assessment of her credibility, that she has been truthful throughout this process." ¶5.
"Beth Marder will testify that as a result of the stress of this case and his mental illness
Seth Marder attempted to take his own life on April 29, 2011." ¶6.
"Beth Marder seeks to testify that the underlying reason why Seth Marder grew and
smoked marijuana was because the legal drugs provided by the pharmaceutical industry
did not work as well for him as marijuana." ¶6.
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"[Claimants] seek to introduce medical, hospital and doctor’s records that Seth Marder
took an overdose of prescription medicines on April 29, 2011; was rushed to Lawrence
and Memorial Hospital; was on life support until May 2, 2011; was in the ICU Unit until
May 8, 2011; and was then in the psychiatric ward of Lawrence and Memorial Hospital,
The Pond House, until May 13, 2011." ¶6.
"Seth Marder continues to suffer mentally and physically from his mental illness and
from his attempt to take his own life." ¶6.
"The Marders have incurred significant medical and other bills as a result of the suicide
attempt." ¶6.
III. ORDER REGARDING GOVERNMENT'S RESPONSE
TO CLAIMANTS' OFFER OF PROOF
The Court directs the Government to respond to the Claimants' offers of proof as contained
in the Claimants' October 12, 2012 Submission Re: Further Evidence on the Eighth Amendment
Excessive Fines Clause. [Doc. 45], in two respects.
First, the Government is directed to file and serve, on or before October 30, 2012, a
statement as to whether any or all of the additional testimony which Beth Marder seeks to give
contains recitations of fact whose accuracy the Government concedes. Any conceded facts will form
part of the trial record as admissions, and need not be the subject of testimony.
Second, to the extent that any or all of the additional testimony which Beth Marder seeks to
give contains evidence which the Government deems to be inadmissible for any reason, the Court
directs the Government to make written objections to such evidence, and to file and serve such
objections on or before October 30, 2012.
This Order contemplates a two-pronged response from the Government. The Government,
if so advised, may couple its concession that a particular fact propounded by Claimants is accurate
and true with an objection that the fact in question is inadmissible, irrelevant, or for any other reason

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should not be considered by the Court in resolving the constitutional issue. In making these
directions, the Court intimates no present view as to how it will decide any of these questions.
If so advised, the Claimants may file and serve a response to the above-ordered Government
submissions on or before November 13, 2012.
Following such submissions, the Court will make such further scheduling Order as the
circumstances of the case may require.
It is SO ORDERED.
Dated: New Haven, Connecticut
October 17, 2012

/s/Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

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