763 F. Supp. 2d 1175

UNITED STATES of America, Plaintiff, v. REAL PROPERTY IN SANTA PAULA, CALIFORNIA, Defendant.

Case No. CV 05-08217 MMM (VBKx).

United States District Court, C.D. California.

Jan. 25, 2011.

*1176Frank D. Kortum, AUSA-Office of U.S. Attorney, Los Angeles, CA, for Plaintiff.

*1177ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

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.1 The complaint states a single claim for forfeiture under 21 U.S.C. § 881(a)(7).2 On March 14, 2007, the court stayed the case pending resolution of a related criminal matter.3 On July 28, 2010, the stay was lifted and the case reopened.4 On December 17, 2010, plaintiff filed a motion for summary judgment.5 Defendant opposes the motion.6

I. FACTUAL BACKGROUND

The defendant property is comprised of a residential house with five or six outbuildings along the driveway leading to the house.7 It also includes an orchard of approximately one hundred apricot trees between the house and the outbuildings,8 and a wooded hillside that is essentially deserted and non-productive.9 There are three water tanks located at the top of the hillside, which provide water to the residence, and three additional water tanks located halfway down the hill, at the bottom of the hill, and next to the house.10

In May 2005, the Ventura County Sheriffs Department received information from a citizen informant about an outdoor marijuana grow on the property.11 The informant stated that the outdoor grow was in a makeshift building with metal siding and a white canvas cover on top, which shielded the grow from aerial view.12 The grow was approximately ten feet in width by fifty feet in length, and was visible from the adjacent property.13

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.14 Panza conducted further investigation and learned that John F. Griffiths (“Griffiths”) owned the defendant property and resided there with his son, Jonathan Griffiths (“Jonathan”).15

*1178On September 1, 2005, based on the information that had been obtained, Detective Panza obtained a search warrant for the primary residence and for a modular home approximately seventy-five yards east of the residence; both structures are located on the defendant property. Prior to serving the search warrant, detectives conducted surveillance of the defendant property to confirm that marijuana plants were present.16 A Ventura Sheriffs helicopter hovered over the defendant property for about five minutes.17 Approximately three minutes after the helicopter left the area, Jonathan came out of the primary residence and rode an ATV to the grow site. He began to harvest the marijuana and continued to do so until he was approached and arrested by Detective Eddie Reyes.18 During their search of the outdoor grow site, detectives seized approximately 202 mature marijuana plants.19

Detectives also found a sign on the outside of the makeshift dwelling that read, “Smile, you’re on camera! Alarm is Sounding!”20 and saw a closed circuit television camera security system, which appeared to be monitoring the grow site.21 The electrical power sources for the grow site and the security system were both routed back to the primary residence.22 In his declaration, Griffiths asserts that he installed the camera to monitor his mailboxes after neighbors reported problems with mail theft. He contends that the unit at no time worked properly after its installation in 2003,23 and that he has never seen viewable images on the monitor.24

Detectives entered the primary residence and did a protective sweep to secure the area.25 During this sweep, detectives found an indoor marijuana greenhouse in an upstairs bedroom.26 The indoor grow room was across the hall from Griffiths’ bedroom.27

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;28 (5) in Griffiths’ bedroom, $400 in U.S. currency in a briefcase and $1,000 in U.S. currency in a floor safe; (6) six electrical ballasts, used to balance electrical fuses and make grow-lights last longer;29 (7) in the grow room, high energy lamps with several high wattage bulbs, used to help marijuana *1179grow;30 (8) on the hallway floor between Griffiths’ bedroom and the marijuana grow room, a carbon dioxide generator, used to oxygenate plants in an indoor grow; (9) in the indoor grow room, two electrical cycle timers that automatically turned on the lights and ventilation system; and (10) in the primary residence, two shotguns, six rifles, and three handguns.31 Upon clearing the primary residence, Detective Panza noticed a strong odor of marijuana plants in the hallway.32

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.33 In the modular home, which had four rooms, a hallway, and a bathroom, detectives found a hydroponic marijuana grow.34 A total of 92 marijuana plants, ranging in size from three inches to four feet in height, were found throughout the modular home, except in the bathroom and living room.35 Chemicals used for growing plants without soil were found on the floor throughout the modular home. The living room contained numerous items used for the cultivation and growth of marijuana, such as nutrients, bulbs, tubs, water, and chemicals.36

Indoor marijuana grow operations commonly use bright lighting from metal halide, high pressure sodium, or fluorescent bulbs.37 The lights are used for prolonged periods and consume substantial electricity because of their high wattage.38 Electricity at the defendant property is provided by Southern California Edison (SCE).39 The SCE account is in Griffiths’ name and lists the addresses of the primary residence and modular home. SCE records reflect that between May 15, 2004 and September 23, 2005, Griffiths’ combined electrical use for the primary residence and the modular home was as follows:

*1180

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.40 SCE reports that bills for normal electrical usage at houses in the same area during the same period averaged between $77.85 and $95.05 per month.41

Griffiths asserts that when he purchased the property, he asked why the electrical bills were so high.42 The former owner told him that the water pumps on the property ran on electricity and that, unless disconnected, Griffiths could “expect at least a five-hundred ... a month water bill.”43 He reports that, prior to 2005, a faulty valve on one of the tanks at the top of the hill caused two pumps to operate almost continually.44

At his deposition, Griffiths testified that he “spent a lot of time away from the property.”45 In his declaration, Griffiths explains that he is a deep water engineer, who specializes in federal contracts for deep water vessel modifications, and that he travels frequently to the Caribbean, Louisiana, and San Francisco for work.46 As a result, Griffiths maintains, Jonathan has, since Griffiths’ purchase of the defendant property, “basically ... been taking care of’ it.47

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,48 was underway there.49 Plaintiff contends that, when he was present, Griffiths engaged in agricultural activities that required him to be outdoors, such as harvesting apricots in the orchards located on *1181the property;50 Griffiths disputes this, and asserts that Jonathan was primarily responsible for apricot cultivation.51

Griffiths is aware of his son’s prior conviction for attempting to smuggle “lots of marijuana” into the United States from Canada.52 Griffiths has smoked marijuana, but not for thirty years.53 About two weeks before the execution of the search warrant, Griffiths noticed that Jonathan was growing plants in the room in the primary residence where the indoor grow operation was subsequently found, and that the plants were surrounded by “light fixtures.” He testified that, although he could not discern whether the plants were “marijuana or a fig tree,” he told Jonathan to remove the plants because he “guess[ed]” and “had to assume” they were marijuana.54 After telling Jonathan to remove the plants, Griffiths took no follow-up action despite his supposition that the plants were marijuana.55

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.”56

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.57 Griffiths explained *1182that he derived income in part from selling cars and other vehicles, and in part from renting the modular home on the defendant property.58 In his declaration, Griffiths explains that, some time before he was deposed in the instant matter, he was involved in a volatile and contentious divorce; 59 in that context, his divorce attorney advised him that he should respond to cross examination questions at depositions by “providing] no answer that [he] was not precisely confident with as to any given question.”60 During his deposition in the instant matter, Griffiths followed those instructions precisely;61 therefore, when individual bank slips were presented to him, which he had not seen in years, he “followed the instructions of [his] prior attorney and stated T don’t know* because in fact at that precise moment [he] didn’t know the circumstances of each apparent document of activity.”62

In his declaration, Griffiths states that he never saw any plants that looked liked *1183marijuana plants growing anywhere on the acreage;63 that he “had no reason to check[] out what was going on with the renters in the modular house;”64 that he never noticed “a[ ] peculiar odor that would have alerted [him] to strange things growing”;65 and that he knew that his son had periodically smoked marijuana for pain, but had no knowledge that he had ever smoked in the house.66

Jonathan has submitted a declaration stating that he was primarily responsible for the care and upkeep of the defendant property.67 Initially, he experimented with growing marijuana in an abandoned sheep pen on the defendant property.68 At some point, he learned that renters in the modular home were also growing marijuana.69 Jonathan asserts that he “kept everything quiet,” and that “[t]here was nothing showing ... [that] anything was being done illegally anywhere on the property.”70 As for the receipts for hydroponic chemicals seized from the primary residence, which bore the name “John Griffiths,” Jonathan asserts that this is the name he has “always” used “going ... through school an[d] even today.” 71 Jonathan asserts he has “no reason to believe [his] father ever specifically saw the receipt for the hydroponics items; [that Griffiths] never ever mentioned it to [Jonathan] and [that Jonathan] of course never mentioned it to [Griffiths].”72 Jonathan also asserts that he “had no reason to believe [his] father was aware of any illegal activity on the property at all.”73

II. DISCUSSION

A. Standard Governing Motions For Summary Judgment

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. Crv. 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 *1184in Rule 56, “specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Fed. R. Civ. Proc. 56(e).

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).

B. Legal Standard Governing Civil Asset Forfeiture Actions

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)).

C. The Innocent Owner Defense

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) (CAFRA ... made a number of other remedial *1185reforms, including establishing a comprehensive “ ‘innocent owner’ defense,” citing 18 U.S.C. § 983(d)).

“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)(l)(i)-(ii)).74

*1186D. Whether the Defendant Property is Subject to Forfeiture

Griffiths concedes that use of the property violated federal drug laws;75 the only question is whether he has adduced sufficient evidence of innocent ownership to defeat plaintiffs motion for summary judgment. Plaintiff contends it is entitled to summary judgment because it has adduced “overwhelming” evidence that Griffiths knew of the illegal use of the defendant property and failed to take all reasonable steps to prevent that unlawful use.76 See United States v. One Parcel of Property Located at 15 Black Ledge Drive, 897 F.2d 97, 102 (2d Cir.1990) (summary judgment in favor of the government was appropriate where there was “overwhelming” and “one-sided” evidence, citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505).

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;77 *1187(2) Griffiths was present at the defendant *1188property for substantial amounts of time during the four month period, including the entire month of July 2005;78 (3) agents found two receipts in Griffiths’ name from a hydroponics vendor on Griffiths’ desk, in his bedroom, reflecting the purchase of sulfur, a carbon dioxide filter, and a flange, items commonly used in growing marijuana and used in marijuana cultivation at the defendant property;79 electrical bills for the defendant property were unusually high;80 electrical ballasts and a carbon dioxide generator' — items that aid the growth of marijuana plants — were found in the hallway directly outside Griffiths’ bedroom; 81 and Griffiths recognized that his son was using lights and equipment to grow plants in his room.82

In support of its argument, plaintiff proffers the declaration and expert report of Joseph F. Bryson, a United States Drug Enforcement Administration Special Agent.83 Bryson opines that, given the number and maturity of plants under cultivation at the time of seizure, the square footage devoted to cultivating marijuana, and the labor-intensive nature of marijuana cultivation, it would have been “impossible for any reasonable person to overlook.” 84 He also asserts that a reasonable person in Griffiths’ position would have noticed receipts for the purchase of highly unusual materials from a hydroponics vendor, given that such vendors commonly supply materials for marijuana cultivators.85 Likewise, Bryson asserts, a reasonable person in Griffiths’ position who received unusually high electric bills would have attempted to determine why the charges were so high.86 Bryson maintains that, in combination, the high electric bills and receipts for purchases of hydroponic equipment associated with marijuana *1189growing would have caused a reasonable person to investigate whether there was illegal activity occurring at the property.87

Bryson also asserts that “unexplained” cash deposits of approximately $2,000 into Griffiths’ account are consistent with transactions in controlled substances.88 Finally, he notes that the plants Griffiths saw growing in Jonathan’s bedroom were easily recognizable as marijuana, since untrained people — particularly someone like Griffiths who had smoked marijuana in the past — can identify marijuana plants relatively easily, and since there were growing lamps and a carbon dioxide generator, items typically generally associated with marijuana cultivation, in the room or its immediate vicinity.89 Based on the foregoing factors, Bryson concludes that “there is no basis for Griffiths to claim that he did not recognize the nature of the activity taking place before him, and no explanation for his failure to take further steps to find out the true extent of that activity in terms of whether marijuana plants were being grown elsewhere on the property.”90

1. Knowledge

“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.”91 Griffiths disputes this, asserting that he has raised triable issues of fact regarding knowledge.92 It is undisputed, however, that, approximately two weeks before execution of the search warrant, Griffiths noticed that Jonathan was growing plants in the room in the primary residence where the indoor grow operation was subsequently found; that he saw the plants were surrounded by “light fixtures;” and that he told Jonathan to remove the plants because he believed they were marijuana.93 Griffiths also admits he knew that Jonathan smoked marijuana and that *1190Jonathan had previously been convicted of importing a large quantity of marijuana into the United States from Canada.94 Finally, Griffiths admits that, the day after his conversation with Jonathan, he left on a trip to San Francisco, and that he checked Jonathan’s bedroom upon his return and saw that some electrical “stuff still appeared to be out in the hallway on the floor.”95

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).96 See United States v. *11913814 NW Thurman Street, Portland, Or., A Tract of Real Property, 164 F.3d 1191, 1196-97 (9th Cir.1999) (“The innocent owner defense does not apply, however, where the owner was willfully blind to false statements made in a loan application. Ladum admitted in her deposition that, upon signing the previously unsigned tax returns at closing, she noticed that these returns listed Meegan as the preparer and she knew that someone other than Meegan had prepared her tax returns for 1990, 1991, and 1992. Thus, the district court did not err in concluding that the uncontroverted evidence showed that Ladum was willfully blind to the falsity of the tax returns she submitted and signed in connection with the loan application” (citation omitted)); United States v. Real Property 874 Gartel Drive, Walnut, Cal., 79 F.3d 918, 924 (9th Cir.1996) (“We reject the Beltrans’ innocent owner defense to this claim because both Isidro and Josefina Beltran obviously knew about, or were willfully blind to, the false statements in the loan application,” citing United States v. 1980 Red Ferrari, 827 F.2d 477, 480 (9th Cir.1987) (stating that a claimant cannot avoid knowledge of illegal activity by “sticking his head in the sand”)); United States v. One 1984 Lincoln Continental, CA License No. 2AHG081, VIN1MRBP98F3EY617464, 976 F.2d 738, 1992 WL 232513, *2 (9th Cir. Sept. 22, 1992) (Unpub. Disp.) (“[T]he district court found that Miller knew that her son had ‘a problem before about his car.... ’ Thus, Miller failed to carry her burden with respect to her claim of innocent ownership because, as the district court found, she was willfully blind to her son’s use of the vehicle in connection with narcotic activities” (citation omitted)). See also Lorillard Tobacco Co., Inc. v. A & E Oil, Inc., 503 F.3d 588, 594 (7th Cir.2007) (citing 16328 S. 43rd E. Ave., Bixby, Tulsa County, Okla and One Parcel of Prop., Located at 755 Forest Rd. in a Lanham Act case, noting that, while a party’s state of mind is generally a question of fact, a summary judgment court need not “accept denials supported by a mere scintilla of evidence,” as where the party’s “alleged ignorance amounts to willful blindness, or where the owner’s claims of ignorance are ‘inconsistent with the uncontested facts,’ ” and holding that “defendants must do more than baldly deny the reasonable inferences and facts presented by [plaintiff] *1192to avoid the conclusion that they knowingly sold counterfeit cigarettes”).

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 beliefd]” 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 detailed 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,97 and that he “has no reason to believe” his father ever saw them, tellingly Griffiths’ declaration does not state that he was unaware of the receipts, that he lacked access to the desk, or that he did not use the desk in the manner his son claims — to pay household bills. Griffiths’ admitted knowledge that there were plants he suspected to be marijuana growing in a room across the hallway from his bedroom, and that there were high wattage lights in the room to help the plants grow, coupled with undisputed evidence that there were receipts from a hydroponics retailer on his desk in his bedroom, to which he had ready and complete access, suffices, without more, to establish Griffiths’ knowledge that the property was being used for illegal purposes.98 Indeed, at the hearing on this motion, *1193Griffiths’ counsel conceded that his client had actual knowledge of the unlawful use of the defendant property, and argued that the case turned on the second prong of the innocent owner defense — whether Griffiths had taken all steps reasonably necessary to terminate the property’s unlawful use. This is the issue to which the court now turns.

2. All Steps Reasonably Necessary to Terminate the Illegal Usage

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.... [Ejvidence 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.99 It is likewise undisputed that, the day after his conversation with Jonathan, Griffiths left for San Francisco; upon his return, he checked Jonathan’s bedroom and found that the plants were gone, although he saw electrical “stuff [that remained] in the hallway on the floor.”100 Finally, it is undisputed that Griffiths took no further action in response to his discovery of plants he *1194believed to be marijuana in the primary residence.

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.”101 Griffiths failed, for example, to inspect the defendant property to determine whether additional illegal activity was afoot, and failed to contact law enforcement.102 16328 South 43rd East Ave., Bixby, Tulsa County, Okla., 275 F.3d 1281, is instructive in this regard. There, “[p]olice conducted a raid on appellant Ozella Scott’s real property on August 28, 1995. During the course of this raid, police caught Ms. Scott’s son, Mark Scott, with five marijuana plants that he had pulled from the ground as he fled. They also found two plants still growing on the property. Police executed a search warrant and found 1.4 pounds of marijuana in a mobile home on the property, along with various firearms. Police also found two ‘portable outbuildings’ containing lights, insulation, and a total of 37 pots. Some of the pots contained remnants of marijuana plants.” Id. at 1282. “Ms. Scott stated in her deposition that [her daughter-in-law] Laura Scott only made one statement regarding marijuana growth on the property, and that Laura Scott was inebriated and had been fighting with Mark Scott at the time of her statement. In response to her daughter-in-law’s report that Mark Scott was growing drugs on the property, Ms. Scott drove around the property looking for drugs. She apparently did not investigate any of the buildings or the back of the property. She then informed her son that she hoped he was not growing drugs on the property ‘because you know how I feel about it. I don’t want it on my property and I don’t even want you using it.’ Ms. Scott further stated that she rarely visited the property and never went there during the summer.” Id. at 1283. The court reasoned that “Ms. Scott did little to deter her son from growing drugs on her land. She killed one of the marijuana plants with weed killer, confiscated and disposed of the marijuana seeds she had found, and threatened her son with eventual eviction if he did not desist. However, these steps fall short of what any reasonable land owner would undertake given such knowledge of drug use and cultivation. For example, she could have given notice to appropriate law enforcement officials, and she could have evicted her son upon the information she received from her daughter-in-law. At the very least, Ms. Scott could have investigated the property more thoroughly to determine whether marijuana was in fact growing there. While we understand that Ms. Scott might have had difficulty investigating the property on her own, nothing prevented her from having some third party— such as the police — investigate the property for her.” Id. at 1286. The court therefore concluded that Scott had failed to show she took all reasonable steps to prevent the illegal use of her property, and concluded that her innocent owner defense was insufficient as a matter of law. Id. at 1287.

Like Ms. Scott, Griffiths was periodically absent from the property.103 Also like Ms. Scott, the only action Griffiths took upon discovering Jonathan’s indoor growing operation was to direct him to remove the plants Griffiths had observed; Griffiths did not search the house104 or sur*1195rounding land to determine whether there was other marijuana growing activity; nor did he ensure that the plants he observed in Jonathan’s room were the entirety of the illegal activity taking place on the property. Griffiths did not conduct an inspection of the property or undertake any further inquiry despite the fact that he knew Jonathan had previously been convicted of importing “lots of marijuana” from Canada. Most importantly, Griffiths did not contact law enforcement authorities. For these reasons, the court concludes that Griffiths failed to take all reasonable steps to ensure that the property was not being used for illegal purposes. Plaintiff is therefore entitled to have summary judgment entered in its favor on Griffiths’ innocent owner defense as a matter of law. See Real Property Located at 3846 Nisenan Lane, 2009 WL 2777178 at *5 (“Claimant’s statements ... demonstrate that she did not take reasonable steps to terminate the illegal use of the defendant property despite her knowledge. She stated that the marijuana had been on the property for approximately three months before the March 2006 and that she lived on the premises during that period. Nevertheless, she admitted that she did nothing during that time to report the presence of substantial quantities of marijuana to law enforcement.... Accordingly, in the absence of genuine issues of fact regarding claimant’s ... failure to take reasonable steps to terminate [the illegal] use, the Government is entitled to summary judgment in its favor on the ‘innocent owner’ defense”); United States v. One 1984 Lincoln Continental, CA License No. 2AHG081, VIN 1MRBP98F3EY617464, 976 F.2d 738, *2 (9th Cir. Sept. 15, 1992) (Unpub. Disp.) (“[T]he district court found that Miller knew that her son had ‘a problem before about his car’ and did not take ‘necessary steps’ in order to prevent the use of her vehicle to transport controlled substances.... Thus, Miller failed to carry her burden with respect to her claim of innocent ownership”).105

*1196III. CONCLUSION

As there are no triable issues regarding Griffiths’ innocent owner defense, plaintiffs motion for summary judgment is granted. The government is entitled judgment forfeiting the defendant property.

United States v. Real Property
763 F. Supp. 2d 1175

Case Details

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United States v. Real Property
Decision Date
Jan 25, 2011
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763 F. Supp. 2d 1175

Jurisdiction
United States

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