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United States v. 6941 Morrison Drive

United States District Court, D. Colorado

December 19, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
6941 MORRISON DRIVE, DENVER, COLORADO, Defendant

Page 1177

For USA, Plaintiff: Tonya Shotwell Andrews, Wayne Campbell, U.S. Attorney's Office-Denver, Denver, CO.

For Marshall Recovery LLC, Claimant: Gerald P. Vargo, Yosy V. Janson, Vargo & Janson, PC, Lakewood, CO.

For Richard A. Maes, Claimant: Travis Benjamin Simpson, Robert J. Corry, Jr., Attorney at Law, Denver, CO.

OPINION

Page 1178

ORDER

PHILIP A. BRIMMER, United States District Judge.

This matter is before the Court on United States' Motion for Summary Judgment [Docket No. 50] filed by plaintiff United States of America (" United States" ). This is a forfeiture case wherein the United States seeks to forfeit a residence used to grow marijuana for purposes of distributing it. The Court's jurisdiction is based on 28 U.S.C. § 1331.

I. BACKGROUND

The following facts are undisputed unless otherwise indicated. At all relevant times, claimant Richard Maes was living at defendant 6941 Morrison Drive, Denver, Colorado. Docket No. 50 at 3, ¶ 2; Docket No. 63 at 2, ¶ 2. Mr. Maes holds the sole title in the defendant property. Docket No. 50 at 6, ¶ 18; Docket No. 63 at 5, ¶ 18.

Mr. Maes testified at his deposition that he received a medical marijuana license in 2010 and began growing marijuana plants at that time, both for himself and for other patients who lacked the space to do so on their own. Docket No. 50-7 at 3. He testified that he " had an understanding that he was able to be a caregiver to cultivate medical marijuana for his and others' medical needs [so he] didn't think it was illegal to grow marijuana in his own home." Docket No. 50-7 at 3-4.

On February 28, 2012, the North Metro Drug Task Force received an anonymous tip that Mr. Maes was operating a marijuana grow operation at defendant property. Docket No. 50 at 3, ¶ 2. A detective performed a follow-up investigation. Id. at 4, ¶ 5. On March 7, 2012, a Colorado State search warrant was executed at defendant property. Id. at 4, ¶ 6; Docket No. 63 at 3, ¶ 6. During the search, officers found dried marijuana[1] and an AR-15 rifle. Docket No. 50 at 4, ¶ 7; Docket No. 63 at 3, ¶ 7. According to the Adams County Sheriff's Office Property-Evidence Report, the dried marijuana was recovered from an upstairs bathroom closet, the " back office," the kitchen, the guest bedroom, and the hallway closet. Docket No. 50-5. In the basement, officers discovered a marijuana grow operation. Docket No. 50 at 4, ¶ 8; Docket No. 63 at 3, ¶ 8. The parties dispute the number of marijuana plants found in the basement. Docket No. 50 at 4, ¶ ¶ 9-10; Docket No. 63 at 3, ¶ 9. The United States asserts that officers counted 362 plants. Docket No. 50 at 4, ¶ 9. Mr. Maes states that 300 of these were cuttings without visible roots and thus do not qualify as plants under federal law. Docket No. 63 at 3-4, ¶ 9; see also Docket No. 50-7 at 6, ¶ 2 (Maes' response to discovery requests indicating that he had made the cuttings on March 6, 2012, the day before the search warrant was executed.).

At the time of the search, Mr. Maes was using the laundry room in his basement to clone marijuana plants. Docket No. 50 at 5, ¶ 11; Docket No. 63 at 4, ¶ 11. Between August 2010 and March 7, 2012, Mr. Maes completed five marijuana growing cycles in the basement of defendant property, each of which takes approximately three and a half months and yields approximately one pound of marijuana for every fifteen plants. Docket No. 50 at 5, ¶ ¶ 12-13; Docket No. 63 at 4, ¶ ¶ 12-13.

In addition, the power for the grow operation came from an electrical connection

Page 1179

that bypassed the power meter. Docket No. 50 at 4, ¶ 3; Docket No. 63 at 3, ¶ 3. Mr. Maes disputes that he intentionally bypassed the power meter. Id. He testified at his deposition that he configured the wiring for the lights in his basement in a manner he believed matched the wiring for the electrical panel after a generator he was using had failed. Docket No. 63-2 at 3 (Maes dep., at 48, ll.1-25).

On March 12, 2012, the District Attorney's Office for the 17th Judicial District[2] charged Mr. Maes with violations of Colo. Rev. Stat. § 18-18-406(7.5)(c) (cultivation of marijuana involving thirty or more plants); Colo. Rev. Stat. § 18-18-407(1)(b) (controlled substance special offender based on his possession of the rifle); and Colo. Rev. Stat. § 18-18-406(6)(b)(I), (III)(A) (marijuana possession with intent to distribute). Docket No. 50 at 5, ¶ 15; Docket No. 63 at 4, ¶ 15. On March 8, 2013, Mr. Maes pled guilty in state court to a class 5 felony of possessing less than five pounds of marijuana with intent to distribute. Docket No. 50 at 5, ¶ 16; Docket No. 50-11 at 2; Docket No. 63 at 4, ¶ 16; see Colo. Rev. Stat. § 18-18-406 (prior to 2013 amendments). Mr. Maes was sentenced to two years probation and costs and fines in the amount of $3,271.50. Docket No. 50-11 at 2.

From January 2008 through September 2012, Mr. Maes was not employed; he stated that he was supporting himself during this time through help from his girlfriend and his family, a line of credit, gambling winnings, and odd jobs related to recycling scrap metal. Docket No. 50 at 5, ¶ 17; Docket No. 63 at 4, ¶ 17. The estimated market value of the ...


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