VIRGINIA: IN THE CIRCUIT COURTCOMMONWEALTH OF VIRGINIA,
Plaintiff,v.

Case No.

JOHN J. SMITH,
Defendant.

DEFENDANT'S REPLY BRIEF TO THE COMMONWEALTH'S
MEMORANDUM OF LAW IN OPPOSITION TO SMITH'S MOTIONTO DISMISS FORFEITURE

Defendant John Smith, through counsel, submits the following Reply Brief countering
the Commonwealth's opposition to Defendant Smith's Motion to Dismiss its civil forfeiture
petition.

ARGUMENTI.

UNDER RECENTLY ENACTED VA. CODE ANN. § 19.2-386.1, THE
COURT CANNOT ORDER A STATE FORFEITURE OF REALPROPERTY OF SOMEONE WHO WAS NOT CONVICTED NOR HAS
PLEADED GUILTY TO A CRIMINAL DRUG OFFENSE THAT HAD
A MINIMUM SENTENCE OF FIVE YEARSThe Commonwealth filed its Information against Defendant Smith and his wife,

stating that the Defendants' real property was being seized
due to the fact that said property was used in substantial connection with theillegal manufacture, sale or distribution of controlled substances in violationof §18.2-248 or the sale or distribution of marijuana or possession with intent
to distribute of marijuana in violation of §18.2-248.1 subsections (a)(3) or (c),and is therefore subject to forfeiture pursuant to §19.2-386.22 of the Code of
Virginia.
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The Commonwealth affirmed that the civil forfeiture action was a proceeding based on adrug offense under §§ 19.2-386.1 et seq. by detailing information about drugs found in theSmiths' home.
The Virginia General Assembly has the power to prescribe limitations and provisions
for the forfeiture of property used in the violation of penal statutes, including amending state
forfeiture laws when necessary to protect state residents' rights or to curb governmental
abuse. See Commonwealth v. Hall, 297 Va. 143, 823 S.E.2d 485 (2019); McNellis v.
Commonwealth, 171 Va. 471, 198 S.E. 493 (1938). During the 2020 Virginia General
Assembly, state representatives did exactly that. They passed an amendment to Va. CodeAnn. § 19.2-386.1, which became effective July 1, 2020. See Va. H.B. 1522 (2020 Legis.
Sess.) ("Forfeiture of property used in connection with the commission of crimes; finding of
guilt required"). This bill passed with unanimous approval in the Senate and near unanimous
vote in the House (97-1). See id.
Under this new amendment, any forfeiture action must be stayed until the owner ofthe property is "found guilty of any offense that authorizes forfeiture of such property." Va.
Code Ann. § 19.2-386.1(C) (emphasis added). This amendment resulted from many yearsof strong and very vocal advocacy for reform of Virginia's seizure and forfeiture laws
because of concerns of police abuse of the system, excessive fines, and violations of
Virginians' liberties. See Rachel Jones, Excessively Unconstitutional: Civil Asset Forfeitureand the Excessive Fines Clause in Virginia, 25 Wm. & Mary Bill of Rights J. 1393, 1394
(2017); James Simon, Civil Asset Forfeiture in Virginia: An Imperfect System, 74 Wash. &Lee L. Rev. 1295, 1330-31 (2017); Virginia Earns a D- for Its Civil Forfeiture Laws, Abuse
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of Civil Asset Forfeiture (Policing for Profit, Institute of Justice); see also Leonard v. Texas,
137 S. Ct. 847 (2017) (Thomas, J., statement respecting denial of certiorari). Virginia began
its reform when it changed the government's burden of proof from preponderance of theevidence to clear and convincing evidence to support forfeiture. Va. S.B. 457 (2016 Legis.
Sess.) (Asset forfeiture; changes burden of proof); see also Tony Bergida, Virginia General
Assembly Unanimously Passes Civil Asset Forfeiture Reform, Am. Legis. Exch. Council(Mar. 11, 2016) (noting how the passage of S.B. 457 signals a shift in attitude toward
Virginia's civil asset forfeiture laws); Simon, supra, 74 Wash. & Lee L. Rev. at 1341.
Forfeiture actions in connection with or derived from illegal drug transactionscommenced under the provisions of § 19.2-386.22 are bound by that section's limitations on
seizures of real property and must follow the procedures and limitations also prescribed in§ 19.2-386.1. Va. Code Ann. § 19.2-386.22(A)(i) states that "real property shall not be
subject to lawful seizure unless the minimum prescribed punishment for the violation is aterm of not less than five years."First, Mr. Smith was not convicted of any drug offense. The Commonwealthaffirmed that Mr. Smith was convicted only of the possession of a firearm after being
convicted of a felony after the charge was severed from the drug offense charged in the
Information. Second, even if the Commonwealth had not proceeded under the forfeiture
law for drug offenses, there is no Virginia law that allows forfeiture of a person's home forpossession of a firearm, likely because such an idea would be absurd. Logically, Virginia
forfeiture laws relating to the possession of firearms under Va. Code Ann. §§ 19.2-386.27
to -.29 authorize seizure and forfeiture of only the weapons or firearms. Third, evenunder a more comprehensive forfeiture statute, Va. Code Ann. § 19.2-386.35, real3

property cannot be seized or forfeited "unless the minimum prescribed punishment for theviolation is a term of imprisonment of not less than five years." Mr. Smith wassentenced to only two years' incarceration for a weapons offense, the mandatory
minimum under Va. Code Ann. § 18.2-308.2. This Court is bound by these legislative
limitations and facts regardless of how many culpable statements about drug activity weremade by Mr. Smith or the amount of drugs found at the home. Mere suspicion is not
sufficient. The statutes are clear that forfeiture of property is not permitted unless there is afinding of guilt for an offense justifying seizure under the forfeiture statute cited. Simply
put, if not found guilty of a drug offense with a minimum five-year sentence, real
property cannot be seized. Thus, this Court cannot order the forfeiture of this property
against Mr. Smith, co-owner of the seized real property.
Under the recent amendments to Va. Code Ann. § 19.2-386.1, the legislature set forth
two exceptions that allow seizure of the real property even if there is no finding of guilt: (i)such forfeiture is ordered by a court pursuant to a lawful plea agreement, or (ii) the ownerof the property has not submitted a written demand for the return of the property with the law
enforcement agency that seized the property within 21 days from the date the stay terminates.
Neither exception is applicable here. Mr. Smith submitted a written demand for the returnof his real property to the County Sheriff's Department. Additionally, there is no plea
agreement between the Commonwealth and Mr. Smith to any drug offense, nor is there any
specific mention of the need to establish an innocent owner defense for co-owners of real
property in the new amendments, even if Mr. Smith had claimed this defense (which he didnot). Mrs. Smith's guilty plea to a drug offense does not change this analysis. Mrs. Smith4pleaded guilty to one felony charge of conspiracy to possess more than five pounds ofmarijuana with the intent to distribute and was placed on two years' probation. Obviously,
punishment was less than the five-year minimum requirement for forfeiture of real property.

II.

TO BE IN CONFORMITY WITH THE LANGUAGE AND INTENT OFTHESE NEW AMENDMENTS TO § 19.2-386.1 AND THE
NONSEVERABILITY OF TENANCY-BY-THE-ENTIRETY
PROPERTY, A VIRGINIA STATE COURT CANNOT GRANT
FORFEITURE OF THE SMITHS' REAL PROPERTY UNLESS BOTH
SPOUSES ARE FOUND GUILTY OR HAVE PLEADED GUILTY TO
THE APPROPRIATE OFFENSE GRANTING FORFEITURE OF SUCHPROPERTY
In countering the forfeiture of his real property, Mr. Smith has not asserted theinnocent owner defense to state forfeiture available under Va. Code Ann. § 19.2-386.8. Mr.
Smith merely asserted that the court should assess the immunity provided to tenancy-by-theentirety property against other the spouse's creditors as set forth in Rogers v. Rogers, 257 Va.
323, 512 S.E.2d 821 (1999), and other state precedent. Although similar to the innocent
owner defense, the immunity defense is not the same. It flows from the nature of theproperty classification as a matter of law. Thus, the Commonwealth's arguments
surrounding the innocent owner's defense are pointless.
Mr. Smith merely claims that his property should be treated differently from otherproperty subject to forfeiture due to the nature of it being held as a tenancy by the entirety.
Virginia law holds that property held as tenancy by the entirety is immune from the debts ofindividual property owners. Pitts v. United States, 242 Va. 254, 408 S.E.2d 901 (1991). In
Pitts, the Virginia Supreme Court justified this opinion by stating that "each owned theentire, undivided estate as tenants by the entireties, and neither could sever the tenancy by5alienating its interest during coverture." Id. at 259, 408 S.E.2d at 903 (citing Vasilion v.
Vasilion, 192 Va. 735, 740, 66 S.E.2d 599, 602 (1951)). The Virginia Supreme Court
reaffirmed state support of this view in Jones v. Phillips, ___ Va. ___, ___, 850 S.E.2d646, 649 (2020) (discussing the 2000 General Assembly's breaking of "new ground byauthorizing 'a husband and wife to convey certain tenancy by the entirety real estate
to their joint revocable or irrevocable trust, or in equal shares to their separate revocableor irrevocable trusts' without losing its tenancy by the entirety status'" in Va. CodeAnn. § 55.1-136 (quoting J. Rodney Johnson, Wills, Trusts, and Estates, 34 U. Rich. L.
Rev. 1069, 1076 (2000))). Furthermore, under Va. Code Ann. § 55.1-136(B), one spousecannot sever this title on his/her own. Hausman v. Hausman, 233 Va. 1, 353 S.E.2d
710 (1987). "The tenancy by the entirety may only be severed by mutual consent of the
spouses or by divorce." In re Bunker, 312 F.3d 145, 151 (4th Cir. 2002); see also In re
Sampath, 314 B.R. 73, 92 (Bankr. E.D. Va. 2004) ("The tenancy by the entirety estateretains its full vitality in Virginia."). Accordingly, a spouse cannot waive contest to
forfeiture of real property held as tenants by the entirety in a plea agreement because thatwould result in severing of the title without the other spouse's consent.
The Commonwealth's reliance on the unpublished opinion of the United States v.
Franco, No. 5:14CR00011, 2017 WL 3187392 (W.D. Va. July 26, 2017), or on any federal
circuit court decisions regarding forfeiture of tenancy-by-the-entirety property is totallymisplaced and inconsequential in a state forfeiture proceeding. In Franco, the district court
determined forfeiture of the property based on federal forfeiture laws:
This state law protection from creditors does not necessarily shieldtenancies by the entirety from federal forfeiture, however. Where federal andstate law conflict, federal law prevails. U.S. Const., Art. VI, cl. 2. Thus, though6state law defines the nature of the property interest in question, federal law
governs whether the subject property is forfeitable. See United States v. Buk,
314 Fed.Appx. 565, 568 (4th Cir. 2009); United States v. 2525 Leroy Lane,
910 F.2d 343, 347 (6th Cir. 1990) ("We conclude that recognition of state laws
governing property rights does not contravene the federal forfeiture scheme,
and that the application of state law is the most appropriate method ofdetermining the interest of an innocent owner."). Even where state law forbids
criminal forfeiture of property held in a tenancy by the entirety in state court,
the guilty spouse's interest is still forfeitable in a federal proceeding. See
United States v. Fleet, 498 F.3d 1225, 1227-30 (11th Cir. 2007).
Id. at *2.
In sum, a state court cannot ignore a state characterization of real property in a state
forfeiture proceeding. Neither state forfeiture statutes nor state case law precedent
specifically provides for the forfeiture of property held as tenants by the entirety against bothspouses when only one has been found guilty. Notably, when applying the new forfeiture
law to such a characterization of property, both spouses must be found guilty or have pleaded
guilty before the property can be seized and forfeited. Thus, property held as tenancy byentirety is immune from forfeiture claims against the other spouse, so this forfeiture action
must be dismissed.

III.

FORFEITURES UNDER THE NEW STATE LAW MUST ENTAIL ABROADER, EXCESSIVE-FINES FACTOR ANALYSIS UNDER THE
EXCESSIVE FINES CLAUSE OF THE VIRGINIA CONSTITUTION
TO CONFORM WITH THE LAW'S UNDERLYING INTENT TOSTRICTLY PRESERVE LIBERTIES AND TO CURB ABUSE
In interpreting the Excessive Fines Clause of Article 1, Section 9 of the Virginia

Constitution, state courts have relied on federal precedent relating to the Excessive Fines
Clause of the Eighth Amendment of the U.S. Constitution "because of the shared text and7history" of these two constitutional provisions. Metro. Washington Airports Auth. v.
Hagarty, 92 Va. Cir. 307, 2016 WL 8231180, at *1 (Fairfax County 2016). Under thefederal standard, "the fine must be 'so plainly disproportioned to the offence [sic] or act, forthe violation of which it is affixed, as to shock the sense of mankind,' Southern Exp. Co., 92
Va. at 66, 22 S.E. at 811, or, in other words, the fine must be grossly disproportional to thegravity of the offense." Id. at *4. Defendant still maintains his arguments that this forfeitureof real property is excessive under this federal standard previously presented.
However, as noted in Part I, supra, Virginians have been fighting for years to obtainstronger protections of Virginians' property rights. One primary concern voiced was theneed to preserve a property owner's rights to not have his property forfeited unless the
person has been found guilty or pleaded guilty to a crime under the forfeiture statutes. As
noted in one editorial in Fredericksburg, Virginia, in 2017: "While forfeiting property
may well be a suitable punishment for someone who is convicted of a crime, judges andjuries are the ones to make that call, not law enforcement agencies. The potential forabuse is just too great." Editorial Staff of the Free Lance Star, Protecting Virginians'
Property Rights, Free Lance Star (Fredericksburg, Va. Jan. 24, 2019). This holds especiallytrue for real property. "Given the irreplaceable nature of real property to its owners, noexcuse exists as to why further real property protections should not be added to the current
system." Simon, supra, 74 Wash. & Lee L. Rev. at 1330. Accordingly, the Virginia
legislature finally answered that call.
The state courts must now follow that mandate to provide more protections forproperty owners in their excessive fines analysis under the state constitution. This isespecially needed, as the Virginia Crime Commission found that "in Virginia, seventy-five8

percent of cases result in forfeiture and twenty-five percent of cases result in the item being
returned to the owner or a lienholder, 'most forfeitures are a result of default or some typeof plea agreement or settlement,' and very few cases go to trial." Jones, supra, 25 Wm. &Mary Bill of Rights J. at 1407 n.125 (quoting Presentation, Va. State Crime Comm'n, Asset
Forfeiture (SB 684/HB 1287) 85 (Oct. 27, 2015), attached as Ex. C). A Commonwealth's
broader, excessive fines factor analysis must include consideration of the criminal
determination of guilt of the crime of the person whose property was seized in addition to
proportionality and instrumentalities factors. See id. at 1416 (proposed five-factor test for
Virginia).1 "The conviction of a property owner of an underlying crime should be considered
because the crime the defendant was convicted of will have a considerable impact on thedetermination of what is and is not considered proportionate." Id. at 1418.
In line with preserving and protecting Virginians' liberties, the court must evaluate
the excessiveness of the fines based on "real-world" consequences of forfeiture of a
Virginian's real property.
Some lower courts have already taken steps toward such an approach,recognizing that "certain property—such as a residence, a vehicle, or othersimilar necessities in our daily life—carry additional value to the owner andpossibly others, including the imposition of significant hardship to the ownerand his or her family." . . . Taking into account the financial hardship inflictedby property forfeitures as part of the excessiveness inquiry will help ensure

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In Virginia, courts can provide protection from excessive fines by articulating afactor-based test that considers "(1) the gravity of the offense compared with the harshnessof the forfeiture, and whether the property was an integral part of the commission of thecrime; (2) whether there has been a conviction or acquittal for the underlying crime and any
punishment already received for the underlying offense; (3) the nature and extent of thecriminal activity; (4) the owner of the defendant property and the owner's knowledge andapproval of the criminal use of the property; and (5) the harm caused by the charged crime."
25 Wm. & Mary Bill Rights J. at 1409 (emphasis added).
9that the Excessive Fines Clause remains the "constant shield" against"[e]xorbitant tolls" that it has been "throughout Anglo-American history."
Beth A. Colgan & Nicholas M. McLean, Financial Hardship, and the Excessive Fines
Clause: Assessing the Severity of Property Forfeitures After Timbs, 129 Yale L.J. Forum
430, 432-33 (2020) (footnotes omitted).
In considering all the real-world consequences of this forfeiture and the liberties atstake, justice demands denial of forfeiture in this case. Mr. Smith had not been found guiltyof any drug crime. In fact, any evidence was destroyed by law enforcement. Even if
considering Mrs. Smith's plea to a one -count felony of possession with intent to distribute,taking a person's residence without this evidence and any conviction is grossly
disproportionate. The real property was nothing more than the situs of the offense, not an
instrumentality. See the similar California case of United States v. 6625 Zumirez Drive, 845
F. Supp. 725, 738 (C.D. Cal. 1994) (property owners' son sold drugs in home; property
owners were acquitted; forfeiture of property would violate the Excessive Fines Clause, so
was denied).
Lastly, Mr. Smith was found mentally incompetent to stand trial on the criminal drug
charges. Thus, Mr. Smith was unable to understand the nature and consequences of theproceedings against him or to assist properly in his defense. Property cannot be forfeited fortax purposes if a person is deemed incompetent. See Covey v. Town of Somers, 351 U.S. 141(1956). Such a prosecution would violate the Due Process Clause of the Fourteenth
Amendment of the United States Constitution. See Dang v. Commonwealth, 287 Va. 132,752 S.E.2d 885 (2014). Yet the Commonwealth seeks to take Mr. Smith's property away via
civil forfeiture for a drug crime even though he was found incompetent to be able to defend
10against that charge. See United States v. Mason, 121 F.3d 701 (4th Cir. 1997) (unpublishedopinion). Although the defendant in Mason was found competent, the court completed anevaluation to determine if he was competent to defend forfeiture, and it would not haveproceeded if the defendant had been found incompetent. No less should be expected for Mr.
Smith in this case.

CONCLUSION
Under recent amendments to Virginia's forfeiture law, this Court cannot order theforfeiture of Mr. Smith's real property because he has not been convicted of a drug crime nor
pleaded guilty to one. Furthermore, since the property is held as a tenancy by the entirety,
the court cannot sever the property in forfeiture under Virginia law, even though Mrs. Smith
pleaded guilty. The Commonwealth's cited case of Franco does not apply because it
involves a federal forfeiture, and this is a state forfeiture proceeding. Lastly, the new
Virginia forfeiture law amendments evoke an intent to grant broader protections of
Virginians' property rights. Accordingly, any excessive fines analysis should be in line with
the intent of those amendments and include assessing the property holder's adjudged
criminal guilt. Justice and the protection of liberties further demand assessment of
real-world consequences, underlying circumstances, the nature of the property, relatedfines available under the drug offense, and the competence of the defendant to
defend against such forfeiture. All these factors easily lead to the conclusion that theforfeiture of the Defendants' home is an excessive fine under Virginia's constitution and
laws.
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Considering the arguments and authorities cited herein and previously in Defendant's
Memorandum in Support of Motion to Dismiss, the Information should be dismissed, andclear title returned to Mr. and Mrs. Smith by this Court's also ordering a lifting and releasingof the lis pendens heretofore filed by the Commonwealth.
Respectfully submitted,
JOHN J. SMITH
By:
Counsel for Defendant

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