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1

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

NO. CIV. S-04-2470 LKK/KJM

Plaintiff,

v.

REAL PROPERTY LOCATED AT 11550 O R D E R

MUSHROOM TRAIL, GRASS VALLEY,

NEVADA COUNTY, CALIFORNIA,

APN: 53-130-31, INCLUDING ALL

APPURTENANCES AND IMPROVEMENTS

THERETO,

Defendant.

 /

DAVID McELVAIN,

Claimant.

 /

Pending before the court is a motion for summary judgment

filed by plaintiff, the United States of America. This case

involves the forfeiture of real property allegedly used to

cultivate marijuana. Plaintiff seeks summary judgment on the

grounds that marijuana was knowingly cultivated by David McElvain

on the real property in question. For these reasons, plaintiff

maintains, the property is subject to forfeiture under the law. 

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26 1 These facts are undisputed unless otherwise noted. 

2

I.

FACTS1

Claimant David McElvain is the sole owner of the defendant

real property. Pl.’s SUF, 1. Claimant admits that Thomas Kyle

Williams was manufacturing marijuana at the property on or about

September 17, 2004, with claimant's knowledge. Pl.’s SUF, 2.

Claimant also admits that Zachary Rasmussen was manufacturing

marijuana at the property on or about September 17, 2004, with

claimant's knowledge. Pl.’s SUF, 4.

Claimant also admits that at the time of the execution of the

search warrant at the property on September 17, 2004, approximately

250 marijuana plants were growing on the defendant real property.

Pl.’s SUF, 6.

Finally, claimant admits that from June of 2004 through

September, 17, 2004, cannabis plants were grown on the defendant

property, although claimant asserts that the plants were grown for

"lawful, medicinal purposes." Pl.’s SUF, 7.

II.

STANDARDS FOR SUMMARY JUDGEMENT UNDER FED. R. CIV. P. 56

Summary judgment is appropriate when it is demonstrated that

there exists no genuine issue as to any material fact, and that the

moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c); See also Adickes v. S.H. Kress & Co., 398 U.S. 144,

157 (1970); Sicor Limited v. Cetus Corp., 51 F.3d 848, 853 (9th

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3

Cir. 1995).

Under summary judgment practice, the moving party

[A]lways bears the initial responsibility of

informing the district court of the basis for

its motion, and identifying those portions of

"the pleadings, depositions, answers to

interrogatories, and admissions on file,

together with the affidavits, if any," which

it believes demonstrate the absence of a

genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the

nonmoving party will bear the burden of proof at trial on a

dispositive issue, a summary judgment motion may properly be made

in reliance solely on the 'pleadings, depositions, answers to

interrogatories, and admissions on file.'" Id. Indeed, summary

judgment should be entered, after adequate time for discovery and

upon motion, against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party's

case, and on which that party will bear the burden of proof at

trial. See id. at 322. "[A] complete failure of proof concerning

an essential element of the nonmoving party's case necessarily

renders all other facts immaterial." Id. In such a circumstance,

summary judgment should be granted, "so long as whatever is before

the district court demonstrates that the standard for entry of

summary judgment, as set forth in Rule 56(c), is satisfied." Id.

at 323.

If the moving party meets its initial responsibility, the

burden then shifts to the opposing party to establish that a

genuine issue as to any material fact actually does exist.

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4

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986); See also First Nat'l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 288-89 (1968); Sicor Limited, 51 F.3d at 853. 

In attempting to establish the existence of this factual

dispute, the opposing party may not rely upon the denials of its

pleadings, but is required to tender evidence of specific facts in

the form of affidavits, and/or admissible discovery material, in

support of its contention that the dispute exists. Fed. R. Civ.

P. 56(e); Matsushita, 475 U.S. at 586 n.11; See also First Nat'l

Bank, 391 U.S. at 289; Rand v. Rowland, 154 F.3d 952, 954 (9th Cir.

1998). The opposing party must demonstrate that the fact in

contention is material, i.e., a fact that might affect the outcome

of the suit under the governing law, Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986); Owens v. Local No. 169, Assoc. of

Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992)

(quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n,

809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine,

i.e., the evidence is such that a reasonable jury could return a

verdict for the nonmoving party, Anderson, 477 U.S. 248-49; see

also Cline v. Industrial Maintenance Engineering & Contracting Co.,

200 F.3d 1223, 1228 (9th Cir. 1999).

In the endeavor to establish the existence of a factual

dispute, the opposing party need not establish a material issue of

fact conclusively in its favor. It is sufficient that "the claimed

factual dispute be shown to require a jury or judge to , 04-

1993resolve the parties' differing versions of the truth at trial."

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5

First Nat'l Bank, 391 U.S. at 290; See also T.W. Elec. Serv., 809

F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce

the pleadings and to assess the proof in order to see whether there

is a genuine need for trial.'" Matsushita, 475 U.S. at 587

(quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963

amendments); see also International Union of Bricklayers & Allied

Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401,

1405 (9th Cir. 1985).

In resolving the summary judgment motion, the court examines

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any. Rule

56(c); See also In re Citric Acid Litigation, 191 F.3d 1090, 1093

(9th Cir. 1999). The evidence of the opposing party is to be

believed, see Anderson, 477 U.S. at 255, and all reasonable

inferences that may be drawn from the facts placed before the court

must be drawn in favor of the opposing party, see Matsushita, 475

U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654,

655 (1962) (per curiam)). Nevertheless, inferences are not drawn

out of the air, and it is the opposing party's obligation to

produce a factual predicate from which the inference may be drawn.

See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45

(E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987).

Finally, to demonstrate a genuine issue, the opposing party

"must do more than simply show that there is some metaphysical

doubt as to the material facts. . . . Where the record taken as a

whole could not lead a rational trier of fact to find for the

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2 The statute provides for forfeiture of:

all real property . . . used, or intended to be used, in

any manner or part, to commit, or to facilitate the

commission of, a violation of this subchapter punishable

by more than one year's imprisonment. 

21 U.S.C. § 881(a)(7). 

6

nonmoving party, there is no 'genuine issue for trial.'"

Matsushita, 475 U.S. at 587 (citation omitted).

III.

ANALYSIS

Plaintiff argues that no genuine issue of material fact exists

and thus it is entitled to judgment in its favor as a matter of

law. In opposition to plaintiff’s motion, claimant argues that

judgment should not be granted because there are two disputed

facts: (1) whether the property is subject to forfeiture when the

property was being used in conformity with state law; and (2)

whether forfeiture violates the Eighth Amendment's prohibition of

excessive fines. For the reasons set forth below, the court must

deny summary judgment. 

A. PRINCIPLES OF CIVIL FORFEITURE 

Plaintiff’s suit for forfeiture arises under the Controlled

Substance Act (“CSA”), 21 U.S.C. § 881 . Specifically, Section

881(a)(7) subjects to civil forfeiture real property used to commit

or facilitate a drug-related felony.2 Meanwhile, 21 U.S.C. 

§ 841(b)(1)(B) provides for a sentence of not less than five years

and not more than 40 years for cases involving more than 100

marijuana plants. Taken together, these provisions of the CSA

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7

authorize the forfeiture of land that has been used to cultivate

over 100 marijuana plants. 

On April 25, 2000, Congress passed the Civil Asset Forfeiture

Reform Act of 2000 (“CAFRA”), Pub. L. No. 106-185, 114 Stat. 202.

Two general provisions of CAFRA are relevant to the case at bar.

First, the government now has the burden of proving by a

preponderance of the evidence that the property is subject to

forfeiture. 18 U.S.C. § 983(c)(1). Second, a claimant may

petition the court to determine whether the forfeiture was

constitutionally excessive. Id. at § 983(g).

B. WHETHER THE PROPERTY AT ISSUE IS SUBJECT TO FORFEITURE

For the reasons set forth below, the court finds that there

is a disputed issue of material fact as to whether the property in

question is properly subject to forfeiture under the CSA. 

First, the court notes that at time claimant’s land was

searched and the marijuana plants discovered, it was legal under

the California Compassionate Use Act to grow a certain quantity of

marijuana for medical purposes. Moreover, in 2003, the Ninth

Circuit held that the CSA is unconstitutional as it exceeds

Congress’ powers under the Commerce Clause and thus, cannot preempt

the California Companionate Use Act. Raich v. Ashcroft, 352 F.3d

1222 (9th Cir. 2003) Although the Ninth Circuit’s decision was

later overruled by the Supreme Court in 2005, claimant avers that

at the time he decided to cultivate medical marijuana, he was

relying on the Ninth Circuit’s Raich decision, which had not yet

been questioned by the Supreme Court. 

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3 Plaintiff maintains that the Ninth Circuit’s decision in

Raich conflicted with the Supreme Court’s decision in United States

v. Oakland Cannabis Buyer’s Cooperative, 532 U.S. 438, 491-2

(2001). The court cannot agree. As the Ninth Circuit in the Raich

case explained, the “relevant portion of [the Oakland Cannabis]

case dealt with what factors a district court may consider when

fashioning injunctive relief,” Raich, 352 F.3d at 1234, and thus

Oakland Cannabis is inapplicable to the matter at bar.

8

Under the California Companionate Use Act, a qualified patient

may grow no more than "six mature or 12 immature marijuana plants

per qualified patient." Cal. Health & Safety Code § 11362.77. If

a patient has a doctor's recommendation that this quantity does not

meet the patient's need, the patient may posses an amount

consistent with his or her need. Id. Claimant maintains that he

was growing marijuana in compliance with the Compassionate Use

Act.3 

If claimant was in fact complying with California law at the

time the marijuana plants were discovered, then the real property

may not have been subject to forfeiture pursuant to the CSA. 

Implicit in the court's holding is that the Supreme Court's

decision in Raich is not retroactive. It is well established that

courts, like legislatures, may not create ex post facto rules of

criminal law. Bouie v. City of Columbia, 378 U.S. 347, 354 (1964).

As the Bouie Court explained there “can be no doubt that a

deprivation of the right of fair warning can result not only from

vague statutory language but also from an unforeseeable and

retroactive judicial expansion of narrow and precise statutory

////

////

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4 Plaintiff maintains that because this is a civil proceeding

ex post facto principles are not relevant. The court cannot agree.

Although forfeiture is a civil proceeding, whether growing medical

marijuana violates the CSA is an issue of criminal law and thus ex

post facto principles are applicable. 

5 The court must also rejects plaintiff’s argument that the

change in law was foreseeable, and thus due process is not violated

by the retroactive application of the Supreme Court decision. In

United States v. Qualls, 172 F.3d 1136 (9th Cir. 1999), the Ninth

Circuit explained that a change in the law is foreseeable when

circuits are split on the proper construction of a statute. Id at

1139. Here, plaintiff fails to establish the existence of a

circuit split with respect to the question of whether there is a

medical marijuana exception to the CSA. The citations relied on

by plaintiff do not address medical marijuana and thus are

irrelevant. 

9

language.” Id. at 352.4

The consequence of the Supreme Court’s Raich decision was that

it made something that was legal under California law, and not

illegal under federal law by virtue of the Ninth Circuit’s ruling

in Raich, (growing marijuana for medical purposes), no longer

legal. See Gonzales v. Raich, 125 S.Ct. 2195 (2005). Thus, the

decision clearly constituted “judicial enlargement of a criminal

act.” Bouie, 378 U.S. at 352. For this reason, applying the

Supreme Court’s Raich decision retroactively would violate

claimant’s due process right to fair notice. Bouie, 378 U.S. 347,

354 (1964).5

Having established that at the time claimant’s land was

searched, it was legal to grow medical marijuana under California

law, the court turns to the question of whether claimant was in

fact growing marijuana in a way that complied with the California

Compassionate Use Act. If claimant was complying with the

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6 Claimant avers that marijuana was being grown on the land

pursuant to seven legal prescriptions and each prescription was for

a different person. See Cl.’s Opp’n Ex. 1. 

7 It is established that the Compassionate Use Act does not

authorize cooperative marijuana cultivation and distribution. 

People v. Urziceanu, 132 Cal.App.4th 747, 768-769 (3rd Dist. 2005)

(The Compassionate Use Act was “designed for a single patient to

grow and possess his or her own marijuana.”) 

8 Should it be determined that claimant was not in compliance

with state law, and that forfeiture was therefor legal under the

CSA and the CAFRA, the court will be required to determine if

forfeiture is excessive. Specifically, under Section 983(g) of

CAFRA, a claimant may petition the court “to determine whether the

forfeiture was constitutionally excessive.” 18 U.S.C. § 983(g).

The claimant has the burden of establishing that the “forfeiture

is grossly disproportional by a preponderance of the evidence at

a hearing conducted by the court without a jury.” Id. Since it has

not yet been established if the forfeiture was in fact appropriate,

the court need not analyze the excessive fines issue at this time.

10

Compassionate Use Act, then the land may not have been subject to

forfeiture. However, if claimant was not complying with the

Compassionate Use Act, then the forfeiture would appear to be

proper under the CSA. 

It appears to the court that there is a dispute over whether

the marijuana grown on claimant’s property was in fact grown in

compliance with the Compassionate Use Act. Claimant maintains that

there were valid prescriptions for all the marijuana grown on the

land,6 whereas plaintiff argues that claimant and his acquittances

were using the land for a marijuana collective or club, which is

not permitted under the Compassionate Use Act.7 

Given that there is a disputed issue of material fact (whether

the marijuana was cultivated in compliance with the Compassionate

Use Act), summary judgment for plaintiff must be and is DENIED.8

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The Pretrial Conference is CONFIRMED for February 6, 2006 at

2:30 p.m., with trial set to commence on May 9, 2006 at 10:30 a.m.

IT IS SO ORDERED. 

DATED: January 18, 2006.

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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