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United States v. Assorted Drug Paraphernalia

United States District Court, D. New Mexico

October 2, 2018



         THIS MATTER comes before the Court on the United States' Second Motion for Summary Judgment (Doc. 71), filed April 10, 2018. Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b), the parties have consented to me serving as the presiding judge and entering final judgment. Doc. 59. Having considered the parties' arguments, exhibits and all relevant authority, the Court will grant the United States' Second Motion for Summary Judgment.


         This forfeiture in rem case involves a dispute over whether seized items are drug paraphernalia or fall under the tobacco exception. On July 12, 2016, agents from the Drug Enforcement Administration (“DEA”), Eddy County Sheriff's Office, and the Lea County Drug Task Force executed a federal search warrant at LookingGlass Gifts & Novelties, LLC (“LookingGlass”) in Artesia, New Mexico. Undisputed Material Facts 2, 3 (“UMF 2, 3”). Agents seized a large number of assorted smoking instruments, scales, grinders, containers with hide compartments, and roach clips. UMF 8; see also Appendix 1 (attached). Garlan Plumlee (“Plumlee”) is the owner and operator of the LookingGlass establishment. UMF 1.

         The United States then filed this Complaint for Forfeiture in rem on November 20, 2016 against Defendant Assorted Drug Paraphernalia. Doc. 1. Defendant Assorted Drug Paraphernalia refers to all items seized from LookingGlass on July 12, 2016, except four assorted smoking instruments that the Court dismissed following an unopposed motion. Docs. 18, 21; see also UMF 17. Plumlee and LookingGlass (“Claimants”) filed a verified claim and statement of interest to the property (Doc. 15). The Court previously granted partial default judgment as to any other unknown claimants (Docs. 81, 82).

         After some discovery (see Docs. 19, 20, 23), the United States filed its first Motion for Summary Judgment on August 4, 2017 (Doc. 25). In response, Claimants filed two declarations pursuant to Federal Rule of Civil Procedure 56(d), requesting additional time for discovery before responding to the motion. Docs. 27, 31. The Honorable Carmen Garza granted Claimants' request (Doc. 68), and, for the sake of judicial efficiency, the Court denied the pending Motion for Summary Judgment without prejudice, allowing the United States to refile its motion after completing Rule 56(d) discovery (Doc. 70).

         The United States filed its Second Motion for Summary Judgment on April 10, 2017. Doc. 71. As part of the motion, the United States included affidavits from its experts, Joseph Gelinas (Doc. 71-1), Thomas D. Novicki (Doc. 71-3), and Matthew C. Monte (Doc. 71-4). In Claimants' response to the Second Motion for Summary Judgment, Claimants included an affidavit from their expert, Wes Golden (Doc. 72). The parties then filed cross-motions to strike the submitted affidavits. Docs. 73, 89. After review, the Court denied Claimants' Motion to strike the affidavits of Joseph Gelinas, Thomas D. Novicki, and Matthew C. Monte. Doc. 94. However, the Court granted the United States' Motion and struck Wes Golden's affidavit because Claimants did not disclose their expert in a timely manner. Id.


         Pursuant to Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998). The burden then shifts “to the nonmoving party to show that there is a genuine issue of material fact.” Bacchus Indus., Inc., v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). Both the movant and the party opposing summary judgment are obligated to “cit[e] to particular parts of materials in the record” to support their factual positions. Fed.R.Civ.P. 56(c)(1)(A). In this district, “[a]ll material facts set forth in the Memorandum will be deemed undisputed unless specifically controverted.” D.N.M.LR-Civ. 56.1(b).

         A “genuine” dispute exists where the evidence is such that a reasonable jury could resolve the issue either way. See Adler, 144 F.3d at 670 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A mere scintilla of evidence in the non-movant's favor is not sufficient. Anderson, 477 U.S. at 252. “When applying this standard, the Court examines the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Hartwell v. Sw. Cheese Co., L.L.C., No. CV 15-1103 JAP/GJF, 2017 WL 944125, at *2 (D.N.M. Jan. 23, 2017). “Summary judgment is not ‘a disfavored procedural shortcut but rather [it is] an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action.'” Garcia v. Vilsack, 628 F.Supp.2d 1306, 1308-09 (D.N.M. 2009) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)).


         Claimants assert that the Government's burden is to show probable cause that the property subject to forfeiture was involved in criminal activity. Doc. 72 at 4 (citing United States v. $39, 000 in Canadian Currency, 801 F.2d 1210, 1216 (10th Cir. 1986)). However,

[t]he Civil Asset Forfeiture Reform Act of 2000 change[d] the government's initial burden of proof. Pursuant to 18 U.S.C. § 983(c)(1), the “burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture.”

United States v. Wagoner Cty. Real Estate, 278 F.3d 1091, 1097 n.5 (10th Cir. 2002) (quoting 18 U.S.C. § 983(c)(1)).

         Plaintiff maintains that the seized items constitute drug paraphernalia subject to forfeiture pursuant to 21 U.S.C. § 881(a)(10) which provides that “[a]ny drug paraphernalia (as defined in 21 U.S.C. § 863)” is “subject to forfeiture to the United States and no property right shall ...

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