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United States v. Assorted Drug Paraphernalia Valued at $29

United States District Court, D. New Mexico

December 19, 2018




         THIS MATTER is before the Court on the United States' “Motion for Summary Judgment” (“Motion”) [ECF No. 29], filed August 8, 2018. The Motion is fully briefed. See ECF Nos. 32-33. After careful consideration of the pertinent law and the briefing, the Court will grant the Motion and will order forfeiture of all right, title, and interest in the Assorted Drug Paraphernalia (“Defendant Property”) to the United States. For the reasons discussed below, the Court concludes that the admissible evidence submitted by Claimant Fernandez has failed to establish a genuine dispute of material fact that the Defendant Property was not drug paraphernalia subject to civil forfeiture. The Court further concludes that the undisputed material facts entitle the United States to judgment as a matter of law.

         I. BACKGROUND

         Claimant Jason Fernandez (“Fernandez”) owned Phat Glass, Inc., a business located at 1211 East Idaho Avenue in Las Cruces. Pl.'s Mot. Ex. 108. On September 12, 2017, pursuant to a federal search warrant, federal agents seized a large number of items from Phat Glass, Inc., including: glass bongs, plastic bongs, glass pipes, plastic pipes, metal pipes, plastic grinders, wood grinders, metal grinders, roach clips, chillums, flip tops, glass vials, concealment containers, nails and quartz bangers, scales, synthetic urine kits, and detoxifiers.[1] Id. Exs. 32-104, 109. Collectively, these items constitute the Defendant Property. On November 22, 2017, Fernandez timely filed a claim with the Drug Enforcement Administration asserting a lawful right to recover all Defendant Property. Id. Ex. 109.


         In the instant Motion, the United States argues that the Defendant Property qualifies as drug paraphernalia as the term is defined in 21 U.S.C. § 863(d), thus extinguishing Fernandez's property rights and subjecting it to forfeiture under 21 U.S.C. § 881. Pl.'s Mot. at 3-6. More specifically, the United States contends that the bongs, pipes, roach clips, chillums, and miniature spoons (attached to the flip tops) are per se drug paraphernalia. Id., passim. The United States further asserts that: the flip top and glass vials taken together are primarily intended and designed for use with marijuana; the concealment containers are primarily intended and designed to conceal marijuana; the nails and quartz bangers are primarily intended and designed for use in smoking marijuana; the scales are primarily intended for use in processing and preparing controlled substances for sale; the grinders are primarily intended and designed for grinding marijuana, the synthetic urine kits are primarily intended to conceal the use of marijuana; and the detoxifiers are primarily intended to prevent positive results on drug tests. Id. Lastly, the United States contends that all of the Defendant Property falls outside the tobacco exemption to the definition of drug paraphernalia. Id., passim.

         Fernandez responds that he falls within the class of persons to whom 21 U.S.C. § 863 expressly does not apply. Resp. Pl.'s Mot. 3. Relying on the exemption set forth in 21 U.S.C. § 863(f)(1), Fernandez asserts that he is exempt from the forfeiture statute because New Mexico authorizes him to use medical marijuana pursuant to the Lynn and Erin Compassionate Use Act, N.M. Stat. Ann. § 26-2B-2, et. seq. Id. at 3-4. Fernandez argues that he is further exempt because he maintains a business license issued by the City of Las Cruces and pays taxes. Id. at 5.

         In reply, the United States emphasizes that 21 U.S.C. § 863(f)(1) exempts a person from criminal prosecution but is inapplicable to in rem civil forfeiture proceedings. Pl.'s Reply 6. The United States further posits that even if the exemption applied to in rem proceedings, the Lynn and Erin Compassionate Use Act does not allow Fernandez to sell or possess large quantities of drug paraphernalia. Id. at 9-12.


         Summary judgment shall be granted “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 entry of summary judgment is mandated “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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         The party who will bear the burden of proof at trial on a dispositive issue must designate specific facts showing that there is a genuine issue for trial. Id. at 324. In order for an issue to be genuine, the evidence of it must be such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If there is not sufficient evidence favoring the nonmoving party, there is no issue for trial. Id. at 249. Furthermore, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1986)) (internal quotation marks omitted).

         At the summary judgment stage, “a plaintiff's version of the facts must find support in the record.” Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). As with any fact asserted by a party in a summary judgment motion, the non-movant must point the Court to such support by “citing to particular parts of materials in the record[.]” Fed.R.Civ.P. 56(c)(1)(A). All material facts set forth in the motion and response that are not specifically controverted are deemed undisputed. D.N.M.LR-Civ. 56.1(b).

         Because the Court decides motions for summary judgment by viewing the facts in the light most favorable to the non-moving party, the Court obeys three general principles. First, the Court's role is not to weigh the evidence, but only to assess the threshold issue of whether a genuine issue exists as to material facts such that a trial is required. See Liberty Lobby, 477 U.S. at 249. “An issue is ‘genuine' if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. An issue of fact is ‘material' if under the substantive law it is essential to the proper disposition of the claim.” Thom v. Bristol Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (internal citation omitted). Second, the Court must resolve all reasonable inferences and doubts in favor of the non-moving party and construe all evidence in the light most favorable to the non-moving party. See Hunt v. Cromartie, 526 U.S. 541, 550-55 (1999). Third, the Court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S. at 255. “[T]o survive the . . . motion, [the non-movant] need only present evidence from which a jury might return a verdict in his favor.” Id. at 257. Nonetheless, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts[.]” York v. City of Las Cruces, 523 F.3d 1205, 1210 (10th Cir. 2008) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).


         A. Statutory Basis for Forfeiture

         In a federal civil forfeiture action, the burden of proof is on the United States “to establish, by a preponderance of the evidence, that the property is subject to forfeiture.” 18 U.S.C. § 983(c)(1); United States v. Lot Number 1 of Lavaland Annex, 256 F.3d 949, 956 (10th Cir. 2001). As relevant here, Congress has commanded that “[a]ny drug paraphernalia, ” “shall be subject to forfeiture to the United States and no property rights [] exist in them.” 21 U.S.C. § 881(a). The term “drug paraphernalia” is defined as follows:

any equipment, product, or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance . . ., [i]t includes items primarily intended or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, hashish oil, PCP, methamphetamine, or amphetamines into the human body.

21 U.S.C. § 863(d). The definition enumerates the following fifteen items as per se drug paraphernalia:

(1) metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured mental bowls; (2) water pipes; (3) carburetion tubes and devices; (4) smoking and carburetion masks; (5) roach clips: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand; (6) miniature spoons with level capacities of one-tenth cubic centimeter or less; (7) chamber pipes; (8) carburetor pipes; (9) electric pipes; (10) air-driven pipes; (11) chillums; (12) bongs; (13) ice pipes or chillers; (14) wired cigarette papers; or (15) cocaine freebase kits.

Id.; see also Posters ‘N' Things, LTD. v. United States, 511 U.S. 513, 519 (1994) (identifying similar list in predecessor statute as “per se drug paraphernalia”).[2]

         In Posters ‘N' Things, the Court noted that an unenumerated item that is “designed for use” with controlled substances or that is “primarily intended for use” with controlled substances meets the definition of drug paraphernalia. 511 U.S. at 518-19 (citing Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 501 (1982)). An item is “designed for use” with controlled substances if it “is principally used with illegal drugs by virtue of its objective features, i.e., features designed by the manufacturer.” Hoffman Estates, 455 U.S. at 501. A product's “primarily intended use . . . refers to [its] likely use rather than to the [claimant's] state of mind.” Posters ‘N' Things, LTD, 511 U.S. at 519. Both standards require an objective analysis rather than a subjective scienter requirement. Id. at 521-22.

         Furthermore, to assist courts in determining whether items that do not constitute per se drug paraphernalia nonetheless qualify as drug paraphernalia, § 863 provides eight objective factors to consider:

(1) instructions, oral or written, provided with the item concerning its use; (2) descriptive materials accompanying the item which explain or depict its use; (3) national and local advertising concerning its use; (4) the manner in which the item is displayed for sale; (5) whether the owner, or anyone in control of the item, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products; (6) direct or circumstantial evidence of the ratio of sales of the item(s) to the total sales of the business enterprise; (7) the existence and scope of legitimate uses of the item in the community; and (8) expert testimony concerning its use.

21 U.S.C. § 863(d). These factors “focus on the actual use of the item in the community.” PostersN' Things, LTD, 511 U.S. at 520.

         Section 863 includes a separate exemption from the definition of drug paraphernalia for those items “traditionally intended for use with tobacco products.” 21 U.S.C. § 863(f)(2). Consistent with the above factors, an objective inquiry determines whether an item meets the tobacco exemption. Posters ‘N' Things, LTD, 511 U.S. at 520-21.


         The Court divides this section into two parts: (1) facts that the parties have expressly agreed are undisputed, and (2) facts submitted by the United States that the Court has found to be undisputed pursuant to D.N.M.LR-Civ. 56.1(b), despite Fernandez's assertions. The United States supports its argument that all of the Defendant Property constitutes drug paraphernalia with two declarations, an affidavit, and one hundred seven photographs of the items displayed for sale at Phat Glass, Inc. as well as the interior and decorations of the store. Fernandez's evidence consists solely of his own affidavit and the publication “Medical Cannabis Program Patient Statistics for New Mexico.”

         A. Stipulated Undisputed Facts

         Of the eleven material facts that the United States enumerated in its Motion [Pl.'s Mot. 7-8], Fernandez admitted eight of them in his Response. Resp. 2. The Court will therefore treat the following as undisputed material facts:[3]

1. On September 8, 2017, United States Magistrate Judge Carmen E. Garza issued a search and seizure warrant, authorizing federal agents to search Phat Glass, Inc., located at 1211 East Idaho Avenue, Las ...

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