United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE.
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.
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. 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.
SUMMARY OF ARGUMENTS
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.,
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.
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 STANDARD
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).
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).
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.
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)).
LEGAL STANDARDS IN CIVIL FORFEITURE
Statutory Basis for Forfeiture
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
(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
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.
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.”
Posters ‘N' Things, LTD, 511 U.S.
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.
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.”
Stipulated Undisputed Facts
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:
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 ...