Feds Can Seize Half Of House In Pot Case

A Connecticut woman who has maintained that she was not aware of her husband's hobby of raising marijuana in the basement will get to keep her half of their house, a federal appeals court has ruled.

The 2nd Circuit U.S. Court of Appeals, in a decision issued Wednesday, ruled that Harold von Hofe has to forfeit his interest in the home to the federal government. However, his wife does not have to because she was not actively involved in her husband's marijuana cultivation.

"The record is devoid of any evidence indicating her use of drugs or her involvement in any criminal activity whatsoever," the appeals court wrote.

The appeals court indicated that Kathleen von Hofe did know about the presence of the plants and did nothing to stop her husband's "horticultural hobby," but that her culpability falls at the low end of the scale.

Von Hofe and his wife were charged in 2001 after police raided their home and found 65 marijuana plants, glass smoking pipes and other items associated with growing marijuana in the basement.

Harold von Hofe, formerly a high school teacher, admitted to raising marijuana for himself and to bartering the drug for home repairs, though he did not sell it. He pleaded guilty to manufacture or distribution of a controlled substance. Kathleen von Hofe, a nurse, pleaded guilty to possession of a controlled substance, though she told a jury that she only pleaded guilty to the misdemeanor to save her two sons, claiming local authorities had threatened to press charges against her sons if she did not enter a plea. Both avoided prison time and received suspended sentences and probation.

The federal government then moved to seize their property, a ranch home they have lived in since 1979 that is valued at $248,000.

After a federal judge cleared the way for the house to be forfeited, the von Hofes appealed the decision, saying the forfeiture violated the Excessive Fines Clause of the Eighth Amendment to the Constitution.

The Comprehensive Drug Abuse Prevention and Control Act of 1970 permits forfeiture of property used to commit or facilitate the commission of a violation of the Controlled Substances Act.

While affirming the forfeiture of Mr. von Hofe's interest in the house, the Appeals Court vacated the forfeiture of Ms. von Hofe's interest. "Not only would forfeiture extinguish her substantial equity," the court wrote, "it would amount to an eviction, destroying her "right to maintain control over [her] home, and to be free from governmental interference, ... a private interest of historic and continuing importance."

The von Hofes' attorney, Jonathan J. Einhorn, said a possible result is that Kathleen von Hofe will have to secure a mortgage for the government's half-interest in her home.

"We won the appeal for Kathleen, so she ends up owning half-interest with the government," Einhorn said.