Free Trial Memo - District Court of Connecticut - Connecticut

Case 3:01-cv-02290-MRK

Document 38

Filed 01/14/2005

Page 1 of 10

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT UNITED STATES OF AMERICA, : : Plaintiff, : : v. : : ONE PARCEL OF PROPERTY : LOCATED AT 32 MEDLEY LANE, : BRANFORD, CONNECTICUT, : WITH ALL APPURTENANCES AND : IMPROVEMENTS THEREON, AND : : Defendant. : : [CLAIMANTS: HAROLD E. VON HOFE, : AND KATHLEEN M. VON HOFE] :

Civil No. 3:01CV2290 (MRK)

January 14, 2005

JOINT TRIAL MEMORANDA TRIAL COUNSEL Plaintiff: David X. Sullivan Assistant U.S. Attorney 157 Church Street P.O. Box 1824 New Haven, CT 06508 (203) 821-3700 James F. Cirillo, Jr., Esq. 500 E. Main Street Suite 326 Branford, CT 06405 (203) 488-9828 Jonathan J. Einhorn, Esq. 412 Orange Street New Haven, CT 06511 (203) 777-3777 (United States of America)

Claimants:

(Harold von Hofe)

(Kathleen von Hofe)

Case 3:01-cv-02290-MRK

Document 38

Filed 01/14/2005

Page 2 of 10

JURISDICTION 28 U.S.C. §§1345 and 1355 LENGTH OF TRIAL The parties anticipate approximately three-to-four trial days will be necessary. FURTHER PROCEEDINGS Aside from the Pre-trial Conference scheduled for January 26, 2005, the parties do not anticipate the necessity of any further proceedings prior to trial. NATURE OF CASE A. Government's Contentions

This is a civil action in rem brought to enforce the provision of 21 U.S.C. § 881(a)(7) for the forfeiture of real property which was used or intended to be used in some manner or part to commit or to facilitate the commission of a violation of the Controlled Substances Act, 21 U.S.C. §§ 801 et seq., punishable by more than one year's imprisonment. On December 4, 2001, at approximately 10:00 a.m., members of the Branford Police Department and Special Agents of the Drug Enforcement Administration executed a state search and seizure warrant at the residence of Harold and Kathleen von Hofe located at 32 Medley Lane, Branford ("Defendant Property"). Among the items seized pursuant to the warrant were: a total of sixty-five (65) marijuana plants found in two rooms in the basement, two (2) Hydra farm lights and a thermometer located in both of the basement grow rooms; one (1) Tanita model 1479 digital scale with marijuana residue and one (1) green sealed jar with marijuana buds located in plain view in another room in the basement; two (2) cardboard boxes containing cut marijuana located in the hallway outside one of the basement grow rooms; two (2) cardboard boxes containing marijuana residue located in the hallway outside one of the basement grow rooms; a homemade drying compartment containing hanging strings with marijuana residue located outside one of the basement grow rooms; two (2) brown paper bags containing "shake," (which is the discarded portion of marijuana plants) located in the basement grow rooms and hallway in the basement; marijuana smoking pipes, seeds and other marijuana paraphernalia and three (3) empty Ketamine 100 mg bottles located in another room in the basement; miscellaneous potting materials and grow formulas; one (1) large trash can containing potting soil located in the basement; and a book entitled "Indoor Marijuana Horticulture" discovered in the hallway near one of the grow rooms in the basement. B. Claimants' Contentions

As a special defense to the Verified Complaint of Forfeiture, the Claimant, Kathleen von Hofe, denies any knowledge of criminal activity at the Defendant Property. In his Answer to the

Case 3:01-cv-02290-MRK

Document 38

Filed 01/14/2005

Page 3 of 10

Verified Complaint of Forfeiture, the Claimant, Harold von Hofe, asserts as a special defense that the plaintiff, United States, has failed to state a claim upon which relief can be granted. TRIAL BY MAGISTRATE JUDGE The parties have not agreed to a trial before a Magistrate Judge. EVIDENCE Government Witnesses1 1. Detective Duncan Ayr 33 Laurel Street Branford, CT 06405 Detective Ayr will testify as to the investigation and subsequent execution of a search warrant at the Defendant Property on December 4, 2001. 2. Detective Kevin Potter (ret.) 33 Laurel Street Branford, CT 06405 Detective Potter will testify as to his role in the execution of the search warrant at the Defendant Property on December 4, 2001. 3. Detective Paul Perrotti 33 Laurel Street Branford, CT 06405 Detective Perrotti will testify as to his role in the execution of the search warrant at the Defendant Property on December 4, 2001. 4. Detective Daniel Travisano 33 Laurel Street Branford, CT 06405 Detective Travisano will testify as to his role in the execution of the search warrant at the Defendant Property on December 4, 2001. The Government witness list represents those individuals the Government may call during it's case-in-chief to meet it's burden by a preponderance of the evidence that the Defendant property was used, or intended to be used, in any manner or part to commit or facilitate the commission of, a narcotics violation punishable by more than one year. The Government reserves the right to call additional witnesses to rebut any evidence presented by the Claimants in presenting an innocent owner defense at trial.
1

Case 3:01-cv-02290-MRK

Document 38

Filed 01/14/2005

Page 4 of 10

5.

Drug Enforcement Administration Special Agent Jon Rubinstein 55 Church Street, New Haven, CT 06510 Special Agent Rubinstein will testify as to his role in the execution of the search warrant at the Defendant Property on December 4, 2001.

6.

Drug Enforcement Administration Special Agent LaVerne Hibbert 55 Church Street, New Haven, CT 06510 Special Agent Hibbert will testify as to her role in the execution of the search warrant at the Defendant Property on December 4, 2001.

7.

Drug Enforcement Administration, Resident Agent in Charge Michael Wardrop 55 Church Street, New Haven, CT 06510 Special Agent Wardrop will testify as to his role in this investigation and as to the intricacies of indoor marijuana cultivation, the equipment used, the grow cycles, and marijuana plant yield with respect to personal and distribution quantities.

8.

State of Connecticut Department of Public Safety, Scientific Services, Mark Anderson 10 Clinton Street Hartford, CT. 06106 Chemist Mark Anderson will testify as to the toxicology reports finding that the 65 plants and plant-like material discovered at the Defendant property on December 4, 2001, was marijuana.

9.

Harold von Hofe 32 Medley Lane, Branford, CT Harold von Hofe will testify as to drug activity at the Defendant property.

10.

Kathleen von Hofe 32 Medley Lane, Branford, CT Kathleen von Hofe will testify as to drug activity at the Defendant property.

11.

Alaric von Hofe 32 Medley Lane, Branford, CT Alaric von Hofe will testify as to drug activity at the Defendant property.

Case 3:01-cv-02290-MRK

Document 38

Filed 01/14/2005

Page 5 of 10

12.

Morgan von Hofe 32 Medley Lane, Branford, CT Morgan von Hofe will testify as to drug activity at the Defendant property.

13.

Edward Huneycutt Robinson Correctional Institute Enfield, CT Edward Huneycutt will testify as to drug activity at the Defendant property.

14.

Rogelio Maldonado 1182 North High Street, East Haven, CT Rogelio Maldonado will testify as to drug activity at the Defendant property.

15.

Confidential Informant Number One2 ("CI-1") CI-1 may testify as to drug activity at the Defendant property. Government Exhibits

Inventory of items seized at Defendant property on December 4, 2001. Forty-five (45) still photographs of Defendant property and items seized on December 4, 2001. Northeast Utilities records of kilowatt and billing hours of Defendant property and other houses in the same neighborhood. Graph Analysis of kilowatt hours for defendant property and other houses in the same neighborhood (May 1999-April 2001) prepared by the DEA. Video tape of defendant property immediately prior to the execution of the search warrant on December 4, 2001. Syringes located on first floor. Syringes located in basement. Empty ketamine vials located in basement.

Identity and address of CI-1 unknown to the undersigned Assistant United States Attorney at this time. If, and when, this information is provided to the undersigned AUSA, the Government witness list will be amended.

2

Case 3:01-cv-02290-MRK

Document 38

Filed 01/14/2005

Page 6 of 10

Two (2) empty inoketan (ketamine) vials located in Morgan von Hofe's bedroom. Digital scale located in the basement. Five (5) vials of white residue located in Alaric von Hofe's bedroom, on a table. One (1) article "There's More Money in Illegal Drug Trafficking Than Any Other Business On Earth" in Alaric von Hofe's bedroom. One (1) jar with marijuana buds therein, located in basement. Certified Convictions of Harold von Hofe and Kathleen von Hofe. One (1) plastic package of marijuana seeds in basement. One (1) plastic baggie with green plant residue in Alaric von Hofe's bedroom. Numerous smoking pipes with residue located in Alaric von Hofe's bedroom, and in the basement. "My Star Ruby," A Personal Tribute to Aleister Crowley, written by Harold von Hofe. "DIVINE PNEUMATA," Seven complete Hermetic Planetary Rituals reconstructed from the Practices of the Sabian of Harran, written by Hal von Hofe. "Fuck Emblems & Mode of Use" written by Halmeister Crowley. Photographs from Harold von Hofe's website depicting the Defendant property and the Claimant, Kathleen von Hofe. Claimants' Witness List 1. Harold von Hofe 32 Medley Lane, Branford, CT

2.

Kathleen von Hofe 32 Medley Lane, Branford, CT Alaric von Hofe 32 Medley Lane, Branford, CT Morgan von Hofe 32 Medley Lane, Branford, CT

3.

4.

Case 3:01-cv-02290-MRK

Document 38

Filed 01/14/2005

Page 7 of 10

Claimants' Exhibit List 1. Kathleen von Hofe, misdemeanor conviction

STIPULATIONS OF LAW 1. It is a violation of federal law to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance punishable by more than one year of imprisonment in violation of 21 U.S.C. §841. Marijuana is a controlled substance as referenced in 21 U.S.C. §841. As of December 4, 2001, Harold von Hofe and Kathleen von Hofe were the sole owners of the defendant property, 32 Medley Lane, Branford, Connecticut.

2. 3.

STIPULATIONS OF FACT 1. The 65 plants discovered at the Defendant property on December 4, 2001,were marijuana plants. The green plant-like material located in jar in the basement of the defendant property on December 4, 2001, was marijuana. The plant-like residue on the digital scale located in basement of the defendant property on December 4, 2001, was marijuana. The single family dwelling at 32 Medley Lane is located on .52 (approximately ½) of an acre. The dwelling at 32 Medley Lane is a ranch house. The first floor living area of the Defendant property has a total of six rooms of which three are bedrooms with 1 and ½ bathrooms. The first floor living area of the Defendant property consists of 1,428 square feet. The basement living area of the Defendant property has a total of four rooms, one of which is the master bedroom with a bathroom. The parties stipulate to the authenticity of utilities records subpoenaed by law enforcement in connection with this case. The parties stipulate as to authenticity of forty-five still photographs of the defendant property taken by law enforcement.

2.

3.

4.

5. 6.

7. 8.

9.

10.

Case 3:01-cv-02290-MRK

Document 38

Filed 01/14/2005

Page 8 of 10

11.

The parties stipulate as to the authenticity of the video tape of the defendant property taken by law enforcement. The parties stipulate as to the chain of custody regarding the following items seized by law enforcement from the Defendant property on December 4, 2001: sixty-five (65) marijuana plants found in two rooms in the basement, two (2) Hydra farm lights and a thermometer located in both of the basement grow rooms; one (1) Tanita model 1479 digital scale with marijuana residue and one (1) green sealed jar with marijuana buds located in plain view in another room in the basement; two (2) cardboard boxes containing cut marijuana located in the hallway outside one of the basement grow rooms; two (2) cardboard boxes containing marijuana residue located in the hallway outside one of the basement grow rooms; a homemade drying compartment containing hanging strings with marijuana residue located outside one of the basement grow rooms; two (2) brown paper bags containing "shake," (which is the discarded portion of marijuana plants) located in the basement grow rooms and hallway in the basement; marijuana smoking pipes, seeds and other marijuana paraphernalia and three (3) empty Ketamine 100 mg bottles located in another room in the basement; miscellaneous potting materials and grow formulas; and, one (1) large trash can containing potting soil located in the basement. 1. Proposed Voir Dire Questions

12.

The Government's Proposed Voir Dire Questions are attached hereto as a separate document. Claimants will file their Proposed Voir Questions independently. 2. Proposed Jury Instructions

The parties' Proposed Jury Instructions are attached hereto as a separate document. The Claimants have not yet drafted Proposed Jury Instructions.

3.

Proposed Verdict Form

The Government's Proposed Verdict Form is attached hereto as a separate document. The Claimants object to the Government's Proposed Verdict Form. 4. Brief Description of Case and Parties

On December 4, 2001, members of the Branford Police Department and Special Agents of the Drug Enforcement Administration executed a state search and seizure warrant at the residence of Harold and Kathleen von Hofe located at 32 Medley Lane, Branford, Connecticut. Based upon the discovery of marijuana plants and other drug paraphernalia at that location, the United States, the Plaintiff in this case, has filed a civil action in rem, against the property located at 32 Medley Lane. You will often hear 32 Medley Lane referred to as "the Defendant property" during this trial. Harold and Kathleen von Hofe

Case 3:01-cv-02290-MRK

Document 38

Filed 01/14/2005

Page 9 of 10

are the "Claimants" in this case. As the record owners of the Defendant property, they are opposing the forfeiture of 32 Medley Lane to the Government. ANTICIPATED EVIDENTIARY PROBLEMS The Government does not anticipate any evidentiary problems at trial. The Claimants may raise issues pertaining to their beliefs, books, hobbies, studies, and other personal matters.

Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY

BY:

DAVID X. SULLIVAN ASSISTANT U.S. ATTORNEY P.O. BOX 1824 NEW HAVEN, CT 06508 (203) 821-3700 CT03793

FOR: JONATHAN J. EINHORN, ESQ. 412 ORANGE STREET NEW HAVEN, CT 06511 (203) 777-3777 CT00163 FOR: JAMES F. CIRILLO, JR., ESQ. 500 EAST MAIN STREET SUITE 326 BRANFORD, CT 06405 (203) 488-9828 CT05721

Case 3:01-cv-02290-MRK

Document 38

Filed 01/14/2005

Page 10 of 10

CERTIFICATE OF SERVICE This is to certify that I have caused a copy of the within document to be sent via electronic mail and by first class mail, postage prepaid, on this 14 day of January, 2004, to:

Claimants:

James F. Cirillo, Jr., Esq. 500 E. Main Street Suite 326 Branford, CT 06405 (203) 488-9828 Jonathan J. Einhorn, Esq. 412 Orange Street New Haven, CT 06511 (203) 777-3777

(Harold von Hofe)

(Kathleen von Hofe)

DAVID X. SULLIVAN Assistant U.S. Attorney