Published August 03. 2013 4:00AM
Waterford - Seth and Beth Marder are looking for a new place to live now that a federal judge has affirmed the government's intention to seize the couple's colonial-style home at 5 Reynolds Lane, where they were cultivating marijuana, they say, for their own medicinal use.
"The War on Drugs is a joke," said Seth Marder, 51, who suffers from mental and physical health conditions and claims marijuana is the only drug that makes him feel right.
Local and federal authorities raided the couple's home in 2009, seizing about 100 marijuana seedling plants, which the Marders call the "moms," or female plants, from a small laundry room off the kitchen, about 100 plants in various stages of growth in their barn-style garage, grow lights and other cultivation equipment. The government also said they seized packaging equipment, though the couple insists they never sold marijuana to anyone from their home, and about $5,000 in cash.
Their attorney, William T. Koch Jr., said the government's taking of the home is "hypocritical and excessive." He had argued at a trial in April that the forfeiture of the home is a violation of the U.S. Constitution's prohibition of excessive fines. He said the couple was willing to pay a fine but the government would not negotiate.
"I understand the forfeiture statutes if somebody is importing pounds of cocaine and heroin and buying mansions and cigarette boats in Palm Beach," Koch said in an interview Friday. "These are medical marijuana patients who were not bothering anyone."
Criminal charges brought
After the raid, the Marders faced criminal charges in state court and civil charges in federal court, where the government moved for forfeiture of the home, valued at $200,000, because the couple had violated the Controlled Substances Act. Beth Marder's criminal case was not prosecuted. Seth Marder pleaded guilty to cultivating marijuana without a license, a felony, and received a fully suspended prison sentence and three years probation.
For the next four years, the couple said in an interview at their home Friday, they lived with a sticker on the door that said the U.S. Marshals intended to seize the home and with the uncertainty of not knowing whether they would have to find another place to live. Seth Marder is unable to work due to his medical problems. Beth Marder said she teaches science to high school students online.
The government, in order to seize the property, had to prove that "there was a substantial connection between the property and the offense," while the Marders attempted to prove the forfeiture was constitutionally excessive because it is "grossly proportionate" to the offense.
In his July 25 decision, U.S. District Judge Charles S. Haight ruled that requiring the couple to forfeit the house does not violate the Excessive Fines clause of the Eighth Amendment but suggested the government reconsider now that it has prevailed in court.
"The Government, having achieved that litigation objective, may wish to consider whether, in the totality of the present circumstances, depriving the Marders of their home best serves the justice and wisdom of the cause," Haight wrote.
A spokesman for the U.S. Attorney's office said there would be no comment. Assistant U.S. Attorney David X. Sullivan had represented the government.
The Marders said they don't know where they will live if U.S. Marshals follow through with the intended seizure of the home on Aug. 16.
"We're out of Connecticut," Beth Marder said. "That much we know."
The Marders moved to Waterford from Yreka, Calif., in 2005 because it was halfway between Cape Cod, where Beth Marder's terminally ill mother was living, and Greenwich, where Seth Marder's mother lives.
The couple had legally grown marijuana for Seth Marder's use in California and sold the excess, legally, to marijuana clubs that distributed cannabis for medicinal purposes. Seth Marder suffers from chronic depression and bipolar disorder, and received a license to use marijuana when California legalized the drug for medicinal purposes in 1996. He estimates he made a total of $100,000 selling the marijuana to the clubs from 2000 to 2005.
He said he stopped smoking marijuana after the raid and has been taking pharmaceutical products, which he calls "crap" that does not ease his symptoms and has unpleasant side effects.
Beth Marder said she smoked marijuana recreationally but began using it for medicinal reasons after being diagnosed in December 2005 with chronic neurological Lyme disease. She, too, said she has stopped using marijuana.
At the trial in April, attorney Koch asked Judge Haight to be "on the right side of history," citing the "evolving standards" with respect to marijuana. He said Colorado and Washington have legalized marijuana and several other states, including Connecticut, now allow licensed consumers to use the drug for medicinal purposes.
"The future, if you want to be on the side of history, is when marijuana is going to become legal and the Government will make 10 times as much money taxing it," Koch argued.
The Marders had what Drug Enforcement Administration Special Agent Jon Rubinstein described at the trial as a "functioning, well thought-out, well-concealed producing grow" in their home, which is situated on a small lot on a dead end off Boston Post Road with other homes nearby.
The couple had blacked out the windows of their garage, because they said the plants need complete darkness for 12 hours a day, and had erected double walls for insulation and installed lighting and watering systems. Though the government was skeptical of the Marders' claim that they never sold marijuana from the property, Judge Haight wrote in his decision that he "accepted their testimony on this aspect of the case" because neither federal nor local authorities "took any follow-up investigatory steps to determine if the Marders were selling or distributing marijuana to others."