## Facts

- Harold and Kathleen von Hofe, a married couple, co-owned and lived in a single-family home in Branford, Connecticut, as tenants in common (Harold: two-thirds; Kathleen: one-third).
- Police found 65 marijuana plants and related cultivation paraphernalia in the basement.
- Harold admitted he had cultivated marijuana in the home for about a year, used some personally, shared some with others, and sometimes traded marijuana to neighbors in exchange for household services.
- Kathleen knew marijuana was being grown in the home but did not participate in cultivation, did not use marijuana, and the government presented no direct evidence she knew about Harold’s barter/distribution activity.
- Harold pleaded guilty to manufacturing a controlled substance; Kathleen pleaded guilty to marijuana possession based on awareness of and proximity to the marijuana.
- The United States pursued civil in rem forfeiture of the residence under 21 U.S.C. § 881(a)(7) as real property used to commit or facilitate a felony drug offense.

## Issues

1. Whether Kathleen qualified as an “innocent owner” under 18 U.S.C. § 983(d) as to her one-third interest despite knowing marijuana was being grown in the home.
2. Whether forfeiture of the entire residence (including both spouses’ interests) violated the Eighth Amendment’s Excessive Fines Clause as grossly disproportionate to the gravity of the offenses.

## Decision

- The Second Circuit vacated the forfeiture judgment in part and remanded.
- The court upheld forfeiture of Harold’s two-thirds interest, holding it was not grossly disproportionate given his year-long cultivation and barter/distribution conduct and the home’s use as the offense site.
- The court held forfeiture of Kathleen’s one-third interest would be unconstitutionally excessive because her culpability was limited to knowledge and a possession conviction without participation or benefit.
- The court directed entry of a judgment forfeiting only Harold’s interest and preserving Kathleen’s ownership interest.

## Legal Principles

- Civil in rem forfeiture may constitute a “fine” when it is at least partly punitive, triggering Eighth Amendment review.
- A forfeiture violates the Excessive Fines Clause if it is grossly disproportionate to the gravity of the offense, assessed by considering statutory penalties, the offense’s character, and the property’s connection to the crime.
- In jointly owned property, proportionality must be evaluated owner-by-owner; differing culpability can require forfeiture of only the offending owner’s fractional interest.
- An owner’s mere knowledge of illicit conduct, without participation, control furthering the crime, or benefit, can make forfeiture of that owner’s interest disproportionate even when forfeiture is proper against a more culpable co-owner.

## Conclusion

The court required an individualized Excessive Fines analysis in a residential forfeiture, permitting forfeiture of the primary wrongdoer’s interest while barring forfeiture of a minimally culpable spouse’s ownership share.


von Hofe v. United States, 492 F.3d 175 (2d Cir. 2007)