Requiring an Aurora couple to forfeit their home to the government after using it to illegally grow marijuana does not violate the constitutional prohibition against excessive fines, a federal judge ruled last month.

In 2019, the U.S. Department of Justice petitioned to take possession of a home in the 23000 block of East Wagontrail Avenue in Aurora. The previous year, law enforcement searched the home and discovered 828 marijuana plants being grown and electricity being illegally diverted.

Jia Bao Yao was responsible for the illegal grow operation and pleaded guilty in state court. His girlfriend, Amy Chen, also lived at the house with their children.

When the government initiated its civil forfeiture case for the couple’s home, Yao and Chen claimed a violation of the Eighth Amendment’s prohibition on excessive fines. The couple argued the value of the home to the government, just under $500,000, was far above the maximum fine for the nature of the criminal conduct.

“The substance is not fentanyl or methamphetamine which are drugs that are manufacturable in a lab and in the case of methamphetamine can cause health risks to the neighborhood,” wrote attorney Sean M. McDermott for Yao. Further, marijuana “is legal under state law. It is even promoted as a state attraction, similar to the way Colorado’s craft beer market is.”

In September, U.S. Magistrate Judge Scott T. Varholak recommended approving the government’s request for forfeiture. He noted the government had shown a connection between the house and criminal activity, and Yao’s reference to state law was irrelevant because he was growing far in excess of Colorado’s legal limit.

Varholak added that the maximum fine possible for a federal criminal conviction given the extent of the grow operation was $5 million.

“Thus, based upon the maximum statutory and Guideline penalty, a fine of $489,205.09 – $492,284.095 (value of Property) would not be considered grossly disproportionate to the crime,” he wrote.

Yao and Chen objected to Varholak’s conclusions, but U.S. District Court Senior Judge William J. Martínez upheld the decision in a Dec. 21 order, finding forfeiture of the home was a penalty “far less” than the maximum possible fine. The forfeiture was valid even in the absence of federal charges against the couple, he clarified.

In fiscal year 2022, the federal government reported depositing $1.7 billion into the Asset Forfeiture Fund, of which $28.4 million came from Colorado. Scholars have warned that asset forfeiture changes the focus of policing from responding to public safety issues to generating revenue through enforcement.

The case is United States v. Real Property.