The Oklahoma Bar Journal May 2025

was not criminal or that they are an “innocent owner,” in that they “(i) did not know of the conduct giving rise to the forfeiture; or (ii) upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to termi nate such use of the property.” 20 In other words, the property itself is guilty until an owner proves it is innocent. Compounding this problem is the fact that medical marijuana businesses often have to deal in cash due to the legal and regulatory risks associated with banking businesses that deal with a Schedule I controlled dangerous substance, 21 and simply being in possession of a large amount of cash can be cause for the govern ment to initiate a forfeiture. 22 For landlords, transporters, banks, partners, suppliers and others, this makes doing business with a medical marijuana operation risky, as failing to comply with any state law or regulation promulgated by OMMA could potentially result in forfeiture of property or loan pay ment obligations for violation of the Controlled Substances Act, whether or not they have any knowledge of the alleged noncompliance. Moreover, as an affirmative defense, “it is not incumbent upon the government to prove that the owner had knowledge of the illegal activity. Rather, ‘it is the claimant’s responsibility to prove the absence of actual knowledge.’” 23 A simple denial is also not sufficient to meet this burden – “for example, where the defendant’s alleged ignorance amounts to willful blindness, or where the owner’s claims of ignorance are inconsistent with the uncontested facts.” 24

allows the government to proceed in rem against the property itself. While the government must prove the nexus between a piece of prop erty and the criminal activity, the burden is less than for proving the crime itself – a mere preponderance of the evidence and not beyond a reasonable doubt. 18 While there are Fourth Amendment restrictions on what the government can seize, the actual evidence substantiating the property’s nexus to criminal activity can be gathered after the filing of the complaint, 19 allowing it to effectively “seize first and ask questions later.” As shown earlier, it does not necessarily matter that the operators are licensed, nor whether the product is diverted to illicit recreational use or purely dispensed to licensed patients. Any deviation from the regulatory requirements of OMMA could potentially result in a civil forfei ture of property, whether or not there are any associated criminal charges against anyone. Once property has been seized, a claimant then has the burden to prove either that the activity

suspension, she was in substantial compliance with the act. 15 The court rejected that argument and denied her request for injunctive relief. A petition for certiorari was filed Feb. 14, but the U.S. Supreme Court declined to take up the question. ASSET FORFEITURE AND THE INNOCENT OWNER DEFENSE Against this backdrop, Oklahoma medical marijuana dispensaries, growers and even patients 16 must determine how to best guard against federal criminal charges and property forfeitures. Obviously, the best way to avoid these risks is to conform one’s own conduct to the requirements of Oklahoma state law and the Oklahoma Medical Marijuana Authority (OMMA) regulatory code; however, even the best efforts at ensuring compliance cannot completely guarantee that no action will be brought – especially for third parties who do not have direct knowledge or control over the way the grower or dispensa ry’s business is conducted. The Civil Asset Forfeiture Reform Act 17

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL