BOSTON — With a federal judge’s ruling and ownership of a million-dollar Tewksbury landmark hanging in the balance, both sides in the Motel Caswell federal forfeiture case have filed briefs as a last chance to try to sway the judge.
At the end of the weeklong trial last month, U.S. Magistrate Judge Judith Dein allowed the U.S. Attorney’s Office and The Institute for Justice, a Virginia-based group that is representing Motel Caswell owner Russell Caswell pro bono, one final opportunity to file briefs before she rules on the case.
In his 42-page brief, Institute for Justice lawyer Scott G. Bullock, summed up the case this way: “In an egregious abuse of its civil forfeiture authority, the United States attempts to take Mr. Caswell’s family-run motel based on an unprecedented reading of the Civil Asset Forfeiture Reform Act of 2000.”
Bullock wrote that if the government wins, it would be a slippery slope.
“Accepting the government’s theory of forfeiture would subject to forfeiture countless establishments that serve the general public simply because they are the site of occasional drug crime,” Bullock wrote.
But Assistant U.S. Attorney Sonya Rao counters in her 34-page brief that due to lax oversight by Caswell and no security at the Motel Caswell, in effect, he “invited”’ drug crimes and made detection of these crimes and deterrence “less likely.”
During the November trial, Rao argued that the motel on Main Street is a “dangerous property” and a hotbed of drug activity.
In her brief, Rao wrote, “Quite simply, as long as a drug dealer or a drug user paid for a room, Caswell and his motel staff would turn a blind eye to drug activity.”
The government has provided about 15 drug incidents — ranging from arrests to an overdose death — over eight years. The government argues that Caswell either knew and turned a blind eye or should have known about drug activity on his property and did nothing to try to curb it.
But during the trial, Caswell, 69, who lives on the property with his wife, Patricia, testified he was “surprised” by the civil-forfeiture notice.
“I never had any warning,” he said.
In nearly 30 years of operating the 57-year-old Motel Caswell, which was built by his father and supports his family, Caswell testified that he has never been fined, cited or arrested, never had his business permit pulled, and was never told he could be in trouble for any third-party drug activity at the motel.
He said he was dumbfounded in 2009 when the federal government suddenly moved to seize his family-owned business under a federal drug-forfeiture law.
Caswell maintains he had no knowledge of any drug activity at his motel until after arrests were made. If he saw suspicious activity, he would call the police, he said.
During the trial, Dein noted that all the Tewksbury police officers who testified during the trial said they had “no communication” with Caswell about what could be done to curb drug activity.
Dein asked Rao if it was the government’s assertion that if a drug transaction takes place in the parking lot of McDonald’s or Dunkin’ Donuts, and the employees are aware of it and do nothing about it, the government could seize those businesses as part of the drug-forfeiture law.
Rao essentially said that was true. She responded, “The test is knowledge and reasonable steps to curb drug activity.”
Dein said she has “serious concerns” about the government’s interpretation.
Institute for Justice attorneys argue the case is simply about money. The government stands to profit in the sale of the Caswell Motel, which is worth an estimated $1 million with no mortgage.
Under a process known as “equitable sharing,” the federal government would keep 20 percent of what it nets from selling the land, and the Tewksbury Police Department would pocket 80 percent, while the Caswell family will lose its livelihood, the Institute for Justice alleges.
Dein has no deadline in which to issue her ruling.
Meanwhile, Russell Caswell said it’s business as usual at the motel.
Caswell awaits its fate
Sides get last chance to convince judge in Tewksbury motel’s forfeiture case
December 24, 2012
The Lowell Sun