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The Lowell Sun’s Lisa Redmond reports on today’s trial developments in the Motel Caswell:

“Motel Caswell, a “dangerous property” and a hotbed of drug activity according to the federal government, has seen few drug incidents in a dozen years and owner Russell Caswell was rarely informed, a Tewksbury police lieutenant testified on Wedesday.

Tewksbury Lt. Thomas Casey said he has responded to about 10 incidents of alleged drug activity at the motel during his 12 years on the force. In some instances, the drug busts involved setting up controlled “buys” or searches of motel rooms of suspected dug dealers, and a fatal heroin overdose. Dring a November 2008 investigation of a suspected drug dealer, Casey testified the suspected drug dealer wasn’t selling real drugs. The test results came back negative for heroin.

The U.S. Attorney’s office wants to seize the family-owned Route 38 motel under federal drug forfeiture laws. Federal attorneys are trying to show that Russell Caswell knew and was “willfully blind,” or should have known about drug activity and did nothing to curb the activity

If the federal government prevalls the government could sell the motel and split the profits with Tewksbury police. Russell and Patricia Caswell, whose family has owned the motel since 1955, would lose their livelihood.

Under cross examination by attorneys for the Institute for Justice, which is representing the Caswells pro bono, Casey testified that he never had a conversation with Russell Caswell about drug arrests on the property and never suggested what Caswell could do to curb drug activity.

Casey said he has a “good relationship” with the motel’s desk clerks and enjoyed stopping there to check guest registration slips to see if any guests had warrants for their arrest.”

Tuesday’s article cast doubt on the Government’s peculiar premise that Russ Caswell should not qualify as an innocent owner–apparently because Caswell failed to institute measures that the police silently considered and simply informed police of suspicious behavior and cooperated with police investigations:

Institute for Justice attorney Lawrence Salzman, who represents Caswell, argued that Caswell has never been convicted of any crime and has never participated in any drug activity, yet he stands to lose his motel “all because of a small number of people involved in drug activity behind closed doors.”

Caswell operated in “complete transparency,” even cooperating with police by letting them use empty motel rooms for drug stings, Salzman said.

During his testimony Monday, retired Tewksbury police Lt. Dennis Peterson testified that he had plenty of suggestions on how to curb drug activity at the motel. But when asked by Salzman if he passed on any of those suggestions, Peterson testified he had a “vague memory” of mentioning those recommendations to one of the motel’s desk clerks.

Peterson testified that after an arrest, he would notify the desk clerk on duty that someone had been arrested for drug activity at the motel. Peterson testified he had “no idea” if Caswell or his staff knew customers were selling drugs before arrests were made.

But Peterson testified he didn’t trust Caswell because “someone on the property as much as him would have to have known what was going on.”

The Government’s next trick figures to be conflating distinct protections requiring that the Government establish that Motel Caswell is subject to forfeiture and  that the Government establish that the Motel Caswell is substantially connected to the incidental underlying criminal acts animating the forfeiture theory in an attempt to render 18 U.S.C. § 983(c)(3)’s ”substantial connection” protection meaningless as the U.S. Government argued in their trial brief:

 To prevail in a forfeiture action under Section 881, the United States must establish, by a preponderance of the evidence, that the Defendant Property was used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of Sections 841, 846 and/or 856. Civil Asset Forfeiture Reform Act (“CAFRA”), 18 U.S.C. § 983(c)(1). Where, as here, the government’s theory of forfeiture is that the Defendant Property was used to facilitate a crime (specifically, criminal drug activity), the government must establish a“substantial connection” between the Defendant Property and the offense. 18 U.S.C. §983(c)(3); United States v. One Parcel of Real Prop., 900 F.2d 470, 474 (1st Cir. 1990). The “substantial connection” test requires only that the property was used, or intended to be used, to commit a crime, or must facilitate the commission of a crime. United States v. Schifferli, 895 F.2d 987, 990 (4th Cir. 1990).


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