The Lowell Sun’s Lisa Redmond continues trial coverage in the attempted forfeiture of the Motel Caswel:
“As the federal government fights to seize a Tewksbury motel in a drug-forfeiture trial, a federal judge admits she has “serious concerns” about the government’s case. Despite her concerns, U.S. Magistrate Judge Judith Dein on Wednesday declined to dismiss the case at the close of the government’s case, taking it under advisement and waiting to hear all the evidence, including witnesses for Motel Caswell owner Russell Caswell who will testify Thursday, before she issues her decision in the jury-waived trial…”
….”After three days of testimony, attorney Scott Bullock, one of a team of Institute for Justice lawyers for Caswell, argued Wednesday that the civil forfeiture case should be dismissed because the U.S. Attorney’s Office “failed by a preponderance of the evidence to prove a substantial connection between the motel and drug arrests (made at the motel.)” Bullock argued that “merely being the location of the crime is not enough of a substantial connection,” he said. “Otherwise, any innocent property owner could be hauled into court.””
….”The government must also prove that Russell Caswell was not an “innocent owner,” but either knew or was “willfully blind,” ignoring the drug issue and failing to everything that was reasonable to stop it at his business. But Dein noted that all the Tewksbury police officers testified during the trial say they had “no communication” with Caswell about what could be done to curb drug activity. She 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 this and do nothing about it, could those businesses be subject to forfeiture? Rao responded, “The test is knowledge and reasonable steps to curb drug activity.” Dein said, “If there was a magic way to end drug crime everyone would have done it.”” Excerpted from Lisa Redmond, Judge ‘concerned’ about Motel Caswell case, The Lowell Sun, 08 Nov. 2012.
[One point of clarification is perhaps helpful. The burden is on Russell Caswell to show that he was an innocent owner.]
Lisa Redmond filed a second article after Russ Caswell testified today:
…”Russell Caswell testified Thursday that he has never been fined, cited, arrested or told he could be in trouble for drug activity at his Tewksbury motel until 2009 when the federal government moved to seize his family-owed motel under a drug-forfeiture law. ”I was surprised,” Caswell testified during his federal forfeiture trial in U.S . District Court. “I never had any warning.” In what the Virginia-based Institute for Justice describes as “the most contentious civil forfeiture fight in the nation,” the U.S. Attorney’s Office has filed a civil lawsuit against Caswell to seize motel arguing that it was used for facilitate drug activity. The government has provided about 15 incidents of drug activity from 1994 to 2008 in which it contends that Caswell either knew and turned a blind eye or should have known of drug arrests in some of the rooms or parking lot of his motel and did nothing to try to curb crime.”
Assistant U.S. Attorney Sonya Rao described the motel as a “dangerous property” in the community. But lawyers from the Institute of Justice, which is representing Caswell pro bono, have argued that this is about money. The motel, which has no mortgage, is worth about $1 million. Under the “equitable sharing” process, if federal Magistrate Judge Judith Dein rules in the government’s favor, the U.S. Attorney’s Office could seize the property under the forfeiture law, sell it and split the proceeds between the federal government and the Tewksbury police.
But the government must show that there was a “substantial connection” between the motel and drug activity, and that Caswell knew or should have known what was going on and failed to take action to stop it. Caswell testified that he had no knowledge of any drug activities at his motel until after arrests were made. If he saw suspicious activity he would call the police, he said.
“Otherwise, I don’t know what else I could do,” he said.
Institute attorney Scott Bullock questioned Caswell about whether town officials, police or federal agents every gave him any warning that drug arrests at the motel might lead to forfeiture? “Never,” the 69-year-old Tewksbury resident testified. The trial is expected to continue Thursday afternoon with closing arguments. Exceprted from Lisa Redmond, Caswell takes stand in his own defense, The Lowell Sun, 08 Nov. 2012.