The U.S. Government recently filed a series of limine motions (motion in limine to exclude evidence concerning the Department of Justice’s Equitable Sharing Program; motion in limine requesting site visits of the defendant property and Caswell residence; and motion in limine to exclude evidence concerning criminal activity at other locations) in the government’s protracted attempt to forfeit the Motel Caswell.

U.S. Magistrate Judge Judith G. Dein granted the first two motions. The latter, still under consideration by U.S. Magistrate Judge Dein, is opposed by Russ Caswell.

The government’s third limine motion argues:

“Pursuant to Federal Rule of Evidence 401 (hereinafter, “Rule 401”), the United States of America respectfully requests that the Court exclude evidence at trial concerning criminal activity at locations other than the Defendant Property. Exclusion of such evidence at trial is appropriate because it is irrelevant to the issues to be decided at trial. Rule 401 specifies that evidence is relevant only if “it has any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action.” Fed. R. Evid. 401. Evidence concerning criminal activities at properties other than the Defendant Property does not meet the relevancy standard set forth in Rule 401.

At trial, the United States must demonstrate by a preponderance of the evidence that the Defendant Property is subject to forfeiture. 18 U.S.C. ‘ 983(c)(1). Specifically, the government must show that the Defendant Property was used, or was intended to be used, to commit a crime, or must facilitate the commission of a crime. See 18 U.S.C. ‘ 983(c)(3); United States v. One Parcel of Real Property, 900 F.2d 470, 474 (1st Cir. 1990); United States v. Schifferli, 895 F.2d 987, 990 (4th Cir. 1990). Evidence of criminal activity at other properties does nothing to establish that the Defendant Property was used to facilitate criminal activity. Thus, with regard to the issue of forfeitability, criminal activity at locations other than the Defendant Property is irrelevant.

Such evidence is similarly irrelevant to the second issue that the Court must decide at trial, i.e., whether or not Claimant has shown by a preponderance of the evidence that it is an innocent owner. In order to prevail on an innocent owner defense, Claimant must demonstrate that it either did not know of the conduct giving rise to forfeiture or, upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate the illegal use. 18 U.S.C. § 983(d)(2)(A). Evidence of criminal activity at locations other than the Defendant Property does nothing to demonstrate that Claimant did not know about drug activity at the Defendant Property, nor does it demonstrate that Claimant took reasonable steps to curb the criminal activity at the Defendant Property. Thus, such evidence is irrelevant to the innocent owner issue, as well. Motion in limine to exclude evidence concerning criminal activity at other locations, U.S. v. 434 Main Street, Tewksbury, Massachusetts, 21 Sept. 2012.”

The framing ignores the possibility that evidence concerning criminal activity at other locations may be of consequence to other issues to be determined at trial–such as whether the forfeiture would violate the prohibition against excessive fines provided for in the Eighth Amendment of the United States Constitution. ¹ Additionally, the government’s limine motion claims such evidence is irrelevant to a determination of whether the Caswells took reasonable steps to deny drug use at the property in support of their innocent owner defense.  The Caswells responded with a conditioned, partial opposition:

Mr. Caswell will not introduce evidence of criminal activity at locations apart from the Motel Caswell as a part of his case-in-chief. This decision reflects the Court’s comments and ruling during the hearing on Mr. Caswell’s previous motion in limine. It is possible, however, that such evidence may be necessary and relevant to introduce in rebuttal of testimony or evidence that the government may seek to introduce in its own case. It is vital to Mr. Caswell’s defense that his right to introduce such evidence in rebuttal is preserved.

During depositions and in its court presentations to date, the government has referred to the allegedly poor reputation of the Motel Caswell. It appears poised as part of its own case to introduce evidence of the reputation of the Motel—through the testimony of police officers, through media reports, or otherwise—as a means of arguing what Mr. Caswell should have known about crime inside rooms at the property, or to establish what steps would have been reasonable to take to reduce or terminate crime at the property. Mr. Caswell believes such reputational evidence is irrelevant and will object to its introduction.

If the government is allowed to offer testimony of the Motel’s reputation, however, evidence of crimes occurring at locations apart from the Motel Caswell would be relevant to its rebuttal. The reputation of the Motel is by its nature a comparative standard. Admittedly, some felony drug crimes have occurred on the premises of the Motel Caswell over the years. Whether this makes the property bad or worse than others—the basis of its reputation—raises the question “bad or worse as compared to what?” In rebuttal of reputational testimony offered by the government, Mr. Caswell seeks to preserve his right to demonstrate that during various years other motels in the community had similar or greater levels of drug crime and that the experience of other properties could then be relevant to establishing what steps count as “reasonable” at his own property. Claimant’s opposition to United States’ motion in limine to exclude evidence of criminal activity at other locations, U.S. v. 434 Main Street, Tewksbury, Massachusetts, 25 Sept. 2012.