WSJ: Motel Is Latest Stopover in Federal Forfeiture Battle [Motel Caswell in Tewksbury, Mass.]

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The Wall Street Journal
ECONOMY
October 18, 2011

Motel Is Latest Stopover in Federal Forfeiture Battle

BY JOHN R. EMSHWILLER, GARY FIELDS AND JENNIFER LEVITZ

TEWKSBURY, Mass.--The $57-a-night Motel Caswell, magnet for hard-luck
cases, police patrol cars and the occasional drug deal, is the
unlikely prize in a high-stakes tug-of-war between conservative legal
activists and the government.

The motel's owner, spurred by a recent Supreme Court decision, is
trying to convince a federal court that the Constitution bars the U.S.
Department of Justice from seizing his property, where guests have
been found guilty of drug offenses. The owner, Russell Caswell, isn't
accused of any wrongdoing. But he stands to lose his business
nonetheless under a law that calls for the forfeiture of properties
linked to crimes.

Mr. Caswell's federal court case challenges the U.S. government's
ballooning asset-forfeiture system that in more than 15,000 cases last
year confiscated cash, cars, boats and real estate valued at $2.5
billion. While many asset forfeitures are tied to convictions, the
federal government can seize properties stained by crime even if
owners face no charges.

"People shouldn't lose their property if they haven't been convicted
of any crime," said Scott Bullock, a lawyer for the Institute for
Justice, a libertarian public-interest law firm in Arlington, Va.,
that has joined in the motel's defense. "Mr. Caswell hasn't even been
accused."

Civil rights groups, libertarians and attorneys defending against
seizures say the government is overstepping its bounds in a practice
that has swelled in the past decade to encompass some 400 federal
statutes, covering crimes from drug trafficking to racketeering to
halibut poaching.

Law-enforcement officials argue the laws afford adequate citizen
protections. Government forfeiture powers are needed tools to drain
the wealth of drug cartels and other criminal enterprises, authorities
say.

On the front lines of this legal battle is a tidy but worn 56-room
motel that has been owned and operated by Mr. Caswell and his family
since the 1950s. The property's low-slung buildings sit next to an
auto body shop on Main Street in this town of 29,000. Weekly rates
start at $285. Rooms with heart-shaped tubs cost extra.

The federal government in 2009 filed a complaint in Massachusetts
federal court seeking forfeiture on the grounds the motel was used in
connection with illegal drug activities.

Mr. Caswell, 68 years old, said that among his tens of thousands of
past customers he could have unknowingly hosted a relative handful of
lawbreakers. But that's a problem faced by many motel owners, he said.

A Justice Department court filing listed seven police investigations
from 2001 to 2008 that resulted in at least eight convictions for drug-
related crimes, including possession and trafficking. Sentences ranged
from probation to three years in state prison. The motel has been the
subject of more than 100 drug investigations since 1994, according to
the government filing.

A talkative man with a crew cut and thick-rimmed glasses, Mr. Caswell
said he and his employees try to keep out shady customers. At the
front desk he maintains a "do not rent" list with the names of 75
guests who have made trouble.

He also keeps a log of police visits in the past year that is thick
with complaints, from fist fights to screaming matches. A sampling:
Oct. 7, room 240 called police about a domestic assault; police came
with an ambulance, and "took the man away on a stretcher," the log
said. On Sept. 3, the motel called police after a "girl looked dead"
in room 229, said another entry. Emergency workers "got a pulse
again." At 6 a.m. on Aug. 15, a woman was in the motel yard hollering.
"She was just off her rocker," Mr. Caswell said.

The guests who cause problems, he said, are only a "tiny percent of
the people who stay here. They want to make people think this is the
Wild West but that simply isn't the case."

Last winter, Mr. Caswell said, he arrived at work and was told police
were in room 252, which was declared a crime scene. "I could see blood
on the door, it looked like handprint. The window was broken. There
was blood all over the place, blood everywhere. I went to the police
station and asked, 'Can you fill me in on what went on in 252?'"

Officers at first refused to say much. "I finally got out of them that
these people came in at 4 a.m., and shortly after, they were drunk,
and got into some kind of a squabble," he said.

Mr. Caswell said the government's focus on his motel was unfair. He
retrieved newspaper accounts of crimes at businesses nearby. "It's not
like it's us," he said, "it's the area."

David Gay, vice-chairman of the Board of Selectman of Tewksbury, said
he had heard numerous complaints about illegal drugs and other crimes
at the Caswell. Nearby motels, he said, have similar though much less
frequent trouble.

The Tewksbury Police Department provided U.S. authorities with
evidence for the case, according to a court filing, and could get as
much as 80% of the proceeds from the sale of the property under a
federal forfeiture program known as "equitable sharing," which pays a
portion to state and local agencies that help. Last year, payments
nationwide topped $500 million, up 75% from a decade earlier. With
budget shortfalls growing common, police departments say the federal
money is welcome.

Tewksbury city officials say the case was pushed by federal officials
and they don't know how the roadside motel became a target. A police
department spokesman deferred comment to the U.S. Attorney's office in
Boston, which began the seizure proceedings two years ago. A federal
spokeswoman said, "The case is about law enforcement and has nothing
to do with any financial considerations." She declined to say how the
motel case originated.

Federal officials say sharing proceeds with police reduces crime by
giving cities and other local agencies a financial incentive to seek
out criminally tainted assets. Opponents say the money creates a
conflict of interest.

Mr. Caswell said he believes the lure of shared profits from his
property attracted the cooperation of town authorities. The motel and
land have no mortgage and are worth about $1 million, he said: "This
has nothing to do with drugs. This is about money." The federal
government has a lien on the property that forbids its sale or use as
collateral until the case is decided.

Mr. Bullock, of the Institute for Justice, said he planned to file a
motion by early next month asking a Massachusetts federal judge to
dismiss the case in a challenge of the equitable sharing program.

Mr. Caswell's attorneys said in a recent court filing that the program
"exceed(s) the lawful powers of the federal government as limited by
the 10th Amendment." The 10th Amendment says powers not given by the
Constitution to the federal government are reserved for the states or
the people.

This line of attack was opened by a Supreme Court decision in June
that made it easier for citizens to mount constitutional challenges of
federal government actions. Before the ruling, which was unanimous,
courts generally held that only states, not individuals, could raise
many 10th Amendment claims.

Mr. Bullock said his side would argue the equitable sharing program
illegally usurps a state's power to run its own asset forfeiture
system by giving police an incentive to work with the federal
government ahead of state authorities.

Massachusetts' forfeiture law, which requires that a property be "used
in and for the business of" drug dealing, makes seizures more
difficult than under federal law, he said, which requires only that
the property be used "in any manner or part."

Tenth Amendment challenges are emerging as a "hot area" in the
national debate over federal powers, said Steven Schwinn, an associate
professor at the John Marshall Law School in Chicago.

The motel case is an interesting challenge, he added, but it will be
tough to win because participation is voluntary. Courts, generally,
have struck down federal programs only when they compel states to
join.

Mr. Bullock disagreed. Although the program is voluntary, he said, it
allows police departments to bypass the will of state lawmakers to
pursue profits through the federal forfeiture program.

Mr. Caswell said the legal battle has taken a toll on his family as
well as the motel. "I haven't done much maintenance in the last two
years since this crap started," he said, as he walked by a broken
window patched with duct tape. "Normally, I would have had that
fixed."

Leaning against a silver Chevy Cavalier parked outside her room, motel
guest Sheila Esposito, a 50-year-old unemployed woman from nearby
Wilmington, Mass., said she has rented rooms for weeks at a time over
the past six months while looking for work. She said she had just
gotten a job offer at a discount store.

"This place is $800 a month, with everything included. Can you beat
that?" she said. Moments later, a bearded, bald-headed man with his
shirt unbuttoned to the waist staggered from a nearby room, asking for
a cigarette.

"That's the kind of thing you have to avoid," she said.

"Bum," said another guest, Joel Dubeshter, as the man walked away.

Standing in his doorway smoking a cigarette, Mr. Dubeshter, 58 years
old, said he had been staying at the motel for long stretches over the
past three years following his divorce. He said he can't work because
of a disability.

The motel is his mailing address and he has furnished the small, tile-
floored room with two of his walnut bureaus, along with family photos.
Coolers with groceries sit by the bed. He cooks in a toaster oven in
the motel office.

"It's definitely home to me," he said. Mr. Dubeshter has seen fights
break out--"these are small rooms and people get on each other's
nerves." But he said he doesn't approve of the government trying to
take the motel property: "I think it's a bunch of bull."

Credit: By John R. Emshwiller, Gary Fields and Jennifer Levitz

http://online.wsj.com/article/SB10001424052970204450804576623404141904000.html

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The Wall Street Journal
October 18, 2011

Hard Times for the Motel Caswell

The sign for Motel Caswell in Tewksbury, Mass. The motel's owner,
Russell Caswell is trying to convince a federal court that the

Constitution bars the U.S. Department of Justice from seizing his
property, where guests have been found guilty of drug offenses.

Tewksbury city officials say the case was pushed by federal officials

and they don't know how the roadside motel became a target. The U.S.
Attorney's office in Boston began the seizure proceedings two years
ago.

Mr. Caswell on his property last week. The motel has been owned and

operated by Mr. Caswell and his family since the 1950s.

Mr. Caswell, here in the motel's lobby, is not accused of any
wrongdoing but stands to lose his business under a law that calls for

the forfeiture of properties linked to crimes.

Mr. Caswell said he and his employees try to keep out shady customers.
At the front desk he maintains a 'do not rent' list with the names of

75 guests who have made trouble. Here, employee Art Love, who has
worked in the office of Motel Caswell for six years

A Justice Department court filing listed seven police investigations
from 2001 to 2008 that resulted in at least eight convictions for drug-

related crimes, including possession and trafficking. The motel has

been the subject of more than 100 drug investigations since 1994,
according to the government filing.

Motel guest Sheila Esposito, 50, of nearby Wilmington, Mass., is
renting a room while looking for work. 'This place is $800 a month,
with everything included,' she said. 'Can you beat that?'

Motel guest Joel Dubeshter, 58 years old, said he had been staying at
the motel for long stretches over the past three years after his
divorce. The motel is his mailing address and he has furnished the
small room with two of his walnut bureaus, along with family photos.
'It's definitely home to me,' he said.

Mr. Caswell said that among his tens of thousands of past customers he
could have unknowingly rented rooms to a relative handful of

lawbreakers. But that's a problem faced by many motel owners, he said.

The guests who cause problems, he said, are only a 'tiny percent of

the people who stay here.'

The Tewksbury Police Department provided U.S. authorities with
evidence for the case, according to a court filing, and could get as

much as 80% of the proceeds from sale of the property under a federal

forfeiture program known as 'equitable sharing,' which pays a portion

to state and local agencies that help. The motel and land have no
mortgage and are worth about $1 million, Mr. Caswell said.

Mr. Caswell said the legal battle has taken a toll on his family as
well as the motel. 'I haven't done much maintenance in the last two

years,' he said, since the forfeiture proceedings began.

PHOTO ESSAY, 11 photographs:
http://online.wsj.com/article/SB10001424052970204479504576637204037517780.html