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Mass. budget motel fights forfeiture by feds

By Denise Lavoie
AP Legal Affairs Writer / December 29, 2011
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TEWKSBURY, Mass.—Russ Caswell remembers driving a bulldozer at age 11 to help clear farmland for his father to build the Motel Caswell in the 1950s.

Six decades later, the family's $57-per-night budget motel is a sought-after property, not because of the cheap accommodations, but because the federal government says it is a magnet for drug deals.

Caswell is fighting a move by the U.S. Department of Justice to take his motel under a law that allows for the forfeiture of properties connected to crimes. In Caswell's case, the government is not claiming that Caswell committed any crimes, but says the motel should be shut down because of the drug-dealing that goes on among its guests.

If the government wins, under a provision of the law known as "equitable sharing," the Tewksbury police department could collect up to 80 percent of the proceeds from the sale of the motel. That would amount to more than $1 million, if the motel sells for the most recent town assessment of just over $1.5 million.

"It's about money -- that's the only thing I can think of," said Caswell, 68, who took over the family business in 1983.

In its petition, the U.S. Attorney's Office in Boston describes eight drug arrests made at the motel between 2001 and 2008. A Tewksbury police detective said in an affidavit that the motel has been the subject of more than 100 drug investigations since 1994.

But Caswell said that number is vastly exaggerated and that the number of guests arrested for buying or selling drugs on his property amounts to a tiny fraction of the thousands who stay at the motel every year.

"I'm not trying to say we don't get our share of troubled people -- we do -- but they are taking this handful of drug cases and making it sound like it's 90 percent of our business and that's not the case," Caswell said.

Located on a busy commercial strip near an auto body shop, Chinese restaurant and waffle house, the Caswell looks like a typical budget motel, with long, squat buildings and a prominent sign advertising its low nightly rate.

The motel's clientele is made up of all types, many of them down on their luck -- divorced, unemployed, disabled and homeless people who can't afford an apartment. But Caswell says the vast majority of his guests do not sell drugs. He said the most common reason police are called is to break up domestic disputes.

Federal officials say the forfeiture notice should not have come as a shock because the motel has had a reputation for decades as a trouble spot for drugs and has been featured in crime stories in the local newspaper.

"Police records show there has been a long history of criminal activity at that location," said Christina DiIorio-Sterling, a spokeswoman for U.S. Attorney Carmen Ortiz, whose office brought the forfeiture complaint in federal court on behalf of the Department of Justice.

Tewksbury police declined to comment.

But federal officials deny that the decision to try to seize the motel is driven by the large amount of money the Tewksbury police could potentially receive.

"We're trying to assist the town in minimizing criminal activity," DiIorio-Sterling said.

Caswell's lawyers say a comparable amount of drug activity happens at any budget motel, but the Motel Caswell was seen as an easier candidate for forfeiture because it is not part of a large chain. It's also family-owned and mortgage-free, says Scott Bullock, senior attorney at the Institute for Justice, a Washington, D.C., libertarian public interest law firm representing Caswell.

While criminal forfeiture laws require someone to be convicted of a crime before property can be taken, civil forfeiture allows prosecutors to take properties without convicting anyone.

Bullock argues that equitable sharing allows federal officials to circumvent state forfeiture laws, which are generally more protective of property owners. In Massachusetts, state law protects property owners from forfeiture unless the property was "used in and for the business of" manufacturing or distributing illegal drugs. Under federal law, the government is only required to show that the property has been used "in any manner" to commit certain federal crimes.

With many police departments around the country struggling with budget shortfalls, Bullock said the Institute for Justice is concerned that more and more police departments will look to civil forfeiture to generate revenue.

"That is not what we want law enforcement officers to be motivated by," he said.

The U.S. Department of Justice paid out nearly $390 million in equitable sharing payments to law enforcement agencies in Fiscal Year 2010, up from about $207 million in 2003, according to figures provided by the DOJ. The department said it does not keep statistics about how many properties are seized, only how much money is paid out to law enforcement agencies through the program.

Richard Vacca, a disabled veteran who has been staying at the Caswell for the past three years, said he has everything he needs there for $285 a week.

"I have never seen drug activity," Vacca said. "The cops are saying what a terrible place this is, but I've never seen anything in the newspaper about them nailing a kingpin. No Pablo Escobar has ever been caught here."

Caswell's lawyers filed a motion in November asking a judge to dismiss the complaint. If the court rejects it, a trial will be held.

Caswell said he has tried repeatedly to get information from police about drug activity, but they always tell him they can't talk about investigations.

He keeps a "do not rent" list at the front desk to notify his clerks of guests he has had problems with in the past. But he says he has no way of predicting what other guests will cause trouble.

"I can't see through the walls of the rooms," he said.

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