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."
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