The Obama Administration’s Inspector Javert: Federal Court Rejects Forfeiture Effort By The Office Of Carmen Ortiz In Stinging Rebuke

Carmen-Ortiz-144x150We previously discussed the ignoble role played by U.S. Attorney Carmen Ortiz in the prosecution of Aaron Swartz, who committed suicide after being relentlessly pursued by her office in a questionable prosecution. As critics around the world questioned her methods and judgment, Ortiz issued a less than credible defense of the case. Now her office is again the subject of allegations of excessive prosecution of a small motel owner where her staff sought to seize his property.

As Ortiz was rewriting history to excuse the conduct of her office in the Swartz case, U.S. Magistrate Judge Judith Dein of Massachusetts an opinion rejecting the motel forfeiture and castigating Ortiz’s office for its poor treatment of the owner.

Ortiz’s office sought to seize the Motel Caswell in Tewksbury, Mass. under federal forfeiture law because of 15 drug-related incidents that took place there over a 14-year period. That is just one a year on average in a bad neighborhood. Federal forfeiture laws have been long criticized for the lack of protections for defendants and the incentive for federal agencies to seize property — a portion of which remains with the seizing agencies.

Russell Caswell’s motel is a standard $57-a-night establishment and he insisted that he had done as best as he could in a bad neighborhood. In the ruling below, Judge Dein described the government’s unrelenting prosecution of Caswell as a “rather remarkable” effort based on the “failure to undertake some undefined steps in an effort to prevent crime.” In the opinion below, Dein details how Caswell worked with police, never refused keys for searches, supplied free stake out rooms, and routinely called police. Dein found that Caswell “was trying to eke out an income from a business located in a drug-infested area that posed great risks to the safety of him and his family.” Yet, Ortiz’s office moved to seize the motel and refused to show a modicum of judgment or mercy. She also found that the government radically exaggerated one meeting where police discussed possible crime-reduction measures.

The opinion turns on the “innocent owner defense.” United States v. 45 Claremont Street, 395 F.3d 1, 4 (1st Cir. 2004) (“[E]ven if the government satisfies the requirements of §§ 881(a)(7) and 983(c), it does not necessarily follow that there will be a forfeiture” if the claimant qualifies as an innocent owner.”). The statutory provision states at 18 U.S.C. § 983(d):

(1) An innocent owner’s interest in property shall not be forfeited
under any civil forfeiture statute. The claimant shall have the burden
of proving that the claimant is an innocent owner by a preponderance
of the evidence.
(2)(A) With respect to a property interest in existence at the time the
illegal conduct giving rise to forfeiture took place, the term “innocent
owner” means an owner who –
(i) did not know of the conduct giving rise to forfeiture; or
(ii) upon learning of the conduct giving rise to the forfeiture,
did all that reasonably could be expected under the circumstances
to terminate such use of the property.

In a portion that reminds many of the Swartz case, the Court ruled:

it is rather remarkable, in this court’s view, for the Government to argue in this case that the Property owner should lose his property for failure to undertake some undefined steps in
an effort to prevent crime, while putting on evidence that the police drove through the Property routinely, knew the Property owner’s identity and that he lived next door to the Motel, and never contacted him in an effort to work together to control crime at the Property. No comparable cases have been cited by the parties, and none have been found. Having failed to notify Mr. Caswell that he had a significant problem, and having failed to take any steps to advise him on what to do, the Government’s resolution of the crime problem should not be to simply take his Property.

In a footnote, the court alludes to the long suspicion that the federal agencies are eager to seize property to acquire proceeds for their own operation. The court notes that “[s]ince the only remedial purpose the forfeiture of the Motel Caswell would serve would be to fund Government programs, this court finds that forfeiture would not be consistent with the spirit of the forfeiture laws.”

It will be interesting to read if Ortiz plans yet another post hoc rationalization of the case, as she did after the suicide of Swartz. She may want to read the opinion closely because, unlike Swartz, this defendant is still alive and talking.

Here is the opinion: caswellopinion-1-24-13

63 thoughts on “The Obama Administration’s Inspector Javert: Federal Court Rejects Forfeiture Effort By The Office Of Carmen Ortiz In Stinging Rebuke

  1. in the first article above, it talks about federal leo’s researching property records to find the properties with the most amount of equity.

    There are so many laws on the books now, that anyone of us could be found guilty of some sort of zoning or water quality violation and have our property seized. Maybe I am being paranoid but I do not trust government to do the right thing. Especially in a bad economy and they are trying to protect their jobs.

  2. Where did this Carmen Miranda Ortiz come from? Why no Warning?
    This state is on the verge of being a Pirate Territory. Maybe the feds can put a Federal Stamp of Approval on every motel. And a Miranda Warning on the bad ones. And if Carmen Miranda is in there hookin then all bets are off.

  3. One of the dogs in our dogpac just did a name change. Her name was CarmenDog but she could not stand the attention. She is now known as NoNameNoBlameDog. It is a bit long but we respect her wishes. OrteDog is keeping his name

  4. “There are so many laws on the books now, that anyone of us could be found guilty of some sort of zoning or water quality violation and have our property seized. Maybe I am being paranoid but I do not trust government to do the right thing. Especially in a bad economy and they are trying to protect their jobs.”


    Makes a valid point and backs it up with links. I first dealt with the Ortiz v. Caswell case here: . I’m glad this ruling came down to follow up what seemed to be a ridiculous prosecution.

    The heart of the matter can be gleaned from these sentences in JT’s blog above:

    “In a footnote, the court alludes to the long suspicion that the federal agencies are eager to seize property to acquire proceeds for their own operation. The court notes that “[s]ince the only remedial purpose the forfeiture of the Motel Caswell would serve would be to fund Government programs, this court finds that forfeiture would not be consistent with the spirit of the forfeiture laws.”

    Under what theory of “good governance” did some legislators come up with the idea that used “forfeited” assets to the benefit of LEO’s and Prosecutors was a good idea, consistent with our legal values? Giving government officials license to steal though is a result of the “no new taxes, shrink government” movement. Certainly underfunding of our Court system and the concomitant demand to be “tough” on crime, especially low level organized crime, breeds need for alternate funding.

  5. These forfeiture laws are so blatantly unconstitutional in any normal person’s eyes that it’s truly unbelievable to most people when they first hear of it. I know it was for me. “They can’t do that in America, can they?”

    And as Bron points out, with the over-criminalization of our nation the govt can find some way to take most anybody’s property without convicting them of a single thing. It’s quite scary. Just hope you don’t fall in their crosshairs.

  6. Yep, the DOJ calls it “the forfeiture tax.”

    Glad the judge in this case realized that the courts are one-third of the government.

    Another branch. the one that wrote the “forfeiture tax law,” are one tenth of government on a good day.

    The jury is still out on the final branch.

  7. What if there is probable cause to show that someone downloaded a movie illegally in violation of the copyright criminal statute.
    Technically that would give the govt the right to obtain a search warrant and seize all your computer equipment for evidence of that crime.
    Then iffn when found, they would have the right to seize all your computer related equipment, and then possibly your house as the place where the crime occurred and was aided and abetted by.

    By chips and pieces, we are de facto in the same situation as any totalitarian nation, the only difference is the govt doesn’t do it as often.

  8. mIKE Spindell:

    I think if we empty the wagon of people who do not need to be pulled, then we can shrink government, reduce taxes and have enough to fund the police, courts, defense, the constitutional requirements.

    There cannot be close to 50% of the population which needs to be carried by the other 50%. Is someone going to tell me, that in a nation of 310 million people, 155 million are disabled in some way that prevents them from working? I could believe 10 million, 20 million, even 50 million people needed some sort of assistance but 155 million people? No way.

    Cut social welfare funding and you end up with a budget which isnt out of control.

    Basically we could all be destitute because someone who can work doesnt feel like it. Where is the morality in that?

    I am all for helping those who truly cannot work through no fault of their own but I cannot believe there are 155 million people who need our help.

  9. Bron, there aren’t 50% of the people that need help, but about 50% of the people depend on the government for their lifestyle through jobs etc.

  10. These forfeiture laws are crazy and do result in tremendous overreaching. They are rife with abuse and need to be off the books. You’ll see no defense of Prosecutor Ortiz from me in this situation. It’s an abuse of prosecutorial discretion as the judge proved in the opinion.

  11. There is a company called Mutual Insurance located in Hamilton Bermuda. When I posted a link my comment wouldn’t appear. This company sells insurance to publishers across the country. It is totally unregulated in the U.S. The NAIC has no record of it. This company apparently arranges with various publishers not to publish about certain subjects. That’s why Aaron Swartz couldn’t get publicity without committing suicide.

  12. Interesting, Kay, that the links won’t post. (I’ve tried to post several variations and nothing “takes.”)

  13. What mespo said.

    I’d also like to add that once is an accident, twice is a coincidence and three times is a pattern. Just sayin’.

  14. Many states have statutes for “costs of prosecution”; how many have statutes for “costs of defense”?

  15. This is so fresh it is only just colder than my pizza rests.

    My Ethiopian helper Eliah came, full of questions. He’d seen a documentary.
    Does Iran have the bomb? Will Iran get the bomb? Will they blow up NYC.
    If Israel uses their non-declared bomb on Iran, what will happen then?

    In the middle of my replying I don’t know, he asked if I knew that the dictator in his country has gained control over the 20+ years through USA backing.
    He has 499 out of 500 seats in the pariiamemt. He owns the media.

    Well, I said, we are getting there in the USA. He looked slightly incredulous.
    My great clincher was that the internet was full of this discussion.

    Didn’t want to get his hopes up too high.

    Where are yours now?

    PS Do all judgements, as here, have to rest on a previous case? Who makes the first?
    God or the Universe?

  16. What was the plan? Once seized, who would benefit? I do believe it is time to take a very close look at Holder’s entire enterprise. The problem is, who investigates the DOJ when whole-scale corruption is suspected?

  17. Special independent prosecutor, Blouise. It’s well past time we had more than one looking into our government’s actions.

  18. Please keep the name of Carmen Ortiz in the news so when she applies for her next job we will all remember and resoundingly reject her. She is a blight on the rest of us and should be sent away where she can no longer be a threat.

  19. With reward and punishment the way it is in DC, she might just move up.

    I expect any thorough Congressional inquiry with amount to the usual . . .

  20. Bad Week For Carmen Ortiz: Admits To Botched Gang Arrest As Congress Kicks Off Swartz Investigation


    “And… that’s not all. Today there’s news of an even bigger embarrassment as it appears that Ortiz had to go to court to admit that her office arrested the wrong man in a gang takedown a few weeks ago. Basically, her office is coming to the conclusion — weeks later — that one of the guys arrested may just look like the guy they wanted.

    In the latest setback for Boston’s beleaguered U.S. attorney, red-faced feds admit they may have arrested the wrong man during a massive gang and drug takedown two weeks ago because he looked like someone they wanted, after they were forced to tell a judge there was “sufficient doubt” that he was the suspect.

    How many screw-ups do you get to make and keep such a job?”

  21. I wonder how much of the attention brought on to this prosecutor by the suicide, thereby encouranging others to investigate her practices, created a false sense that she was a rougue when it might be the case that she is not much different than others. If these “others” were similarily investigate would the same questions of abuse of office surface as well?

    Could this be much more systemic than the public realizes?

  22. Darren,

    I thought we had established that it was systemic. At least a lot of examples were given. No smoking gun document. But the laws as they stand on prosecutorial freedom and the known cases of abuse in prosecution or non-prosecution would seem to support systemic.
    Why should anyone who becomes a prosecutor up through the ranks do otherwise? Or do they serve without approval of the AG?

    What more proof do we need.?

    And special prosecutor, who is he responsible to? The AG I presume.
    We need the equivalent of…….no, don’t dare say more.

    PS Sorry, you said “public” and everybody knows that they don’t know anything. I thought you meant “us here”.

  23. With very few exceptions, show me a compassionate AUSA, and I’ll show you someone taking boxes out to their car.

  24. @ Darren @4:15

    Hair testing. Like probation does.

    In my experience, it’s usually to test for historical use, especially of cocaine that does not show up in urine sample after a few days. So these test establish status.

    This must already be being challenged in court — I hope

  25. Occupy Carmen Miranda Ortiz’ Office. It is more needed than occupying Wall Street. What is up with the state of affairs in Massassachutts anyhow? I cant even spell that name. No hookin going on at the Ritz Carlton in Boston or the Mayfair? Where do the Coke Brothers hang out when they visit Boston? That is some thievery.

  26. In 2011 on a related thread I wrote:

    Asset forfeiture laws create huge incentives for police to pursue drug activities and they invite widespread abuses. These forfeitures are held by the arresting agency and fund rapidly expanding departments, new paramilitary armaments along with huge salaries, overtime and benefits for the officers themselves. The drug war is a profit center for the state.

    The war on drugs must end.

  27. junctionshamus, I know some very honorable AUSA’s. These threads turn into a feeding frenzy @ times. This US Attorney is out of control, most are not.

  28. @Nick – Both you and I know there are good and bad in every group. As anyone who’s been in the military can tell you (prior service, right?): (1) for every good job you do, that’s an “attaboy”. (2) One “awshit” can wipe out a thousand “attaboys”. This lady wears her “awshits” like badges of honor. Those are the AUSAs I’m talking about.

  29. “This US Attorney is out of control, most are not.”

    Also, too. Following corrupt policy might be considered out of control, constitutionally speaking.

  30. @anonymously posted.

    Yes the Mutual Insurance saga is very strange. Usually you know there is the American Rule and each side pays its own expenses, But one form of felony witness retaliation is claiming that attorney fees are due when they aren’t. So my District of Colorado got an order from former Judge Nottingham that I should pay them, but it didn’t use the statutory procedure and wasn’t in the statutory form. As an upshot, they sent me verified attorney bills that were full of information, part of which was “Mutual Insurance”. I guess they picked the name “Mutual Insurance” because they thought it would be anonymous. But I got a lot of documents and compared them. So the link you checked is a company that paid Chris Beall at Faegre & Benson to ask Nottingham both that I be ordered to pay attorney fees without a motion as required by Rule 54 and also asked him to put me in jail with no criminal charge, evidentiary hearings, oath or affirmation or bail hearing.

  31. idealist707 1, January 30, 2013 at 2:11 pm

    PS Do all judgements, as here, have to rest on a previous case? Who makes the first?

    God or the Universe?
    The British of course.

    The English common law was made part of our law via the U.S. Constitution, so long as it did not conflict with that constitution.

    British case law is quoted by our early supreme court cases, and less often now.

    The British quote The Raven as the basis of their law (not God or the Universe).

    The CIA now claims that Mocking Bird is part of the genus Raven, hence:

    “I would not say that CIA has been taken over by the military, but I would say that the CIA has become more militarized,” Philip Giraldi, a retired career CIA case officer, told The Nation. “A considerable part of the CIA budget is now no longer spying; it’s supporting paramilitaries who work closely with JSOC to kill terrorists, and to run the drone program.” The CIA, he added, “is a killing machine now.”

    (…Wartocracy). It could be, then, that the taking of property via Myth is a precursor to the taking of life via Myth.

  32. Bron 1, January 30, 2013 at 11:30 am

    Cut social welfare funding and you end up with a budget which isnt out of control.
    The only government spending that has doubled since about the year 2000 is military war spending:

    “The United States spends more on defense [a.k.a. warmongering] than all the other nations of the world combined. Between 1998 and 2011, military spending doubled, reaching more than seven hundred billion dollars a year — more, in adjusted dollars, than at any time since the Allies were fighting the Axis.”

    (On The Origin of Specious, quoting The New Yorker, 2013). Where the specious and unreal notions of economy come from is the Myth Generator:

    In 1948 Frank Wisner was appointed director of the Office of Special Projects. Soon afterwards it was renamed the Office of Policy Coordination (OPC). This became the espionage and counter-intelligence branch of the Central Intelligence Agency. Wisner was told to create an organization that concentrated on “propaganda, economic warfare; preventive direct action, including sabotage, anti-sabotage, demolition and evacuation measures; subversion against hostile states, including assistance to underground resistance groups, and support of indigenous anti-Communist elements in threatened countries of the free world.”

    Later that year Wisner established Mockingbird, a program to influence the domestic American media. Wisner recruited Philip Graham (Washington Post) to run the project within the industry. Graham himself recruited others who had worked for military intelligence during the war. This included James Truitt, Russell Wiggins, Phil Geyelin, John Hayes and Alan Barth. Others like Stewart Alsop, Joseph Alsop and James Reston, were recruited from within the Georgetown Set. According to Deborah Davis (Katharine the Great): “By the early 1950s, Wisner ‘owned’ respected members of the New York Times, Newsweek, CBS and other communications vehicles.”

    In 1951 Allen W. Dulles persuaded Cord Meyer to join the CIA. However, there is evidence that he was recruited several years earlier and had been spying on the liberal organizations he had been a member of in the later 1940s. According to Deborah Davis, Meyer became Mockingbird’s “principal operative”.

    One of the most important journalists under the control of Operation Mockingbird was Joseph Alsop, whose articles appeared in over 300 different newspapers. Other journalists willing to promote the views of the CIA included Stewart Alsop (New York Herald Tribune), Ben Bradlee (Newsweek), James Reston (New York Times), C. D. Jackson (Time Magazine), Walter Pincus (Washington Post), Walter Winchell (New York Daily Mirror), Drew Pearson, Walter Lippmann, William Allen White, Edgar Ansel Mowrer (Chicago Daily News), Hal Hendrix (Miami News), Whitelaw Reid (New York Herald Tribune), Jerry O’Leary (Washington Star), William C. Baggs (Miami News), Herb Gold (Miami News) and Charles L. Bartlett (Chattanooga Times). According to Nina Burleigh (A Very Private Woman) these journalists sometimes wrote articles that were commissioned by Frank Wisner. The CIA also provided them with classified information to help them with their work.

    After 1953 the network was overseen by Allen W. Dulles, director of the Central Intelligence Agency. By this time Operation Mockingbird had a major influence over 25 newspapers and wire agencies. These organizations were run by people such as William Paley (CBS), Henry Luce (Time Magazine and Life Magazine), Arthur Hays Sulzberger (New York Times), Helen Rogers Reid (New York Herald Tribune), Dorothy Schiff (New York Post), Alfred Friendly (managing editor of the Washington Post), Barry Bingham (Louisville Courier-Journal) and James S. Copley (Copley News Services).

    The Office of Policy Coordination (OPC) was funded by siphoning of funds intended for the Marshall Plan. Some of this money was used to bribe journalists and publishers.

    (Operation Mockingbird, Spartacus Educational). The statement “The Office of Policy Coordination (OPC) was funded by siphoning of funds intended for the Marshall Plan” is reminiscent of what the judge said about Ortiz in the cases JT is discussing.

  33. i’ve known people how have had property or vehicles confiscated. the main consideration for confiscation seems to be if the item(s) are owned outright. if a bank holds title it won’t be confiscated.

  34. Ortiz is out of control and needs to lose her license to practice law.
    That case of the high school collecting hair from kids is definitely a violation of the Fourth Amendment. It should be a lot easier to take their guns than their hair.

    Remember OJ was in jail awaiting trial for murder when they had to go to court and argue for hours to get 6 hairs off his head. But they’ll just clip high school kids like somebody’s poodle?

  35. As for the drug-testing/collection of hair at a high school link posted by Darren Smith…that’s a private high school. Parents choose to send their kids there. If this were a public school it would be an entirely different matter.

  36. U.S. Attorney Carmen Ortiz should use her connections with the Obama Administration to help former Durham County, North Carolina, District Attorney Mike Nifong get his law license back. Then, she should resign and join with Nifong to form the law firm of Ortiz & Nifong. They could be a real powerhouse in the legal industry as advisors to government prosecutors, leveraging their unparalled skills in prosecutorial misconduct, and then billing their services out at $975 an hour.

  37. The problem is, too often, judges are like leo’s – they believe they’re above the law and subjectively squish defendants targeted by their ‘associates’. The former Federal Judge Nottingham’s case is only the tip of the iceberg. Four years ago some specific judicial, leo and prosecutorial misconduct cases were brought to the attention of the FBI – the case was handed over to the AIC in Glenwood Springs who said the 5JD corruption was on his radar, then silence. What happened? The AIC ‘retired’.

    The $100m of water rights and property stolen by manifest injustices and brought to the attention of the FBI remains unresolved. Republican DA Mark Hurlbert is gone – the messes he created still need to be cleaned up. Mark Hurlbert has advanced the Democrats in Colorado and ensured the Repukes will be in minority for a long, long time. Some of Hurlbert’s former deputy da’s now sit on the bench in black robes, continuing the abusive pattern established by their former boss. Hurlbert’s pattern of ‘re-victimising the victim’ is now legal parlance. The new DA, Democrat Bruce Brown has his work cut out.

    In Fairplay, CO, this week there’s the criminal railroading trial of an elderly rancher to justify the local District Court taking this man’s land and seizing his cattle. The Animal Control officers involved are quite something else, as is the rancher who’s benefited from this shameful episode. 21st Century cattle rustling and asset stripping in Colorado is done via fraudulent litigation and compromised ‘justice’.

    Fortunately, the county court judge hearing the criminal case is fair and objective.

    Vern Wagner has ranched for more than 60 years, yet almost everything has been taken from him. His very competent public defenders are doing a great job. That an elderly rancher is facing a two week criminal trial for animal cruelty for cattle dying during an extreme (twice in 50 years) winter in Park County is a disgrace, BUT criminally convicting Mr. Wagner is the justification for the cattle and property seizures done by civil actions in the District Court. The ranching heritage Vern Wagner hoped to pass to his family is gone, thanks to over zealous LEO’s and a willing prosecutor. Republican DA Thom Le Deux hasn’t had the fortitude to show his face.

    The gallery is filled with locals aghast at the manifest injustices. The Animal Control leo’s smirk and the back bench kept warm by SO leo’s. The Flume reporter is keeping a straight face. It’s alleged the Associated Press were barred last week.

    What was done to Kay Sieverding in Steamboat Springs and then in ‘Naughty Notty’s’ federal courtroom is a shameful story of violated civil rights, imprisonment without due process and ‘lost/created’ records to cover up. The Federal Marshall’s Service, the FBI and the DOJ need to clean up this mess and restore justice to the Sieverding family.

    Such are the travails of those who venture to the Wild West.

  38. Nick,

    I rolll down to remark that again you are taking your experience to be proof of something. To give the other AUSAs a clean slate based on your experience does not hold water.

    Hope we can be buddies anyway.

    I hear you are getting nearer SD.. How I envy you.

  39. Carmen Miranda needs to get her hat back. Google: Carmen Miranda.

    The origin of the Miranda Warning apparently has nothing to do with Carmen Miranda. That was her second cousin once removed.

    If they close that motel where are the poor folks gonna stay? Down at the Ritz with Carmen and her lobbyists buddies? She just cares about the high end hookers. If she would concentrate on the rear end hookers in that town, like the lobbyists and judges, then maybe we would get some since of fair play. That criminal forfeture lawis too broad based. The Carmen Miranda creep has forfeited her law liicense, which is not a license tol steal on behalf of the so called government.

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