We 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