Courts, Criminal law, Politics, Society

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. I feel so sorry for these property owners. I wonder how much money they have had to spend on this terrible injustice.

  3. 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.

  4. 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.

  5. 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.

  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. 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.

  9. “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.”

    Bron,

    Makes a valid point and backs it up with links. I first dealt with the Ortiz v. Caswell case here: http://jonathanturley.org/2013/01/26/carmen-ortiz-prosecution-for-political-ego/ . 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.

  10. 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

  12. 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.

  14. 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.

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