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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA,                                                                        )
)
Plaintiff,                                                                                       )
v.                                                                                               )   CIVIL ACTION
                                                                                                 )   NO. 09-11635-JGD
434 MAIN STREET, TEWKSBURY,                                                                      )
MASSACHUSETTS,                                                                                   )
)
Defendant,                                                                                       )
_________________________________ )
)
RUSSELL H. CASWELL, as Trustee                                                                   )
of the Tewksbury Realty Trust,                                                                   )
)
Claimant.                                                                                        )
FINDINGS OF FACT AND RULINGS OF LAW
January 24, 2013
DEIN, U.S.M.J.
I.    INTRODUCTION
The United States has brought this civil forfeiture action pursuant to the Civil
Asset Forfeiture Reform Act (“CAFRA”), 18 U.S.C. § 983(c)(1), seeking the forfeiture of
the Motel Caswell, located at 434 Main Street, Tewksbury, Massachusetts (“Motel” or
“Property”), on the grounds that the Property was used to facilitate ongoing criminal drug
activity and there was a “substantial connection” between the Motel and the drug activity.
The Claimant owner of the Motel denies that the Property is subject to forfeiture, and
further asserts that, even if it is subject to forfeiture, the owner qualifies as an “innocent




owner.”   A jury-waived trial was held before this Court on November 5-8, 2012, and the
parties have submitted post-trial briefs.
After careful consideration of the evidence, pleadings, and argument of counsel,
this Court concludes that the Government has failed to meet its burden of establishing
that the Motel is subject to forfeiture.   In addition, this Court concludes that the Claimant
has met his burden of proving that he is the innocent owner of the Property.   Therefore,
and for the reasons detailed more fully herein, judgment shall be entered in favor of the
Claimant and the forfeiture action shall be dismissed.
II.    FINDINGS OF FACT1
Overview
1.                                                                                                   After reviewing the scores of cases cited by the parties, I find this case to be
notable in several critical respects, including (1) the Government has identified only a
limited number of isolated qualifying drug-related incidents spread out over the course of
more than a decade, none of which involve the Motel owner or employees; and (2) the
witnesses unanimously confirmed that no efforts were undertaken to work with the Motel
owner to try and reduce drug crimes at the Property prior to the institution of the
forfeiture action, nor was any warning given as to the possibility of forfeiture prior to suit
being filed.   As a result, the instant case is easily distinguishable from other cases where
1   Transcript citations are to the day of trial (IIA being the morning of the second day, IIB
being the afternoon of that day) followed by the page number.  The transcripts are filed as Docket
Nos. 113, 114, 116, 118 and 119.
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the “draconian” result of forfeiture was found to be appropriate.2   See, e.g., United States
v. 143-147 East 23rd Street, 77 F.3d 648, 650-51 (2d Cir. 1996) (“Following several
years of investigations by federal and local law enforcement officials into narcotics
trafficking at the Kenmore Hotel in Manhattan,” including evidence that “‘security
guards’ were taking bribes from individuals seeking entry into the building,” “and after
several attempts by local law enforcement officials to have [the hotel owner] take steps to
impede the use of the Hotel for narcotics activity, the government commenced the present
action . . . seeking civil forfeiture of the Hotel.”).
The Basis for This Action
2.                                                                                              The Motel Caswell is located at 434 Main Street, Tewksbury, Massachu-
setts.   On September 29, 2009, the United States filed a Verified Complaint for Forfeiture
in Rem seeking the forfeiture of all buildings, appurtenances and improvements on the
Property.
3.                                                                                              The Complaint alleges that the Property is subject to forfeiture pursuant to
21 U.S.C. § 881(a)(7) because it was “used, or intended to be used, in any manner or
part, to commit, or to facilitate the commission of, a violation of [the Controlled
Substances Act] punishable by more than one year of imprisonment.”
2   See United States v. 221 Dana Avenue, 261 F.3d 65, 74 (1st Cir. 2001) (it is a “well
established rule that federal forfeiture statutes must be narrowly construed because of their
potentially draconian effect.” (citations omitted)).
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4.                                                                                            The Motel is owned by the Tewksbury Realty Trust, which is the Claimant
in this action.   Russell H. Caswell (“Mr. Caswell”) is the Trustee of the Trust, and
represents the Claimant.3   Mr. Caswell and his wife, Patricia Caswell, are the
beneficiaries of the Trust.   There are no mortgages or encumbrances on the Property,
except for the Government’s lien in connection with this forfeiture action.
The Motel and Its Owners
5.                                                                                            Mr. Caswell has lived in Tewksbury since 1955.   He is 69 years old, and a
graduate of Tewksbury High School.   Mr. Caswell has had no further formal education.
He has had no training in law enforcement or investigation, or in drug detection.
6.                                                                                            Mr. Caswell lives at 442 Main Street, Tewksbury, right next door to the
Motel, with his wife, Patricia, his 92 year old mother-in-law, his son Joseph (called Jay),
Jay’s wife, and their 9 year old daughter.   He has lived there since at least 1994.
7.                                                                                            Patricia Caswell (“Mrs. Caswell”) is 71 years old, and in poor health.   The
Caswells have been married since 1964.   They have two grown children, Julie and Jay,
and three grandchildren.
8.                                                                                            The Caswells’ home was included in the view taken by the court at the
beginning of the case.   It is modest, well-maintained, nicely furnished and decorated, and
apparently the gathering place of a close-knit family, as evidenced by numerous family
photos and memorabilia.
3   References to Mr. Caswell are to Russell Caswell individually and as the representative
of the Trust unless the context dictates otherwise.
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9.                                                                                           There is no contention in this case that anyone from the Caswell family has
                                                                                             been involved in any criminal activity either at the Motel or elsewhere.   It is undisputed
                                                                                             that they are a law-abiding family.   Mr. Caswell testified that he had never been charged
with any crime in his life.                                                                  (IV:32).
10.                                                                                          The Motel Caswell was built in 1955 by Mr. Caswell’s father, who sold it
to Mr. Caswell in 1984.   It is a 56-room “budget motel” and rents out about 14,000 rooms
per year.   It serves a mixture of semi-permanent and transient guests.
11.                                                                                          As Mr. Caswell testified, the guests reflect a “kind of a cross-section of
society.   We get some workers come in from out of town if they’re working in the area,
working crews.   People are between apartments, either moving in or moving out.   And the
same with houses, moving in or moving away or into the area, that sort of thing.   Some
people just live there pretty much permanently.   We’ve had some there for a lot of years.
And then some are there for a month or two or whatever, . . . it varies.”   (IV:24).
12.                                                                                          The Motel is located directly on Main Street and easily visible from the
road.   It is surrounded by residences, restaurants and small businesses.
13.                                                                                          Mr. Caswell runs the Motel and is there virtually every day, sometimes
several times a day.   When he is not at the Motel, Mr. Caswell or his family can be
reached if needed.   At one point, there was a telephone extension connecting the Motel
Caswell and Mr. Caswell’s residence.   Mr. Caswell does not use the internet or email.
14.                                                                                          Mrs. Caswell used to work at the Motel as well, but she is too ill at the
present time.   Jay Caswell is responsible for maintenance at the Motel, works at the desk
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one night a week, and also fills in on the desk as needed.   Julie Caswell is the
bookkeeper.   There are approximately eight other employees at the Motel - three or four
maids and five people on the desk.   As Mr. Caswell testified, “It’s a budget motel.   You
know, it’s an older place, but we do our best to keep it in good condition.”   (IV:23).
15.                                                                                               Based on the evidence presented and my observation of the witnesses
during trial, I find that Mr. Caswell is appropriately concerned with the events that take
place at the Motel and that he recognizes that it is in his interest and in the interest of his
family to operate as safe an enterprise as possible.
16.                                                                                               The Motel Caswell is licensed every year by the Town of Tewskbury, and
there has never been any problem getting the license renewed.   There has never been a
nuisance action or threat of litigation against the Motel, and there has never been any
charge that it has been operated in violation of any law.
17.                                                                                               There have not been any complaints by neighbors of the Motel to the Town
concerning health or safety conditions at the Property.
18.                                                                                               Prior to initiating the instant forfeiture action, neither the Town of
Tewksbury nor any other person or agency ever advised the Caswells that the Property
may be subject to forfeiture.
Security at the Motel
19.                                                                                               The Motel is on Main Street in Tewksbury, a well-traveled road.   There are
tall, overhead floodlights in the front of the Motel for safety purposes.
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20.                                                                                         There is different lighting in the back parking lot, but that area appears to
                                                                                            be sufficiently lit as well.   There are lights at every door and spotlights up on top of the
building.
21.                                                                                         There is a big picture window in the front of the Motel from which the desk
clerk can see the front parking lot.
22.                                                                                         The front desk is staffed 24/7.   This is done for security purposes, as there
                                                                                            is generally no need for desk assistance in the early morning hours.   Thus, the desk clerk
                                                                                            is supposed to “keep an eye on things” and to “call the police if anything crops up, that
sort of thing.”                                                                             (IV:49).
23.                                                                                         There has been a security camera in the front office for several years.   More
recently, a security camera has been added to the back parking lot, along with a sign
stating that the property is under surveillance.   The additional camera was added when
the system was upgraded so that it could handle more than one camera.
24.                                                                                         Over the years, when requested Mr. Caswell has provided tapes from the
security cameras to the police.
25.                                                                                         While it appears that the second camera was added after the forfeiture
action was commenced, I find that if anyone had suggested an additional camera to Mr.
Caswell, and/or had indicated that he might risk losing the Motel if additional security
measures were not taken, the camera would have been installed immediately.   I make this
finding based on the importance the Motel has to Mr. Caswell and his family, and the fact
that he has cooperated with the police over the years.
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26.                                                                                          The police station is approximately one mile down the road from the Motel.
Some police regularly drive through the Motel property “three or four times a night” on
patrol.   They are welcome on the Property and no efforts are made to stop them.   The
police drive through other motels in town as well.   According to Tewksbury Deputy Chief
of Police, John Voto, there is basically a police presence at the Motel daily.               (IIA:94).
27.                                                                                          The police also regularly drive through the Motel parking lots to check
license plates to see if there are outstanding warrants, a practice they follow at other
motels in town as well.   No one from the Motel has ever interfered with these efforts by
the police.
28.                                                                                          For at least 10 years, there has been a sign in the Motel lobby asking
patrons to call the police if they see any suspicious activity.   The sign was provided by
the police department.
29.                                                                                          Motel employees, including maids and desk clerks, have called the police
on a number of occasions to report suspicious activity.
30.                                                                                          Mr. Caswell has called the police on a number of occasions to report
suspicious activity.
31.                                                                                          No Motel employees have interfered with or impeded any police
investigations.
32.                                                                                          As described below, numerous Tewksbury police officers testified at trial.
While Officers Dennis Peterson and Robert Budryk testified that they did not have
complete trust in Motel staff, there is no evidence that their concerns were well-founded.
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Such concerns were not universally shared by the other law enforcement witnesses.
Moreover, even Officers Peterson and Budryk testified that they received helpful
information from Motel employees, including reports of suspicious behavior.
33.                                                                                             All witnesses testified that whenever the police have requested room keys
for whatever purpose, keys have been provided by the Motel staff without any problem.
34.                                                                                             Similarly, it has been the Motel’s policy to provide free rooms to law
enforcement for stakeouts whenever requested.
35.                                                                                             The police have also conducted surveillance on the Property without
interference.
36.                                                                                             The police regularly review the registration cards of guests.   The cards are
kept behind the front desk, and the police apparently feel free to walk behind the desk to
check the cards whenever they want.   The cards include the name of the guest and the
license plate of their car.
37.                                                                                             On some occasions over the years, some police officers have complained to
the desk clerks at the Motel Caswell (as well as at other hotels) that the registration cards
were not being completed fully or accurately by the guests, and have suggested that the
clerks fill the cards out themselves.   According to all the law enforcement witnesses,
however, this complaint was never made to Mr. Caswell, and the situation was apparently
not serious enough to notify Mr. Caswell of the need to alter the procedure used by the
desk clerks.
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38.                                                                                           There is evidence that the registration cards were accurately completed at
least some of the time even before this litigation was commenced.   For example, as
detailed below, to the extent that the cards were used by the police in connection with the
incidents on which this forfeiture action is based, the cards were accurate.
39.                                                                                           I find credible Mr. Caswell’s testimony that it was his practice to tell the
clerks to make sure that the information on the cards was accurate.   (See IV:44).
40.                                                                                           At some point, someone, possibly a police officer, suggested to Mr.
Caswell that photocopies be made of the guests’ drivers’ licenses, and that is now the
procedure that is being followed at the Motel.   Thus, the photocopy is attached to the
registration card and, as in the past, the license plate information continues to be
recorded.
41.                                                                                           The date this procedure was instituted is unclear.   If this procedure changed
as a result of the filing of this forfeiture action, I again find that it could have been
accomplished much earlier if anyone had made the suggestion to Mr. Caswell and/or
indicated that his failure to photocopy drivers’ licenses might result in the forfeiture of
the Motel.
42.                                                                                           The Motel has never been fined or otherwise reprimanded for failure to
keep accurate registration cards.   There is no evidence that the lack of information on a
registration card interfered, impeded or hindered the police in any specific investigation.
43.                                                                                           The Motel also maintains a “no-rent” list for problem guests.   While there is
no effort to specifically include (or exclude) on the list guests who have been arrested at
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the Property, the list is intended to advise the next shifts of desk clerks which guests were
problematic at the Motel.
Other Potential Safety Steps
44.                                                                                             The evidence was consistent that no law enforcement personnel ever
attempted to communicate with Mr. Caswell about any potential safety measures which
could have been taken at the Motel Caswell to reduce drug crime at the Property.
Moreover, the numerous law enforcement witnesses offered very few suggestions even at
trial which are not already in use at the Motel.
45.                                                                                             Specifically, but without limitation, Dennis Peterson was a member of the
Tewksbury Police Department from 1975 through his retirement in 2007, rising through
the ranks from patrolman to lieutenant.   Although he testified anecdotally to being on the
Property with regularity, he also testified that he never made any recommendations to
Mr. Caswell for his employees to do more than they were doing to discourage criminal
activity at the Motel.                                                                          (See I:70, 77).
46.                                                                                             Officer Peterson also testified that, if Mr. Caswell had asked him, he would
have suggested that guests check in with a photo ID, that the Motel send “trespass
notices” to any individual who was arrested saying that they were no longer welcome on
the Property and if they returned they would be subject to arrest, and that desk clerks be
instructed not to let any person who had been arrested back into the Motel.   (I:71-72).
The legality and/or practicality of such a decision to bar individuals who had been
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arrested was not explored at trial.   It is undisputed that Motel employees now photocopy
guests’ drivers’ licenses.
47.                                                                                          Robert Budryk was a Tewksbury Police Officer from 1989 to 2008, rising
from patrolman to lieutenant.   Although he testified that he was familiar with the Motel
and Mr. Caswell, he also testified that in all his years, he never had an in-depth
conversation with Mr. Caswell, and never made any suggestions about actions Mr.
Caswell could take to reduce crime at the Motel.   He further testified that he did not
believe that Mr. Caswell would compromise any police investigation, and that he never
expressed any concerns to Mr. Caswell about any of his employees.   (See IIA:53, 54).
48.                                                                                          John Voto, the Deputy Chief of Police of the Tewksbury Police
Department, also testified.   He has been a member of the Department since 1996, when
he started as a patrolman.   Although Mr. Caswell has lived next door to the Motel
throughout this period, Officer Voto never met Mr. Caswell before this litigation started.
(IIA:103).
49.                                                                                          James Hollis joined the Tewksbury Police Department in 1995.   He was a
patrolman, a detective and then returned to being a patrolman, a rank he presently holds.
Officer Hollis also testified that to his knowledge the Tewksbury Police Department has
never communicated with Mr. Caswell about ways to reduce the amount of drug activity
at the Motel, and he never suggested any specific steps that could have been taken to
discourage drug crime at the Property.   (IIB:42).
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50.                                                                                              Officer Hollis suggested that to deter criminal activity a motel could con-
duct surveillance, or put up signs, although he was uncertain about what the appropriate
verbiage would be.   (IIB:38-39).   When pressed at trial, he suggested a sign to the effect
that “Illegal activity will be reported.”                                                        (IIB:39).   There is such a sign in the Motel lobby.
51.                                                                                              Brian O’Neill is a Detective of the Tewksbury Police Department and has
been on the force for eight years.   Although he has suggested to some of the Motel clerks
that they should make sure that the registration cards were legible, he never made that
suggestion to Mr. Caswell.   (III:33-34).   Moreover, he never made any other suggestion to
Mr. Caswell or the Motel employees that they take any other action to discourage drug
use at the Property.                                                                             (III:47-48).   Officer O’Neill testified that he always found the clerks
to be cordial and cooperative.                                                                   (III:33, 47).   He acknowledged that the guests’ IDs are
now photocopied.   (III:32).
52.                                                                                              Thomas Casey is a Lieutenant of the Tewksbury Police Department and has
been on the force for 12 years.   He is now the patrol supervisor on the midnight shift.   Lt.
Casey testified that he always had a “very good relationship” with the clerks at the Motel,
that he found the employees “cordial” and “very helpful,” and that he “enjoyed being
there and making them feel safe, especially on a Friday night or Saturday night, making
myself available to them.”   (III:64).   Lt. Casey never suggested that the Motel refuse to
rent to someone, and he never proposed any suggestions to anyone as to how they might
deter criminal activity at the Motel.                                                            (III:64-65).
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53.                                                                                          Kimberly O’Keefe is a Tewksbury Patrol and Domestic Violence Officer.
While she has spoken to Mr. Caswell on various occasions, and even gotten room keys
from him, she has never advised him that he should do more to curtail criminal activity at
the Motel.   (III:91-92).
54.                                                                                          David Godin was a Tewksbury Police Officer from 2000 - 2007.   While he
is familiar with the Motel, he never met Mr. Caswell before this litigation began.   He
never discussed with employees of the Motel any concerns about the amount of crime,
and he never suggested any actions that they could take to reduce crime on the Property.
(III:106-07).
55.                                                                                          Patrick Harrington has been a Tewksbury Police Officer for approximately
10 years.   He always found the front desk clerk to be cooperative when he asked for keys
or needed information about someone staying at the Motel.   (III:125-26).   He never
discussed arrests or investigations with Mr. Caswell.                                        (III:124).
56.                                                                                          Marcus McMahon has been a Tewksbury Police Officer for 12 years.   He
never spoke to Mr. Caswell before this case started, although he always found the
employees cooperative when he wanted to look at registration cards.   (III:133-34).
57.                                                                                          Timothy Sheehan is the Chief of Police of the Tewksbury Police
Department.   He testified in his capacity as the representative of the Town of Tewksbury
pursuant to Federal Rule of Civil Procedure 30(b)(6).   As Chief Sheehan testified, with
the exception of the meeting of December 11, 2007 discussed infra, which he did not
attend, neither the Town nor the Police Department have ever expressed to Mr. Caswell
14




that he should be doing more than he does to discourage drug crime at the Property.
(IV:9-12).
58.                                                                                             Chief Sheehan testified that some other hotels have “surveillance systems in
the lobby for guests that come in and register.   Some of them hire details on the
weekends.   Some have their own private officers that do security at the hotel.”   (IV:17-
18).   As noted above, the Motel Caswell has had a surveillance system in the lobby for
many years, and the nearby police regularly patrol the Property.
59.                                                                                             In sum, although the Court heard testimony from more than 10 present or
former law enforcement officers from the Tewksbury Police Department who had
familiarity with the Motel Caswell, the evidence was consistent that no one from either
law enforcement or the Town ever took any steps to work with Mr. Caswell in an attempt
to reduce drug crime at the Motel.   Moreover, as Chief Sheehan testified, no one ever
informed Mr. Caswell that the failure to take any steps could result in the forfeiture of the
Motel.   (IV:10).
Meeting of December 11, 2007
60.                                                                                             Faced with the complete lack of communication between the Tewksbury
Police Department and the owners and employees of the Motel Caswell regarding steps
that could be taken to deter drug crime at the Property, the Government has attempted to
clothe a meeting on December 11, 2007 with far more significance than the evidence
supported.   According to the evidence presented, this is the only time during the decades
15




at issue in this case that the Tewksbury Police Department called a meeting with
hotel/motel representatives to discuss any safety issues
61.                                                                                           The Government argued that this meeting was designed to convey drug
crime-fighting information to area motel owners, and that the Caswells sent a “desk
clerk” because they “couldn’t even bother to drive the one mile down to the police station
to meet with the police when expressly invited.”   (IV:106).   This highly derogatory argu-
ment was not supported by a scintilla of evidence.   Not only was the meeting apparently
called because of auto thefts in the area, but there also was no evidence that the repre-
sentative sent by the Motel was inappropriate in any way.   If it was the Government’s
contention that Mr. Caswell “couldn’t bother” to attend the meeting, it should have at
least inquired what Mr. Caswell was doing at the time and/or established that the
representative the Motel sent was inappropriate.
62.                                                                                           The actual evidence before this court was as follows.   On November 7,
2007, John Voto, then a Lieutenant and Chief of Detectives of the Tewksbury Police
Department, sent a letter to “Hotel/Motel Managers” in Tewksbury.   (Exhibit 7).   The
letter read in full as follows:
Dear Managers/Owners;
I am writing this letter because of the increased amount of Motor
Vehicle thefts which have occurred this year in all of the
Hotels/Motels in Tewksbury.   I believe that some of these thefts
could have been prevented with cooperation between yourself and
the Police Department.
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I am assembling a meeting of all of the Hotel/Motel owners and
managers of the Town of Tewksbury.   In this meeting we will
discuss how to take some preventative measures to ensure the safety
and protection of the property of your customers.   I believe that
these measures will help ensure that your customers are satisfied
and will continue to stay at your establishment.   It will also, in
turn, help reduce the number of crimes in Tewskbury and protect our
citizens from any criminals coming into the town to commit these
crimes.
This meeting will be held on Tuesday, December 11, 2007.   The
meeting will take place at the Tewksbury Police Training Room
from 9am to 11am.   I am asking that each establishment send a
representative to this meeting and any questions or concerns will
be addressed directly.
Please call and let me know how many people will be attending, so
refreshments can be arranged.   I thank you in advance for your
cooperation.   Any questions or concerns please feel free to call me at
978-851-7373 ext 225.
John S. Voto
Lieutenant
Chief of Detectives
(Exhibit 7 (emphasis added)).
63.                                                                                        I find that no one receiving this letter would reasonably understand that the
meeting was being called to discuss how to reduce drug crimes at the motels/hotels.
64.                                                                                        Seven establishments sent representatives to the meeting.                       (Exhibit 8).
According to Lt. Voto’s notes, these included the Fairfield Inn by Marriott ($99/night),
Residence Inn by Marriott ($139/night), Towne Place Suites by Marriott ($109/night),
Holiday Inn ($134/night), Extended Stay ($84/night), Motel 6 ($60/night) and the Motel
Caswell ($56/night).                                                                       (Exhibit 8).   Towne Place Suites sent two representatives: the
17




operations manager and the general manager; the Fairfield Inn, Residence Inn and Motel
6 sent general managers; and the identity of the representative of Extended Stay is
unknown.   Thus, there is no evidence that other owners of the hotels/motels attended.
65.                                                                                               Despite the fact that thefts from automobiles were not a big problem at the
Motel Caswell, the Motel Caswell sent Arthur Love, one of the night clerks, to the
meeting.   (IV:41).   Mr. Love had been employed by the Motel for several years as of
2007, and he is still employed by the Motel today.   (IV:41).   Thus, it appears that Mr.
Love was and is a responsible member of the Motel’s staff.   Mr. Caswell discussed the
meeting with him afterwards.   (IV:58-59).   There is no evidence that Mr. Love was in any
way an inappropriate representative of the Motel for purposes of attending the meeting.
66.                                                                                               Lt. Voto’s testimony confirmed that if drug crimes were mentioned at the
meeting, they were incidental to the purpose of the meeting, which was to prevent
automobile thefts.   As he testified, the meeting was set up because “at the time we were
having a lot of crime in the hotels, especially car breaks, . . . I believe one night there was
like 27 car breaks at four or five different mot - hotels, and so, I thought it would be good
to get everyone together so that we can take some preventive measures to keep the car
breaks from happening.”   (IIA:110).   The preventive measures discussed were “just like
lighting in the parking lots, video cameras, notifying their customers to make sure they
secure all their valuables, taking the GPS out of the windows, not leaving pocketbooks
and wallets out in plain view.   I gave them a list of some preventive measures that came
right off our website.”                                                                           (IIA:116).   The list was not introduced at trial.
18




67.                                                                                             As noted above, there are lights in the parking lots of the Motel Caswell
and video cameras.   It is unclear whether any of these were added as a result of
suggestions made at the meeting.
68.                                                                                             According to Lt. Voto, he also discussed the need for the hotels to obtain
proper ID from people and register the car to the room to assist the police in locating
individuals who had outstanding warrants.   (IIA:118).   Such information, according to Lt.
Voto, would also be helpful in the case of medical emergencies.   (IIA:118-19).   The
problems with the registration process existed at various hotels and motels.   Lt. Voto also
told the hotel representatives to report suspicious activity.    He learned that the hotels
shared information about people they had evicted for non-payment, and he suggested that
they call each other about unruly guests as well.                                               (See generally IIA:122-23, IIB:9).
69.                                                                                             According to Lt. Voto, other crimes were discussed at the meeting, and he
recalls talking “some about drugs” and “about some other issues.”   (IIA:121).   The only
information Lt. Voto testified to discussing about drugs was that “crimes like this, like
motor vehicle breaks, a lot of times these are people with drug habits.   What they’ll do is
go and look for a GPS or iPads or anything that they can pawn that is very simple and
easy money, and they will go to a pawnshop to get money for those things.”   (IIA:113).
Lt. Voto handed out crime statistics for each of the hotels to show them what kinds of
crimes were happening at their hotels.   (IIA:120).   These statistics were not introduced at
trial.   Nor did the Government introduce any statistical evidence about the type or
frequency of crimes either at the Motel Caswell or in Tewksbury in general.
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70.                                                                                                As all the law enforcement witnesses testified, there was no follow-up with
motel/hotel owners after the meeting and no similar meetings were ever held before or
again in Tewksbury.   Lt. Voto had no idea whether or not the Motel Caswell followed
any of the suggestions presented at the meeting.   (IIA:123).
71.                                                                                                This court rejects any argument that this one meeting was meant to provide
information to Mr. Caswell (or the attendees) about what would constitute reasonable
efforts to prevent drug crimes at the Motel.
Crime at the Motel Caswell
72.                                                                                                As noted above, the Government provided no statistical information about
the level or type of crimes at the Motel Caswell.   Instead, it elected to introduce
information about 15 specific drug-related incidents during the period of 1994 to 2008.4
It should be noted that during this 14 year period, the Motel Caswell rented out
approximately 196,000 rooms.
73.                                                                                                To be forfeitable, the Government must show that “the defendant property
was intended to be used in a drug crime punishable by a year’s imprisonment.”   (IV:98).
4   As long as the Claimant was given the opportunity to depose the relevant witnesses, the
Government was free to determine which specific incidents of drug crimes it would introduce at
trial.  The Government was not limited to crimes that had occurred during a particular time
period, and it was permitted to present evidence of both felony and misdemeanor drug crimes that
had originated at the defendant Property.                                                          (See 8/07/12 Order on Claimant’s Motion in Limine
(Docket No. 86); 10/09/12 Order on Parties’ Motions in Limine (Docket No. 93)).  Although the
Government was precluded from introducing “summary evidence” of additional drug crimes at the
Property, this court ruled that the Government could make an offer of proof if it determined at
trial that such summary evidence was necessary to establish a pattern of drug activity at the
Property.                                                                                          (10/09/12 Order on Parties’ Motions in Limine).  The Government did not request an
opportunity make any offer of proof during the trial.
20




Of the 15 incidents introduced by the Government at trial, four cases clearly did not
involve drug crimes punishable by more than one year of imprisonment (9/27/03, 2/13/04,
12/7/07, 11/14/08), and in four other cases it is unclear whether the incident involved a
drug crime punishable by more than one year of imprisonment.   (8/18/97, 2/8/01, 2/13/06,
11/30/08).5
74.                                                                                               Forfeiture actions cannot be based on “the government’s suspicion” that
drug crimes are being committed.   See United States v. 28 Emery Street, 914 F.2d 1, 5
(1st Cir. 1990) (absent test results that substances were actually illegal drugs, the fact that
untested substances were found and tools of the drug trade were seized is insufficient to
grant summary judgment to government in forfeiture case even under pre-CAFRA
standard under which the government only needs to establish probable cause for
forfeiture).
75.                                                                                               According to Officer Budryk, the Motel itself was a “high crime area”
although the area surrounding the Motel “was a normal residential location that I would
not consider a high crime area.”   (IIA:11).   Other “high crime areas” in Tewksbury
included the Stadium Plaza parking lot and the Motel 6.   (IIA:12).
76.                                                                                               There was anecdotal evidence that the police were called to the Motel
Caswell frequently to handle calls ranging from domestic problems to warrant arrests,
disorderly conduct complaints and the like.   As Officer Peterson testified, the calls to the
5   As discussed below, this court recognizes that in the right circumstances one incident
may be sufficient to establish forfeitability.  This, however, is not such a case.
21




Motel “pretty much ran the gamut.”   (I:39-40).   There was no evidence introduced as to
the actual frequency of such calls, the reasons for such calls, the number of arrests or the
number of convictions.
77.                                                                                            In none of the 15 incidents on which the Government relied did Mr.
Caswell or Motel employees have knowledge that the guest was intending to use or
distribute drugs, or engage in unlawful activity, at the time they checked in.
78.                                                                                            Mr. Caswell was not personally familiar with any of the guests involved in
the incidents.
79.                                                                                            To establish Mr. Caswell’s knowledge of drug crimes on the Property, the
Government relies on the fact that after individuals were arrested they were transported
away in marked police cruisers which were visible to the public, and that if persons of
different sexes were arrested together, they were transported separately.   In addition,
some of the arrests were reported in the newspaper and, on at least one occasion, the
police arranged to have a reporter with them when the arrest was made to film it for local
television.   When a search was conducted pursuant to a search warrant, there was
evidence that the warrant was left in the room, although there was no evidence as to what
was done with the warrant thereafter, or if the Motel staff (as opposed to the defendant
who was released on bail) actually saw the warrant.
80.                                                                                            In all of the 15 cases, the drug-related evidence found by the police could
have easily been hidden from view when Motel staff entered the room to clean.   Motel
22




staff were not permitted to go through closed drawers or the personal belongings of
guests.
81.                                                                                           Some police officers testified to informing the desk clerks of the reason for
an arrest.   However, there was testimony from Chief Sheehan and others that such
disclosure would be against police procedure, which was not to publicly discuss any
pending investigation or case.                                                                (E.g., IV:6-8).   There is no evidence that Mr. Caswell was
informed of the reason for any arrest.
82.                                                                                           Mr. Caswell and the Motel employees were never advised by the police not
to rent rooms to any specific individuals.   In some cases, the defendants were released on
bail by the court, and there does not appear to have been any reason why they should
have been precluded from returning to their rooms.
83.                                                                                           There is no evidence of any large scale drug operation being conducted out
of the Motel.   Most, although not all, of the incidents on which the Government relies
involved individual drug users.
84.                                                                                           I find credible Mr. Caswell’s testimony that on some occasions he learned
about an arrest after the fact, and that on other occasions he did not.   Mr. Caswell was
never informed by the police as to the status of an individual arrested, and he did not
make any inquiry about such status.
85.                                                                                           There is no evidence that Mr. Caswell knew of any drug activities which he
did not report to the police.
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86.                                                                                           The incidents on which the Government relies, as listed in Ex. 51, are as
follows:
(1)                                                                                           The first event on which the Government relies occurred on
September 30, 1994.   After having two confidential informants conduct alleged controlled
buys of narcotics from room 237 at the Motel, on September 30, 1994, Officer Peterson of
the Tewksbury Police Department executed a search warrant at the room, accompanied by
Paul Melaragni, a reporter for the local cable television station who filmed the incident.
Officer Peterson expected to and did find Abilio Bolarinho in the room.   Mr. Bolarinho
was listed as the occupant of the room in the guest registration card.                        (Ex. 32 at Bates
No. USA 387, ¶ 6).   During the search, Officer Peterson found clear plastic bags, which
could be used for packaging drugs, in a drawer but apparently no other obvious indication
of drug dealing in the room.   In connection with the execution of the search warrant, Mr.
Bolarinho was searched and a packet of what appeared to be crack cocaine was found in
his jacket pocket.   He was transported to the police station in a marked cruiser.   At the
police station, additional packets were found in his underwear.   Mr. Bolarinho was
arrested and convicted of possession of a Class B Substance with intent to distribute.   He
was committed to one year in the House of Corrections.   (Ex. 48 at USA 1228).
During this incident the police located the beeper number of Mr. Bolarinho’s
supplier, Nestor Rodriguez, and contacted him.   Mr. Rodriguez was not staying at the
Motel.   When he arrived to deliver drugs, Mr. Rodriguez was arrested with one packet of
cocaine.   The outcome of his arrest is unknown.   The Government does not suggest that
24




Mr Caswell was aware of the fact that Mr. Bolarinho intended to or was actually using
drugs in his room, or that he was aware of the drugs hidden on Mr. Bolarinho’s person.
(2)                                                                                            The second incident on which the Government relies occurred almost
three years later, on July 17, 1997.   A confidential informant who was staying at the
Motel contacted the police and informed on his/her heroin suppliers, who could be
contacted by way of a beeper with a code for a room number.   The suppliers were not
residing at the Motel.   The police conducted an investigation, including surveillance, and
arrested an unidentified alleged customer in the parking lot of the Motel, who was
transported away from the Property in a cruiser.   The outcome of this arrest is unknown.
The next day the police rented room 248 and ordered drugs from the suppliers.   The
suppliers, Benito Castro-Eusebio and Cedano Celines, were arrested after they delivered
drugs and had left the Property.   Castro-Eusebio was committed to one year in the House
of Corrections.   The outcome of Celines’ arrest is unknown.
There is no evidence that Mr. Caswell or the Motel employees knew the
identity of the confidential informant, knew that the informant intended to use drugs in his
or her room, or knew of the drug delivery.   There also is no evidence and the Government
does not contend that the police informed Mr. Caswell about the confidential informant’s
role in this incident or suggested that he/she should have been evicted from the Motel.
(3)                                                                                            About a month later, on August 18, 1997, the same confidential
informant contacted police about another heroin supplier who was making deliveries to the
Motel but who did not reside at the Motel.   Luis Rivera and Denise Rivera were stopped in
25




their car in the Motel parking lot when they came to make a delivery, and were arrested
when heroin was found on their persons.   They were transported separately in police
cruisers.   The outcome of their arrests is unknown.   Again, there is no evidence and the
Government does not contend that Mr. Caswell knew of the confidential informant’s role
or of the drug delivery.
(4)                                                                                          The next incident on which the Government relies occurred almost
four years later, on February 8, 2001.   The Tewksbury Police Department received
information from a guest staying in room 241 at the Motel that a suspected drug dealer
was staying next door.   When the dealer, Miguel Cotto, arrived he was arrested in
possession of cocaine and heroin.   The police went next door and found Israel Cortez
using drugs.   The police confiscated drugs and a heat-sealing apparatus.   The testimony
was that all of the drugs seized could easily have been stored or concealed in a shoe box.
(IIA:52).   Cotto and Cortez were arrested and transported in marked cruisers.   The
outcome of these arrests is unknown.   There is no evidence and the Government does not
contend that Mr. Caswell knew Messrs. Cotto or Cortez or was aware of their drug use.
(5)                                                                                          The next event on which the Government relies occurred
approximately a month later, on March 1, 2001.   After controlled buys of alleged drugs
from the occupants of rooms 254 and 252 at the Motel, the Tewksbury Police executed
search warrants on those rooms on March 1, 2001.   The master key provided by Motel
personnel did not work on room 254 and the police made a forced entry.   Sujeiry
Garrastequi was found inside the room with one bag of suspected heroin, as well as with
26




unused bags and money, which may be indicative of narcotics distribution.   She was
arrested and transported to the police station, but the outcome of this arrest is unknown.
Hector Cruz, another occupant of this room, was arrested when he arrived in his vehicle
with a small amount of suspected marijuana and heroin in the car.   The outcome of this
arrest is also unknown.
In room 252 the police found heroin, a hypodermic needle and a syringe.
The police left the search warrant in the room.   Two occupants of the room, Carmen
Hardin and Peter Witts, were located in the Walmart parking lot and were arrested there.
Ms. Hardin was released on bail, and it appears that she returned to the Motel.   It is
unknown whether she got the warrant that was left in the room.   The Motel was not
advised that it should not rent a room to her.   She apparently defaulted and was located
about a week later in another room at the Motel.   Ms. Hardin was sentenced to 18 months
in the House of Corrections, with six months to be served and the rest suspended.   (Ex. 50
at USA 1257).   Mr. Witts was given a two year suspended sentence in the House of
Corrections.                                                                                  (Ex. 50 at USA 1292).   Again, there is no contention that Mr. Caswell knew
these individuals or was aware of their drug use at the Motel, and all evidence of drug use
could be easily hidden from view.
(6)                                                                                           The next incident on which the Government relies occurred two and
one-half years later, on September 27, 2003.   At approximately 1:00 a.m. on this date, Lt.
Voto saw Yonny Sean on the street at the pay phone in front of the Motel and thought he
looked suspicious.   He searched Mr. Sean and found a key to room 242 at the Motel.   He
27




went to the room and discovered an individual named San Say and a white substance that
allegedly field tested positive for cocaine.   No one was arrested.   In the absence of any
arrest, or drug certification, it is unclear why this incident is on the Government’s list.
Again, there is no allegation or evidence that Mr. Caswell knew these individuals.
(7)                                                                                           Several months later, on February 13, 2004, the Tewksbury Police
obtained a search warrant for a room at the Motel where Vernon Smith, known to them to
be a violent criminal, was residing.   Due to fear that Smith was armed, a SWAT team
broke the door and made entry into the room.   No narcotics were found.   Smith and his
girlfriend, Patricia Conroy, were arrested for possession of a hypodermic needle and were
transported in separate marked police cruisers.   The charges against Conroy were
dismissed.                                                                                    (Ex. 49 at USA 1239).   The outcome of Smith’s arrest is unknown.   In the
absence of any drugs, this incident should not be on the Government’s list of drug-related
incidents.   Again, there is no allegation or evidence that Mr. Caswell knew these
individuals.
(8)                                                                                           On November 20, 2004, the Tewksbury Police received information
from a confidential informant that William Mercier was selling heroin at the Motel.   Mr.
Mercier was known to the police.   Controlled buys of alleged narcotics were made from
Mr. Mercier: the first in one room he occupied, and then in room 209 to which he had
moved.   The registration card confirmed that Mr. Mercier was registered to room 209.
(Ex. 39 at USA 57).   On November 20, 2004, the police executed a search warrant on
room 209 and found packets of heroin inside the drawer in the nightstand.   Mercier and
28




Lydia Farrell, who was present and also known to the police, were arrested and were
transported in separate police cruisers.   Farrell was sentenced on three counts to
concurrent terms of one year in the House of Corrections, with six months committed and
the balance suspended.   (Ex. 50 at USA 1252-53).   Mercier was sentenced to two and a
half years imprisonment.   (Ex. 50 at USA 1262-64).   Again, there is no allegation or
evidence that Mr. Caswell knew these individuals, and all evidence of drug use was easily
hidden from view.
(9)                                                                                             Approximately a year later, on October 9, 2005, Officer Marcus
McMahon of the Tewksbury Police Department arrested a woman, Sara Kover, for
passing counterfeit notes at a gas station.   She was with an individual known as Steven
Ervin.   Ms. Kover was residing at the Motel in room 255 with her boyfriend, David Bates,
who Mr. Ervin was visiting.   While the testimony from Officer McMahon and the police
report (Ex. 40 at USA 283) are not entirely consistent, it is agreed that the police escorted
these individuals back to the Motel.   From outside of room 255, Officer McMahon did not
notice anything amiss.   He did not smell anything and nothing appeared suspicious.
(III:131-32).   He knocked on the door.   Mr. Bates opened it and smoke and a smelly
substance poured out of the room.   At that point, Officer McMahon saw chemicals and
liquids cooking on a hot plate but he did not know what anything was.   It turned out to be
a methamphetamine laboratory.   Other police responded as well.   After they decided that
there was not any immediate health or safety concern (Ex. 40 at USA 288), the room was
29




“frozen” overnight and guarded by a police officer until a search warrant could be
obtained.   Several marked police cruisers were on site outside of the room.
The next morning a search warrant was obtained, and several members of
the State Police Clandestine Lab Enforcement Team (“CLET”) arrived at the Motel to
inventory and dispose of the meth lab, including State Trooper Shawn Murray who
testified at trial.   CLET arrived in a specially designed vehicle and the officers wore
protective clothing as they removed all items relating to the lab and any hazardous
materials.   They worked for four to five hours and when they left the premises a large red
sticker was placed on the door saying that there had been a drug lab at this facility and that
there may still be hazardous chemicals present.
Although Mr. Caswell did not see the CLET truck, he was aware of the
incident from his employees.   While he did not have a present memory that the sticker was
put on the door, he did not challenge the Government’s photographs of the sticker.   This
incident generated a number of articles in the local newspapers.
The Government argued that “[t]wo guests polluted Room 255 for days, just
feet away from the motel’s office and just feet away from the Caswells’ home.”   (IV:99
(emphasis added)).   Again, this is grand rhetoric but not supported by the record.   There
was no evidence as to how long the meth lab was in operation.   Rather, Trooper Murray
testified that the lab was fashioned out of household items which could be stored in a
small duffle bag and quickly set up.   (IIB:106-07).   The meth was in an “unfinished state”
— that is, it was in the process of cooking and had not been completed when the police
30




arrived.                                                                                       (IIB:108-09).   Thus, Trooper Murray testified that he did not know how long the
lab had been in operation.   There was no factual support for the Government’s contention
that the lab had been in operation for days.
After CLET left, the room was contaminated and needed to be cleaned by a
contract company.   A form letter was sent by the U.S. Drug Enforcement Administration
to Mr. Caswell, the Chief of Police and the Board of Health notifying them that “a
clandestine laboratory was seized and/or hazardous chemicals were found” in room 255 at
the Motel, and “warning” them “that there may still be hazardous substances or waste
products at or on the property.”   (Ex. 11, 12, 14).
Mr. Caswell hired Mill City Environmental, a company which provides
hazardous waste abatement and remediation, among other things.   Julie Davies of Mill
City Environmental testified that the company was hired to do air sampling.   When she
arrived on October 27, 2005, the room had trash in it and furniture, but no bed or mattress.
There was no sign on the door.   Mr. Caswell told her that the room had been wiped down
by housekeeping, and that the bed and mattress had been removed.   Ms. Davies took air
samples for volatile organic compounds, and got a high hit in one area, where the bed had
been removed.   She told Mr. Caswell that the room had to be cleaned again.   He said that
it would be cleaned immediately and asked her to come back later, which she did.   When
she returned, everything had been removed from the room and it had been cleaned.
Further testing revealed no evidence of chemicals.   Therefore, she issued a report that
there was “no residual air contamination in the room.”   (Ex. 20 at USA 446).
31




The initial proposal for the Mill City Environmental work was $530 plus a
9% surcharge.   (Ex. 17).   Because Ms. Davies had to come back a second time, the final
bill was $850 plus a 9% surcharge for a total of $926.50.   (Ex. 19; 21).   Mr. Caswell paid
the bill in full in a timely manner.                                                            (Ex. 22).
Again in a gross exaggeration, the Government argued that Mr. Caswell
“doesn’t even care enough to clean up one of the motel rooms after a meth lab was there.
In fact, Mr. Caswell has to be told twice before he has the room, which was filled with
chemicals feet away from his family’s home, cleaned.”   (IV:109).   There is no record
support for this claim.   As an initial matter, there were no chemicals remaining in the room
after the CLET cleanup.   More importantly, the Government did not question Mr. Caswell
about why the room was not completely cleaned the first time Ms. Davies came to inspect
it.   A more logical inference is that Mr. Caswell (or the housekeeper) was not sure how
much should be cleaned without knowing the extent of air contamination.   Obviously Mr.
Caswell wanted to rent the room, and would not have done so with trash and without a
bed and mattress in the room.   Nor is there any reason to believe that Mr. Caswell was the
type of person who would voluntarily increase the cost of the cleanup for no reason.   The
only evidence is that Mr. Caswell incurred the additional expense of having Ms. Davies
return again to test the room which was appropriately cleaned.   The Government’s
expressed disdain is not justified on the record evidence.
The Government also challenged Mr. Caswell about not following up to find
out how to prevent another meth lab from operating at the Motel.   As Mr. Caswell testified
32




convincingly, however, he asked if anyone had seen or heard or smelled something, and
everyone said no.   According to Mr. Caswell, the guest had only been at the Motel for two
days, and this was the only time in his 60 years of involvement with the Motel that there
was such an incident.   Since it had not occurred either before or after, Mr. Caswell was
justified in testifying “So, no, I don’t know any way to prevent that from happening.”
(IV:73).   It is hard to imagine what else Mr. Caswell should have done to prevent another
non-existent meth lab from operating since whatever else he was doing was apparently
sufficient.
(10)   The next incident on which the Government relies occurred on
February 13, 2006.   According to former Tewksbury Police Officer David Godin, on this
day he saw two men conducting a suspected drug transaction at the Dunkin’ Donuts across
the street from the Motel.   They fled and he chased them into room 225 at the Motel,
where they escaped out the window, but were later apprehended.   In the room, the police
found what appeared to be marijuana, money, a scale and plastic baggies, and a phone
which may have been used by a drug dealer.   No one was arrested in connection with this
incident.   The room was rented to Gerald Fraize.   There is no allegation or evidence that
Mr. Caswell knew Mr. Fraize or had any information about drug use in the room.
(11)   Almost a year later, on December 7, 2007, a guest, Jason Mahoney,
died in a room at the Motel as a result of a heroin overdose.   The police had no reason to
believe that Mr. Caswell or any employees knew that the guest had drugs with him or that
he was taking drugs.   (III:47).
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(12)   Almost a year after the last incident, on October 9, 2008, the front
desk clerk called to have the police remove the guest in room 229 because she had stayed
longer than she was supposed to.   Officer Kimberly O’Keefe arrived and met the guest,
Melanie Quadros, and found out that she had an outstanding warrant.   Ms. Quadros was
arrested and a pat-down search revealed some drug paraphernalia and ecstasy pills.   Ms.
Quadros was released by the court, and she returned to the Motel.   The Motel was not
instructed not to rent to her again.   Although the record is not clear, it appears that Ms.
Quadros was arrested

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