A Whitey-Like Taking By U.S. Attorney Ortiz Stopped Cold By Judith Gail Dein: Will She Continue Her Quixotic Fight?

Russ Caswell – A Victim Of An Unfeeling US Attorney

Sunday is a day for a little bit of good news.  This comes in the form of a decision by Judge Judith Gail Dein who slapped down the outrageous actions by our US Attorney Carmen Ortiz to all but steal a motel from its owner.

This isn’t a story about the Hotel California the lovely place mentioned in song but rather about the Motel Caswell which was described by its owner, Russ Caswell as, “It’s a budget motel. You know, it’s an older place, but we do our best to keep it in good condition.”

I wrote about it a while back and again more recently in connection with the suicide of Aaron Swartz.  My initial take on the Caswell case was that Carmen Ortiz was acting like Whitey Bulger and she was engaged in an attempt to steal  this property from a hard-working guy. I suggested that her actions in this type of case made me question her judgment as a prosecutor. This was before I knew anything about Swartz’s prosecution.

Judge Dein’s decision reaffirmed everything I thought about the case. She pointed out that Russ Caswell had no formal education beyond Tewksbury High School. He lives with his wife of 48 years,Patricia, his 92-year-old mother-in-law, his son Jay and his wife and their 9-year-old daughter next door to the motel. Russ has one other child, a daughter Julie who has two kids. It’s a family business. Russ works there “virtually every day” (that’s seven days a week, 52 weeks a year, no vacations), his wife Patricia worked there as well until she became seriously ill, his son Jay does the maintenance work and fills in at the front desk, and his daughter Julie does the bookkeeping.

It’s pretty much a family run business that requires full attention. The motel was built in 1955 by Russ’s father, has 56 rooms, rents about 14,000 rooms a year with a mixture of semi-permanent and transient guests. Russ and his family have no criminal record, have never been in trouble, and knew nothing about the drug transactions that occurred there. The government’s basis for seizing this motel from this family was according to Judge Dein, “15 specific drug-related incidents during the period of 1994 to 2008. It should be noted that during this 14 year period, the Motel Caswell rented out approximately 196,000 rooms.” Of these 15, “four cases clearly did not involve drug crimes punishable by more than one year of imprisonment . . . and in four other cases it is unclear whether the incident involved a drug crime punishable by more than one year of imprisonment.”   The Government must show that the property was intended to be used in a drug crime punishable by a year’s imprisonment  to forfeit it.

US Attorney Ortiz was using evidence of 7 rentals out of 196,000 rentals which involved drug activity which Russ knew nothing about over a 14 year period to take the motel from him which is worth about 1.5 million and destroy this family’s means of livelihood and future retirement. She wanted to divide the money, 80% to the Tewksbury police (who should be ashamed of their participation in this action) and 20% to DEA (which has no shame). I once said this showed she lacked prosecutorial discretion and was being led around by the nose by cops.

How on earth on such flimsy evidence could she allow this forfeiture to happen? What does she think her job consists of? We’ve already heard her say “stealing is stealing” as if all acts of theft are alike. Thinking of the Caswell case it’s more than she lacks good discretion, what it really shows is she has no heart especially when it comes to those least able to defend themselves.

There is no way Russ could have prevailed in this case that lasted three years and took a week to try except  for the help he got from some lawyers who offered their services to him for free. He had already spent 100,000 dollars stemming off this unconscionable seizure when the Institute for Justice aided by the lawyers from a Braintree law firm, Schlossberg LLC offered to help him.  Caswell has estimated that us taxpayers are going to have to pay his lawyers $800,000 for his defense.

And what does US Attorney Ortiz say: “This case was strictly a law-enforcement effort to crack down on what was seen as a pattern of using the motel to further the commission of drug crimes for nearly three decades . . . . “We are weighing our options with respect to appeal.”  

She doesn’t get it. “Three decades?” Try 14 years. “Pattern of using the motel to further the commission of drug crimes?” 7 rentals out of 196,000 is a pattern? One forfeitable drug transaction every two years is a pattern?

Ortiz is clearly not up to the job. Maybe she should take a break. She epitomizes the opposite of what Justice Robert Jackson said was the requirement of  a prosecutor. “A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.”





14 thoughts on “A Whitey-Like Taking By U.S. Attorney Ortiz Stopped Cold By Judith Gail Dein: Will She Continue Her Quixotic Fight?

  1. Probably wasn’t as clear as I would have liked to be on my last comment…typing on the phone will do that. The point I was trying to make is that you are likely to see more Caswell-type cases..this is indeed a local problem. I can almost guarantee that DEA in Boston has a contract “asset forfeiture specialist” physically assigned, ad do ICE, ATF and believe it or not, the state department. These guys literally retire as an agent one day and report back to work the next day to the same office…the big difference is that they Are now collecting a mid 100k salary as well as their full government pension..they are there to augment the already over flowing roles of federal agents, many who are more qualified to actually work asset forfeiture.

    Now comes the problem….they need to do SOMETHING every once in a while to justify there position, and , more importantly, insure that their buddy gets the bid next time the contract comes up in DC…most of these “asset forfeiture specialists” do, almost literally nothing…I know the state dept in Boston has a contract employee…you heard me right!! How much property do you remember the state department seizing in Boston??!!!

    Back to the point…when the pressure is on these people because the contract is almost up, you get The Caswells being attacked as the low hanging fruit. A horrible result of an I’ll conceived, I’ll run program that costs tax payers millions of dollars a year…

    1. Declan:
      You are absolutely right that there is pressure on these guys who “retire”, take their pension, and go back working on pretty much the same thing at a hundred grand or so in addition to their pensions searching around to come up with something. The federal government more and more is doling out money to half-baked schemes. Now as you mention we have groups being paid to try to take people’s property from Americans and looking for some tangential involvement by them in crime. If you can get a hook into a government agency then you can do pretty well courtesy of the taxpayer. It’s not just the federal government. I’ve known state employees who retired and were immediately hired back as contract workers doing the same thing doubling their pay. The people doing these things are as much thieves as the guys robbing banks. We’ve become a grab-grab society.
      The best scheme I came across was a guy who after 9/11 set up a program to have all the truck drivers trained to look out for terrorists. As the millions flowed in to his program, he added school bus drivers. They’d go around telling truckers and others what to look for while driving their rigs. You know, if you see a dark skinned person carrying five sticks of dynamite you might want to call in to central headquarters. In three years they had spent upwards of ten million and had two calls, one was about a Sikh.
      As I said, Washington DC was the only part of the country that escaped the recession. It’s not just the hundreds of thousands of government employees it is the million people like you mention who have retired, taking their retirement but working in jobs that are being paid by the government There’s so many people dependent on the government that the chances of anything changing is slim to none.

  2. I think I’d prefer a TV blackout of the SuperBowl, just this year. You’re right, freedom is a nice concept. I read today where they ‘expanded’ the 40 year old wiretapping laws in Mass. Privacy was another nice concept once upon a time. I’m sure the laws needed updating after 40 years… this is not your daddy’s USA.

    1. Kid:
      The wiretap statute really didn’t have to be updated. It worked well. I never had any trouble doing any investigations that I wanted to do. It had some safeguards that the cops didn’t like so they’ve been working for years to loosen the requirements. I’m glad you told me about that. I will have to look at it and give you my impression of the changes. The Bill of Rights is 200 years old and we haven’t needed to change that because it provided the safeguards to us citizens. I’m always wary about increasing police powers. You’re right when you say this isn’t the USA we once knew. We’ve created one of those monsters in and around the DC area where most of the population lives of the government. It keeps expanding. The cyber security branch of the military wants to increase from 900 to 4000 in a couple of years. Soon everything anyone does will be stored and if you forget where you put your grocery list you’ll be able to call up the government and it will tell you.

      1. It’s probably not a bad idea to fortify our cyber defenses sooner rather than later. Things are going to get pretty crazy on the cyber front, I expect. You can’t do too much these days without leaving a digital fingerprint. I don’t know about calling the US government for a grocery list, but what sounds weird today is tomorrows reality. I’m interested to hear your take on the updated wiretap laws. The news coverage makes it seem like a little tweak, but my guess is that the changes are sweeping. With great power comes great responsibility and we’ve seen through many examples here what our leaders do with that.

        1. Kid:
          Declan who comments here points out how thing the goverment does expands out of control. That’s the problem with increasing the cyber defenses five fold, they’ll soon be doing more than defending but looking into other areas to stick their noses into.
          I’ve looked around and can’t see that there is a new wiretap law. I can see that the AG and others (Billy Brooks the Chief in Norwood is leading the charge for the cops. He is a good guy who worked with me for several years and has always had an interest in expanding the police officers rights to do wiretaps.) are pushing for new legislation. I’ve dropped away from reading the advanced sheets that contain the SJC’s decisions so I’m going to have to track down the 2011 decision that said the wiretap should not have issued.
          They are talking about expanding the definition from organized crime into other area. Some guy Linsky thinks organized crime just refers to the Mafia. It doesn’t (unless the 2011 decision changed things) which shows some of the people backing the changes are putting out false information. I’ve done wiretaps on murders, robberies, drugs, etc. by showing that certain individuals had organized together to commit those acts. The fear I have is if they take the concept of organize crime away and allow wiretaps to be used in any cases involving guns, money laundering, etc. then the cops will be able to do wiretaps on individuals which will be more like fishing expeditions.
          I’ve got to see what the bill is that has been filed. I’m sure it contains a lot more than the AG or others are talking about. My greatest fear is it will allow cops to be able to secretly record people without having to follow the present restrictions in the law. Right now in Massachusetts you cannot secretly record anyone unless both parties consent to the recording or without a warrant or to protect a cop during an OC investigation; the cops would like to be able to change that so that they can secretly record anyone at any time they wish. That is where I suspect this is going. It’ll take me a bit to track it down but I’ll try to do it.
          They’d be less fear of abuse if the DAs and AGs kept strict control of the wiretaps as I used to do. I’ve heard that they now let the cops run the show and take a very passive interest in them.

          1. My mistake, the new wiretap laws are just being proposed this week- http://www.berkshireeagle.com/ci_22477714/state-officials-law-enforcement-revamp-massachusetts-wiretap-law

            Implementation is definitely a concern I have over fortifying the cyber defenses. Without the proper oversight and checks and balances, there will likely be abuses and a lot of ‘over-reaching’. What’s the alternative? Do nothing? Not an option. Vulnerabilities in the system will continue to be exploited until maybe they bubble up to the public… prompting action, change… but it would take a helluva scandal for that to happen. We’ve got a Govt that sponsors mobsters to machine gun guys in broad daylight on the streets of Boston. If that doesn’t prompt change, what will?

            1. Kid:
              The alternative is using the tools you have before going on to others. Wiretapping someone was never easy and insuring the Fourth Amendment rights if people always made things a little bit more difficult. But none of it was hard, it just took a little extra effort. When the law enforces get lazy they want to make things easier. The easier they are the more the people’s rights are diminished. We have the laws to take care of ourselves, we just need the will to work to insuring that we use them effectively.

  3. Forfeiting property for criticizing the govt is a scary thought Mr Connolly. I don’t think we want to see an Arab spring in the US.

    1. Kid:
      We’d never see an Arab Spring here. You don’t think our government would let that many people assemble at one time without unleashing massive attacks on them Look at what happened to the Occupy Wall Street people. We’ve been lulled into the idea that we have certain freedoms which we do as long as we don’t exercise them. Call for a great assembly of people to protest something and you’d be met with a collective yawn. I’m always amazed how in the backwaters of our nation where the few people who have jobs receive the minimum wage yet they’re all staunch patriots. I was in Alabama a few years back and I went to see its state house. I met this guy who had a sign protesting something, I forget what. He was standing in a fenced off area about five hundred yards from where anyone could see him. I got talking to him and suggested that he was wasting his time standing where he was since all the action was way down the street. He said he could only carry his sign in approved “free speech zones” and this one was the closest he could get to the people he wanted to influence. I was thinking with my Northern prejudice, “only in the South,” when I recalled one of the presidential convention in Boston they set up free speech zones where people had to go if they wanted to protest anything. This insured no one was bothered.
      The only thing I could think of that would cause a mass outpouring of discontent in this country is a television black out of the Super Bowl. Outside of that most of us are too happy with our toys to worry about important things, and I include myself in that.
      The last good protests we had were the civil rights uprisings but back in those days the response by the cops was somewhat feeble with water hoses; today, thanks to the Homeland Security Crowd, every local police department is armed with the latest military equipment. In a few years all the cops will be flying drones. This will be the home of the free and the brave as long as you know your place.

  4. Matt, the dirty secret that the government doesn’t want anyone to know about involves the asset forfeiture departments in many government agencies including DEA and homeland security. Almost every city in the country is staffed with a contract asset forfeiture specialist.these people are almost without exception retired high level agents who get paid well over 100,000 dollars a year to work on asset forfeiture. more importantly the contracts are giving out too high level retired agents in DC who started companies that charge the government well over 200,000 dollars per year for each of their old buddies that they placed in the offices as “asset forfeiture specialists”. I use quotes because almost without exception east people have no qualifications4 the job other then who they know. if someone were to look at the numbers you would see that the government is paying huge amounts of money for almost 0 return in terms of asset forfeiture. in a sad way at least the guy in Boston was trying to do something for the money he was being paid albeit misdirected. maybe Carmen the Conqueror will indict these people for Rico violations! Don’t hold your breath

    1. Declan:
      What you tell me about the asset forfeiture people doesn’t surprise me. It all goes on behind the giant curtain of secrecy. I’m sure if US attorney Ortiz knew that people were getting jobs through their buddies she’d want to investigate that – too bad DC is not in her jurisdiction. Although I’ve wondered how the guy on her staff who prosecuted the Swartz kid got his job. You don’t think it was because his father had a high position in the Justice Department, do you?

  5. Ortiz is clearly not up for the job. It’s as if she never read the job description. And now she’s looking at her options for appeal! Unbelievable. I hope the tide of criticism continues to rise and washes her bully-in-a-china-shop ways out to sea. However, she shouldn’t get all the credit for Caswell. The Corrupt Tewksbury Police department is supposed to protect and serve its community. Not case the neighborhoods for a good score. They brought on the Caswell affair out of pure greed and now hide behind the US Attorney like the cowards they are. Are there any public comments from the Tewksbury Police on Caswell? Didn’t think so. Poor losers. I’ll bet if they won there’d have been a back slapping presser. I think it’s important for Police Chief Timothy Sheehan to let the citizens of Tewksbury know that the Tewksbury police is not really dedicated to the principles of honesty and truthfulness and will not strive to do the right thing, the right way, at all times if there’s a buck in it.

    1. Kid:
      I think the same way you do since I mentioned the Tewksbury police in my post today before I read your comment. When you read it you’ll see I hold the same sentiments as you. I think the police owe an explanation to the people of Tewksbury for their involvement in this travesty of justice. I also agree about Ortiz. I just hope that the thorough job done by Judge Dein will let that guy Caswell get on with his life. The poor guy struggling to keep a motel time has passed in operation, unable to refuse to let people who he suspects may be drug dealers into his hotel for fear of being sued for discrimination, and working his butt off to survive is set upon by our government. It’s pretty sad when they go after the law abiding people to take their goods. You should read some of the other examples of takings Judge Dein talks about. It’ll give you a sense that things are spiraling out fo control between the DEA and Homeland security. The way things are going laws will be passed that anyone who criticizes the government must forfeit his or her property.

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