United States v. 434 Main St., Tewksbury, Mass.

• Decision Date: 25 April 2012
• Docket Number: Civil Action No. 09–11635–JGD.
• Parties: UNITED STATES of America, Plaintiff, v. 434 MAIN STREET, TEWKSBURY, MASSACHUSETTS, Defendant. Russell H. Caswell, as Trustee of the Tewksbury Realty Trust, Claimant.
• Court: U.S. District Court — District of Massachusetts

862 F.Supp.2d 24

UNITED STATES of America, Plaintiff,

v. 434 MAIN STREET, TEWKSBURY, MASSACHUSETTS, Defendant.Russell H. Caswell, as Trustee of the Tewksbury Realty Trust, Claimant.

Civil Action No. 09–11635–JGD.

United States District Court, D. Massachusetts.

April 25, 2012.

Anton P. Giedt, Sonya A. Rao, Veronica M. Lei, United States Attorney's Office, Boston, MA, for Plaintiff.

Scott Bullock, Lawrence Salzman, Institute for Justice, Arlington, VA, Michael T. O'Neil, Tiffany L. Pawson, George W. Skogstrom, Jr., Schlossberg, LLC, Braintree, MA, for Claimant.

MEMORANDUM OF DECISION AND ORDER ON CLAIMANT'S MOTION FOR SUMMARY JUDGMENT

DEIN, United States Magistrate Judge.

I. INTRODUCTION

This is an action for civil forfeiture by which the plaintiff, United States of America (“United States” or “Government”), is seeking the forfeiture of real property, including all buildings, appurtenances and improvements thereon, located at 434 Main Street, Tewksbury, Massachusetts (the “Property”). By its complaint, the United States claims that the Property was used to commit, or to facilitate the commission of, violations of federal controlled substances laws, and that the Property is therefore forfeitable to the United States pursuant to 21 U.S.C. § 881(a)(7).

Title to the Property is held by the Tewksbury Realty Trust. The Claimant, Russell H. Caswell (“Claimant” or “Mr. Caswell”), is the Trustee and a beneficial owner of the Trust. He is also the owner and operator of a motel, known as the Motel Caswell, which is situated on the Property. Mr. Caswell claims that he depends on the Motel Caswell to support himself and his family, and that the forfeiture of the Property by the Government would deprive him of his present and future livelihood in violation of the Excessive Fines Clause of the Eighth Amendment.

The Government's claim that the Property is subject to forfeiture is based on investigations of drug activity at the Property that were conducted by members of the Tewksbury Police Department between 2001 and 2008, and allegedly resulted in the arrests and convictions of several individuals who visited or temporarily resided at the Property. Pursuant to the federal forfeiture laws, and procedures and policies adopted thereunder by the Department of Justice, local law enforcement agencies that participate in investigations which lead to federal forfeitures are eligible to receive up to 80 percent of the net proceeds recovered by the forfeiture. Mr. Caswell claims that this process, known as “equitable sharing,” is what motivated the Tewksbury Police Department to cooperate with the Government in this case. He also claims that the Government's equitable sharing program exceeds the lawful powers of the United States Congress under the Tenth Amendment because it displaces Massachusetts' own forfeiture law and encroaches upon rights that have been reserved to the Commonwealth by encouraging local law enforcement agencies to pursue federal forfeitures that could not have been pursued under State law.

The matter is presently before the court on the “Claimant's Motion for Summary Judgment” (Docket No. 68). By his motion, Mr. Caswell is seeking a declaration that the federal equitable sharing program “is an impermissible use of the federal spending power in violation of the Tenth Amendment.” Additionally, he is seeking a declaration that “by seeking to take Claimant's entire livelihood, this forfeiture is an excessive fine in violation of the Eighth Amendment and First Circuit precedent.”

As detailed below, this court finds that the Claimant lacks standing to maintain his Tenth Amendment challenge, and is therefore not entitled to consideration of that claim on the merits. This court also finds that it would be premature to consider the Claimant's Eighth Amendment claim until the facts underlying any forfeiture liability have been established and the court has determined whether forfeiture will be ordered and, if so, whether the harshness of the forfeiture is grossly disproportional to the gravity of the criminal offenses giving rise to the forfeiture. Accordingly, and for all the reasons described herein, the Claimant's motion for summary judgment is DENIED.

II. STATEMENT OF FACTS¹

Unless otherwise indicated, the following facts are not genuinely in dispute. ²

The Subject Property

The United States initiated this civil forfeiture action on September 29, 2009 by filing a Verified Complaint for Forfeiture in Rem against the Property. (Compl. (Docket No. 1)). The Property that is subject to the forfeiture contains a motel, known as the Motel Caswell, that was built by the Claimant's father in the 1950s. (PR ¶ 1; CF ¶ 2). Mr. Caswell grew up at the motel, worked there, and has owned and operated the motel with his wife for nearly 30 years. (CF ¶ 2).

It is undisputed that for most of the Claimant's working life, the Motel Caswell has served as the predominant source of income for both the Claimant and his family. ( Id. ¶¶ 4, 8; Cl. Ex. A ¶ 3). Currently, Mr. Caswell, who is 68 years old, draws an annual salary of $72,000 from his operation of the motel, which he uses to support himself, his wife, and his 91–year old mother-in-law. (CF ¶¶ 5, 9). Although the Claimant has supplemented his income by renting out a garage he owns for $1,000 per month, and by providing welding services, he anticipates having to retire from welding in the near future due to his age and the demands of caring for his wife, who is ill. ( Id. ¶ 13).

Mr. Caswell has no pension or other retirement income apart from Social Security, and he intends to rely either on income generated by the continued operation of the Motel Caswell, or on proceeds from the sale of the Property, to support himself and his wife in their retirement. ( Id. ¶¶ 11, 12). It is undisputed that if the Government prevails in this action, title to the Property will be transferred to the United States. (PR ¶ 10). Mr. Caswell claims that as a consequence, he would be deprived of his present and future livelihood. ( See CF ¶¶ 4, 11–12).

The Instant Forfeiture Action

By its Verified Complaint, the Government is seeking forfeiture of the Property pursuant to Section 881(a)(7) of the Comprehensive Drug Abuse Prevention and Control Act of 1970. That statute permits forfeiture of “[a]ll real property ... which is 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's imprisonment.” 21 U.S.C. § 881(a)(7). Here, “the Government claims that the Property was used to commit, or to facilitate the commission of, a violation of 21 U.S.C. §§ 841, 846 and/or 856.” ³ ( See Compl. ¶ 3). Under the Civil Asset Forfeiture Reform Act of 2000 (“CAFRA”), “the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture[.]” 18 U.S.C. § 983(c)(1). If the Government meets its burden in the instant case, the Attorney General will be entitled to seize the Property. 21 U.S.C. § 881(b).

In support of its claim that the Property is forfeitable because it was used to commit, or to facilitate the commission of, violations of the Controlled Substances Act, the Government is relying on investigations of drug activity at the Property that were conducted by members of the Tewksbury Police Department between 2001 and 2008. ( See Compl. ¶ 3 and Exs. A & B attached thereto). Those investigations allegedly included, but were not limited to, surveillance of the Property by Tewksbury police officers, controlled purchases of narcotics at the Property by confidential informants, an investigation of a methamphetamine laboratory at the Property, and the execution of state search warrants at the Property. (Compl., Ex. B ¶ 4; Compl., Ex. A). It is alleged that those investigations led to seizures of various controlled substances and drug paraphernalia from the Property, and resulted in the arrests and convictions of several individuals who visited or temporarily resided at the Property. ( Id.).

No state or local authorities have ever accused Mr. Caswell of any wrongdoing, and the Claimant is seeking to defeat the Government's forfeiture claim on the grounds that he is an innocent owner of the Property. ( See Cl. Ex. A ¶ 8; Am. Answer (Docket No. 64)). Under CAFRA, a claimant who raises an innocent owner defense may avoid a forfeiture by proving, by a preponderance of the evidence, that he “did not know of the conduct giving rise to forfeiture; or ... 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.” 18 U.S.C. § 983(d). In the instant case, Mr. Caswell claims that he has taken all reasonable steps to prevent or stop criminal activity from occurring on the Property. (CF ¶ 14). However, the Government disputes that assertion, and intends to present evidence at trial to rebut the Claimant's claim of innocence. (PR ¶ 14). Thus, the issue as to whether Mr. Caswell qualifies as an innocent owner will be decided following a full trial on the merits.

The Equitable Sharing Program

Once real property has been civilly forfeited under Section 881(a)(7), the Attorney General is authorized to “retain the property for official use or ... transfer the property to any Federal agency or to any State or local law enforcement agency which participated directly in the seizure or forfeiture of the property[.]” 21 U.S.C. § 881(e)(1)(A). The process of transferring forfeited property to state or local law enforcement agencies is known as “equitable sharing.” The Department of Justice (“DOJ”) has implemented policies and procedures which govern equitable sharing. (Pl. Ex. 1 ¶ 4). They are described in detail in the DOJ's Guide to Equitable Sharing for State and Local Law Enforcement Agencies (April 2009). ( Id.;see also Pl. Ex. 2). By his Tenth Amendment claim, Mr....