DEIN, United States Magistrate Judge.
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.
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
2. The Motel Caswell is located at 434 Main Street, Tewksbury, Massachusetts. 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."
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.
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.
9. There is no contention in this case that anyone from the Caswell family has
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 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.
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.
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.
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.
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. 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.
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.
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 the Property, the list is intended to advise the next shifts of desk clerks which guests were problematic at the Motel.
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).
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 indepth 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).
50. Officer Hollis suggested that to deter criminal activity a motel could conduct 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
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 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).
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 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
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:
(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 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
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.
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.
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
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.
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). 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).
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 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.
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 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.
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
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 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
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
(4) The next incident on which the Government relies occurred almost four years later, on
(5) The next event on which the Government relies occurred approximately a month later, on
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
(7) Several months later, on
(8) On
(9) Approximately a year later, on
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 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
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).
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 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
(10) The next incident on which the Government relies occurred on
(11) Almost a year later, on
(12) Almost a year after the last incident, on
(13) It is unclear why the next incident of
(14) The next incident occurred on
(15) The final event on which the Government relies occurred on
87. The Government points to this incident as evidence of the Motel Caswell renting to "repeat offenders." Again, this is stretching the evidence. Mr. Sean had been stopped by Lt. Voto five years earlier for looking suspicious, but was not arrested. Therefore, there is no evidence to support the Government's contention that it was improper for the Motel to rent to him again. As for Ms. Quadros, it appears that the court released her several times in the months of October and November 2008 despite several arrests. There does not appear to be a basis for the Motel to refuse to rent a room to her upon her release.
88. After considering all the evidence and the testimony of numerous witnesses, this court agrees with the Claimant that at most these 15 incidents show "that the Motel Caswell was the scene of drug activity by a relatively small number of third parties not engaged in an ongoing criminal enterprise." (IV:90). While there was general evidence of other criminal activity at the Motel, as discussed infra, there was no evidence of the blatant and pervasive drug activity which supported forfeiture in the other cases on which all parties rely.
1. "Forfeitures are not favored; they should be enforced only when within both the letter and the spirit of the law." United States v. One 1936 Model Ford V-8 De Luxe Coach, 307 U.S. 219, 226, 59 S.Ct. 861, 865, 83 L.Ed. 1249 (1939).
2. This forfeiture proceeding is governed by the Civil Asset Forfeiture Reform Act of 2000 ("CAFRA"), relevant portions of which are codified in 18 U.S.C. § 983(c). Under 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). In the instant case, the Government bases its claim to forfeiture on 21 U.S.C. § 881(a)(7), a provision of the Controlled Substances Act that makes forfeitable "[a]ll real property ... which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year's imprisonment."
3. To "facilitate" the commission of a crime, the property must make the prohibited conduct "less difficult or `more or less free from obstruction or hindrance.'" United States v. Schifferli, 895 F.2d 987, 990 (4th Cir.1990) (quoting United States v. 3639-2nd Street N.E., 869 F.2d 1093, 1096 (8th Cir.1989)) (additional citations omitted); see also United States v. 3234 Washington Avenue N., 480 F.3d 841 (8th Cir.2007).
4. Where, as here, "the Government's theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense," then the Government must also "establish that there was a substantial connection between the property and the offense." 18 U.S.C. § 983(c)(3).
5. The requirement of a "substantial connection" "is consonant with the congressional intent that the instrumentalities of the drug trade be reached, while ensuring that property only fortuitously connected with drug trafficking be preserved."
6. CAFRA "heightens the government's evidentiary burden in civil forfeitures."
7. In sum, under present law, for the Claimant's Property to be forfeitable under 21 U.S.C. § 881(a)(7), the United States must prove, by a preponderance of the evidence, that (1) there was a violation of 21 U.S.C. §§ 801 et seq. which was punishable by more than one year's imprisonment; (2) the real property, including any appurtenances or improvements thereon, was used or intended to be used in any manner or part to commit or to facilitate the commission of the criminal offense; and (3) there was a substantial connection between the property to be forfeited and the forfeitable drug offense.
8. "[E]ven if the government satisfies the requirements of §§ 881(a)(7) and 983(c), it does not necessarily follow that there will be a forfeiture" if the claimant qualifies as an innocent owner. United States v. 45 Claremont Street, 395 F.3d 1, 4 (1st Cir.2004).
9. 18 U.S.C. § 983(d), which contains the innocent owner defense, provides, in relevant part:
10. Pursuant to 18 U.S.C. § 983(d)(2)(B)(i) & (ii), "ways in which a person may show that such person did all that reasonably could be expected may include demonstrating that such person, to the extent permitted by law —
11. Finally, if the court were to find the Property forfeitable, the next issue would be whether such forfeiture was unconstitutionally excessive. See 18 U.S.C. § 983(g). In the instant case, the parties agreed that evidence regarding this issue would be deferred pending the outcome of the trial.
This Court concludes that the Government has failed to meet its burden of proving, by a preponderance of the evidence, that the Motel Caswell was "substantially connected" to the forfeitable drug crimes. In so ruling, I recognize that the boundaries of what constitutes a "substantial connection" are not well defined, and that each case must be considered on its own facts. See Schifferli, 895 F.2d at 991 ("the facts of each case will determine whether forfeiture is appropriate"). However, none of the myriad of cases cited by the parties present facts substantially similar to the facts presented here.
As an initial matter, this court finds it significant that neither Mr. Caswell, nor anyone in his family, nor anyone over whose behavior he had any control, was involved in any of the drug-related incidents. Admittedly, it is not necessary that the forfeited property be owned by a culpable person. See United States v. Collado, 348 F.3d 323, 327-28 (2d Cir.2003) (defendant's mother forfeits property out of which she allowed son to conduct an extensive drug trafficking business). Nevertheless, forfeiture laws were premised on the "American colonial judges' belief that the spectre of forfeiture could wield great power as a deterrent to crime" and "wresting the res from the owner's grasp served to punish the owner at common law, and such punishment was recognized
Id. (bold emphasis and footnote added).
In some cases, a "guilty owner's intent" may establish "a sufficient connection with crime to render the property forfeitable[.]" Two Tracts of Real Property, 998 F.2d at 212 (rejecting contention that land which drug dealer routinely crossed to get from boat to main street, owned by an innocent third-party, was substantially connected to criminal activity even though it concealed the crime from public view). The Government cannot rely on such intent in the instant case. Mr. Caswell's lack of involvement in the criminal activity, which took place on property rented by thousands of unrelated individuals who could have committed their illegal business elsewhere, weighs heavily against a finding of substantial connection.
Similarly of importance is the fact that there was nothing about the Motel Caswell per se or its operation that made it particularly connected to the drug crimes, other than the fact that it consisted
Similarly, in Schifferli, where the court allowed the forfeiture of the defendant dentist's office building where the defendant had issued numerous illegal prescriptions, the court found more of a connection than the fact that prescriptions had been written there. Rather, the court ruled that "Dr. Schifferli's dentist office was hardly incidental to these illegalities; on the contrary, it provided an air of legitimacy and protection from outside scrutiny, precisely because a dentist office is where prescriptions are usually written. Thus, the office was actually used in the course of his crimes and made the crimes `more or less free from obstruction or hindrance.'" Schifferli, 895 F.2d at 991. In the instant case, not only was the property owner not engaged in illegal conduct, but also there was nothing inherent in the Motel which protected its guests from public scrutiny. Rather, as the evidence made clear, there were security cameras at the Property, the parking lots were well-lit, the police regularly checked license plates and registration cards to determine if there were warrants outstanding on any guests, the police regularly drove through the property and conducted surveillance, and suspicious activity was reported by Motel staff. In this way the Motel afforded the guests less privacy than their own residences.
Where, as here, "the government seeks the forfeiture of property on the basis that it was substantially connected to the crime by shielding the illegal activity from public view, it must show `more' than that the property `tends to conceal' the crime." United States v. 1999 Freightliner Tractor, 827 F.Supp.2d 950, 954 (S.D.Iowa 2011) (quoting U.S. v. One 1998 Tractor, etc., 288 F.Supp.2d 710, 714 (W.D.Va.2003) (government's motion for summary judgment seeking forfeiture of trailer owned by defendant's innocent employer denied, where trailer was used to haul legitimate loads)). The Government has not met this burden in the instant case.
The fact that many of the forfeitable events also involved small amounts of drugs and different individuals also weighs against a finding of a substantial connection. Again, I recognize that, as a general principle, a small amount of drugs may be sufficient to render a property forfeitable and that one transaction may be sufficient.
The case of United States v. 3234 Washington Avenue N., 480 F.3d 841 (8th Cir. 2007), is instructive. There the District Court granted summary judgment to the United States in a civil forfeiture action relating to the clubhouse for the Minnesota chapter of the Hell's Angels Motorcycle Club. The property was owned by a non-profit organization formed by the Club's organizers to buy and hold the clubhouse property, and the government claimed that drugs were regularly used and sold at the clubhouse.
In reversing the grant of summary judgment, the Eighth Circuit discounted the disputed evidence of ongoing drug trafficking and drug use at the clubhouse. That left "one piece of objective evidence, the.75 grams of methamphetamine found in the clubhouse during a warrant search." Id. at 846. The issue presented, therefore, was "whether one member's possession of a user quantity of methamphetamine proves a substantial connection between the institutional claimant's real property and drug trafficking." Id. As the Court explained:
Id. (emphasis added). In the instant case, Mr. Caswell's involvement is even more attenuated, since the drug users were not his agents. Rather, they were transient guests who were frequenting premises which, by their nature, are designed to provide temporary shelter to an ever-changing population. CAFRA should not be construed in such a manner as to hold the property owner liable for such individual persons' misuse of the property.
"At minimum, the property must have more than an incidental or fortuitous connection to criminal activity" to be forfeitable. Schifferli, 895 F.2d at 990; see also United States v. Certain Lots in Virginia Beach, 657 F.Supp. 1062, 1065 (E.D.Va. 1987) (where drugs and a scale were in the dealer's home only for a few hours after the government informant insisted that the drug sale take place there, the court found no substantial connection because the brief use of the house "was merely incidental to the transaction, and was not essential or even important to its completion"). While the exact parameters of what constitutes a "substantial connection" is not defined, the instant case presents virtually no facts in support of a finding of any significant connection. To find a substantial connection in the instant case would render that requirement meaningless. Consequently, I find that the Government has not met its burden of proving, by a preponderance of
This court also finds that the Claimant has met his burden of proving that he is an innocent owner of the Property. He did not have actual knowledge of the forfeitable drug crimes before or while they were occurring, and there is no evidence that he should have known that they were likely to occur. I further find that Mr. Caswell has met his burden of proving that he was not willfully blind to the drug crimes. Finally, I find that Mr. Caswell took all reasonable steps to prevent drug crime on the Property.
Under CAFRA, "an `innocent owner' is one who either lacks knowledge of the illicit activities giving rise to the forfeiture, or who has knowledge of the activity but has evinced his lack of consent by affirmatively attempting to stop it." United States v. One 1988 Checolet 410 Turbo Prop Aircraft, 282 F.Supp.2d 1379, 1382 (S.D.Fla.2003) (emphasis in original). "Actual, rather than constructive, knowledge of wrongdoing is required to rule out the defense." United States v. $463,497.72 in U.S. Currency, 853 F.Supp.2d 675, 690 (E.D.Mich.2012) (citations omitted). "Actual knowledge can be proven by circumstantial evidence." Id. "In addition, `a defendant's knowledge of a fact may be inferred from willful blindness to the existence of the fact.'" Id. (quoting United States v. Prince, 214 F.3d 740, 761 (6th Cir.2000)). "Proof of willful blindness includes `two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.'" $463,497.72 in U.S. Currency, 853 F.Supp.2d at 690-91 (quoting Global-Tech Appliances, Inc. v. SEB S.A., ___ U.S. ___, 131 S.Ct. 2060, 2070, 179 L.Ed.2d 1167 (2011) (addressing willful blindness in the context of patent infringement)).
In the instant case, the government argues that Mr. Caswell had "actual knowledge" of drug-related crimes because he was aware of the arrests after they took place, or because the crimes were reported in the newspaper. However, after-the-fact knowledge does not negate Mr. Caswell's status as an innocent owner. See 221 Dana Avenue, 261 F.3d at 71, 73 (in pre-CAFRA case, court holds that a wife who was ignorant of her husband's drug dealings in the marital home at the time it was occurring, but learned of it before he deeded the house to her and then committed suicide, was an innocent owner since "she did not have knowledge of, or consent to, [her husband's] criminal activity at the time the activity occurred."). The evidence was undisputed that Mr. Caswell did not know the guests involved in the drug crimes, did not know of their anticipated criminal behavior at the time they registered as guests, and did not know of the drug crimes while they were occurring. Not only did Mr. Caswell testify to these facts, but also the law enforcement witnesses confirmed that they had no reason to doubt the veracity of Mr. Caswell's statements. As detailed more fully in the facts above, all of the evidence of criminal conduct could easily be hidden from view in the guests' rooms, and even the meth lab was not apparent from outside the
Admittedly, knowledge and consent to illegal behavior can come about in a "myriad" of ways. "For example, property owners might know about ongoing criminal activity through conversations with the participants, or by involvement in ancillary matters (e.g., financing the acquisition of the contraband), or from third parties who seek to inform them of what is happening on their premises." United States v. 15 Bosworth Street, 236 F.3d 50, 56 (1st Cir. 2001) (owners of tavern where three employees, including their son, were engaged in extensive drug trafficking business out of the tavern, failed to establish an innocent owner defense where, among other things, "undercover investigation that led to the forfeiture action followed on the heels of a police inquiry during which the authorities warned [the property owner] in no uncertain terms about criminal activity on the premises." Id. at 56 n. 3); see also United States v. 1813 15th Street N.W., 956 F.Supp. 1029, 1036 (D.D.C.1997) (where several drug raids revealed drugs in plain view near claimant's bedroom, and "[p]olice and government officials warned claimant on more than one occasion about the rampant drug problems present on her property" court finds claimant had actual knowledge of the drug crimes). In the instant case, however, the evidence all points to the contrary: Mr. Caswell did not have prior knowledge of the limited number of drug crimes committed by transient guests over the course of an extended period of time, and the police did not advise him of those crimes.
Moreover, this Court finds that the Government has failed to establish that drug crime was so blatant and pervasive at the Motel that Mr. Caswell had "actual knowledge" that drug crimes were likely to occur frequently at the Motel. In this respect, this case is distinguishable from virtually every other even remotely similar case in which a forfeiture was upheld. For example, in United States v. One Parcel Property Located at Lot 22, and the North 5 Feet of Lot 24, on Lawrence Avenue, No. 94-1264-JTM, 1996 WL 695404 (D.Kan. Nov. 14, 1996), a hotel was found forfeitable where the owners were found to have actively assisted the drug dealers, directed customers their way and warned dealers of police presence on the property. Moreover, the drug trafficking was blatant and pervasive. As the Court found:
Id. at *2; see also United States v. Lot Numbered One of the Lavaland Annex, 256 F.3d 949, 952 (10th Cir.2001) (court remands case for lower court to reconsider its rejection of the innocent owner defense on grounds that property owner did not take reasonable steps to rid property of drug trade; "[d]rug transactions occurred in front of, inside, and behind the motel
The conclusion that drug crimes at the Motel Caswell were not so blatant or pervasive as to provide Mr. Caswell with actual knowledge that drug crimes were likely to occur is further buttressed by the fact that never once in the numerous years at issue did the police or town officials have any conversations with Mr. Caswell to the effect that there was a high level of drug crimes at the premises, or suggest any ways to assist in reducing the level of crime. Under the facts of this case, Mr. Caswell's after-the-fact knowledge of isolated, limited drug crimes is not sufficient to establish "actual knowledge" of forfeitable offenses so as to destroy an innocent owner defense.
Finally, I also find that Mr. Caswell did not engage in "willful blindness" from which the court can infer consent to the drug transactions. In contrast to other cases on which the Government relies, the facts fully support Mr. Caswell's explanation of events. Compare the instant case with United States v. One Parcel of Real Property, 900 F.2d 470, 475 (1st Cir. 1990) (where property owner was found attempting to flush cocaine down the toilet, 23 bags of cocaine were found in owner's bedroom, and search of home found 3 firearms and drug packaging paraphernalia, court finds claim that items were brought into home by owner's son, without owner's knowledge, to be "ludicrous"); Collado, 348 F.3d at 327-28 (court finds store owner willfully blind to son's narcotics trafficking where $20 million worth of narcotics transactions occurred in or around the store in a one year period, 646 narcotics-related conversations were held on her grocery store phone over a three month period, she knew her son's history of narcotics trafficking and she warned her son's associates against speaking on the phone). As found previously, only a small fraction of the thousands of guests at the Motel Caswell were involved in drug transactions, and there was no reason for Mr. Caswell to suspect that every guest, or even a particular guest, who was coming to the Motel would engage in illegal behavior. Thus, there was no reason for him to "subjectively believe that there [was] a high probability that" guests would be involved in drug transactions. $463,497.72 in U.S. Currency, 853 F.Supp.2d at 690-91. Moreover, the transactions could be easily hidden from view, and as a general statement, involved isolated incidents by different individuals spread out over a lengthy period of time. I find that Mr. Caswell has met his burden of proving that he did not have actual knowledge of the conduct giving rise to forfeiture, and was not will-fully
Even assuming, arguendo, that Mr. Caswell had actual knowledge, I also find that "upon learning of the conduct giving rise to the forfeiture, [he] did all that reasonably could be expected under the circumstances to terminate such use of the property." 18 U.S.C. § 983(d)(2)(A)(ii). "Under this standard, an owner must prove that he or she did all that could reasonably be expected to prevent the illegal use of the property once the owner becomes aware of that use. In adopting this standard, this Court is cognizant, however, that property owners are not required to take heroic, vigilante or police measures to rid their property of drug activity and that to encourage such a standard would produce a dangerous precedent." Commonwealth v. 502-504 Gordon Street, 147 Pa.Cmwlth. 330, 607 A.2d 839, 845 (1992) (applying federal standard and citing United States v. 710 Main Street, 753 F.Supp. 121, 125 (S.D.N.Y. 1990)). Moreover, in assessing the steps undertaken by the claimant, "the question is what measures were reasonable under the particular circumstances confronted by the property owner in question. Those circumstances may include the property owner's reasonable fears and concerns, its degree of familiarity with crime prevention, and its economic resources." United States v. 16328 S. 43rd E. Avenue, 275 F.3d 1281, 1285-86 (10th Cir.2002) (internal quotations and citations omitted). Moreover, "[i]n deciding whether a claimant has taken all reasonable steps, the court views the facts in light of the particular claimant's individual situation and personal limitations." United States v. 3855 S. April Street, 797 F.Supp. 933, 938 (M.D.Ala.1992).
I reject the Government's argument that Mr. Caswell did nothing to safeguard the Property. Rather, there was a clerk at the front desk 24 hours a day for security purposes. There also was a camera in the main lobby and a sign warning guests that suspicious behavior would be reported during the entire period in question. Moreover, the Property was well-lit both in the front and back, a security camera was added to the back parking lot, and guests were always required to fill out registration cards, a procedure that was tightened after the police suggested copying drivers' licenses. In addition, Mr. Caswell and the Motel staff reported suspicious behavior to the police, cooperated fully with the police, gave the police access to rooms and registration cards, and generally maintained good relationships with law enforcement. Police were free to and did drive through the premises regularly on patrol. In find that such efforts were sufficient and reasonable. See, e.g., United States v. 121 Allen Place, 75 F.3d 118 (2d Cir.1996) (jury finds for claimant apartment building owner who hired maintenance workers to maintain building, evicted tenants for non-payment but believed he could not evict them for narcotics violations unless they had been convicted, and tried to obtain information about ongoing investigations from police but was refused); United States v. 1012 Germantown Road, 963 F.2d 1496, 1506 (11th Cir.1992) (finding contacting and cooperating with law enforcement
The only significant suggestion made by the law enforcement witnesses during the trial which had not already been undertaken by Mr. Caswell was that the Motel hire its own security force to patrol the Property. As noted above, no such suggestion had ever been made to Mr. Caswell before trial.
There was also a proposal made that guests who had been arrested (but not necessarily convicted) should not be allowed to rent rooms and should be included in a formal no-rent list. The legality or appropriateness of such a proposal has not been addressed by any party, and it is certainly not a blanket rule that this court would expect property owners to follow. See United States v. 418 57th Street, 922 F.2d 129, 132 (2d Cir.1990) (contacting an attorney could be sufficient to constitute "all reasonable steps" owners could have taken to halt drug activity after learning of arrest of tenant; court finds that there is "a fair dispute" whether government's suggestion that property owners contact authorities to confirm reports of arrests, inspect the premises for signs of drugs or institute eviction proceedings "would have been productive or appropriate under New York law"). Moreover, as detailed above, the evidence did not establish frequent repeat offenders so as to make the suggestion of a "no-rent list" critical to this Court's analysis. While, as the Government argues, the steps a property owner takes "don't have to be effective or successful" (IV:108), the "draconian" remedy
18 U.S.C. § 983(d)(2)(B)(i)(II) provides that one of the "ways in which a person may show that such person did all that reasonably could be expected may include demonstrating that such person, to the extent permitted by law ... took reasonable actions
Considering the measures taken by Mr. Caswell "on his own initiative," and without "a law enforcement background, or even the advice of law enforcement agencies to guide him in determining appropriate actions to take[,]" this court finds that Mr. Caswell has met his burden of proving that he undertook all reasonable efforts. See 710 Main Street, 753 F.Supp. at 124-25 (while government suggested at trial additional steps which could have been taken by owner of bar and arcade, court finds that property owner "who was trying to eke out an income from a business located in a drug-infested area that posed great risks to the safety of him and his family" had taken all reasonable steps to prevent crime). "The fact that he was unsuccessful in resolving the drug problem (as were the well-trained police who patrolled the area) should not be interpreted as his consent to that activity." Id. at 125 (citations omitted).
For all the reasons detailed herein, I find:
1. The Government has not met its burden of proving a substantial connection between the Motel Caswell and the forfeitable crimes, and, therefore, has not met its burden of proving that the Property is forfeitable.
2. The Claimant has met his burden of proving the innocent owner defense.
