Friday, April 6, 2012

Money Seized Surprisingly Ordered Returned

Wow, this doesn't happen everyday, a judge who uses common sense and rules against the state.

Robert Williamnn Jr. emails:
Surprisingly, for the second time this week,there was some fun in the federal courts.

In Houston, an asset seizure case was tried to Judge Lynn Hughes in which the Department of Homeland Stasi Security and its Customs and Border Protection section seized $35,131 from a couple with their daughter of two or almost two years of age.  This happened at the "George Bush Intercontinental Airport" in Houston as the family was preparing to
fly out of the U.S.  If you leave the U.S.A., you are supposed to report the amount of "money" you are leaving with if it is in a certain form--cash, traveler's checks, and so forth--and is more than $10,000.

Judge Hughes wrote an opinion ordering the government to return of all the confiscated money and to pay the attorney fees and court costs of the couple, and did so in an unusually hard-hitting yet delightful and quotable way.  A copy of the opinion is attached.

Enjoy a rare event.
T h e United States of America,
$3 5,13 I .oo in United States Currency,
Defendant .
Civil Action H ~ I I - 2 6 5 9
Opinion on Void Seizure

I . Introduction.
A t the airport, federal officers confiscated $ 3 5 , ~ 3 ~ from a family flying to Ethiopia.

They said that the couple intentionally attempted to evade the reporting requirements for taking money outside of the United States. T h e citizens clearly had no intention to violate the rules, and the government must return their money and pay for their attorney's fees and costs of court.

2. Background.

O n June 2, 2011, Kyle Jones and his wife Berekti Jones were at George Bush Intercontinental Airport with their daughter Soliyana. They were flying to Ethiopia through Dubai and planned to stay in Addis Ababa for two,months while visiting family and celebrating Soliyana's second birthday.

T h e law requires that an international traveler declare on a form(a) that he has no more than $ ~ o , o o o or (b) report the amount. W h e n the couple reached the first check, officer Agustin Hernandez from the Customs and Border Protection of the Department of Homeland Security asked Kyle how much currency and monetary instruments he had on him. Kyle responded that he did not know. Hernandez then asked how many dollars he was carrying; Kyle replied that he would guess around $20,200. Hernandez wrote $20,200 on the form. He told Kyle to sign it, and Kyle did.

Case 4:11-cv-02659 Document 57 Filed in TXSD on 04/02/12 Page 1 of 4

Hernandez then took the family to another table where officer Charlesworth Clarke told them to put all of their currency o n it. At that point, Kyle asked what counted as currency because he had traveler's checks. From his six carry.on bags and jacket he retrieved everything - $20,000 in traveler's checks and $11,131 in cash. Berekti, who had been tending to their daughter during the conversations, handed the officer her wallet. It had $q,ooo in cash. T h e officers then frisked the Joneses and searched their bags, and found no additional money -however described.

T h e officers seized the entire $3 1,131 that the Joneses had voluntarily given them and
released them from custody. Having missed their flight, the Joneses spent $I, 500 to replace the
tickets plus having had to rent a hotel room.

3. Intent.

Six officers appeared at the trial, four of whom testified. A "case agent" sat with the government's counsel. He knew nothing. His sole contribution had been to enter data into a computer; he could not have assisted the United States attorney. In addition to overreaching the people whom they are to serve, three officers wasted one half day watching four others embarrass themselves.

T h e government presented no evidence - none - that the Joneses intended to evade the reporting requirements. Kyle told Hernandez that he did not know the amount of money he was carrying. Saying "I do not know" is not a deliberate failure to report. After Hernandez insisted on an answer, Kyle said that he would have to guess.' Guessing is not a material omission or a misstatement of fact - certainly not one the government can use to steal the money.'

T h e agency's official publications say that its officers can help travelers complete the form if they require assistance. Instead of ensuring that the Joneses understood the scope of "monetary instruments" and other reporting requirements, the officers took advantage of their guess. Hernandez instructed Kyle to complete the form before allowing him to count his money, and the others never let them correct it once their guess was shown to have been low. 'Reports o n Exporting and Importing Monetary Instruments, 31 U.S.C. 55 5316 (1986).' I d . §§ 5317(c) ( 2 1 7 5324(c).

Case 4:11-cv-02659 Document 57 Filed in TXSD on 04/02/12 Page 2 of 4

The s e public servants sought to earn credit with their agency by collecting money. Some of i t is returned to the agency - like justices of the peace whose pay is derived directly from the fines they impose. T h e y focused o n bureaucratic imperatives - not their duties t o the public and law.3 T h e agencies that manage law officers create profiles of suspicious people. Ignoring for a moment tha t they include contradictions - like he rushed or he was very early, he looked the officer i n the eye or he evaded l o o h n g him i n the eye - the Joneses displayed no suspicious behavior. A t every step they were candid if imprecise. T h e y were traveling as a family, i n normal dress, and remained polite and calm. T h e y were taking money for a two month stay i n Addis Ababa, Berekti's city of birth - a city that operates almost entirely i n cash. I t was
reasonable that they would have cash and traveler's checks, and i t was a precaution to split i t among their bags and each other. Nothing was hidden.

Hernandez never should have asked Kyle to sign the form o n a guess; rather, he should have had him count i t at the second station and report the exact amount. He rnande z , with the connivance of his fellows, showed the only deceit. It appears that the officer's entire approach was to target the Joneses. T h e y should have taken the family to the side and allowed them to count their money. T h e y should have explained what constituted currency and given them adequate time to complete the form. Instead, they manipulated the Joneses' confusion into a deliberate failure to report. T h e officers accepted a guess from Kyle. W h e n i t was wrong, they took all of their money - for n o harm and no deceit. T h e y had n o interest i n ensuring that the couple adhered to the law. T h e y wanted a statistic for their supervisor, and they cudgeled the Joneses to get one.

A lack of leadership at t h e agency allowed this. Its mission statement - which none of the officers could recall at the trial - is to serve the American public with vigilance, integrity, and professionalism. T h e y displayed none of these. T h e agency says tha t integrity is its cornerstone; that its officers are guided by the highest ethical and moral principles. A gang of armed security officers bullied this family - a family who cooperated with the officers to their detriment. O u r homeland will not be secure by these rascals. T h e y played agency games, abused the people they are to serve, and violated their oaths to support the Constitution.'Leonard W. Levy, A License to Steal: T h e Forfeiture of Property, University of
N o r t h Carolina Press (1996).

Case 4:11-cv-02659 Document 57 Filed in TXSD on 04/02/12 Page 3 of 44-


In the initial conference, the Uni t ed States demanded to seize the full amount even though, as the defense counsel mentioned, the recommended forfeiture for a conviction o f criminal evasion would have been $500 to $5,000. T h e United States must pay the $ 3 5,13 I to Kyle Jones and Berekti Jones and their attorney's fees and costs of court.

Signed o n April 2, 201 2, at Houston, Texas.
Lynn N. Hughes Y
United States District Judge
Case 4:11-cv-02659 Document 57 Filed in TXSD on 04/02/12 Page 4 of 4


  1. Kudos to Judge Hughes for having common sense!

  2. That was a fun read. I feel for the family, and am glad the court was so strongly on their side in this.

  3. Wow! Judge Hughes is an honorable federal judge. There are not many such men these days. Here is his home page:

  4. What is unfortunate is that nothing happened to the agents involved. Each one should be forced to pay a punitive fine both to the Joneses and to the United States government. Probably something like 10x the damage they caused. So roughly they stole $30K, each officer involves personally owes $300K to the Joneses, and $300K to the Government for making the US Government look bad. This type of debt owed for being a corrupt agent should be the ONLY type of debt that is not dischargeable in bankruptcy.

    It would only take a few government agents' lives to be ruined by these fines before the rest of them would cut out the bullshit and actually do what they're supposed to do.

  5. You can bet the government will probably appeal to keep their stolen booty, and the real criminals at DHS will go unpunished at their place of employment much less face the criminal charges they deserve.