Lawsuit: CBP Took $240,000 From Man And Refused To Respond To His Forfeiture Challenge Until It Had Already Processed It

from the because-barely-any-due-process-is-far-too-much-due-process dept

Looks like someone might be getting their money back after CBP agents -- operating a great distance from the US borders -- seized $240,000 from a man traveling through Indiana. While driving along I-70 outside of Indianapolis last November, Najeh Muhana was pulled over for not signalling a lane change. That's when things got weird and a bit unconstitutional.

According to his filing for return of his money, Muhana's vehicle was searched "without consent, warrant or probable cause." The Hancock County Sheriff's Department officers even brought a drug dog to the scene, but failed to uncover any contraband. The $240,000 Muhana was carrying caught their eye, though.

Muhana (correctly) intuited the officers wanted to take his money. So he told them he had just been talking to the person the money was owed to. This story, which was untrue, seemed to upset the officers, who spent the next hour discussing something presumably related to how they could take the cash from Muhana -- because that is exactly what they eventually did.

This decision was made when CBP agent Scott Thompson -- operating roughly 250 miles from the nearest border -- arrived on the scene. Thompson took the money and gave Muhana a "receipt for property." Muhana, whose native language is Arabic, took this to mean the money would be returned when the CBP finished its investigation into whatever it was it thought was going on here.

Shortly after that, the Sheriff's Department took Muhana into custody based on a traffic stop that had occurred four months earlier in another state. Details on that arrest suggest Muhana may have been involved in selling unlicensed cigarettes.

Najeh Muhana, 39, St. Louis, was preliminarily charged with possession of untaxed cigarettes, according to a Henry County Jail List.

Muhana’s charges stem from an incident that initially began on I-70 in July when members of the Pro Active Criminal Enforcement Team pulled over his rental van for unsafe lane movement. Blankets covered the cargo area and police confiscated 2,400 cartons of Newport cigarettes, valued at more than $147,000, and 650 cans of infant formula, valued at $10,500.

The cigarettes had a Missouri tax stamp, said Major Jay Davis of the Henry County Sheriff’s Department, noting that in Indiana, it is illegal to possess such items without an Indiana tax stamp.

During this stop -- which occurred in November -- officers uncovered nothing more than cash. They may have believed the two were related, but they never bothered connecting the dots for the benefit of Muhana, much less used it as a basis for the cash seizure.

In fact, all the involved agencies did was pass the buck -- along with Muhana's bucks -- whenever he sought information on how to work towards the return of his money. The filing details multiple attempts to obtain any confirmation on the forfeiture, or who he should speak to in order to get the process underway. Further, there's no record that Muhana was ever notified of the CBP's intent to pursue forfeiture -- nothing beyond the mysterious "receipt for property" the CBP agent gave him.

Muhana began making inquiries a few weeks after the money was taken, beginning in December 2015. In January, CBP agent Scott Thompson told him the case had been turned over to the CBP's Ohio office. The following Kafka-esque chain of events is directly from the filing.

On or before January 19, 2016, Mr. Muhana's counsel contacted Eartha Graham, Paralegal Specialist, U.S. Customs and Border Protection in Middleburg, Ohio regarding the status of the Currency.

On January 19, 2016, Ms. Graham responded via email to counsel, stating, "I will need something in writing preferably on company letterhead stating you are representing Mr. Muhana asap."

[...]

On January 20, 2016, counsel followed up with a facsimile to Ms. Graham, in writing,

In response to your email to me yesterday, this will confirm that I represent Najeh Mulhana relating to the seizure of three (3) bags of currency by the US. Customs Service on or about November 6, 2015, in Indiana. The seizing officer was Special Agent Thompson. Mr. Muhana is requesting return of the money.

On January 26, 2016, counsel again contacted Ms. Graham related to the Currency, asking, "Will the agency be sending me some notification regarding its intentions relating to the seized money?" She responded, "Yes, we will be sending something out soon."

On February 1, 2016, Ms. Graham followed up again with an email to counsel stating, "I just received word from our counsel to request a written statement sign (sic) by Mr. Muhana, stating you will be representing him for currency case." The same day, Mr. Muhana's counsel sent Ms. Graham an email with a copy of the law firm's engagement letter attached.

On February 8, 2016, counsel received a letter from Tessie Douglas, FP&F Officer, US. Customs and Border Protection, Middleburg, Ohio, dated February 4, 2016. In the letter Ms. Douglas stated,

This is with reference to your inquiry on behalf of your client Mr. Najehm Muhana, about the currency that was seized on November 6, 2015.

The circumstances of this case have been reviewed. It has been determined that since your client waived his rights to the currency by signing the abandonment form, he cannot make claims on the currency. The forfeiture process was completed on February 1, 2016.

The next day, Muhana's lawyer wrote back, pointing out several things. First, he had received nothing in the way of a signed waiver by Mr. Muhana indicating his relinquishment of ownership. Furthermore, even if Muhana had signed something of that sort during the arrest, he is unable to read or write in English and may not have known what he was signing. In addition, even if such a signed waiver exists, there's nothing forbidding Muhana from attempting to correct his mistake during the time between the seizure and its finalization. Muhana's attorney demanded the CBP provide him with a copy of the supposed waiver.

A reasonable request, one would think, especially when a quarter of a million dollars was on the line. But guess what? The CBP doesn't turn over that sort of paperwork to people it's taking money from. It will only turn that paperwork over to anyone who asks for it using a completely unrelated process. And that's only if it decides it isn't covered by multiple investigation-related exemptions. Behold: your tax dollars at work, giving you the finger over its cubicle wall.

There was no response until March 7, 2016. This time, counsel received an email from Rose Parks, Paralegal Specialist, U.S. Customs and Border Protection, Cleveland, which stated as follows:

The subject-referenced case has been re-assigned to me, as Ms. Graham has left our department. Per my supervisors, we do not provide copies of abandonment forms. To obtain a copy of the form, you would need to file a FOIA request.

Muhana's lawyer fired right back, hoping to find someone willing to provide more info on the up-to-this-point nonexistent waiver.

Ms. Parks:

Thank you for your message. Please confirm that the Agency has referred this matter to the US Attorneys' Office per my prior email for determination regarding forfeiture. Again, my client is making claim to the money. I understood from my conversations with Ms. Graham that the case had been re-assigned to the US Attorney for that purpose. If I have misunderstood her, please let me know immediately.

Nothing there for Mr. Muhana either.

Ms. Parks then stated as follows in her follow-up response: "The currency has been forfeited and the case is closed. No referral is being made."

The money is gone, apparently, after having skipped some necessary intermediate steps. As the filing points out, the government must notify involved parties of the intent to pursue a forfeiture. This is to give people like Najeh Muhana a very slim window in which to raise a challenge. Muhana's lawyer says that -- contrary to the law -- he was never given written notice of the agency's intentions.

The agency claims (sort of) that it had no obligation to do so because Muhana had disclaimed his ownership of it. But the chain of communications clearly show Muhana had both claimed ownership and was interested in pursuing its recovery. The agent directly involved with the seizure was made aware of this in December 2015, less than a month after the funds were taken. The agency itself was notified in writing of Muhana's intent to challenge in January 2016 -- well before the agency's February 1st declaration that the money had been forfeited.

As Muhana's lawyer points out, this is clearly bullshit.

Here, the Agency knew that Mr. Muhana was claiming to be the owner of the Currency through the repeated inquiries of his counsel. Rather than acknowledge those inquiries and respond to them, the Agency delayed any response until after February 1, 2016, when it unilaterally declared a forfeiture of the Currency. Thus, despite actual knowledge that Mr. Muhana was the owner of the Currency, the Agency refused to provide written notice to him about the Currency being seized and the Agency's intention to declare a forfeiture.

Given what's detailed here, it strongly appears as though the CBP processed a forfeiture while skipping past all the due process niceties. If so, Muhana is likely to not only prevail, but "strongly prevail" in his claim against the agency, which means it will not only have to give him back his $240,000 but pay his legal fees as well.

Filed Under: asset forfeiture, cbp, customs and border patrol, doj, hancock county, najeh muhana