Go Directly to Jail, Do Not Pass Go...


by Jack King



It's late, and I have a plane to catch in the morning, and I cannot miss that plane.

But in fact, I know darned well I could miss that plane—I paid for my ticket in cash, and that's suspicious.

"VERY suspicious," as Travis Bickle would say.

I want to tell you what happened yesterday. Yesterday (May 27, 1997), the United States Supreme Court agreed to decide whether possession and transportation of cash without telling anybody means you can be fined, go to jail, and lose the cash to boot.

Lose the cash? You could. Carry too much money and don't tell anybody, and you not only go to jail and get fined, they take your money.

United States law says that if you try to leave or enter the country with $10,000 or more in cash, you must declare it . The penalty for not doing so is a jail sentence of up to five years, a $250,000 fine, and government confiscation of the money that you tried to smuggle out. All Americans are aware of that. And just in case you aren't, the U.S. Customs office gives most people—not everybody entering or leaving, but most people—a little card to fill out so they can state how much cash they're carrying over a U.S. border.

Because, you see, possession or transportation of cash is, if not a criminal act per se, inherently suspicious. The government already has access to your financial records everywhere, wherever they are, any time it wants. But it hates cash, because it's harder to trace.

Really the government would like to get rid of cash entirely, but that would be politically unpopular, not only with the people, but their elected representatives who do enough cash business themselves to head off outlawing cash till doomsday. The bureaucratic solution is to make possessing or using cash so onerous, goddamn complicated, and SCARY that people will just give up on their own.

Thus there is a concerted federal, state and local effort to stigmatize cash transactions as automatically suspect and persons who use cash as potential criminals. Since the police know that tracing cash transactions is a virtual impossibility, they impose reporting requirements for all kinds of cash transactions (including mere possession when traveling outside the country or returning) and impose severe penalties—jail time and fines—for noncompliance. Then they take the cash, too.

Just last week, the U.S. Treasury Department imposed new regulations on wire transfers outside the country. You can still pack $9,999 in cash on your person and not declare it when you leave, but if you want to do a wire transfer to your cousin in London or your business partner in Ontario, any transfer of $750 or more must be reported by the transfer agent—not you, but the business, whether it be your bank, Western Union or your local casa cambrio—to the Treasury Department.

And then on May 27, the United States Supreme Court granted "certiorari" in United States v. Bajakajian. That means the Big Court is going to take a look at a U.S. Court of Appeals for the Ninth Circuit decision which held that the government had no right to take the life savings of a Syrian-American simply because he did not tell the U.S. Customs officer he had it in his suitcase before he boarded his flight from Los Angeles to Cyprus.

Yes, it was his money. Lawfully earned. There was no allegation that it was drug money, or ripped off from an armored car robbery.

There is no dispute that the $357,144—$140,000 hidden in his luggage, $90,000 in a false bottom in a carry-on bag, and the rest in his pockets and stuffed in his pants—belonged to Hosep ("Joe") Bajakaian. The only problem was, HE DIDN'T TELL ANYONE HE HAD IT.

Well, who would? Especially if the government you're used to dealing with is the Syrian government. Or should I amend that? Should I say "or especially if the government you're used to dealing with is the U.S. government."

Because there is a law, mes enfants, 31 U.S. Code Section 5316(a) that says anyone who "transports, is about to transport, or has transported monetary instruments of $10,000 at one time" without telling the authorities has broken the law, and is subject to a big fat fine of $250,000, imprisonment, and forfeiture of the entire bundle to boot.

Even if the money is yours.

Why?

Nominally, it's because the U.S. government was on the trail of people who don't pay their taxes. Next they went after organized crime guys—you know, those guys who make millions off gambling and prostitution. Then, seeing the trend in Nevada and elsewhere, they realized that bookies and pimps were becoming regular taxpayers like Donald Trump (which is to say, they didn't really pay taxes, but had fancy accountants, which makes things all nice and legal) and so they went after drug dealers. But in drafting the money laundering laws, they not only catch drug dealers—they have caught rug dealers. Tow truck drivers. Convenience store owners. They marginalized small businessmen. Like Joe Bajakajian.

Bajakajian was getting ready to board an Alitalia flight at Los Angeles International Airport June 9, 1994, heading home with his life savings in his bags and pockets. A suspicious Customs agent stopped Bajakajian and his family and specifically told them that they were required under U.S. law to report all money both in their personal possession and baggage over $10,000. Joe told the Customs officer that he had $8,000 on him and his wife had about $7,000. They were immediately stopped and searched. Joe Bajakajian and his family didn't make their flight to Cyprus. Customs officials took the $357,144 Joe and his wife had and placed them under arrest. A month later, a federal grand jury indicted Joe Bajakajian for transporting more than $10,000 in currency outside the U.S. without filing a report with the U.S. Customs service, making a false statement—lying about the amount he and his wife had in their possession—and a forfeiture count seeking government ownership of Bajakajian's life savings, every penny of it, over and above any fine he might be required to pay.

Joe Bajakajian pleaded guilty in October, 1994 to the first count, failure to report that he was carrying his life savings out of the country. As part of a plea bargain, the government dismissed the false statement charge. A trial was held before a judge on the forfeiture count. The trial judge found that the entire $357,144 was subject to forfeiture under the forfeiture law, 18 United States Code 982(a)(1), but—in an apparent paroxysm of conscience—only ordered that Bajakajian forfeit $15,000. The judge concluded that since the money was Joe's, forfeiture of any more would be disproportionate under the excessive fines clause of the Eighth Amendment. The judge specifically found that all of Joe Bajakajian's money came from a "lawful source," and was intended to be used for a "lawful purpose."

In other words, Joe Bajakajian was found by a court of law to be exactly what he was: a regular guy taking his money home. Still, it sentenced Joe to a short term in prison and a small fine on top of the $15,000 forfeiture. As a deterrent to others who want to carry their own money around with them without answering a lot of questions, one supposes. Anyway, that is the law.

But the United States Attorney's Office was furious. They appealed the case to the U.S. Court of Appeals for the Ninth Circuit, the federal appeals court with jurisdiction over federal courts in California. The Ninth Circuit held that (1) property that is an "instrumentality" of a crime (for instance, dope money) is forfeitable, and (2) the value of the property to be forfeited must be "proportional" to the crime and relative culpability of the owner.

What do we have here? the appeals court asked.

The original court had basically said, this is just a guy who tried to take his own money out of the country. The appeals court upheld the trial judge's decision to whack Joe Bajakajian with a $15,000 forfeiture and additional fine.

But still, the United States wants the rest of Joe Bajakajian's money (which it still holds, technically in trust, earning interest for you and for me every day). So the good old United States of America—one would think this were the action of Joe's Old Country, Syria, but no—is asking the U.S. Supreme Court to GIVE IT THE MONEY.

Cash is criminal, mes enfants. Cash is bad.

Buy a plane or train ticket with cash, and see how you get treated. Oh, you know already? Yes, that's because decent Americans use credit cards. Only scum pay for things in cash.

I talked to a kid, a professional ticket scalper, did sports, heavy metal concerts, stuff like that for a living, who was stopped by the Tennessee state police a few years ago and asked if he had any drugs, weapons or contraband in his car.

No, he said.

Could they search the car, he was asked.

Sure, he said.

They found his ticket-buying roll, over $9,000 in his gym bag in the trunk with his suitcases.

"I thought you said you didn't have any CONTRABAND," the trooper said. "I didn't know that money was 'contraband,'" the kid replied.

They took it.

"What was I supposed to do put it in the WINDOW?" he asked me a couple weeks after the seizure.

That story has a happy ending, though. The kid and the state of Tennessee decided that if the kid would settle the case out-of-court, he could have $5,500 back, and the state would keep $3,000 for its trouble. No trial, no muss, no fuss. And the kid's lawyer agreed to waive the customary fee of 1/3 of the recovery.

A very happy ending, considering that was $5,500 more than the kid had last year.

Next fall, the U.S. Supreme Court will decide whether Joe Bajakajian or the U.S. Government gets the remainder of his $357,144.

Forget the interest.

After all, possession of cash is a criminal offense, unless you tell somebody about it.

It's not just a good idea, it's the law.

Now, I have a plane to catch. And I've been advised to show up two hours early, in case they have questions.

I paid for my ticket in cash.   </end>

[Editor's note: Jack King did indeed make his plane.]