Copyright © 2022 Albuquerque Journal
A whiff of marijuana spurred the US Border Patrol to inspect a Ford truck with Florida plates at an immigration checkpoint outside Las Cruces in May 2020. Why it became a federal case was the $426,590 found vacuum-sealed in one of the tires being hauled in the truck’s bed.
The mere presence of the money was suspicious. But a federal crime? No. At least no criminal charges resulted.
The driver, a US citizen who was hired to drive the rental truck from California to Florida and back, denied knowledge of the stashed cash. He did admit to possessing $24 worth of marijuana found in the cab. No other illegal drugs were found and he was released uncharged.
But the US Attorney’s Office in New Mexico pursued ownership of the cash in a civil forfeiture action, claiming the bagged bulk currency wrapped in rubber bands which was either furnished or delivered in exchange for a controlled substance.
When a California man came forward to say the seized $426,590 came from his inheritance, not a drug deal, the legal fight was on.
In the end, the government and the owner, Makeel S. Georges, agreed to divvy up the $426,590. A settlement agreement filed earlier this month shows Georges will get $150,000, with the government keeping the rest.
“Despite having nearly two years to thoroughly investigate my client, the government was unable to produce any evidence that this currency was tied to a specific drug transaction or that my client (or driver) was involved in any drug-trafficking activity. Obviously, having $426,590 in cash in a tire is unusual, but not illegal, but it certainly aroused the suspicion of the government,” said Georges’ Las Cruces attorney CJ McElhinney in an email to the Journal.
The Border Patrol contended the search was warranted because one of its drug-sniffing K-9s detected the strong odor of marijuana on the plastic-wrapped money hidden inside one of the five tires in the bed of the pickup truck. The dog’s handler said in one agency report that she, too, could smell the “distinct odor of marijuana.”
A key issue, McElhinney stated, was “what the K-9 actually alerted to on the vehicle and whether the alert was valid, anyway.”
Over the past year, a government expert was enlisted to check for fingerprints on the plastic wrappings containing the cash. Georges lined up a forensic chemist from Israel to testify that US currency is so contaminated with drug residue these days, tracing the loot to a specific drug transaction or drug transaction proceeds was impossible.
Had the case gone to trial, the government would have had to prove in court that the money was linked to criminal activity, according to the US Department of Justice website.
McElhinney said his client, a successful businessman in Orange County, California, “is relieved the case is over.”
“As part of the settlement process, we were required to acknowledge that the seizure of the remaining $276,590 in the tires is reasonable. This, of course, is legal fiction, but required to settle the case.”
The truck’s driver, identified as David James Walker, told Border Patrol agents he was so desperate for a job because of the COVID-19 business shutdown in California that he agreed to drive the truck to Florida and back for $10,000. The feds are keeping his $10,000 payment and the $24 of marijuana found in his suitcase in the truck’s cab.
“He never made a claim (for the $10,000) because, frankly, he was scared and decided he didn’t want to poke the bear,” McElhinney told the Journal.
‘He didn’t do anything wrong’
Despite New Mexico legalizing adult marijuana recreational use in 2021, marijuana is still considered an illegal Schedule I drug by the US government. And the US Border Patrol has been reminding the traveling public that being in possession of marijuana while passing through a US Border Patrol checkpoint is illegal under federal law.
The $426,590 seized that morning in May 2020 was the single largest Border Patrol cash seizure that year in the El Paso sector, in which a total of $1.28 million was confiscated over a 12-month period.
Of the 23 currency for feiture cases filed by federal prosecutors in New Mexico since January 2020, court records show the May 2020 seizure was five times as much as the second-largest seizure – $85,000 discovered by US Drug Enforcement Administration agents during a search of a passenger on an Amtrak train.
“Asset forfeiture is a critical legal tool that serves a number of compelling law enforcement purposes. Asset forfeiture is designed to deprive criminals of the proceeds of their crimes, to break the financial backbone of organized criminal syndicates and drug cartels, and to recover property that may be used to compensate victims and deter crime,” states the DOJ forfeiture website.
At least three dozen states have reformed their civil forfeiture laws since 2014, with 16 requiring a conviction in criminal court to forfeit most or all types of property in civil court, according to the Institute for Justice, a nonprofit law firm based in Virginia. New Mexico is one of four states that have abolished civil asset for feiture entirely.
As the claimant in the federal case, Georges, 38, contended the seized cash came from an inheritance after the death of his father in 2018. He said in court filings that some of the cash could also have come from his legitimate business ventures or from his personal savings. “My businesses generate millions of dollars income per year,” he stated.
Georges is the owner and operator of three custom auto garages in Orange County, some of which were owned and operated by his late father, “who had done well for himself in the auto mechanic industry after having immigrated from Syria in the 1980s,” McElhinney stated.
Georges’ criminal history is minor, his attorney told the Journal. Traffic tickets and possession of a cannabis vape pen in Texas, which is legal in California.
“My client had a potential business opportunity in Florida and the cash was moved there in anticipation of purchasing a business property. However, that opportunity fell through and my client had to get the cash back to California. The driver was a friend/part-time employee of my client who did not want to fly during COVID (given that the money was seized in the initial year of the pandemic in 2020), so that’s why he drove.”
Walker told Border Patrol agents May 18, 2020 that he picked up the rental truck close to his home near Lake Forest, California, and drove east to a parking lot near Disney World in Florida. He dropped off the truck, stayed at an Airbnb for a day and was headed back to California when he stopped at the checkpoint. An unknown individual gave him the $10,000 in cash in Orlando, Florida, as his payment.
The civil forfeiture complaint filed by the US Attorney’s Office stated that Walker made an “extremely odd” outburst after the border patrol K-9 Apace alerted to the bed of the truck and his agent handler started to inspect the tires in the bed of the truck . He yelled “the tires were empty,” according to the complaint. Border patrol agents believed the packaging of the currency was a smuggling tactic, the complaint added.
Walker was quoted as telling agents that he was aware he might be transporting something illegal, but “knew better than to ask what it was.” Georges’ attorney said Walker later tested he was so scared and confused after being detained that day he gave incorrect information.
After Georges put in a claim for the money, federal prosecutors required he answer numerous questions about his finances, his travel and why the currency was packaged in vacuum sealed bags. They also wanted him to explain why the money was being transported inside a tire. Court records show he objected to some of the questions as not relevant to his claim.
The government found three fingerprints on the bags that were traced to a man prosecutors asked Georges to provide contact information for.
McElhinney told the Journal his client always wanted all of the money back “because he did nothing wrong.” But there would have been substantial costs to go to trial, including paying witnesses to come from Israel and California.
“Based on how much his businesses generate, he might have actually lost money by not being able to run his shops during the time lost to dealing with the case,” McElhinney stated.
The forfeited money goes into the Treasury Asset Forfeiture Fund, according to a spokesman for the US Attorney’s Office in Albuquerque.
McElhinney said the case points out how unfair the federal civil forfeiture process is, especially because he said minorities like his client are “likely disproportionately targeted.”
“Property should only be forfeited upon conviction criminal,” he said, so there is sufficient procedural due process and a criminal defense attorney appointed to handle the forfeiture consequences.
The $426,590 seized is a “drop in the bucket” for the federal government, McElhinney told the Journal. “So it’s kind of like negotiating with Darth Vader.”
_Deck”>Rental truck had $426,590 inside tire