At a highway stop for a broken brake light in late February, the Muskogee County, Oklahoma, Sheriff’s Office seized over $53,000 in cash that belongs to a Burmese Christian band, a church in Omaha, and a Thai orphanage.
The money was seized from the band’s volunteer tour manager, Eh Wah, while he was driving home to Dallas through Oklahoma on February 27, 2016, during a tour break following 19 concerts1 over five months across the United States. He was stopped by a Muskogee County Sheriff’s deputy for a broken brake light. During the stop, the deputy eventually searched his car and found the cash. The deputy alleges that a drug dog alerted at the scene. However, no drugs or drug paraphernalia were found. After interrogating Eh Wah for about six hours, the Muskogee County Sheriff’s Office released him after midnight, but kept all of the money as supposed “drug proceeds.”
Eh Wah is a reserved 40-year-old U.S. citizen who lives in Dallas. His parents and severely mentally disabled brother share his home. He neither smokes nor drinks and is the last person who would get in trouble, says a church pastor who has known Eh Wah since he was a boy. His only run-in with the law was a 2001 traffic ticket.
Even though Eh Wah was released with a mere warning for the defective brake light, Muskogee County filed its forfeiture case, State of Oklahoma v. $53,234 Cash,2 on March 11, 2016. Now the various innocent owners of the cash (Eh Wah, the band, the Omaha church that sponsored the tour, band member Saw Win Ston, and a Thai orphanage) have come together to challenge this civil forfeiture in Oklahoma state court and get their money back.
The Traffic Stop and Seizure of Cash
The band’s volunteer tour manager, Eh Wah, was stopped in his Suzuki Forenza sedan (which has out-of-state Texas license plates) on US-69 at approximately 6:30 pm on February 27, 2016, by Deputy Ben Moore of the Muskogee County Sheriff’s Office, allegedly because his left brake light was out. Eh Wah was driving home to Dallas while the band was on a one-week break from the U.S. tour. Eh Wah was traveling with a substantial amount of cash in mixed denominations. Most of the money was raised at the 19 concerts the band had already played. As the band’s tour manager, he was bring the contributions home for safekeeping.
The cash consisted of:
The money was stored in a variety of different travel bags, gift bags, and envelopes in different parts of the car, and some of it (the CD and souvenir sales) was haphazardly organized because Eh Wah had fallen behind on some of the accounting while the band was on tour and hoped to catch up on the paperwork during the tour break. Much of the concert money was in envelopes labeled with the location where the concert was held, while much of the money from the CD and souvenir sales was in small packets held together by rubber bands, paper clips, or binder clips, as well as between the pages of a notebook, and was stuffed into various pockets of Eh Wah’s laptop bag. Eh Wah also kept some of this cash in a jacket he had with him. The amounts are approximate because the paperwork indicating the source of the funds was also seized at the traffic stop.
The band kept a ledger for the cash raised at each stop on the tour before the highway stop (and some of the tour expenses); however, they had not yet recorded the figures for the last two concerts before the late-February tour break nor for the CD/souvenir sales money, so some of their numbers are just estimates because they no longer have the cash on hand to verify the actual amounts.
Deputy Moore asked Eh Wah to sit in his patrol car during the stop and asked him extensive questions. The exact circumstances that led to Eh Wah’s car being searched remain unclear, but the deputy states in his affidavit that a drug dog alerted at the scene. No drugs or drug paraphernalia were found inside the car, however—just the cash that Eh Wah had with him from the band’s tour.
Eh Wah was taken to the Muskogee County Sheriff’s Office and interrogated by several deputies for more than six hours; he was not released until after midnight. Eh Wah tried to explain that he was on tour with a Burmese Christian band and that most of this cash was the money they had raised for charity, as well as money from CD/souvenir sales, donations to a Thai orphanage, and personal money belonging to him and a band member. Although the deputies looked through photos of the band’s concerts on Eh Wah’s phone, visited the band’s website, and even called the band’s leader, who is named Saw Marvellous, and spoke to him for 5-10 minutes, they said they didn’t believe Eh Wah or Marvellous. The deputies seemed exuberant about having seized this money. Eh Wah was finally released with only a warning for the broken brake light.
Despite claiming that they were seizing all of the cash as alleged “drug proceeds,” the deputies returned a $300 personal check that was made out to Eh Wah, presumably because they could not cash it.
On March 11, 2016, the Muskogee County District Attorney formally filed the civil forfeiture case. Because forfeiture proceedings are brought under the legal fiction that the property is itself guilty, the seized money is the defendant. The name of the case is State of Oklahoma v. $53,234.00 CASH.
Prosecutors Add Bogus Felony Charge Against Eh Wah
On April 5, 2016, the Muskogee County DA’s office issued a felony warrant for Eh Wah’s arrest for the alleged crime of: “ACQUIRE PROCEEDS FROM DRUG ACTIVITY ~ a FELONY.” Eh Wah was not actually served with this warrant. It was found through an online search of court records.
The affidavit supporting the warrant is a mere six-sentences long and essentially recounts the traffic stop as described above. There is no mention of any drugs because no drugs, drug paraphernalia, or any indications of drug use were found in the car. Absent any actual evidence of any connection to drugs, the affidavit just states: “Due to the inconsistent stories and Wah unable to confirm the money was his the money was seized for evidence, awaiting for charges to be filed for Possession of Drug Proceeds.”
Below is the entire substantive portion of the affidavit supporting the felony warrant:
In fact, most of the money was not Eh Wah’s, but—as he explained during the interrogation—he had been entrusted with it by the band (and others). Eh Wah speaks imperfect English, which may have led to some serious miscommunication. Both he and the band’s leader incorrectly estimated the total cash to be around $30,000, because they had not completed accounting for the proceeds from the two most recent concerts, and were not including the non-concert money in their estimate.
The criminal charge is a bogus attempt to pressure Eh Wah into surrendering the cash that was seized as part of a plea deal. There is no evidence at all to support the charge, let alone probable cause.
At Eh Wah’s own initiative, within 48 hours of learning of the warrant (which had not yet even been served on him), he made the five-hour trip to Muskogee and turned himself in with the assistance of criminal defense counsel on Friday, April 8. Eh Wah’s next hearing in the criminal case will be an initial hearing at 9:00 am on April 25, 2016. His pending motion to quash the arrest warrant will likely be heard at that same hearing.
A Brief Note about the Karen People
The money’s owners are all Karen Christians, who are part of the Karen ethnic minority. The Karen people are an ethnic minority in Burma (and Thailand) who have been persecuted for several decades; many have emigrated all over the world to escape persecution.
Karen Christians, in particular, have been actively persecuted by the Burmese government. The Karen Christian community arose after American Baptist missionary George Boardman visited Burma in 1827. The Karen Baptist Council is affiliated with the American Baptist Council.
Who Owns the Money?
The approximately $53,000 belongs to a number of people and entities. They are:
Klo & Weh Music Team Tour Schedule and Donations from the Communities
|Utica, NY||November 14, 2015||$5976.00|
|Buffalo, NY||November 21, 2015||$4835.00|
|Akron, OH||November 28, 2015||$5400.00|
|Clarkston, GA||December 5, 2015||$2819.00|
|Columbia, SC||December 12, 2015||$2712.00|
|New Bern, NC||December 19, 2015||$4825.00|
|Louisville, KY||December 22, 2015||$1516.00|
|Omaha, NE||December 25, 2015||$1500.00|
|Milwaukee, WI||December 26, 2015||$6510.00|
|St. Paul, MN||December 31, 2015||$13800.00|
|Huron, SD||January 9, 2016||$5711.00|
|Denver, CO||January 16, 2016||$4919.00|
|Dallas, TX||January 23, 2016||$2900.00|
|Vernon, TX||January 28, 2016||$1000.00|
|Amarillo, TX||January 30, 2016||$1000.00|
|Clarksville, AR||January 31, 2016||$2000.00|
|Nashville, TN||February 6, 2016||$3650.00|
|Fort Wayne, IN||February 13, 2016||$2460.00|
|Rock Island, IL||February 20, 2016||$5500.00|
What is Civil Forfeiture?
Civil forfeiture—a process by which the government can take and sell someone’s property without ever convicting them of a crime—is one of the greatest threats to property rights in the nation today.
Civil forfeiture is a legal fiction that pretends to prosecute inanimate objects for their involvement with criminal activity. Civil forfeiture actions are in rem proceedings, which means “against a thing.” That is why civil forfeiture proceedings have bizarre titles, such as United States v. $35,651.11 in U.S. Currency or State of Texas v. One 2004 Chevrolet Silverado. But because these cases are technically civil actions, property owners receive few, if any, of the protections that criminal defendants enjoy, such as a public defender or the presumption of innocence. To make matters worse, when law enforcement agencies take and sell property, they frequently get to keep all the proceeds for their own use. This gives agencies a direct financial incentive to “police for profit” by seizing and forfeiting as much property as possible.
Of course, cash, cars and homes do not break laws. Early in America’s history, the government used civil forfeiture as a way to enforce the collection of customs duties, which provided 80 to 90 percent of the federal revenue during that time. The government often could not try owners of smuggling ships themselves (because they were overseas), and so civil forfeiture let officials seize their ships and cargo as a second-best option.
With minor exceptions during the Civil War and Prohibition, civil forfeiture remained a legal backwater. But as the war on drugs heated up during the early 1980s, so too did civil forfeiture. A key legal change occurred in 1984 when Congress established the Assets Forfeiture Fund. Previously, all federal civil forfeiture revenues were deposited into the government’s general fund. But after the 1984 amendments, federal agencies could retain and spend forfeiture proceeds—subject only to very loose restrictions—giving them a direct financial stake in generating forfeiture funds. Similar amendments now allow law enforcement agencies in 42 states to keep and use some or all of the civil forfeiture proceeds they seize.
The changes at the federal and state levels led to an explosion of forfeiture activity. Because in most jurisdictions law enforcement can keep some or all of the proceeds from civil forfeiture, they have an incentive to seize and keep as much property as possible. The U.S. Constitution requires law enforcement officials—both police and prosecutors—to administer the law fairly and impartially. But civil forfeiture dangerously transforms law enforcement priorities away from this goal and toward the pursuit of profit instead.
Oklahoma Recently Rejected Efforts to Reform Forfeiture Laws
The seizure of the $53,234 occurred against the backdrop of Oklahoma legislators rejecting proposed legislation that would have strengthened protection for property owners. Oklahoma Senator Kyle Loveless authored S.B. 838, which would have allowed forfeiture only upon a criminal conviction. The bill was supported by a broad, bi-partisan coalition. Nevertheless, Oklahoma law enforcement and prosecutors vigorously opposed the proposed reforms.
Tulsa District Attorney Steve Kunzweiler went so far as to suggest that requiring a conviction for forfeiture would be like “inviting some of the most violent people on the history of this planet. You see what goes on in Mexico, you see people’s bodies decapitated and hung from bridges. And if you want to bring that drug cartel ideology to Oklahoma, do exactly what Senator Loveless’ bill is suggesting.”3 But as this case illustrates, innocent property owners like Eh Wah, the church, the band, and the orphanage are often caught in the proverbial crossfire.
In fact, several states have successfully passed civil forfeiture reforms in the past two years; two states—Nebraska and New Mexico—have even abolished civil forfeiture completely. Nebraska’s forfeiture reform bill was signed into law by Governor Pete Ricketts on April 19, 2016.
Oklahoma recently earned a D- for its civil forfeiture laws in the 2015 update to Policing for Profit, IJ’s landmark report on civil forfeiture in all 50 states. Oklahoma received its low grade because state laws stack the evidentiary burden in forfeiture cases against property owners, force innocent owners to prove they did not commit a crime (rather than forcing the government to prove they did), and allow law enforcement agencies to keep up to 100 percent of the spoils of forfeiture.
Oklahoma is no stranger to controversies surrounding local law enforcement’s use of civil forfeiture.
On March 31, 206 a grand jury in Wagoner County—which borders Muskogee—indicted Sheriff Bob Colbert and Deputy Jeffrey Gragg for allegedly accepting a $10,000 bribe in exchange for not pursuing criminal charges against two individuals who were driving along the same road as Eh Wah. According to the Oklahoma Attorney General release announcing the indictments:
Gragg performed a traffic stop of a vehicle driven by Torell Wallace and a 17-year-old passenger. During the traffic stop, Gragg conducted a search of the vehicle in which he found $10,000 in cash, of which Wallace and the passenger both claimed ownership. Wallace and the passenger were arrested for possession of drug proceeds. After being taken to the Wagoner County Jail, Colbert and Gragg accepted a bribe from Wallace and the passenger when Wallace disclaimed any interest in the cash. They were then released and their records were deleted. The cash was placed in a Sheriff’s Drug Forfeiture account with the Wagoner County Treasurer’s Office.
In 2014, the Oklahoma State Auditor & Inspector Gary Jones released a report noting that an unnamed assistant district attorney representing Washington and Nowata counties used $5,000 in forfeiture funds to pay his student loans. A 2009 audit found that a district attorney for Beaver, Cimarron, Harper, and Texas counties lived rent-free for five years in a home seized and forfeited. While he lived in the home, the district attorney’s office paid for repairs and the utility bills.
The plaintiff in this case is the State of Oklahoma, represented by the Muskogee District Attorney, Orvil Loge. Because of the way civil forfeiture works, the “defendant” is technically the $53,234.00 in cash. The property owners—Eh Wah, the Klo & Kweh Music Team, the Karen Christian Revival Church, Saw Win Ston, and the Hsa Thoo Lei Orphanage—are all known as “claimants,” which means that they claim ownership of the money and have entered the case in order to get their money back.
The Legal Arguments
The legal arguments in this case are simple: The money all came from perfectly legitimate and well-documented sources during the band’s 19-city tour of the United States. The police have absolutely zero evidence to support their claim that the money amounts to “drug proceeds.” Eh Wah, the band, the church, the orphanage, and Win Ston are all utterly innocent owners of the money. The criminal charge against Eh Wah for being in possession of “drug proceeds” is completely bogus and not supported by one shred of evidence. The police should give the money back and drop the criminal charge.
The property owners have also raised constitutional defenses challenging the civil forfeiture process. The property owners point out that the innocent-owner provision of Oklahoma’s civil forfeiture statute effectively requires them to prove their own innocence in order to keep their property, which violates their due process rights and other constitutional rights guaranteed by the U.S. and Oklahoma Constitutions.
The property owners also argue that Oklahoma violates their state and federal constitutional rights by allowing police and prosecutors to keep and use forfeiture proceeds for their own departments—namely, by engaging in policing for profit. The unseemly financial incentives to seize and forfeit property created by this system interfere with the fair and impartial administration of justice guaranteed by the due process clauses of the U.S. and Oklahoma Constitutions. The fact that the deputies kept all of the cash in Eh Wah’s car, but gave back the $300 personal check made out to Eh Wah shows that their true motives were not to seize “drug proceeds” or to stop any alleged “drug trafficking,” but to generate revenue that could be spent by the Muskogee County Sheriff’s Department and District Attorney’s office.
The Litigation Team
Steven P. Minks of the McLaughlin Law Firm, PLLC in Poteau, OK is serving as local counsel in the case.
About the Institute for Justice
The Institute for Justice is the national law firm for liberty and the nation’s leading advocate for property rights. This case is the latest in IJ’s nationwide initiative to end civil forfeiture, including a recent challenge to the City of Albuquerque’s refusal to follow recently-passed New Mexico forfeiture reforms. IJ has fought civil forfeiture on behalf of the owners of the Motel Caswell in Massachusetts, the owners of Schott’s Market in Michigan, the owner of a truck seized in Texas, the owner of a restaurant in Iowa, convenience-store owners on Long Island and in North Carolina, and a college student in Kentucky. IJ exposed the IRS’s abuse of structuring laws in Seize First, Question Later: The IRS and Civil Forfeiture. For more information on IJ’s national initiative to end civil forfeiture, visit endforfeiture.com.
For more information, contact:
J. Justin Wilson
Director of Communications