Cops take boat and stogies, even without proving a crime

John Ross Contributor
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Jeff Southworth and a buddy were sailing into Puerto Rico, a territory of the United States, in January when local police intercepted Southworth’s 46-foot sailboat, the Janice Ann, a few miles offshore. U.S. Customs and Border Protection (CBP) on the scene ordered Southworth to dock and searched the vessel.

When they discovered what was stowed below deck, they led Southworth away in handcuffs.

Why? Customs officers found 33 boxes of cigars. And for that, the U.S. government intends to seize the Janice Ann, which CBP values at $90,000.

“I think my civil liberties have been completely walked over,” says Southworth, a retired Ford Motor Company engineer.

President John F. Kennedy enacted the Cuban embargo in an attempt to hasten the demise of that country’s communist regime. Individuals can face civil and criminal penalties, including jail time for serious violations of the embargo. Southworth may lose his boat because the authorities have decided to pursue civil asset forfeiture.

Unlike with criminal forfeiture, where prosecutors target assets after a criminal conviction, civil forfeiture allows prosecutors to seize  Southworth’s property without proving he committed a crime. The government doesn’t even have to charge him with one. Instead, the government puts the asset itself on trial. To win, prosecutors must convince a judge that a preponderance of the evidence suggests the Janice Ann was an instrument of illegal activity.

“If it’s ever so slightly more likely than not that … your evidence is believable, you win under a preponderance standard,” says David Smith, a Virginia-based lawyer and forfeiture expert.

Southworth maintains his cigars were not Cuban: He says they were cheap, Dominican-made knockoffs he bought for friends as novelty gifts. In an interview with The Daily Caller, Southworth said customs agents told him during the search that a cigar expert at their office could confirm that his cigars were not Cuban. When he arrived at the CBP office on Jan. 3, however, no expert appeared.

Instead, officials told him to take a seat and, hours later, produced an Assent to Forfeiture form that listed 33 boxes of cigars. Southworth, who estimates that he hadn’t slept for 40 hours or eaten for 15 at that point, signed the form, thinking only his cigars would be confiscated.  Instead, the agency seized the entire boat.

A CBP Public Affairs officer told The Daily Caller the agency does not “speak to any specific cases.”

How long does it take for CBP to examine 33 boxes of cigars? “The fact that’s it been a [few] months means nothing,” says Frank Herrera, an intellectual property lawyer based in Florida who specializes in cigar trademark disputes. “They can sit on things for a year. There’s a petition process. You hire a lawyer who specializes in customs law. You pay a lot of money. And that attorney may expedite the process a little bit, but, really, customs works at their own pace.”

It’s unclear why Puerto Rican police stopped the Janice Ann in the first place — the U.S. Attorney’s Office in Puerto Rico did not respond to a request for comment. But Southworth, a self-described “hardcore” sailor, says conditions were a little rough and so perhaps police thought only smugglers would be out on the water.

The Caribbean is awash with counterfeit Cubans purporting to be Cohibas and Romeo y Julietas — two premium labels whose knockoffs Southworth says he bought in the Dominican Republic, where he owns property. And while counterfeiting operations have grown increasingly sophisticated in recent years, according to Southworth there is no way anyone could mistake the cheap cigars aboard the Janice Ann for high-end stogies.

Real Cohibas never come packaged in glass-top boxes — an innovation counterfeiters developed to discourage tourists from opening and inspecting the cigars before purchase. Southworth’s cigars had glass-top boxes. Moreover, the boxes had no date stamps, as all Cuban-manufactured cigars do, and the warranty seals were in the wrong place. The bands on the cigars did not align and the coloration of the wrappers varied, which never happens with the real thing.

But according to Herrera, even if CBP eventually does verify that the cigars are Dominican, the Janice Ann may not be off the hook. That’s because multinational tobacco conglomerates own the sole rights to use the Romeo y Julieta and Cohiba brand names in the U.S. “Even though the packaging … looks different, the [label] does contain Cohiba, which is owned by [General Cigar Company], and that company has the right to keep out counterfeits or anything that might confuse the public from the U.S. marketplace.” And trademark violations can trigger forfeiture.

CBP warns travelers on its website that the government can seize “gray market” counterfeit merchandise. But the advisory does not say the government can also target one’s boat — or car or laptop or cash. Asked whether a policy document exists to warn cigar enthusiasts who fail to consult a lawyer or read up on forfeiture law before entering the U.S., a CBP press officer referred the question to the Office of Foreign Asset Control. The spokesman there referred the question back to CBP.

CBP’s webpage says that “travelers arriving in the United States may be permitted an exemption and allowed to import one article” that infringes on a trademark.

Instead, the Janice Ann is ensnared in the forfeiture complex. As of April 24, CBP’s list of pending civil and criminal forfeiture actions runs to 911 pages. The list does not include the Janice Ann — indicating that it is an incomplete picture of CBP’s forfeiture activities.

Currently, customs is conducting an administrative review of the case. If it decides Southworth violated the embargo or trademark law, the matter will go before a federal judge in Puerto Rico, where according to the forfeiture lawyer Smith, judges “tend to be … tough on violators. So he may have problems winning this case.”