• Tue. Nov 30th, 2021

mccoy.ventures

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There was $100K in the car when police pulled them over. There was no crime — but they took it.

A pair of New Mexico businessmen were driving along Interstate 40 in Oklahoma late one night in April when a sheriff’s deputy flipped on his lights and sirens and pulled over their BMW sedan.

The two men, Nang Thai and Weichuan Liu, were on their way to a hotel in Oklahoma City. They planned to catch some sleep before heading out in the morning to close on a 10-acre plot of farmland they’d agreed to buy for $100,000.

But now, at about 2 a.m. on April 19, a Canadian County sheriff’s deputy was peering into their car.

“We didn’t understand why he pulled us over,” said Thai, 51, a Vietnamese immigrant and father of two from Albuquerque. “I was driving under the speed limit.”

They had no way of knowing at the time but Thai and Liu were about to begin an hourslong ordeal that would leave them stripped of all their cash and searching for answers. Their experience highlights the controversial law enforcement practice known as civil asset forfeiture, in which police can confiscate a person’s cash or other property even without bringing criminal charges.

The deputy asked the two men for their licenses, where they were going and whether they were carrying any money, according to Thai.

They had a large amount of cash in the vehicle: more than $100,000, which Thai says they brought to pay for the property. Thai — who speaks English with a heavy accent (Liu speaks very little English at all) — told the officer they were headed to a hotel and, yes, had cash on them.

The deputy said he suspected they were involved in “illegal activity,” according to Thai. A criminal background search would have turned up a 2017 conviction against Liu for growing marijuana in California.

After a second officer arrived at the scene, the men were driven to a police station and interrogated for hours. Deputies emptied a backpack and suitcase full of cash, then pulled apart the inside of the BMW but apparently turned up no guns, drugs or any other illicit items.

Thai said he told his interrogators they had saved up the money for years and were planning to use the land for farming but hadn’t yet determined which crops to raise.

“They kept saying, ‘This is illegal money,’” Thai said. “I said, ‘Okay, prove it. We didn’t do anything illegal.’”

The two men were released without being charged or even issued a traffic ticket, but the Canadian County Sheriff’s Office did not return their cash. Court papers filed by District Attorney Michael Fields say the money was seized because it was intended to be used to violate drug laws or resulted from illegal drug transactions.

The men are now fighting to get it back. Adding insult to injury, they contend that the amount the sheriff’s office says it confiscated – $131,500 – is actually $10,000 short of the total they had in their car that day.

“Now I have to prove I’m innocent, and they are the ones who illegally took my money and basically stole some of my money, too,” said Thai.

New Mexico businessman Nang Thai.Minesh Bacrania for NBC News

The court docket contains no records detailing the traffic stop or the seizure, and neither the sheriff’s office nor the district attorney’s office agreed to comment.

Among those surprised by the turn of events is the man who was set to sell his land to Thai and Liu.

“I was shocked when I heard of the confiscation of their money,” the seller told NBC News.

He said he had met with them a few days earlier and had drawn up a contract to sell the property to Thai for $100,000. NBC News has viewed a copy of the agreement.

“They seemed like very nice and intelligent business people,” said the seller, who spoke on the condition of anonymity. “I feel bad for them and the situation.”

What happened to Thai and Liu is not at all unusual.

Federal and local law enforcement have broad authority in many parts of the country to seize a person’s property if it is suspected to be linked to criminal activity. Civil asset forfeiture allows the authorities to confiscate items like cash and cars even without charging the people forced to give up their property.

Defenders of the practice say it’s a vital tool in fighting drug traffickers, who are known to hide ill-gotten cash in vehicles and other items. But critics across the political spectrum argue that it violates constitutional rights and disproportionately impacts minorities and low-income people who are more likely to be profiled by police and less likely to have the resources to challenge the seizures.

“Billions of dollars are taken yearly from citizens who are never charged with a crime, and are not afforded any of the due process provisions of the Constitution, such as a day in court, presumption of innocence, right to counsel, and an impartial jury,” said Brad Cates, former director of the Justice Department’s Asset Forfeiture Office during the Reagan Administration who has become an outspoken critic of civil forfeiture.

So far this year, local law enforcement agencies confiscated more than $1.3 million from people driving through Canadian County, according to an NBC News review of court records.

At least 58 percent of the 31 cash seizures involved minorities only – with Asian people making up 23 percent, Black 19 percent and Hispanic 16 percent. White people accounted for 26 percent of the forfeitures in Canadian County, which is more than 75 percent white.

Only 14 out of the 31 cash forfeitures resulted in criminal charges, or 45 percent, court records show.

In 2020, some 43 percent of the 53 cash seizures in Canadian County involved minorities. Black people accounted for 18 percent, Hispanic 17 percent, Asian 7 percent and white 26 percent, according to the NBC News review. The cash seizures yielded more than $1.8 million dollars, court records show, and 31 of the 53 resulted in criminal charges, or 58 percent.

The high percentage of minorities subjected to cash seizures in Canadian County is not a new trend.

The nonprofit investigative news site Oklahoma Watch found that 60 percent of the cash seizures in Canadian County between 2010 and 2015 involved minorities. Nine other counties in Oklahoma, including the six largest, had roughly the same percentage over that five-year time period, according to Oklahoma Watch.

Megan Lambert, legal director for the American Civil Liberties Union of Oklahoma, said she found the figures on cash forfeitures and race “in no way surprising.”

“Racism and implicit bias have a greater impact where discretion is allowed, and police enjoy a significant amount of discretion over civil asset forfeitures,” she said. “The lack of accountability or transparency and the perverse financial incentives of civil asset forfeiture make the process ripe for abuse and bias.”

“Highway robbers”

More than 30 states have instituted reforms in recent years to protect people from civil asset forfeiture, such as shifting the burden of proof to the authorities. Others — like New Mexico, North Carolina, Nebraska and Maine — have abolished it all together.

But Oklahoma is not among the states to take significant action to curtail the practice.

It has among the worst civil forfeiture laws in the country, according to the Institute for Justice, a Virginia-based public interest law firm that releases reports grading state forfeiture laws. Oklahoma earned a D-minus grade in the latest Institute for Justice report, which cited the low bar for confiscating cash and the large incentive created by the seized money going directly to the law enforcement agencies themselves.

“The government just has to show by a preponderance of evidence, or more likely than not, the property is connected to illegal activity,” said Dan Alban, a senior attorney at the Institute for Justice. “That’s a very low burden of proof. It effectively places the burden on the property owner to prove their own innocence.”

Canadian County straddles Interstate 40, a major drug trafficking corridor that runs from California to the North Carolina coast. The county sheriff’s office and the Oklahoma Highway Patrol devote substantial resources to combating it. But civil liberties lawyers and local defense attorneys argue that law enforcement uses the focus on drug interdiction as cover for stopping and searching vehicles on flimsy pretenses.

William Campbell, an Oklahoma City-based defense attorney with expertise challenging civil forfeitures, said in any other context the officers, who are known to target cars with out of state license plates, would be seen as “common highway robbers.”

“It doesn’t matter whether you’re innocent or anything else,” said Campbell. “They’re going to do whatever they’re going to do — generally in the dark, on the side of the road in the middle of nowhere — where you as the citizen are completely at their mercy.”

“District attorneys fund their offices with this money,” he added. “When the DA is making half a million or more off of these stops, how can they be an honest broker on whether these stops are good? They have no incentive to stop this.”

Canadian County Sheriff Chris West declined to comment on the use of civil forfeiture or the case of Liu and Thai. A well-known figure in Oklahoma, West faced controversy earlier this year when it emerged that he attended the Jan. 6 rally in Washington protesting former President Trump’s election loss. He said he walked to the Capitol but did not enter the building or participate in mob violence.

Calls to District Attorney Michael Fields’ office were referred to the prosecutor handling the case, Mitchell Thrower, who did not respond to a request for comment. At a 2015 hearing for a doomed bill to reform civil forfeiture laws in Oklahoma, Fields voiced his opposition to legislation that would, among other things, prohibit forfeiture without a conviction. ​​

“Asset forfeiture is the only tool at our disposal that allows us to take drugs off the streets and profits out of the hands of those who only seek more drugs, more money and more lives to destroy,” Fields said.

Four decades of savings

Thai said he was 16 when he arrived in the U.S. on a boat from Vietnam in 1986. After graduating high school in Albuquerque, he attended community college and then worked at Intel for 16 years as a technical engineer and data analyst. He went on to open and run a restaurant, the Asian Grill, until 2019.

Thai says he saved a chunk of money over the years and largely eschewed banks. “In my culture, we use cash,” he said.

Seeking a safe investment, he said he began studying vertical farming, which involves growing crops in vertical stacks using hydroponics, and looking around for a cheap piece of land to purchase. He found a partner in Liu, who he met through the Albuquerque restaurant scene.

“You never lose money if you buy a piece of farm land,” Thai said. “That’s why Bill Gates bought so much land.”

Thai said he told the officers who grilled him that they had worked hard for their money and had no firm plans on what they were going to do with the land.

“He kept asking where did the money come from? Where did I work?” Thai said. “I said, ‘I lived here a long time. I worked many years.’”

After the interrogations were over and the deputies let the men go, they received no paperwork related to the forfeiture, Thai said. Campbell, the local defense lawyer not involved in the case, said law enforcement is supposed to issue property receipts detailing what was seized but doesn’t always do so.

The Canadian County District Attorney filed a notice of forfeiture on April 22, which gave Thai and Liu 45 days to file a claim to the cash. Their attorney responded on May 10, denying that the money was connected to drug activity and asserting that the forfeiture violated their Fourth Amendment rights.

The lawyer for Thai and Liu, Richard Anderson, did not respond to requests for comment.

Through a translator, Liu declined to comment.

He was arrested in June 2017 after police found more than 600 marijuana plants at a house he was staying in with two others in Stockton, Calif. Liu, now 45, pleaded guilty to a misdemeanor count of cultivating marijuana and served 30 days in the county jail, said a spokeswoman for the San Joaquin County District Attorney’s Office.

In the days after the Oklahoma traffic stop, a Canadian County prosecutor suggested to a local newspaper that the cash seizure was based on their intention to grow marijuana.

Oklahoma legalized medical marijuana in 2018. Under state law, at least 75 percent of a medical marijuana business must be owned by an Oklahoma resident for it to be licensed.

“An out-of-state person, for example, can’t come to Oklahoma and start their own marijuana farm,” Canadian County Assistant District Attorney Eric Epplin told the Yukon Progress, speaking generally about the case. “You have to be a resident of the state.”

The regulation allows for someone to move to the state and apply for a license after two years.

Thai said he was aware of the licensing requirements but insisted that they weren’t set on growing cannabis.

“That’s their narrative that they’re using against us,” he said of the police and prosecutors.

“We saw it as a good investment,” he added. “We didn’t know yet what we were going to do. It could be anything — it could be marijuana, it could be something else.”

James Todd, an Oklahoma City defense lawyer who is not involved in the case, said he thinks prosecutors may have a tough time proving the men intended to use the land to start an illegal drug operation.

“I don’t see in this case anything other than a ‘he said, she said’ situation, where the state says they intended to grow marijuana without a license and the men say no they weren’t,” said Todd, who worked as a detective and state prosecutor in Oklahoma before becoming a defense attorney.

A pre-trial court hearing has been set for Oct. 20. Thai, meanwhile, has set his sights on a new venture closer to home: a bubble tea shop in Albuquerque.

“I’ve been living here since 1986 and worked hard for four decades,” Thai said. “I just want my money back.”