Before a federal drug agent stole nearly $70,000 from him at a New York airport, Keddins Etienne knew it was perfectly legal to travel with large amounts of cash. But he did not realize the government could seize the money anyway, on the theory that it must somehow be connected to criminal activity, under federal civil forfeiture laws.
That rude surprise was the beginning of a sadly familiar story, but in this case the ending was happier than usual. With the help of a dogged lawyer, Etienne managed to get all of his money back, although the process took about eight months. He even extracted an additional $15,000 for his trouble after his attorney, Jonathan Corbett, filed a federal lawsuit arguing that the Drug Enforcement Administration (DEA) had violated Etienne's Fourth Amendment rights by unlawfully detaining him and seizing his cash without probable cause.
'You Know What This Looks Like, Right?'
Etienne, a 43-year-old independent filmmaker with a studio in Manhattan, frequently carried cash for his projects, a common practice in the industry. On January 7, 2020, he was flying from John F. Kennedy International Airport to California, where he planned to work on two projects: a documentary about the impact of forest fires on cannabis producers in Mendocino County and a remake of Takeshi Kitano's 2000 film Brother, about a Japanese gangster who flees to Los Angeles after his boss is killed in a battle with another Yakuza clan. Etienne had lined up interviews for the documentary, and he had about $69,000, mostly in hundreds and fifties, to hire crew members, rent equipment, and cover other expenses.
Because his work would take him to some "shady places," Etienne says, he stashed the money inside an old, broken Xbox that he put in his carry-on bag. "I didn't want anyone to suspect that I had any type of cash on me," he says. "I was hiding the money from the usual suspects, so to speak." Instead, the money was snatched by a DEA agent, Antonio LoGrande, who arrived at the Transportation Security Administration (TSA) checkpoint where Etienne was screened after Etienne told a TSA officer what was inside the Xbox.
Etienne was detained for about an hour, so he missed his flight to San Francisco, and the loss of his money put the kibosh on his documentary. He made the trip anyway on a different flight, he says, but at that point it was "basically to apologize to everyone and say, 'This is not going to happen.'"
Since the TSA's job is to screen passengers and their luggage for weapons or explosives, Etienne should have been free to catch his flight once it was clear there was nothing dangerous inside the video game console. But TSA officers have a history of collaborating with the DEA, which has a different mission and tends to view large sums of cash as inherently suspicious.
LoGrande "turns to me and goes, 'You know what this looks like, right?'" Etienne recalls. "I was like, 'No, I don't know what it looks like.' At no point did he say, 'You're a drug dealer.'" But the implication was clear enough, and LoGrande was unsatisfied by Etienne's explanation of why he needed to carry so much money.
Etienne, who has worked in film for about 20 years, showed the TSA his website and gave LoGrande the phone numbers of two people, a friend and a former boss, who could vouch for him and confirm that low-budget filmmakers often travel with cash to cover their expenses. But because Etienne could not prove his innocence to LoGrande's satisfaction, he left the airport with a receipt from the DEA instead of his money.
"In hindsight," Etienne says, "I could have had Steven Spielberg say, 'Hey, I worked with this kid.' I [still] was going to part with my money that day."
'I'm Trusting the Person With the Badge'
Before the encounter at JFK, "I was never in trouble in any sort of way," Etienne says. "Here I am, being compliant. I'm trusting the person with the badge. It was such a traumatic thing."
After the shock wore off, Etienne approached two criminal defense lawyers, hoping to find someone who could help him get his money back. Both of them said they did not handle such cases, which made Etienne worry that he might have no legal recourse. "I was really at that point kind of scared," he says. "I'm sweating bullets." An accountant friend introduced Etienne to Corbett, a Hollywood attorney who calls himself a "professional troublemaker." Corbett specializes in civil rights cases and had repeatedly challenged TSA screening procedures.
The first step in trying to recover Etienne's money, as explained in the "Notice of Seizure of Property and Initiation of Administrative Forfeiture Proceedings" that he received more than a month after his aborted trip to San Francisco, was to file a petition for "remission or mitigation" with the DEA, the same agency that had taken his cash. This step is much like begging a mugger to give back the property he has just stolen at gunpoint. But Corbett's attitude was not that of a supplicant. "He was basically saying, 'You have taken my client's money unlawfully,'" Etienne recalls.
Corbett's negotiations with the DEA and its parent agency, the U.S. Department of Justice, dragged on for months by phone and email. Initially, Corbett says, the government offered to return some of Etienne's money if he surrendered his right to the rest. That sort of "mitigation" offer is common in civil forfeiture cases, and it is especially useful when the government has little or no evidence that the property it took was actually connected to illegal activity. Corbett held firm, even when Claire Kedeshian, an assistant U.S. attorney in New York, said the government was prepared to give back 90 percent of Etienne's money.
Under the deal that Kedeshian proposed in a July 27, 2020, email to Corbett, "the government will return 90% of the cash seized (i.e., $61,668) to claimant" if "claimant will consent to the forfeiture to the government of 10% (i.e., $6,852) of the cash seized." Etienne also would have had to renounce any legal claims "in connection with the events involving the seizure of the cash." No dice, Corbett said. His position was that Etienne should not have to give up any of his money, since there was no legal basis for the seizure.
Meanwhile, the Justice Department was digging into Etienne's bank records, looking for evidence it could use to justify keeping the money. "I was shocked that they could look into my bank account," Etienne says. "As a U.S. citizen, I thought that was private, but obviously I was wrong. They can willy-nilly take a look and see whatever they want to see."
The Justice Department thought it saw evidence of "structuring," a federal crime that involves deliberately evading bank reporting requirements by making withdrawals or deposits of less than $10,000. "Structuring requires intent to avoid the reporting requirements," Corbett says. "I went through my client's banking records, and he didn't have deposits or withdrawals nearly large enough in any short period of time. So it was not even an arguable case of structuring."*
The structuring allegation seemed like an effort to increase the government's leverage in its negotiations with Corbett. "They were trying to use that as a threat, implying that that was some type of criminal activity," Etienne says. "They wanted to negotiate a partial return of my money. Otherwise, they would pursue criminal charges." Corbett notes that "it's kind of tough if the government says, 'Just give us 10 percent of the money that we took from you, and not only will we return the rest of the money, but this investigation we're doing into you is going to be over.'"
The Government Caves
Despite that pressure, Etienne turned down Kedeshian's offer. Two weeks before the deadline for the government to file a forfeiture claim, the Justice Department finally agreed to return all of Etienne's money. But the resolution still did not sit well with Corbett.
"It was quite a while, and this is not a small amount of money to my client," Corbett says. "It was his business, his livelihood. Taking someone's 70 grand for eight months is something that's going to have negative effects. This guy had to go without his money for eight months. He was illegally stopped and searched. He had to pay attorney's fees to get his money back."
Etienne says the financial stress caused by the seizure forced him to pass up film projects he otherwise would have taken on. "That's a chunk of change that I missed very much," he says. "It screwed a lot of things. There were a couple of projects that I couldn't really say yes to," because he could not afford even "the cost of flights." He managed to pay his bills by drawing on savings. But if it weren't for that "rainy day" money, he says, "I probably would have had to close the business and wouldn't have been able to make rent. I would have had to get the proverbial job at Burger King just to make ends meet."
Corbett thought Etienne deserved compensation for his trouble and legal expenses. So last February, he filed a lawsuit on Etienne's behalf in the U.S. District Court for the Eastern District of New York. Etienne sued the U.S. government under the Federal Tort Claims Act. He also sued LoGrande and the TSA officer who seemed to have tipped him off. Those claims relied on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, a 1971 Supreme Court decision that allowed lawsuits against federal officials accused of violating people's constitutional rights.
According to Etienne's complaint, the unnamed TSA officer violated the Fourth Amendment by detaining him and continuing to search his property even after it was clear that "it could not possibly constitute a threat to aviation security." At that point, the complaint said, the screener's aim was "determining whether the cash [might] be of interest to the DEA." The lawsuit argued that LoGrande likewise violated the Fourth Amendment by detaining Etienne "without reasonable suspicion or probable cause" and then by seizing his money "without probable cause to believe that it was related to criminality in any way."
At a hearing before U.S. District Judge Frederic Block, Corbett says, the government argued that LoGrande should receive qualified immunity, a legal doctrine that shields officials from liability for violating people's constitutional rights unless their alleged misconduct ran afoul of "clearly established" law. "They were going to try and argue that the large amount of money, combined with the concealment, was enough for arguable probable cause," Corbett says. "I've never seen a case where a large amount of money concealed has been held to be probable cause. I don't think it would be. I think that's ridiculous."
According to Corbett, Block "made it clear that he did not like the government's position at all" and "basically told the government that they really want to consider settling." Through mediation, the government agreed in August to pay Etienne an additional $15,000, a bit more than the $13,749 in "legal fees and costs" that the lawsuit said he "spent defending against the abusive process instituted against him." Etienne received that money last month.
'I'm Not Going To Travel With That Much Cash'
Having seen firsthand how civil forfeiture gives cops a license to steal, Etienne says, "I'm not going to travel with that much cash" anymore. He says he decided to publicize his case to raise awareness of civil forfeiture abuses in the hope that it might encourage a change in policy and practices.
After his experience with civil forfeiture, Etienne learned that other people had been victimized in a strikingly similar way. He mentions Terrence Rolin, a retired railroad engineer who lost his life savings—$82,373—to a DEA seizure after his daughter, whom he had charged with depositing the money in a joint bank account, took it with her while flying from Pittsburgh, where she was visiting him, to her home in Massachusetts.
Like Etienne, Rolin ultimately got his money back, but only after the Institute for Justice publicized the outrageous details of his case. The organization has filed a class action lawsuit on behalf of travelers whose money was seized by the DEA based on the same presumption that Etienne confronted at JFK.
As cases like Etienne's show, government bullies who use civil forfeiture laws to seize allegedly crime-tainted property from innocent people tend to back down when they encounter unexpected resistance. But because challenging a forfeiture is complicated and expensive, most targets of legalized larceny are in no position to put up a fight.
"I wonder how many innocent people just don't have the will to fight and lose some or all of their money," Corbett writes on his website. "It would be nice to see the Department of Justice return to acting in the interest of justice rather than running rackets like this."
*CORRECTION: This paragraph has been revised to clarify that "structuring" is limited to cash transactions.