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A federal judge in Brooklyn, N.Y., ruled last week that three men caught smuggling cash to Pakistan to help their families do not have to forfeit all the money under the “bulk cash” statute of the USA Patriot Act. In a ruling of first impression, Judge Jack B. Weinstein of the Eastern District of New York held that civil forfeitures under the act are subject to review under the excessive fines clause of the Eighth Amendment to the U.S. Constitution. It was the first Eighth Amendment challenge to the statute, which was enacted after the terror attacks of Sept. 11, 2001, to crack down on money sent to overseas terrorist operations. In a civil forfeiture proceeding against the men, federal prosecutors argued that all the money they proved was theirs � $96,000 � should be forfeited. In total, the men were caught with more than $515,000. Most of the money belonged to co-workers and friends and was not subject to the forfeiture proceeding. The government is evaluating claims from those workers in another proceeding before a magistrate judge. Judge Weinstein ruled that United States v. Khan was an exceptional case because the defendants, along with numerous co-workers and acquaintances who gave the defendants their savings, had earned the money legally through successful fried chicken restaurants owned by one of the men. The judge said they did not intend to support terrorism or drug trafficking. Judge Weinstein ruled that the three smugglers, who were each convicted and assessed a $7,500 fine, should forfeit 50 percent of the money they proved was their own. The total came to just more than $48,000. Ali Sher Khan, Akbar Ali Khan, and Fazal Subhan were arrested at John F. Kennedy International Airport as they prepared to fly to Pakistan. Ali Sher Khan and Akbar Khan were about to board the plane; Subhan had already boarded. The three men had declared around $32,000, but authorities found they were carrying more than $500,000. The men were subsequently indicted for conspiracy to conceal more than $10,000 in currency and making false statements to a government agent. The government moved for full forfeiture under 31 U.S.C.A. �5332, which was enacted as part of the USA Patriot Act in October 2001. The government argued that the law mandated full forfeiture and backed its claim with an extensive table showing that it almost always wins a full penalty in cases of undeclared money. It argued that the new law was essentially exempt from Eighth Amendment review. Judge Weinstein disagreed, saying that the statute clearly says property “may” be forfeited as a penalty for violating the law. Since the money was legally earned, Judge Weinstein said, “this percentage appears to be excessive in a case such as the instant one where cash was earned legally and was being taken to the earners’ families.” Tom Perrotta is a staff writer for the New York Law Journal , the ALM newspaper where this article first appeared.

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