Has the Us Government Ever Prosecuted Anyone for Travelling to Cuba
Larry asked me to consider taking on this individual every bit a pro bono client, and correspond him in administrative proceedings earlier the Treasury Section. The case raised some interesting constitutional issues. In that location were possible issues relating to a 5th Amendment right non to be punished for the failure to admit to having spent money in Cuba. In addition, the Treasury Department regulations seemed to provide that the just manner to dispute the RFI was to do so in person in front of an administrative law judge in Washington, D.C., an expensive proposition that raised due process concerns. The ACLU was hoping to find a "test case" that would challenge the Treasury Regulations on ramble grounds. I agreed to take the example.
Shortly after, I met with my client, a retiree on a stock-still income. He was a soft-spoken man, who had gone to Cuba in 1998 on a trip with a church group. While there, he had spent a few days with his fellow church members bicycling around the island and meeting locals. This was a goodwill trip, intended to foster greater understanding betwixt the people of Cuba and the people of the United states. Several years after his return, he received the RFI from Treasury Section alleging that while in Cuba he had spent money that went to Cuban nationals, in violation of the Cuba Trade Embargo, and demanding that he provide farther information about the monies spent or else pay a fine.
The constabulary in 1998 was clear. Nether the statutory provisions and Treasury Regulations that governed all economical transactions between U.S. citizens and Cuban nationals, any travel by U.S. citizens to Cuba had to receive advance approving and a license from the U.S. government, the trip had to exist sponsored past a charity or like humanitarian organization, and, almost relevant to my client, the organization that was the sponsor of the trip had to pay all of the expenses of participants (rather than participants spending any money direct while in Cuba).
The authorities action against my client was office of a broader effort by the Assistants of President George Westward. Bush to punish fifty-fifty minor violations of the Cuba Trade Embargo. Equally noted past this Congressional Inquiry Service Study from August 2016:
Under the George W. Bush Administration, the travel regulations were tightened significantly,with additional restrictions on family visits, educational travel, and travel for those involved in amateur and semi-professional person international sports federation competitions. In improver, the categories of fully hosted travel and people to people educational exchanges unrelated to bookish coursework were eliminated every bit permissible travel to Republic of cuba. The Bush-league Administration also cracked downward on those traveling to Republic of cuba illegally, farther restricted religious travel by changing licensing guidelines for such travel, and suspended the licenses of several travel service providers in Florida for license violations.
More recently, under the Obama Administration, the Cuba Merchandise Embargo and its associated travel restrictions have been relaxed somewhat, but the overall statutory framework remains in place. The Congressional Research Service Report does a good chore of outlining what travel and remittances to Cuba are legally permitted — and not legally permitted — fifty-fifty today.
My client's case was therefore non unique. He was one of hundreds of individuals who had traveled to Cuba only who faced possible sanctions considering the George Westward. Bush Administration wanted to make an example of even modest violations of the Embargo. The following case, involving an individual named Zachary Sanders, was typical of the type of enforcement activity beingness brought by the government at this time:
Zachary Sanders traveled to Cuba in July 1998 and was stopped past Community on his way dorsum into the US, which put his name into the Treasury Section's enforcement system. He heard nothing further from OFAC (Office of Foreign Assets Control, the part of Treasury that enforces the embargo) for two years.
. . . . . .
Ii years after that trip, in March 2000, Sanders received a questionnaire from OFAC, entitled "Requirement to Replenish Information" (RFI), asking a series of questions about his travel to Cuba, including enervating itemized receipts for all expenditures in Cuba (all of which are presumptively illegal under the embargo) and other incriminating information, and threatening massive fines if he failed to respond within 20 business organization days. He made several phone calls to OFAC asking for more time, plainly because he had trouble locating an attorney to respond for him, and somewhen failed to reply past the extended deadline. But he heard nix from OFAC for another two years.
Meanwhile, President Bush was elected, and ramps up enforcement of the Cuba travel ban. OFAC, which is also the bureau responsible for counterterrorism money-laundering enforcement, begins diverting resources to Cuba travel enforcement almost immediately, and enforcement efforts get intense during the summer travel season of 2001.
In belatedly 2001/early 2002, OFAC revisits Sanders' file. But by 2002 it was too shut to the five year statute of limitations to go afterward Sanders for violations of the embargo itself — that is, for his 1998 travel to Cuba. OFAC's informal position was that they had to be able to initiate a hearing (by issuing a document chosen an OIP) within five years of the violation or they would regard the case as lapsed. Merely his RFI was sent 2 years subsequently than his 1998 trip. So one time OFAC decided to go after Sanders, it made sense to get after his not-response to the RFI rather than his travel itself. So OFAC issued him a "Prepenalty Observe" (dated February. xiii, 2002) indicating that the government intended to fine him for not responding to the RFI. He got a lawyer and requested a hearing. Nothing more happened for most two years.
. . . . .
Sanders received an order sending his example to an Administrative Police Judge (ALJ) for a hearing to decide whether to impose a penalty in 2005. Later a twenty-four hours-long hearing on June 27, 2005, the ALJ saturday on Sanders' example for years – presumably because he was troubled by the constitutional issues we raised ….. but didn't really know what to make of them and was scared of the consequences of ruling confronting the government. So three more years pass, and and then, merely before he leaves his job, on September four, 2008 the ALJ issues a decision fining Sanders $1000 for not filling out the form.
In order to bring the constitutional challenges into federal courtroom, Sanders had to appeal to an Treasury appeals officer – the "Secretary's Designee." This had been a formality in most cases where the ALJ had imposed a fine: y'all ask for review, they typically decide non to review your instance, and you move on to federal court. Non here: the appeals officer granted review to the regime, took conference, and issued a decision on January sixteen, 2009, the very last (business organisation) day of the Bush assistants that raised Sanders' fine ninefold – to $9000. There is inappreciably any reasoning in the opinion other than that the original fine was too low to discourage people from ignoring RFIs in the future. (However, equally OFAC best-selling repeatedly, anyone is free to "respond" by saying that they decline to answer any of the questions in the RFI per the Fifth Amendment privilege, in which instance there is no fine. Also, OFAC settled over 200 travel cases for a standard $yard settlement from 2001-2004.) Although the original ALJ heard testify of Sanders' fiscal condition in deciding on the $1000 fine, at that place's no indication the appeals officer took any of that into business relationship.
Mr. Sanders' case finally ended in 2012 when he agreed to settle the proceedings.
My client's case could take resulted in a lengthy lawsuit every bit well, but I chose to commencement try and negotiate an acceptable settlement which would resolve the matter. After contacting a Treasury Section lawyer, and a few rounds of negotiation, I obtained what I considered to exist a favorable settlement offer. The offer was attractive, especially when taking into consideration that even with complimentary legal representation my customer still would have travel and other expenses, equally well as lost time, if the case went to litigation. My client agreed to the settlement amount, the size of which yous tin can probably judge after reading the block quote higher up. While the ACLU did non get its test case from me, I believe that my client's best interests were well served.
What is the takeaway from this story? In 1998, my customer went on a Church-sponsored bike trip to Cuba, and in response the U.S. Treasury Department went later on my customer for $10,000.
Meanwhile, yesterday we learned (courtesy of Newsweek) that too in 1998 a company controlled by Donald Trump hired business consultants and sent them to Cuba. They were hired in order to telescopic out possible business organization opportunities if the Cuba Merchandise Embargo were to terminate. While there, these consultants incurred $68,000 in expenses for which they billed the Trump company and for which they were reimbursed. The size of this spending far exceeds the modest amounts that my client was alleged to take spent while on his bicycle trip that same year. They as well were engaged in business organisation activities, and not on a trip sponsored by a charitable or humanitarian organization (although documents obtained by Newsweek suggest that a cover story involving a charitable sponsor was concocted afterward the trip took identify).
Moreover, unlike my client, Donald Trump was an experienced businessman in the hospitality industry who knew in item about what was and wasn't permitted nether the Cuba Trade Embargo (indeed, the unabridged purpose of hiring the consultants and sending them to Republic of cuba was to prepare for the end of the Embargo, which presupposes knowledge of what was prohibited nether the police). Therefore, this appears to be a knowing violation of U.South. law, which could have been referred to the Section of Justice for criminal prosecution had this conduct come to the attention of the U.S. regime at the time.
Since the story bankrupt, the Trump Campaign has non denied any of the facts contained in the Newsweek story. Indeed, in an interview, his Campaign Manager Kellyanne Conway seemingly admitted that persons working on behalf of Mr. Trump spent money while in Cuba. She stressed that Mr. Trump did not "invest" in whatever Cuban business organization opportunities, which does not accost the fact that merely spending money in Cuba (direct or indirectly) was a punishable offense. Her only defense was that this all occurred a long time ago.
It is true that in that location is little likelihood of a nowadays criminal prosecution premised upon behave which occurred in 1998, because the statute of limitations for the violation of the Embargo has run.
It may likewise be true that very few voters really care most whether or not Donald Trump violated the U.Due south. Trade Embargo with Republic of cuba.
The problem for Mr. Trump is that in that location are some voters who very much do care about punishing persons who violated the Cuba Trade Embargo. Those voters are Cuban Americans in the State of Florida, a state that Mr. Trump virtually certainly needs to win if he is to defeat Hillary Clinton in November.
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