Money For Dishwasher, Lesson For Government

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Published on Thursday, 26 June 2008

Written by Palm Beach Post

After nearly three years of misguided prosecution and wasted tax dollars, the federal government finally appears to have lost its bid to seize the life savings of a Guatemalan dishwasher.

On Monday, the 11th U.S. Circuit Court of Appeals in Atlanta ruled that U.S. District Judge James Cohn of Fort Lauderdale was wrong when he ordered Pedro Zapeta to forfeit $49,000 of the $59,000 he had tried to carry aboard a flight to Guatemala in September 2005. Robert Gershman, the dishwasher's West Palm Beach attorney, had argued that Judge Cohn's penalty 18 months ago was excessive -- a "cruel and unusual" punishment for Mr. Zapeta's failure to fill out a form and declare the cash.

The appeals court agreed. Circuit Judge Frank Hull, who wrote the 3-0 opinion, said the government misled Judge Cohn by asking for punishment that exceeded by "nearly ten times the maximum suggested by the sentencing guidelines." The court said Mr. Zapeta should have been subject to a fine of between $500 and $5,000, and up to six months in prison. Judge Hull criticized prosecutors for pushing for the draconian penalty: "In fact, the government led the district court down the wrong path by arguing that the statutory maximum was the touchstone."

From the outset, federal prosecutors overplayed their hand against an illegal immigrant. He had spent years washing dishes in Stuart restaurants, stayed out of trouble and was on his way home for good when the government that can't find Osama bin Laden overreacted.

Prosecutors first accused the 41-year-old Mr. Zapeta of smuggling drug money, then quickly withdrew the charge for lack of evidence. A half-dozen Martin County restaurant owners vouched that he washed dishes for them over a 10-year period. Mr. Zapeta said he worked two jobs at a time to save the $59,000 and was trying to return home, at his own expense, to start a business. He had never flown, and said he did not know about the requirement to declare cash amounts greater than $10,000. Customs agents at Fort Lauderdale-Hollywood International Airport found the money inside his duffel bag, seized it and arrested him.

Mr. Gershman argued all along that Mr. Zapeta's violation warranted a reasonable fine, not the huge forfeiture. The appellate court's ruling sends the case back to Judge Cohn for resentencing. Mr. Zapeta was facing deportation when he returned to Guatemala this year. Prosecutors wasted three years and untold resources beating up on a dishwasher who was trying to be the sort of guest worker most Americans say they want. And you wonder why the government will try for a third time to convict six fools in Miami who once were portrayed as being ready to blow up the Sears Tower in Chicago?

The Zapeta case was always about nothing more complicated than fairness and a sense of perspective. After getting embarrassed, the government might finally get that message.

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