An expat couple’s nightmare: Cuenca residents are jailed then detained in the U.S. under a seldom used legal rule

On the morning of August 8, 2013, Charles and Kathleen Barrett were preparing to leave Colorado for the return trip to Cuenca following the recent wedding of their daughter. Charles was leaving from the Denver airport while Kathleen was flying out of Grand Junction, where she had been visiting her mother. Both were heading to Miami where they would meet their sons for the flight back to Ecuador.

After Charles checked in at Denver Holiday Airport’s American Airlines counter, he went to the gate an hour before his flight was scheduled to board.

Just as he settled into his seat in the waiting area he was surrounded by three men, one of whom showed his U.S. marshals badge. “You’re not flying anywhere today,” one of the marshals told him.  “The judge wants to see you.”

Charles turned over his passport and airplane ticket and was led out of the airport in handcuffs. Four times, Charles recalls, he asked to call to an attorney to represent him before the judge. Four times he was put off. He informed the marshal that his sons, Nathaniel and Jonathan, were waiting for him at the Miami airport and was told that the marshals would contact them.

Despite the drama and rough treatment, Barrett understood why he was being taken away but felt confident the issue could be resolved quickly once he talked to the judge.

The Barretts owed the U.S. IRS money from 2007 when they received a large refund they were not entitled to, the result of a tax return filed without their signatures by their tax preparer. They later testified against the tax preparer in court. “When we found out about the mistake, we knew we needed to repay the IRS and had been working with the court to do it,” Charles says. “Based on an agreement, we had paid $5,000 a month for 2 1/2 years and had paid $226,000 in all, almost the total amount we originally owed the IRS.”

The Barretts had also been filing reports every six weeks with the court, responding to questions and providing documents requested by the court and the IRS.

When Charles was taken into the courtroom at 9 a.m., he stood before U.S. District Magistrate Judge Boyd Boland, not Judge Brooke Jackson who had been involved earlier with the Barrett’s tax case. As it turned out, Boland had issued a writ of Ne Exeat Republica, ordering the Barretts to turn over their passports, preventing them from leaving the country. The writ had been issued after the Barretts had moved to Ecuador. Boland read Charles his rights and told him he was not allowed to speak.

The writ of Ne Exeat Republica is a little known and seldom used judicial tool dating to the 18th century English royal court. Originally intended to restrict travel for political reasons, its occasional use in the U.S. court system, primarily in family and tax law cases, has often come under question. When it has been invoked, it has been strictly as a civil law action.

An attorney for the IRS asked Judge Boland to put Barrett in jail or post bond of $253,000. The judge responded that the writ did not authorize jailing, only the confiscation of passports and other travel documents. The IRS attorney persisted, claiming the Barretts were flight risks, and the judge finally relented. Charles was fingerprinted and booked into federal jail. No charges were filed, however.

Meanwhile, 200 miles west of Denver in Grand Junction, Kathleen was experiencing the same treatment that Charles was in Denver. She too, was booked into a local jail. It was two days before Charles and other family members knew where she was.

In Miami, not knowing what had happened to their parents, Nathaniel and Jonathan boarded an American Airlines flight to Quito. The U.S. Marshals had not bothered to inform them that their parents had been detained. Assuming that there was a scheduling problem and that the family would be reunited in Ecuador, they remained on the flight.

Kathleen and Charles saw each other for the first time in five days on Tuesday August 13, at a hearing in the federal courthouse in Denver. Their new attorney, Steve Anderson, who had been hired by Charles’ employer, Ralco, immediately demanded that the handcuffs and leg irons be removed. This is a civil not a criminal case, he argued and Judge Boland agreed. The marshals, however, refused to obey the judge’s order based on instructions from their superiors. Charles and Kathleen sat through the hearing literally in chains.

Anderson told the judge that the Barretts had been in continuous contact with the court and IRS since 2009 and repaid most of the debt. Both Judge Jackson and the IRS officials knew that the Barretts had moved to Ecuador and had not objected. Why, Anderson asked, were the Barretts being detained now? The judge ordered their release and set a discovery hearing for October 11. The handcuffs and shackles were finally removed.

For the Barretts, however, the nightmare was only beginning.

After testimony and presentation of evidence at the October hearing Magistrate Judge Boland, who had issued the original writ of Ne Exeat Republica, appeared ready to discharge the writ and allow the Barretts to return to Cuenca. In his recommendation for discharge to Judge Jackson, he said the IRS had presented misleading evidence and had not met the burden of proof required to keep the writ in place. He also said that the Barretts had proven conclusively that they did not have the financial assets in Ecuador that the IRS claimed.

In the five months since the recommendation was filed, however, it has received no further attention from the court and has not been carried out.

Almost eight months after the Barretts were first detained, following additional hearings and what the couple believes have been convincing presentations by their lawyers, they remain in the U.S. As a consequence, Charles has lost the source of income that allowed him to make payments to the IRS, an irony noted by his attorneys on more than one occasion.

The Barrett’s lawyers claim that the IRS attorney has repeatedly misrepresented the facts and has perjured herself on more than one occasion when she claimed that the Barretts were concealing assets in Ecuador. They also noted that the IRS attorney had refused, for four years, to process the Barrett’s revised 2007 tax return, which included a correction of the original error.

During that period, Judge Boland has been removed from the case. In fact, a central problem for the Barretts throughout their detention has been the fact that three different judges have worked the case, with the incoming judge often not following through on the intentions of his predecessor.

Charles believes his attorneys have presented an air-tight case. “I don’t know what more we can do to prove our case,” he says. “We only hope that our friends keep praying for us and for the appellate court to overrule this illegal use of the writ, so Kathleen and I can finally have fair treatment.”

Meanwhile, the Barretts remain in Colorado, living with Kathleen’s mother. “We just want the nightmare to end,” says Charles.

Photo caption: The U.S. Federal District Court in Denver has been the focus of the Barretts’ lives since August, 2013.