U.S. v. Salti
| Decision Date | 25 August 2009 |
| Docket Number | No. 07-4487.,07-4487. |
| Citation | 579 F.3d 656 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Mahmoud F. SALTI, Defendant, Mohammed F. Salti, aka Mike Salti, Sr., nka Mohammed Al Ammouri; Usrah Mary Salti, Claimants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Richard Stoper, Jr., Rotatori Bender, L.P.A., Cleveland, Ohio, for Appellants. James L. Morford, Assistant United States Attorney, Cleveland, Ohio, for Appellee.
ON BRIEF:
Richard Stoper, Jr., Rotatori Bender, Cleveland, Ohio, for Appellants. James L. Morford, Assistant United States Attorney, Cleveland, Ohio, for Appellee.
Before: MOORE and WHITE, Circuit Judges; TARNOW, District Judge.*
Mohammed F. Salti, also known as Mike Salti, Sr., and now known as Mohammed Al Ammouri (Al Ammouri), and his wife Usrah Mary Salti (Mary Salti) appeal the district court's dismissal of their petition asserting an interest in a Swiss bank account the court had ordered forfeited as a result of the Government's plea agreement with Al Ammouri's nephew, Mahmoud F. Salti, also known as Mike Salti, Jr. (Mahmoud). On the Government's motion, the court dismissed Al Ammouri's claim pursuant to the fugitive disentitlement statute, 28 U.S.C. § 2466, and dismissed Mary Salti's claim finding she lacked standing. We REVERSE and REMAND.
On May 8, 1996, a grand jury in the Northern District of Ohio returned a nine-count indictment against Al Ammouri and his nephew Mahmoud (collectively, defendants). Counts 1 and 2 charged conspiracy to commit food stamp fraud, and counts 3 and 4 charged conspiracy to commit domestic and international money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 1956(a)(2)(B)(i) by concealing the nature, source, ownership, and control of the proceeds of the fraud. Among the money laundering allegations was that certain food-stamp redemption funds were "co-mingled with other SALTI monies in order to render them untraceable." The indictment further alleged that "[f]or extended periods of time," Al Ammouri "resided" in Jordan, that defendants used official bank checks to "transport [Al Ammouri]'s food stamp trafficking profits to him in Jordan," including "co-mingled" proceeds, and that multiple checks were cashed in the Jordan Gulf Bank in Amman, Jordan.
Mahmoud initially pleaded not guilty to Counts 1-5, 8, and 9, but subsequently changed his plea on those counts to guilty. Mahmoud admitted that he and Al Ammouri operated a conspiracy from at least April 24, 1985 until April 8, 1994 that generated illegal profits by purchasing approximately $7,000,000 of food stamps and Women, Infants, and Children coupons for less than face value. Mahmoud further admitted that he and Al Ammouri laundered the proceeds of their food-stamp trafficking, including by transporting cash and official bank checks to Al Ammouri in Jordan, where the checks were cashed at the Jordan Gulf Bank.
On April 20, 2006, the district court approved an addendum to Mahmoud's plea agreement, pursuant to which Mahmoud agreed to forfeit all property, real and personal, involved in the money laundering counts of the indictment (Counts 3 and 4) and all property traceable to such property. Mahmoud stated that "from at least as early as 1985 and continu[ing] until in or about 1995," he was "jointly engaged" with Al Ammouri in the commission of the money laundering offenses, and the checks, cash, and money orders they laundered "constituted proceeds of joint criminal activity." The court entered an Order of Forfeiture pursuant to 18 U.S.C. § 982(a)(1), which included a provision stating that "[s]hould the United States identify and locate any of this property, the Court will enter an Amended Order of Forfeiture under 21 U.S.C. § 853 [as incorporated by 18 U.S.C. § 982(b)(1)(A)], authorizing the seizure of such property and its disposition in accordance with law."
In November 2006, Mahmoud and the Government entered into an agreement stating that, pursuant to 18 U.S.C. § 982(a)(1), Mahmoud would forfeit "Arab Bank (Switzerland), Ltd., Zurich—Account Number 10.191146-0 in the name of Mohammed Al Ammouri ..., and its contents (approximately $750,000.00)" (the Swiss Account), and that this property "was involved in Counts 3 and 4 of the indictment, and/or is traceable to such property." The Government requested that the district court approve an amended order of forfeiture, stating that its request was supported by a sealed affidavit of Special Agent Kevin Ganger of the United States Department of Agriculture's Office of Inspector General. Finding that the property was subject to forfeiture due to its involvement in Counts 3 and 4 and/or its traceability to such property, the district court entered an amended order, ordering that the Swiss Account in Al Ammouri's name and its contents be forfeited to the United States. The court further ordered that notice be published pursuant to 21 U.S.C. § 853(n)(1), and that, "[t]o the extent practicable, the United States may also provide direct written notice" to Al Ammouri, whom the court identified as "a person potentially having an interest in the property identified." The court stated that, "[f]ollowing completion of notice, this Court will enter a final order in accordance with 21 U.S.C. § 853(n)."
On January 17, 2007, Al Ammouri and his wife Mary Salti filed a signed petition with the court pursuant to 21 U.S.C. § 853(n), in which they claimed an interest in the Swiss Account. They alleged that Al Ammouri is "the owner" of the Account and that Mary Salti has "an interest" in the Account. They "assert[ed] right, title and interest in the entirety of the Account," alleging that they "acquired their right, title and interest ... prior to the offenses alleged in the indictment in this case." Alleging Al Ammouri "has suffered from heart disease and other physical conditions" for "several years," the petition stated that Al Ammouri "maintained accounts" (including, presumably, the Swiss Account) as part of "making provisions for his wife ... after his death." As to the funds in the accounts at the Arab Bank, petitioners alleged that
[a]t various times, the numbers and names on the accounts have changed. In the early 1990s, the funds now in the Account were in an account in the name of Mary Salti. The monies in the Account, in whatever form, have at all times been held by Mike Salti, Sr., Mary Salti or others in trust for the use and support of Mary Salti, due to the debilitating and serious health conditions of Mike Salti, Sr. The accounts were not all placed in the name of Mary Salti because at all relevant times Mary Salti had a power of attorney for Mike Salti, Sr., and therefore, had access to the accounts.
Petitioners stated that no monies related to the matters alleged in the indictment were deposited in the Swiss Account "or any predecessor or related account, either directly or indirectly," and declared that the funds currently in the Swiss Account "are not the proceeds of any criminal activity or traceable to any monies used in the course of any crime." They requested a hearing to adjudicate their interest in the Account so that their interest could be excepted from forfeiture.1
The Government filed a motion to dismiss the petition, arguing that Al Ammouri's claim should be dismissed pursuant to the fugitive disentitlement statute and that Mary Salti's claim should be dismissed for lack of standing because she has no "legal interest" in the property. The Government based its fugitive disentitlement argument in part on an attached Declaration of Special Agent Ganger of the Department of Agriculture, who was one of the agents who conducted the criminal investigation of Al Ammouri and Mahmoud. As for Mary Salti's claim, the Government argued that even assuming the funds in the Swiss Account were legitimate and not the proceeds of illegal activity, Mary Salti was not an "owner" of the Swiss Account and had no "legal interest" in it.
Petitioners opposed the Government's motion. They argued that Al Ammouri's claim should not be dismissed on fugitive disentitlement grounds and that doing so would violate his due process rights, the Ex Post Facto Clause, and the Eighth Amendment. They further argued that Mary Salti has standing because she has power of attorney to act for Al Ammouri, the Swiss Account contains funds transferred from other accounts in her name, she has a marital property interest, and she should be considered the beneficiary of a constructive trust in the Swiss Account's funds. Petitioners argued that Ganger's declaration should be stricken and claimed they were entitled to discovery and a hearing. Along with their opposition memorandum, petitioners submitted signed declarations of Al Ammouri and Mary Salti, bank records, reports and documentation regarding Al Ammouri's medical history, a document in which Al Ammouri gave his wife power of attorney under Ohio law, and texts of various laws.
On November 30, 2007, the district court granted the Government's motion to dismiss, ruling that Al Ammouri's claim was barred by the fugitive disentitlement statute and that Mary Salti lacked a legal interest in the Swiss Account and thus was without standing to assert her claim. The court issued its Final Order of Forfeiture on December 4, 2007. This appeal followed.
The criminal forfeiture statute at issue provides in pertinent part that "[t]he court, in imposing sentence on a person convicted of an offense in violation of [the money laundering statute, 18 U.S.C. § 1956], shall order that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such property." 18 U.S.C. § 982(a)(1). It further provides that "[t]he forfeiture of property under this section, including any seizure and disposition of the...
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