U.S. v. Van Cauwenberghe, s. 89-50275
| Citation | 934 F.2d 1048 |
| Decision Date | 20 May 1991 |
| Docket Number | Nos. 89-50275,89-55868,s. 89-50275 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Wilfried VAN CAUWENBERGHE, Defendant-Appellant, Williams & Connolly, Real-party-in-interest-Appellant. Roger BIARD, Plaintiff-Appellee, v. Alan H. BLAIR, et al., Defendants, and Wilfried Van Cauwenberghe, Defendant-Appellant, and Williams & Connolly, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
John G. Kester, Williams & Connolly, Washington, D.C., for defendant-appellant Van Cauwenberghe and real-party-in-interest-appellant Williams & Connolly.
Sara Criscitelli and John D. Arterberry, Dept. of Justice, Washington, D.C., for plaintiff-appellee U.S.
Percy Anderson, Bryan, Cave, McPheeters & McRoberts, Los Angeles, Cal., for plaintiff-appellee Biard.
Appeals from the United States District Court for the Central District of California.
Before WALLACE, Chief Judge, and THOMPSON and O'SCANNLAIN, Circuit Judges.
This is a consolidated appeal. In United States v. Van Cauwenberghe, No. 89-50275, Wilfried Van Cauwenberghe appeals the denial of his Fed.R.Crim.P. 41(e) motion for return of property. In Biard v. Blair and Van Cauwenberghe, No. 89-55868, Van Cauwenberghe appeals an order of the district court that directed payment of money on deposit in the registry of the court to the plaintiff, Roger Biard, pursuant to a writ of attachment. The facts and procedural history of these combined cases resemble a labyrinth more closely than a map. However, by wending our way through thorny issues of jurisdiction, standing, res judicata and ultimately the validity of the writ of attachment, we conclude that Van Cauwenberghe's Fed.R.Crim.P. 41(e) motion was properly denied and the order for the payment of the attached funds to Biard was valid. Final judgments have been entered in both cases. We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm.
In October 1984, Van Cauwenberghe, a citizen of Belgium, and two American codefendants, Alan H. Blair and Gerald L. Bilton, were indicted on three counts of wire fraud in violation of 18 U.S.C. Sec. 1343, three counts of interstate transportation of a victim of fraud in violation of 18 U.S.C. Sec. 2314, and one count of conspiracy to commit fraud in violation of 18 U.S.C. Sec. 371. Evidence indicated that between 1979 and 1981 the three defendants defrauded Biard, a Belgian investment broker, and a Belgian corporation owned by members of the Vanden Stock family, of $3.6 million in connection with an apartment complex located near Kansas City, Missouri.
By the time Van Cauwenberghe was indicted, he was in Belgium. Belgium does not permit extradition of its nationals. See Treaty on Extradition, Oct. 26, 1901, United States-Belgium, Art. V, 32 Stat. 1894, 1898, T.S. No. 409, at 5. The United States government learned, however, that Van Cauwenberghe would be in Switzerland on a brief business trip. On November 20, 1984, the government filed a provisional arrest request with the Swiss authorities pursuant to Article VI of the Treaty on Extradition, May 14, 1900, United States-Switzerland, 31 Stat. 1928, T.S. No. 354 ("Treaty"). On January 14, 1985, Swiss authorities took Van Cauwenberghe into custody as he arrived in Geneva. Pursuant to the United States government's request under Article XII of the Treaty, Swiss authorities also seized Van Cauwenberghe's assets at two Swiss financial institutions, Credit Suisse and Fides Societe Fiduciare. The assets seized included stock certificates in two Panamanian land-holding corporations in which Van Cauwenberghe held 6.293% and 19.659% interests, respectively (the "certificates").
The United States government filed a formal extradition request on March 12, 1985. Van Cauwenberghe contested before the Swiss courts both his extradition and the seizure of the certificates. On September 25, 1985, the Swiss Federal Tribunal, Switzerland's highest court, held that Van Cauwenberghe was extraditable under the Treaty for all the offenses charged except conspiracy, and approved Van Cauwenberghe's extradition and the delivery of the certificates to the United States. Van Cauwenberghe was then brought to the United States to stand trial.
Before the certificates arrived in the United States, Van Cauwenberghe made a pretrial motion under Fed.R.Crim.P. 41(e) for their return. He supported this motion with a declaration from Fides Societe Fiduciare officials that no money had been invested in the certificate holdings since 1973. The government opposed the motion, took the position that the seizure was lawful and requested that the court hold the certificates pending resolution of the criminal charges against Van Cauwenberghe. The government, while never stating that the certificates were needed for evidentiary purposes, asserted that
[i]t would be in keeping with [a] heightened regard for victim rights for the Court to exercise its inherent powers of equity and maintain these assets in the Government's Opposition to Defendant Van Cauwenberghe's Motion for Return of Property Pursuant to Fed.R.Crim.P. 41(e), Memorandum of Points and Authorities, at 3. The district court preliminarily denied Van Cauwenberghe's Rule 41(e) motion and granted the government's request to place the certificates in the registry of the court "pending litigation in this matter or further order of the Court." On November 12, 1985, the certificates were deposited in the registry of the court pursuant to this order.
Registry of the Court until there has been a final disposition of the criminal charges against Van Cauwenberghe. By so doing, the Court would deny Van Cauwenberghe an opportunity to dissipate the assets prematurely. The Court thus would preserve its ability to impose restitution as part of its sentencing of Van Cauwenberghe in the event he is convicted of the charges in this case.
On the day the certificates were deposited in the registry of the court, the district court held another hearing on Van Cauwenberghe's Rule 41(e) motion. At this hearing it was reported to the court that Biard's civil suit had been filed in the same district court and that a hearing on Biard's motion seeking a writ of attachment against the two stock certificates would be held before a magistrate that afternoon. Upon being advised of this, the district court denied the Rule 41(e) motion pending a decision on Biard's application for the writ of attachment. That afternoon, the magistrate in Biard's civil suit entered a right-to-attach order against the two certificates.
On November 19, 1985, the criminal trial of Van Cauwenberghe, Blair and Bilton commenced in the district court on one charge each of interstate transportation of a victim of fraud and wire fraud. Each of the three defendants was found guilty on both counts. The court, on motions by the government, dismissed all remaining charges. The certificates were retained in the court's registry pending sentencing.
Van Cauwenberghe was sentenced on one count to serve one year and one day in jail. He was given credit for 373 days already served in pretrial confinement and fined $10,000. On the other count, Van Cauwenberghe was given 5 years probation and fined $1,000. Conditions of Van Cauwenberghe's probation included (1) that he make restitution of $458,373.89 to Roger Vanden Stock and $34,501.26 to Biard, and (2) that he not leave the United States until restitution was made. The restitution amount represented 17.6% of the victims' actual losses. This was equal to the percentage of proceeds of the fraud which the district court determined Van Cauwenberghe received.
On January 23, 1986, pursuant to a stipulation between Van Cauwenberghe and the government, the district court entered an order releasing the two certificates into the joint custody of the attorney for Van Cauwenberghe, John Kester of the Williams & Connolly law firm, and the assistant United States attorney. The order provided that the certificates were to be liquidated and the proceeds transmitted to the clerk of the court for deposit back into the court registry to effectuate the court's restitution order. The order made no mention of the writ of attachment.
Van Cauwenberghe timely appealed his conviction and sentence to this court. He also filed an emergency motion to modify the conditions of his probation to allow him to travel to his home in Belgium. On December 31, 1986, we entered an order of limited remand on the issue of probation modification. On February 17, 1987, the district court entered an order stating that it found that
(1) Van Cauwenberghe ha[d] relinquished sufficient property to pay the restitution in due course; (2) Van Cauwenberghe ha[d] irrevocably transferred full title to the property so that he cannot regain control over it if allowed to return to Belgium; and (3) there [was] no further probationary purpose to be served by requiring Van Cauwenberghe to remain in the United States.
United States v. Van Cauwenberghe, 827 F.2d 424, 428 n. 3 (9th Cir.1987), cert. denied, 484 U.S. 1042, 108 S.Ct. 773, 98 L.Ed.2d 859 (1988).
On September 3, 1987, we affirmed Van Cauwenberghe's criminal convictions and sentence. Id. at 435. We also affirmed the district court's denial of Van Cauwenberghe's pretrial Rule 41(e) motion for return of the two certificates, concluding that he had not shown entitlement to lawful possession of the seized property because he had irrevocably transferred title to the certificates to the joint custody of his attorney and the government so that the certificates could be sold to satisfy his restitution obligations. Id. at 433-34. We expressed no view as to whether the seizure was legal, whether the certificates would have been returnable to Van Cauwenberghe despite Biard's civil writ of attachment, or whether Van Cauwenberghe lacked standing to...
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