United States v. $1,152,366.18 In Funds From Bendura Bank AG

• Decision Date: 30 June 2022
• Docket Number: 21-cv-1134-WQH-BLM
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. $1,152,366.18 IN FUNDS FROM BENDURA BANK AG, PORTFOLIO NUMBER XX5.280, HELD IN THE NAME OF GOLDEN CASTLE TECHNOLOGY LIMITED; $53,020.18 IN FUNDS FROM BENDURA BANK AG. PORTFOLIO NUMBER XX3.200, HELD IN THE NAME OF YOUNES NASRI, Defendants.
• Court: U.S. District Court — Southern District of California

UNITED STATES OF AMERICA, Plaintiff,
v.
$1,152,366.18 IN FUNDS FROM BENDURA BANK AG, PORTFOLIO NUMBER XX5.280, HELD IN THE NAME OF GOLDEN CASTLE TECHNOLOGY LIMITED; $53,020.18 IN FUNDS FROM BENDURA BANK AG. PORTFOLIO NUMBER XX3.200, HELD IN THE NAME OF YOUNES NASRI, Defendants.

No. 21-cv-1134-WQH-BLM

United States District Court, S.D. California

June 30, 2022

ORDER

Hon. William Q. Hayes United States District Court

The matter before the Court is the Motion to Strike (ECF No. 36) filed by Plaintiff United States of America.

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I. PROCEDURAL BACKGROUND

On June 21, 2021, the United States initiated this civil action by filing a Complaint seeking civil forfeiture of Defendant Funds held in two Liechtenstein accounts pursuant to 18 U.S.C. § 981 and 21 U.S.C. § 881. (ECF No. 1).

On August 10, 2021, Younes Nasri (“Claimant”) filed a Claim to Defendant Funds, stating that Defendant Funds “belong to [Claimant]” and “are the proceeds of [Claimant's legitimate employment.” (ECF No. 11). The docket reflects that no other claims to Defendant Funds have been filed.

On August 11, 2021, the United States filed an Amended Complaint. (ECF No. 12). On December 3, 2021, the United States filed a Second Amended Complaint (“SAC”). (ECF No. 23). On February 3, 2022, Claimant filed an Answer to the SAC seeking the return of Defendant Funds to Claimant. (ECF No. 26).

On April 8, 2022, the United States filed the Motion to Strike, which requests that the Court strike Claimant's Claim and Answer pursuant to the fugitive disentitlement statute, 28 U.S.C. § 2466. (ECF No. 36). On May 2, 2022, Claimant filed a Response in opposition to the Motion to Strike. (ECF No. 40). On May 9, 2022, the United States filed a Reply. (ECF No. 41).

II. CONTENTIONS

The United States contends that “[Claimant's] [C]laim should be stricken as he should be disallowed from using the Court's resources to litigate this civil forfeiture case ... while also refusing to participate in his pending criminal case.” (ECF No. 36 at 14). The United States contends that the “totality of the circumstances” demonstrates that Claimant has deliberately avoided prosecution by declining to enter the country. (Id. at 21). The United States contends that “[a] determination of fugitive disentitlement is a threshold issue and where found, prohibits [Claimant] from challenging the forfeiture on any grounds.” (Id. at 5). The United States contends that Claimant's due process rights have not been violated because Claimant “has the opportunity to be heard on his [Claim] simply by coming to the United States and submitting to the criminal jurisdiction of the Court.” (ECF No. 41 at 6).

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The United States contends that the Court has in rem jurisdiction over this action.

Claimant contends that “notice of the indictment and this forfeiture proceeding” is “insufficient evidence to establish a specific intent to decline to enter this country for the first time for the express purpose of avoiding prosecution.” (ECF No. 40 at 9). Claimant contends that the fugitive disentitlement statute “violates Due Process because it deprives the Claimant of his right to be heard.” (Id. at 8). Claimant contends that “[t]his Court lacks in rem jurisdiction over the frozen assets because [28 U.S.C. § 1355(b)(2)] does not confer jurisdiction and neither the assets nor [ ] Claimant have even minimal contacts with this district.” (Id. at 7). Claimant contends that the Court should exercise its discretion to decline to strike the Claim due to the due process and jurisdictional issues in this case.

III. STANDARD OF REVIEW

A motion to strike is an appropriate procedural vehicle to enforce the fugitive disentitlement statute. See United States v. $671,160.00 in U.S. Currency, 730 F.3d 1051, 1058-59 (9th Cir. 2013) (affirming the district court's decision to not convert a motion to strike pursuant to 28 U.S.C. § 2466 to a motion for summary judgment). A motion to strike pursuant to § 2466 is treated “as something like a motion to dismiss, where [the Court] can look to matters outside the pleadings and ..., where appropriate, allow for the possibility of conversion to summary judgment.” Id. at 1055 (alterations omitted) (quoting United States v. $6,976,934.65 Plus Interest, 478 F.Supp.2d 30, 38 (D.D.C. 2007)); see also $6,976,934.65 Plus Interest, 478 F.Supp.2d at 38 (stating that “[i]t is especially appropriate for a court to look at matters outside the pleadings when fugitive disentitlement is at issue” because the analysis “resembles a court's inquiry into its subject matter jurisdiction” and “a court should consider as much information as is available before deciding whether to invoke the significant measure of disallowing a claim”).

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IV. DISCUSSION

The fugitive disentitlement statute provides:

(a) A judicial officer may disallow a person from using the resources of the courts of the United States in furtherance of a claim in any related civil forfeiture action ... upon a

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