US v. BCCI HOLDINGS (LUXEMBOURG), SA, Crim. Action No. 91-0655 (JHG).
| Decision Date | 27 February 1996 |
| Docket Number | Crim. Action No. 91-0655 (JHG). |
| Citation | 916 F. Supp. 1276 |
| Court | U.S. District Court — District of Columbia |
| Parties | UNITED STATES of America v. BCCI HOLDINGS (LUXEMBOURG), S.A., Bank of Credit and Commerce International, S.A., Bank of Credit and Commerce International (overseas) Limited, and International Credit and Investment Company (overseas) Limited, Defendants. |
COPYRIGHT MATERIAL OMITTED
Breckinrige L. Willcox, Arent, Fox, Kintner, Plotkin & Kahn, Washington, DC, for petitioner Banque Indosuez.
Gerald McDowell, Director, Asset Forfeiture Office, Criminal Division, U.S. Dept. of Justice, Stefan D. Cassella, Deputy Director, Michelle Crawford, Trial Attorney, U.S. Dept. of Justice, for U.S.
PETITION OF BANQUE INDOSUEZ
Presently pending is the United States' Motion to Dismiss ("Motion to Dismiss") the Claim and Petition for Remission of $263,250.00 by Banque Indosuez as a Third Party Claimant Pursuant to 18 U.S.C. § 1963(l) ("L-Claim"). The sole ground of the Motion to Dismiss is lack of timeliness.
For the reasons expressed below, the Motion to Dismiss will be denied. Should the United States or the Court-Appointed Fiduciaries oppose the L-Claim on the merits, they shall file their briefs in opposition on or before March 29, 1996.
On January 24, 1992, this Court, following findings of fact and conclusions of law with supporting reasons made in open court, accepted the pleas of guilty of the four corporate defendants (collectively "BCCI") and the plea agreement between them and the United States of America. Thereupon, and in accordance with 18 U.S.C. § 1963, an Order of Forfeiture was entered.
Paragraph 1(e) of the Order provides that the corporate defendants named in this action shall forfeit to the United States ownership interests in all property located in the United States, including, without limitation, real property and all tangible and intangible personal property, however held, whether subsequently identified, determined or discovered in the course of the ongoing liquidation proceedings described therein or otherwise identified, determined, or discovered in any manner at any time, but not property that may be brought into the United States by or on behalf of Court-Appointed Fiduciaries of BCCI in the course of the management or disbursement of the liquidation estates as described in the plea agreement.
Attached to the First Order of Forfeiture was a listing of BCCI accounts, with corresponding numbers, names, and approximate balances, which the United States Marshals Service was directed to seize forthwith. Because the government was unable to verify certain information concerning additional forfeitable accounts at the time the Order of Forfeiture was entered, the Court issued a First Supplemental Order on January 31, 1992, which directed immediate seizure of the specific assets listed therein. The Court has since amended the Order of Forfeiture to include additional assets, including property set forth in the Second and Third Supplemental Lists of Forfeited Property. See Order of Forfeiture of July 29, 1992 (Second Order of Forfeiture); Order of Forfeiture of August 19, 1993 (Third Order of Forfeiture).
The Third Order of Forfeiture is relevant to Banque Indosuez' L-Claim presently before the Court. Attached to the Third Order of Forfeiture was a Third Supplemental List of Forfeited Property aggregating $101,302,465.54. Included among the accounts seized at First American Bank of New York ("FABNY" or "First American") was Account No. 23012 of Banque de Commerce et de Placements, S.A. ("BCP"), which included the $263,250 at issue in the L-Claim presented by Banque Indosuez.
In compliance with 18 U.S.C. § 1963(l)(1) and to inform third parties of their potential rights to seek recovery of assets declared forfeited in the Third Order of Forfeiture, the United States published notice of the Order of Forfeiture, as amended, during the period between September 3, 1993, and September 27, 1993 in eleven major newspapers including the Wall Street Journal, the New York Times, the Chicago Tribune, the Los Angeles Daily Journal, the Washington Post, and the International Herald Tribune. See United States' Notice to the Court of the government's compliance with Order of August 19, 1993, filed September 21, 1993.1 In addition, personal notice was sent to 523 persons and entities, including Ms. Francine Marx, Deputy General Counsel to Banque Indosuez of Geneva, Switzerland. Id. at Exhibit 2, at 11.
However, prior to entry of the Third Order of Forfeiture, Banque Indosuez became aware that the sum of $263,250 had been blocked at First American, and it attempted to determine why. By letter of February 4, 1993, Banque Indosuez requested from the Federal Reserve information about the blocking order at First American and sought the Federal Reserve's assistance in obtaining release of the funds. See Letter of Ms. Francine Marx of Banque Indosuez to Marylin (sic) D. Barker, Esq., Board of Governors of the Federal Reserve, dated February 4, 1993, attached to Banque Indosuez' L-Claim, supra, at Exhibit F. Further correspondence was exchanged between Banque Indosuez and the Federal Reserve during February 1993, and, on April 1, 1993, Ms. Barker of the Federal Reserve advised Ms. Marx of Banque Indosuez that the sum of $263,250 was frozen in BCP's account at First American Bank, because it was BCCI-related property. See Letter of Marilyn D. Barker, Esq., Board of Governors of the Federal Reserve, dated April 1, 1993, attached to Banque Indosuez' L-Claim, supra, at Exhibit A. The Federal Reserve advised Banque Indosuez:
On April 26, 1993, Banque Indosuez accepted Ms. Barker's advice and wrote to the Department of Justice. In relevant part, Ms. Marx' letter stated:
It appears that a procedure for filing a claim to funds in the CRIS account has been established. Could you please advise us as to the appropriate procedure? Also, could you confirm that the amount of $263.500 transferred by us was effectively transferred into an account of BCP's with FABNY? (We had been informed that BCP did not have an account at FABNY).
Letter of Ms. Marx of Banque Indosuez to Mr. Robert C. Dalton, Asset Forfeiture Office, Criminal Division, U.S. Department of Justice, dated April 26, 1993, attached to Banque Indosuez' L-Claim, supra, at Exhibit B.
Receiving no response to her letter of April 26, 1993, Ms. Marx tried again on May 25, 1993:
Letter of Ms. Marx of Banque Indosuez to Mr. Robert C. Dalton, Asset Forfeiture Office, Criminal Division, U.S. Department of Justice, dated May 25, 1993, attached to Banque Indosuez' L-Claim, supra, at Exhibit C.
By letter of September 17, 1993, the Department of Justice provided Banque Indosuez, along with 522 others, with notice that certain BCCI-related property had been declared forfeited, including BCP's account, account # XXXXX in the amount of $827,396.35. The letter also provided Banque Indosuez with information about the claims procedure:
The procedure for filing a claim is set forth more fully in Title 18, United States Code, Section 1963(l). Under Section 1963(l)(2), a person intending to file a claim must do so in the above-styled case within thirty (30) days of his receipt of the Notice of Forfeiture by mail or within 30 days of the last publication of the Order of Forfeiture in a newspaper of general circulation, whichever is earlier. As of the date of this letter, the Notice of Forfeiture has not yet been published for the last time; therefore, you will likely have 30 days from receipt of this letter in which to file a claim. If delivery of the letter is delayed for any reason until after the last publication date, however, the time for filing a claim would run from the last publication date and not from the date of the receipt of the letter.
Letter of Lee Radek, Director, Asset Forfeiture Office (signed by Robert C. Dalton for Stefan D. Cassella) to Ms. Francine Marx of Banque Indosuez, dated September 17, 1993, attached to Banque Indosuez' L-Claim, supra, at Exhibit D (first emphasis in original, second emphasis added); see also Notice to the Court (filed Sept. 21, 1993), supra, at Exhibits 1 (addressees included Banque Indosuez) & 2 (copy of letter).
On September 27, 1993, the last notice of forfeiture was published. See Notice to Court, supra, at Exhibit 3. However, for whatever reason, Banque Indosuez did not receive its letter from the Department of Justice until November 15, 1993, approximately three weeks after the 30-day window closed.
On December 9, 1993, within 30 days of receipt of the letter from the Department of Justice but more than 30 days after the last date of publication, Banque Indosuez filed its L-Claim. The government moved to dismiss the L-Claim on March 1, 1994, and, this Court heard oral argument on the Motion to Dismiss on January 20, 1995.
The government contends that Banque Indosuez' L-Claim should be dismissed, because it was filed untimely: ...
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