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UNITED STATES v. BCCI HOLDINGS

January 7, 1993

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, INTERNATIONAL CREDIT AND INVESTMENT COMPANY (OVERSEAS) LIMITED, Defendants.



The opinion of the court was delivered by: JOYCE HENS GREEN

 Presently pending are the government's Motion to Dismiss Petitions of BCCI Depositors and Motion to Dismiss Petitions of Additional BCCI Depositors. Upon consideration of the motions and all filings relating thereto, the petitions of Gerald Bolton, filed April 27, 1992, Arthur W.R. Cox, filed February 18, 1992, Harold Ephram Hanson, filed March 9, 1992, M. Zahidul Hoque, filed March 26, 1992, Anton Seravaseiyar, filed April 27, 1992, and Margaret Mary White, filed April 29, 1992 are dismissed.

 BACKGROUND

 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 that Order of Forfeiture provides that the four 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 January 24, 1992 Order as Exhibit A was a list of specific 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 supplemental Order on January 31, 1992 which directed immediate seizure of the specific assets listed therein.

 In satisfaction of 18 U.S.C. § 1963(1)(1), and to inform third parties of potential rights to seek recovery of assets declared forfeited, the United States published notice of the Order of Forfeiture, as amended, during the period between February 13, 1992 through March 27, 1992 in eleven major United States newspapers including the Wall street Journal the New York Times, the Chicago Tribune, and the Los Angeles Daily Journal. See Government's Compliance with Order of May 8, 1992, filed May 12, 1992. In addition, personal notice was sent to over 340 persons and entities as late as April 3, 1992. Id..

 Arthur W.R. Cox ("Cox") filed a petition on February 13, 1992 asserting an interest in approximately $ 2,300 which he deposited in an account at the Sri Lanka branch of BCCI (Overseas) Limited. On March 9, 1992, Harold Ephram Hanson ("Hanson") filed a petition seeking recovery of $ 11,481.13, with interest, which he deposited in a checking account at the Douglas, Isle of Man branch of BCCI S.A. M. Zahidul Hoque ("Hoque") filed a petition on March 26, 1992 seeking to recover approximately 50,000 Taka *fn1" which he deposited with the Dhaka, Bangladesh branch of BCCI (Overseas) Limited. On April 27, 1992 Anton Seravaseiyar ("Seravaseiyar") filed a petition seeking to recover $ 2,046 which he deposited with BCCI (Overseas) Sri Lanka. *fn2" Also on April 27, 1992, Gerald Bolton and his wife, J. Solley, filed a petition asserting an interest in approximately $ 100,000 which they deposited with a branch of BCCI S.A. in Luxembourg. Margaret Mary White submitted a petition on April 29, 1992 seeking recovery of 75,333.62 Pounds Sterling *fn3" which she deposited with Bank of Credit and Commerce Gibraltar, Limited ("BCC Gibraltar").

 In accordance with a briefing schedule set by the Court, the government filed its Motion to Dismiss Petitions of BCCI Depositors, which addressed the petitions of Bolton, Cox, Hanson, and Hoque. The court-appointed fiduciaries for the four corporate defendants also filed a memorandum of law addressing those petitions. Shortly thereafter, the government filed its Motion to Dismiss Petitions of Additional BCCI Depositors, which addressed the petitions of Seravaseiyar and White. *fn4" Although Bolton, Hanson, and White have responded in some form to the government's motions, Cox, Hoque, and Seravaseiyar have not. The government has submitted a reply to White's opposition but has not replied to the responses of Bolton and Hanson.

 DISCUSSION

 Following the entry of an order of forfeiture pursuant to 18 U.S.C. § 1963(a), a third party may petition the issuing court for a hearing to amend the order to exclude certain property in which the third party claims a legal right, title, or interest. See 18 U.S.C. § 1963(1)(2). Subsection 1963(1)(6) sets forth the elements which the petitioner must prove in order to recover assets previously declared forfeited and states in full:

 If, after [a] hearing, the court determines that the petitioner has established by a preponderance of the evidence that --

 (A) the petitioner has a legal right, title, or interest in the property, and such right, title, or interest renders the order of forfeiture invalid in whole or in part because the right, title or interest was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the commission of the acts which gave rise to the forfeiture of the property under this section; or

 (B) the petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of purchase reasonably without cause to believe that the property was subject to forfeiture under this section;

 the court shall amend the order of forfeiture in accordance with its determination. *fn5"


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