The remaining half will be used by the United States to reimburse federal banking agencies' insurance funds and to minimize the risk of loss arising from BCCI's illegal acquisitions of certain United States banks.
In satisfaction of 18 U.S.C. § 1963(l)(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 and 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.
On March 19, 1992, the French, Panamanian, and Paraguayan branches of BCCI Overseas filed separate petitions seeking the return of funds forfeited from accounts held in their names at institutions in New York. Although all three concede that they were not separately incorporated, they claim to be separate juridical entities under the laws of their domiciles. Accordingly, the branches argue that they are third parties to this litigation, that they are not bound by the plea agreement entered by their parent, and that funds held in their name were not owned by BCCI Overseas and cannot be forfeited absent specific proof tracing the assets to illegal activities. The Macanese, Sudanese, and Turkish branches filed similar petitions on April 12, 1992, May 11, 1992, and June 10, 1992 respectively.
Unlike the above-mentioned petitions, the April 27, 1992 and April 3, 1992 claims of Raymond Davies and Bangladesh were not filed on behalf of branches of BCCI Overseas; Davies' petition was filed on behalf of all depositors of the Sierra Leonean branch and Bangladesh's petition was submitted on behalf of the sovereign nation itself. Bangladesh seeks to recover the funds held in branch accounts based on allegations that it had the right to hold all foreign exchange acquired by the branches, that the branches could not dispose of foreign exchange without its express permission, and that the branches have not received such permission with respect to the forfeited assets.
In accordance with a briefing schedule set by the Court, the government filed motions to dismiss the petitions based on theories that as mere branches of one of the corporate defendants, none of the claimants had standing to appear before this Court and that none of the petitioners could satisfy the substantive prerequisites for court-ordered relief. Additionally, the government contended that the Paraguayan branch's petition was defective because it sought to recover an interest in assets which were not yet seized. The government further contended that no petition filed by a liquidator, including the claim filed by Mr. Davies, could assert derivative claims of depositors and that the petitions of the Sudanese and Turkish branches were filed out of time.
On June 24, 1992, the government filed a Motion to Amend Order of Forfeiture to Include Additional Property, seeking forfeiture and seizure of assets in newly discovered bank accounts held in the names of the corporate defendants, proceeds from the sale of a condominium purchased with resources provided by a corporate defendant, money remaining in a "BCCI Legal Fund" established by one of the corporate defendants for the defense of its employees' legal interests, a bankruptcy distribution to one of the corporate defendants, and assets held at various New York financial institutions in the name of ICIC Investments Ltd., a sibling corporation of defendant ICIC (Overseas) Ltd. The Court granted the government's motion and issued an Order of Forfeiture on July 29, 1992. The United States subsequently provided notice of the Order to potential claimants.
In response to the July 1992 Order of Forfeiture, Bangladesh filed a second petition asserting interests in newly forfeited and seized property held in the names of Bangladesh branches of BCCI Overseas. The government subsequently filed a motion to dismiss Bangladesh's new petition, which became ripe on June 18, 1993. Although the new Order of Forfeiture also directed the seizure of property held in the name of the Paraguayan branch, that branch failed to file a second petition in response to the Order and apparently believed that its first petition sufficiently raised a claim to those assets.
Hearings on the government's motions to dismiss what the government termed the "branch petitions" were scheduled in a May 12, 1993 Order which provided, "The litigants shall be prepared to present both legal arguments and relevant factual evidence, including testimony and/or documentation relating to the nature of the relationship between the petitioners and Bank of Credit and Commerce International (Overseas) Limited." Five days later, the government filed a motion in limine seeking an Order excluding the presentation of, inter alia, factual evidence and testimony of foreign law. The government claimed that such evidence and testimony were irrelevant to resolution of the motions to dismiss. After considering oppositions filed by some of the petitioners, the government's motion in limine was granted. The Court, however, warned, "In the event that the legal arguments contained in the government's motions to dismiss are rejected, additional hearings will be scheduled and the petitioners will be allowed to present relevant evidence in support of their c1aims." May 27, 1993 Order Modifying May 12, 1993 Order Setting Hearings on "Branch" Petitions at 3.
All petitioners were invited, though not required, to participate in oral argument scheduled for June 21, 22, and 23, 1992. All petitioners addressed herein except for the French and Turkish branches accepted the invitation.
Title 18, United States Code, § 1963 sets forth an orderly procedure by which third parties seeking to recover interests in forfeited property may contain judicial resolution of their claims. The provision granting standing to parties seeking to amend an order of forfeiture to exclude certain property states:
Any person, other than the defendant, asserting a legal interest in property which has been ordered forfeited to the United States pursuant to this section may, within thirty days of the final publication of notice or his receipt of notice..., whichever is earlier, petition the court for a hearing to adjudicate the validity of his alleged interest in the property.
18 U.S.C. § 1963(l)(2). Section 1963(l)(6) sets forth the substantive elements which a third party must establish to success fully obtain amendment of an order of forfeiture and provides in full:
If, after the hearing, the court determines that the petitioner has established by a preponderance of the evidence that--