statute, the term "legal" is ambiguous and "may be interpreted to mean 'traditionally enforceable at law,' as opposed to 'traditionally enforceable at equity,' or it may mean, 'according to the law' as opposed to 'according to what is considered just and equitable.'" Schwimmer, 968 at 1582. While the Court concedes that the latter interpretation may not be as "obviously" correct as the Third Circuit found it to be, Lavin, 942 at 185 n. 10, it nonetheless is persuaded by Schwimmer and the cases cited therein that "the term 'legal' in § 1963(1) should be interpreted to mean 'under the law,'" and that beneficiaries of constructive trusts can therefore assert "legal interests" in forfeited property. Schwimmer, 968 at 1582.
Notwithstanding the above conclusion, IBJ 's assertion that it holds an equitable lien on the entirety of BCCI's estate is rejected, and even were a constructive trust imposed in favor of that petitioner, it would only be placed on assets which are not yet before this Court. IBJ's first petition expressly alleges that it was to receive the funds to which it now lays claim "from the BCCI Tokyo account at BankAmerica." March 18, 1992 Petition in Support of the Claim of The Industrial Bank of Japan, Limited at 3-4. In addition, counsel for IBJ argued at the hearing on the government's motions to dismiss, "And what I can do with documents, Your Honor, is I can show you that among that pile of dollars of BankAmerica International in the Tokyo account, 32 million of it was mine." Tr. at 15-16 (emphasis added). Given that there has been no allegation that funds in the BCCI, S.A. - Tokyo account have been mingled with any other BCCI funds during the relevant time period, IBJ has at best a lien only on assets held in that account. Cf. V William F. Fratcher, Scott on Trusts § 515 (4th ed. 1989). Because "the beneficiary of a constructive trust does not have an interest superior to the trustee's in every asset the trustee holds, but only in those assets held in constructive trust or traceable to such assets," Schwimmer, 968 F.2d at 1583, and because no assets of BCCI, S.A. - Tokyo have yet been seized pursuant to an Order of this Court, IBJ's petitions are not ripe for review and must therefore be dismissed.
B. ISSUES RELATING TO THE SUBSTANTIVE REQUIREMENTS OF 18 U.S.C. § 1963(1)(6)(A) AND (B)
Even were BONY, Credit Suisse, and Shaw, Pittman found to have standing under § 1963(1)(2), none of them could be considered to have a "vested" or "superior" right, title, or interest in forfeited property as required by § 1963(1)(6)(A). As recognized by the Second Circuit, "the categories of vested and superior are intended to cover those cases where the Court lacks jurisdiction over the property because it is not really 'property of the defendant.'" Schwimmer, 968 F.2d at 1581 (emphasis in the original). Because general creditors lack property interests superior to a defendant's in particular assets or funds, their asserted interests do not "undermine the court's jurisdiction over the property, and [do] not invalidate the order of forfeiture. Thus, a general creditor has no interest in particular assets or funds that warrants an amendment of an orders of forfeiture under § 1963(1)(6)(A)." Id.5
In addition to failing to meet all requirements of § 1963(1)(6)(A), BONY and Shaw, Pittman cannot satisfy all prerequisites of the only other basis for court ordered relief, § 1963(1)(6)(B). When defining the third parties who could recover under subsection (B), Congress used the phrase "bona fide purchaser for value," a legal term of art referring to certain buyers of tangible property. See Lavin, 942 F.2d at 185; Campos, 859 F.2d at 1238; Mageean, 649 F. Supp. at 829. Though some courts applying § 1963(1)(6)(B) or its equivalent in the Comprehensive Drug Abuse and Control Act, 21 U.S.C. § 853(n)(6)(B), have interpreted the phrase to include any person engaging in an arms' length business transaction, see, e.g., Reckmeyer, 836 F.2d at 208; Mageean, 649 F. Supp. at 829, such a broad interpretation of the phrase is inappropriate. As Justice O'Connor has noted, "a judge must presume that Congress chose its words with as much care as the judge [herself] brings to bear on the task of statutory interpretation," FBI v. Abramson, 456 U.S. 615, 635, 102 S. Ct. 2054, 2066, 72 L. Ed. 2d 376 (1982) (dissenting opinion), and the literal language of a statute should be conclusive in the absence of a clearly expressed legislative intent to the contrary. See Russello v. United States, 464 U.S. 16, 20, 104 S. Ct. 296, 299, 78 L. Ed. 2d 17 (1983). See also Evans v. United States, 119 L. Ed. 2d 57, 112 S. Ct. 1881, 1885 (1992) ("It is a familiar 'maxim that a statutory term is generally presumed to have its common-law meaning.'") (quoting Taylor v. United States, 495 U.S. 575, 592, 110 S. Ct. 2143, 2155, 109 L. Ed. 2d 607 (1990)). Congress could easily have adopted language in § 1963(1)(6)(B) expressly providing protection to all parties engaged in arms' length transactions with defendants, and its failure to do so is strong evidence of a desire not to provide such a wide avenue of relief. The Senate Judiciary Committee's report on the statute does not provide persuasive evidence of a clear intent to the contrary. It is true that the report recognized that the purpose of the relation back doctrine codified at § 1963(c) was to "close a potential loophole in current law whereby the criminal forfeiture sanction could be avoided by transfers that were not 'arms' length.'" S. Rep. No. 225, 98th Cong., 2d Sess. 200-01, reprinted in 1984 U.S.Code Cong. & Ad. News 3383-3384 ("S. Rep.") (emphasis added). However, when the report addressed the nature of the relief available to third parties under § 1963(1)(6), the provisions at issue here, it used narrower language and spoke only of vested or superior interest holders and "bona fide purchasers for value." S. Rep. at 209 (emphasis added). Accordingly, in light of the clear statutory language and the absence of an unambiguously expressed contrary intent of Congress, the phrase "bona fide purchaser for value" is interpreted to refer only to a certain class of buyers of tangible property. Because neither BONY nor Shaw, Pittman obtained their asserted interest through the purchase of tangible property,
they would not be entitled to relief under § 1963(1)(6)(B) even were they found to have standing under § 1963(1)(2).
For reasons stated above, it is hereby
ORDERED that the petitions filed by the following claimants on the following dates are dismissed:
The Bank of New York, filed March 11, 1992;