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UNITED STATES v. BCCI HOLDINGS

August 19, 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 is the United States' Motion to Dismiss Round Two Petitions of BCCI Depositors, addressing the petitions for hearings to adjudicate interests in forfeited property filed by Anton Seravaseiyar ("Seravaseiyar"), Ahmed Shahriar ("Shahriar"), Aqueel Ahmed Siddiqi ("Siddiqi"), and Margaret Mary White ("White"). Upon consideration of the motion and all filings relating thereto, the four petitions 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 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 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(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.

 In response to the notice published by the government, several depositors filed petitions seeking to recover funds transferred to BCCI, including Seravaseiyar, who filed a petition on April 27, 1992 requesting return of $ 2,046 which he deposited with BCCI (Overseas) Sri Lanka, and White, who filed a petition on April 29, 1992 seeking to obtain $: 75,333.62 which she deposited with the Bank of Credit and Commerce Gibraltar, Limited. The government filed a motion to dismiss these two petitions, as well petitions filed by four other depositors, on June 5, 1992. *fn1" Subsequent to the filing of that motion, Siddiqi filed his petition, which seeks recovery of $ 28,500. Mr. Siddiqi claims to have purchased two demand drafts totalling that amount from BCCI (Overseas) Sri Lanka and alleges that BCCI was shut down before he could cash the drafts at Security Pacific International Bank in New York.

 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. *fn2"

 In response to the notice of the more recent Order of Forfeiture, Seravaseiyar and White filed second petitions which asserted essentially the same interests as those claimed in their first submissions. In addition, Shahriar filed a petition seeking to recover $ 700 which he transferred to a foreign currency account at BCCI (Overseas) Dhaka. The government filed its motion to dismiss the petitions of Siddiqi and Shahriar and the second petitions of Seravaseiyar and White on December 1, 1992. Only Siddiqi filed an opposition and the government declined to submit a reply.

 DISCUSSION

 Title 18, United States Code, § 1963 sets forth an orderly procedure by which third parties seeking to recover interests in forfeited property may obtain 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 successfully 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--
 
(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 ...

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