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UNITED STATES v. BCCI HOLDINGS

February 27, 1996

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.



The opinion of the court was delivered by: GREEN

 ORDER GRANTING MOTION TO DISMISS

 Presently pending is the United States Motion to Dismiss ("Motion to Dismiss") the Petition Pursuant to 18 U.S.C. § 1963(l) to Determine Petitioners' Interest in Property Ordered Forfeited ("L-Claim"). The grounds of the Motion to Dismiss are lack of timeliness, lack of standing, and failure to state a claim upon which relief can be granted.

 For the reasons expressed below, the motion will be granted and the petition will be 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 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 verity 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 the petitioners' 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 to be seized was an escrow account at Foley & Lardner of Tampa, Florida, in the amount of $ 100,000 and which is at issue in the instant L-Claim.

 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 Miami Review 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. *fn1" In addition, personal notice was sent to 523 persons and entities, including notice to the address provided by petitioner Gibbs, acting as counsel for all of the petitioners and in his capacity as a claimant. Id. at Exhibit 2, at 18; Motion to Dismiss, supra, at 2 & Exhibit B (letter of September 7, 1993, with return receipt acknowledgment attached).

 Well prior to entry of the Third Order of Forfeiture, the government engaged in discussions during the fall of 1992 with petitioner Gibbs, who, as counsel, represented all of the petitioners. Subsequently, the Asset Forfeiture Office advised Gibbs by letter that it intended to seek forfeiture of the funds. See Motion to Dismiss, supra, at 2 & Exhibit A. In relevant part, the Justice Department's letter of October 16, 1992, stated:

 
The Asset Forfeiture Office has reviewed the matter of the BCCI-related $ 100,000 held in escrow by your former firm. Based on our review, we have concluded that all of these funds are subject to forfeiture under the Order of Forfeiture issued on January 24, 1992, by the United States District Court for the District of Columbia in United States v. BCCI Holdings (Luxembourg), et al., Crim. No. 91-0655 (JHG).
 
We intend to file a motion in the near future to amend the Order of Forfeiture to Include these funds, along with other assets identified as forfeitable. As a potential claimant to these funds, your firm will receive notice of the procedures to contest forfeiture of these funds in accordance with 18 U.S.C. § 1963(l) at an appropriate time.

 Letter of Lee J. Radek, Director, Asset Forfeiture Office, U.S. Department of Justice (signed by Robert C. Dalton) to B. Gray Gibbs, Esq., Foley & Lardner, dated October 16, 1992, attached to Motion to Dismiss, supra, at Exhibit A.


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