The opinion of the court was delivered by: GREEN
ORDER GRANTING MOTIONS TO DISMISS
Presently pending are the United States' Motions to Dismiss ("Motion to Dismiss") the following petitions: (1) Petition for Hearing to Adjudicate Right, Title or Interest in Forfeited Property of Lee Scarfone and Patricia Scarfone, Individually, ALSA International, Inc., a Florida Corporation, and Banditball, Inc., a Florida Corporation ("Scarfones' L-Claim"); (2) Supplemental Claim and Petition of White Consolidated Industries, Inc., Pursuant to 18 U.S.C. § 1963(l) for Hearing to Adjudicate its Interest in Forfeited Property ("WCI's L-Claim"); (3) Syed Chiragh Ali Shah's Petitions (sic) Filed in Response to August 19, 1993 Order of Forfeiture ("Shah's L-Claim"); (4) Affidavit on Oath by Aqeel Ahmed Siddiqui in Compliance with the Notice of Third Party Claimant Dated September 16, 1993 ("Siddiqui's L-Claim"); (5) Petition to Adjudicate Validity of Claim of Mahfooz H. Rizvi and Hina M. Rizvi ("Rizvis' L-Claim"); and (6) Petition to Adjudicate Validity of Claim of Vasudeva M. Iyer and Rajalakshmi V. Iyer ("Iyers' L-Claim").
The government has moved to dismiss each of the petitioners' claims on the grounds that each is a general creditor who lacks standing under 18 U.S.C. § 1963(l)(2). For the reasons expressed below, the Motions to Dismiss will be granted.
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 the 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 verify 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 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). Attached to the Third Order of Forfeiture, which is relevant to the petitioners' L-Claims presently before the Court, was a Third Supplemental List of Forfeited Property aggregating $ 101,302,465.54.
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 September 3, 1993, and September 27, 1993 in eleven major newspapers including the Wall Street Journal, the New York Times, 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 Sept. 21, 1993). In addition, personal notice was sent to over 523 persons and entities. Id. at Exhibit 2, at 11.
Subsequently, this Court held hearings on the petitions arising from the Third Round of Forfeiture.
On October 4, 1993, the Scarfones' timely filed their L-Claim. These petitioners, whose L-Claims in Rounds One and Two were dismissed by this Court on the ground that the Scarfones were unsecured general creditors of BCCI, United States v. BCCI Holdings (Luxembourg), et al., 841 F. Supp. 1, 4-5 (D.D.C. 1993), have asserted a similar L-Claim in Round Three. The Scarfones' petition stems from a pending lawsuit in which they have asserted claims against, inter alia, BCCI. According to the amended complaint in Scarfone, et al., v. REGENCY BANK, et al., 89-912-C-T-13C (M.D. FL.), a copy of which is attached to their L-Claim, the Scarfones allege that BCCI breached its fiduciary duty and, along with others, violated the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1962(c).
In general, the Scarfones aver that BCCI loaned them $ 1,950,000.00, which was secured by an interest in the property of ALSA International. See Scarfones' L-Claim, supra, at P 7. BCCI later assigned this interest to REGENCY BANK who purchased the ALSA International property at a foreclosure sale. The Scarfones contend that as a result of BCCI's breaches and REGENCY BANK's foreclosure, they lost significant assets and their ability to develop other financial interests. The Scarfones also allege that BCCI's breaches forced them into bankruptcy.
Nevertheless, the Scarfones have failed to identify an interest in any specific asset, but seek to recover interest paid to BCCI, other monies and damages. Id. Specifically, they claim a "right, title and interest in the funds ordered forfeited by this court to the extent that the Petitioners' funds either paid directly to BCCI by the Petitioners or by REGENCY BANK pursuant to the assignment of the first mortgage on the Petitioners' property by BCCI to REGENCY BANK have been commingled with such forfeited funds, and/or to the extent that such funds being the property of BCCI are property subject to claims for compensatory and punitive damages in an amount exceeding $ 5 million for the wrongful acts of BCCI and its officers directed against the Petitioners." Id. at P 10.
In its Motion to Dismiss, the government contends that the Scarfones' L-Claim should be dismissed because, at most, they are unsecured general creditors of BCCI. See Motion to Dismiss Round 3 Petition of Lee Scarfone, et al., at 2 (filed November 3, 1993). In reply, the Scarfones assert that their interest as unsecured general creditors is sufficient to establish standing and support a claim under 18 U.S.C. § 1963. See Petitioners' Response to Motion to Dismiss Round Three Petitions of BCCI Tort Petitioners ("Scarfones' Response"), at 2 (filed November 15, 1993). In addressing the requirement that they identify a particular asset subject to forfeiture, the Scarfones argue that the requirement is inapplicable, because the order of forfeiture applied to all of the domestic assets of BCCI. Scarfones' Response, supra, at 4. ...