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.
The Scarfones have not identified an interest in a specific asset. Instead, they seek to recover interest paid to BCCI, other monies and damages. 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.
The government has moved to dismiss the Scarfones' L-Claim, since it is "substantially identical to the claim filed by the same parties in response to earlier orders of Forfeiture in this case." Motion to Dismiss Miscellaneous Round 4 L-Claims, at 2 (citing United States v. BCCI Holdings (Luxembourg), S.A., 841 F. Supp. 1 (D.D.C. 1993)). In reply, while admitting that they are general creditors, the Scarfones ask the Court to reconsider her earlier ruling. See Petitioners' Response, at 1 & 9.
2. General Depositors
In the Fourth Round, L-Claims have been filed by four general depositors with BCCI. First, Syed Chiragh Ali Shah renews the L-Claim that he filed in the Third Round, see United States v. BCCI Holdings (Luxembourg), 919 F. Supp. 31, 34-35 (D.D.C. 1996), claiming an interest in $ 2047.50. This sum represents the amount in a check drawn on his account in BCCI-Lahore, Pakistan on June 29, 1991, to the favor of his grandson, Syed Shahzad Murtaza. On July 2, 1991, BCCI-Lahore directed American Express, New York, through its correspondent bank, First American Bank of New York, to debit its account in the amount of $ 2,047.50 and credit the same to the account of Syed Shahzad Murtaza in his local account, the First Bank of Alabama. However, before the monies were transferred, BCCI's assets were shut down.
Second, Aqeel Ahmed Siddiqui filed a Fourth Round L-Claim for the amount of $ 28,500. Siddiqui's claim is identical to the claims he filed in Rounds Two and Three, both of which were dismissed. See United States v. BCCI Holdings (Luxembourg), S.A., et al., 833 F. Supp. 17, 20 (D.D.C. 1993) (Round Two); United States v. BCCI Holdings (Luxembourg), et al., 919 F. Supp. 31, 33-34 (D.D.C. 1996) (Round Three). His L-Claim stems from two drafts of $ 3,500 and $ 25,000 drawn on June 24, 1991 from his account at BCCI-Colombo, Sri Lanka, to Security Pacific International Bank of New York. Before the drafts were honored by Security Pacific International Bank, BCCI's assets in the United States and abroad were frozen on July 5, 1991.
Third, Dr. W. Schaubel filed a Round Four L-Claim, seeking the return of $ 30,664.60 from three certificates of deposit (account numbers 03002640, 02402642, and 01402640) on deposit with BCCI (Luxembourg).
Fourth, Owen Silvious petitions the Court to remit $ 168,638.00, which represents the balance of a five-year time deposit account held by BCCI (New York). Silvious asserts a constructive trust theory to recover his "whole life savings," L-Claim, at P7, contending that the "deposit was obtained by fraudulent misrepresentations of defendant BCCI" as to BCCI's financial condition. Id. at PP6 & 7.
3. Miscellaneous Claims.
The L-Claims submitted by two claimants defy general categorization. In the L-Claim submitted by E.H. Rinaca, Jr., the petitioner states: "I believe that properties forfieted (sic) by B.C.C.I.-Criminal No. 91-0655 (JHG) to be those left to my grandfather, J.I. Miller, to be devised to me E.H. Rinaca Junior. (I believe my grandfather may have been crook'd (sic); he was very sad for many years) This is to the best of my knowledge." The L-Claim submitted by Allen A. Evans consists of an invoice (marked "paid in full" in the amount of $ 199) and a copy of the Fourth Round publication notice with three accounts circled and the handwritten words "capital punishment (fine)" at the top of the page. Finally, Mustafa A. Qureshi claims an interest in $ 78,578.69. Qureshi is a former BCCI senior officer who was employed at various locations including Montreal, Miami, Los Angeles, Abu Dhabi and London. Because the California Liquidators of BCCI only paid him $ 32,650.55 of a $ 111,229.24 claim, he has filed the instant L-Claim seeking the balance.
Title 18, United States Code, Section 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 under paragraph (1), whichever is earlier, petition the court for a hearing to adjudicate the validity of his alleged interest in the property. The hearing shall be held before the court alone, without a jury.
18 U.S.C. § 1963(l)(2).
Section 1963(l)(6) sets forth the substantive elements that a third party must establish to obtain amendment of an order of forfeiture. This section provides:
If, after the hearing, the court determines that the petitioner has established by a preponderance of the evidence that--