The opinion of the court was delivered by: GREEN
MEMORANDUM OPINION AND ORDER
Presently pending are the United States' Motion to Dismiss ("Motion to Dismiss") the Claim and Petition for Remission of $ 263,250.00 by Banque Indosuez as a Third Party Claimant Pursuant to 18 U.S.C. § 1963(l) ("L-Claim") and Banque Indosuez's Motion for Summary Judgment. For the reasons expressed below, the motion to dismiss will be denied and the motion for summary judgment will be denied without prejudice.
Banque Indosuez seeks remission of $ 263,250 that was forfeited pursuant to 18 U.S.C. § 1963 when the United States seized the defendants' assets under the authority of the Third Order of Forfeiture entered by this Court on August 19, 1993. Included among the accounts seized at First American Bank of New York ("FABNY" or "First American") was Account No. 23012 of Banque de Commerce et de Placements, S.A. ("BCP"),
which included the $ 263,250 at issue in the instant L-Claim presented by Banque Indosuez. This Court previously denied the United States' motion to dismiss this L-Claim on the grounds of timeliness. See United States v. BCCI Holdings, 916 F. Supp. 1276 (D.D.C. 1996). Thereafter, the United States moved to dismiss the L-Claim for lack of standing and failure to state a claim, and the petitioner moved for summary judgment.
In its petition, Banque Indosuez alleges the following material facts. On July 12, 1991, seven days after BCCI's assets were frozen, Banque Indosuez transferred $ 263,500 from a depositor's account at Banque Indosuez to the depositor's account at BCP, also located in Geneva, Switzerland. See L-Claim P5 (citing Exhibit H, instructions of July 11, 1991). However, because the transfer was accomplished in U.S. dollars, the transaction was made through U.S. correspondent banks in New York. Id. P6. Banque Indosuez's correspondent, Banker's Trust in New York, transferred $ 263,500 to the bank it believed to be BCP's correspondent bank, the ill-fated First American Bank of New York. Id. PP 6-7. On July 17, 1991, BCP advised Banque Indosuez that its correspondent bank was not First American, but American Express Bank, Ltd., in New York. Id. P 8 (citing Exhibit K).
Pursuant to Banque Indosuez's instructions, Banker's Trust contacted First American and demanded the return of the $ 263,500, which it asserted had been transferred to First American in error. It was too late. On July 29, 1991, First American advised Banker's Trust that "our bank regulators forbid processing of any [BCC] transactions. Funds that are received in favor of a BCC Bk are held in suspense until further clarification." Id. at Ex. O (telex from Banker's Trust to Banque Indosuez relaying telex from First American). Despite the petitioner's claim that BCP had closed its account with First American on June 4, 1991, prior to the effective date of the blocking order, and despite Banque Indosuez's arguments that BCP was not a subsidiary of the BCCI group, the $ 263,500 was never released. Ultimately, the funds were included in the Third Order of Forfeiture.
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.
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--
(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 ...