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UNITED STATES v. BCCI HOLDINGS

April 16, 1998

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

In re Second Round Petition of Amjad Awan

 MEMORANDUM OPINION AND ORDER

 This case involves Amjad Awan's petition filed pursuant to 18 U.S.C. § 1963(1) ("L-Claim"). Awan seeks to recover the proceeds from the 1992 sale of a condominium in Washington, D.C., which were previously found to be the assets of the corporate criminal defendants (collectively referred to as "BCCI") subject to forfeiture to the United States. Awan is a former employee of Defendant Bank of Credit and Commerce International, S.A. who was convicted of money laundering in 1990 in connection with his employment. See United States v. Awan, 966 F.2d 1415 (11th Cir. 1992).

 Presently before the Court is the United States' motion for reconsideration of this Court's prior memorandum opinion and order, issued August 26, 1997. In its present motion, the United States has presented the Court with thirteen pages of new arguments to supplement what was argued in only a cursory paragraph in its memorandum in support of its motion to dismiss. Because some of the United States' arguments have merit, the Court shall modify its previous Order and remove the stay of proceedings imposed therein. Instead, the Court shall deny the United States' motion to dismiss the Second Round Petition of Amjad Awan.

 BACKGROUND

 The following facts are assumed to be true for the purposes of the motion to dismiss and the motion for reconsideration. Beginning in 1982, Awan managed the personal bank accounts of General Manuel Noriega. As such, he was authorized to deposit and withdraw money from Noriega's accounts with BCCI, including the account at BCCI (London), which was opened in 1984 after being transferred to London from BCCI (Panama). Awan Aff. P3. In 1984, Awan was transferred to BCCI's Washington office, where in addition to other duties, he continued to manage Noriega's accounts. Id. P4.

 In 1986, Awan decided to purchase condominium # 723 East, at 4201 Cathedral Ave., N.W., in Washington, D.C., for $ 175,000. Id. After making a down payment from his personal checking account in the amount of $ 17,500, Awan intended to rely upon a gift from his father in Pakistan to pay the balance. Id. P5. However, after he learned that the gift from his father would not arrive by wire transfer in time for closing, he asked General Noriega for a personal loan. Noriega agreed, and, on August 20, 1986, Awan directed the transfer from Noriega's account at BCCI (London) to First American Bank in Washington, D.C. Id. PP6-7.

 On September 25, 1986, pursuant to Awan's direction, First American issued a cashier's check made payable to Homeowner Guardian and Title in the amount of $ 161,079.94. Id. PP8-9. The transaction was then completed, and Awan claims that he later repaid Noriega's loan: "When the funds to repay the loan from General Noriega became available from my father, Noriega instructed me to have the funds deposited in his account at a Panamanian bank. In accordance with General Noriega's instructions, I asked my father to transfer money to General Noriega's account, a non-BCCI Panamanian Bank." Id. P10.

 In 1988, Awan and other BCCI employees were indicted in the Middle District of Florida for offenses arising out of a conspiracy to launder illegal drug proceeds through BCCI. On July 29, 1991, Awan was convicted and later sentenced to 12 years in prison. Id. P12. His conviction was affirmed on appeal. See United States v. Awan, 966 F.2d 1415 (11th Cir. 1992).

 Under a grant of use immunity, see 18 U.S.C. § 6002, *fn1" Awan testified at Noriega's trial and cooperated in BCCI-related investigations. Awan Aff. P13 & Ex. P (letters granting use immunity). "Awan met extensively with Tampa prosecutors, as well as with the Noriega prosecution team from Miami." Hume Affidavit ("Aff.") P3. And during these debriefings, "there were extensive discussions about the Cathedral Avenue property and the fact that the funds came from a loan from General Noriega." Id. Awan disclosed to the prosecutors his financial relationship with Noriega because it was contemplated that he would be testifying against Noriega. Id. PP4-5. Noriega was later convicted of conspiracy to commit racketeering, racketeering, conspiracy to import and distribute cocaine, manufacture of cocaine, conspiracy to manufacture, distribute, and import cocaine, and traveling in interstate or foreign commerce to promote unlawful enterprise. United States v. Noriega, No. 88-79-CR (S.D.Fla.), conviction aff'd, 117 F.3d 1206 (11th Cir. 1997). As a result of Awan's cooperation, Awan's sentence was reduced to six and one-half years and $ 95,000 of his $ 100,000 fine was remitted.

 In February 1991, Awan also met with prosecutors from the New York District Attorney's Office in Manhattan in connection with the investigation of BCCI, First American Bank, Robert Altman and Clark Clifford. "The subject of the Cathedral Avenue property and the loan from General Noriega was discussed extensively. This information was also given pursuant to use immunity." Hume Aff. P5. Awan's counsel was advised later that summer that "information that Mr. Awan provided to the Tampa Office was being shared continually with the United States Department of Justice Criminal Division, which had assumed control of the overall BCCI investigation and prosecution." Id. P7.

 Amidst Awan's legal travails, BCCI collapsed. *fn2" In early 1991, the Bank of England received troubling information about BCCI's financial condition and integrity. In response, it commissioned a special audit, which "disclosed evidence of a complex and massive fraud at BCCI, including substantial loan and treasury account losses, misappropriation of funds, unrecorded deposits, the creation and manipulation of fictitious accounts to conceal bank losses, and concealment from regulatory authorities of BCCI's mismanagement and true financial position." Corrigan, Mattingly & Taylor, The Federal Reserve's Views on BCCI, 26 Int'l Law. 963, 970-71 (1992) (based on testimony before the Committee on Banking, Finance and Urban Affairs of the United States House of Representatives on September 3, 1991).

 The results of the audit were shared with regulators in other countries, and, on July 5, 1991, banking regulators in the United Kingdom, Luxembourg and the United States, froze assets owned or controlled by BCCI. By July 6th, eighteen countries had shut down BCCI's operations in their jurisdictions, and, as of July 29, 1991, forty-four countries had closed down BCCI branches.

 On November 15, 1991, a three-count Indictment, which included charges of conspiracy, wire fraud and racketeering against BCCI, was filed in this Court. On December 19, 1991, a Superseding Information was filed in which Awan was named as a participant in connection with six predicate acts of money laundering. 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 known as BCCI, and the Plea Agreement between them and the United States of America. ...


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