13‐911‐cr
United States v. Watts
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2013
(Argued: April 7, 2014 Decided: May 4, 2015)
Docket No. 13‐911‐cr
UNITED STATES OF AMERICA,
Appellee,
AMALGAMATED BANK,
Interested Party‐Appellee,
— v. —
RODNEY WATTS,
Defendant‐Appellant,
DEPETRIS & BACHRACH, LLP,
Interested Party‐Appellant,
COURTNEY DUPREE, THOMAS FOLEY,
Defendants,
EMILIO SERRANO, MICROSOFT CORPORATION,
Interested Parties.
B e f o r e:
KEARSE, CALABRESI, and LYNCH, Circuit Judges.
__________________
Defendant‐appellant Rodney Watts and interested party‐appellant
DePetris & Bachrach, LLP appeal from a judgment of the district court dismissing
their petition for an ancillary hearing to adjudicate their claims to property found
subject to forfeiture under 18 U.S.C. § 982(a)(2) following the conviction of
defendant Courtney Dupree. The district court found that an assignment of the
contested property to DePetris & Bachrach gave appellants standing to assert an
interest in the property under 21 U.S.C. § 853(n)(2), but that appellants failed to
state a plausible claim for relief under 21 U.S.C. § 853(n)(6) because the
assignment gave DePetris & Bachrach no interest in the funds at the time of the
criminal offense, see id. § 853(n)(6)(A), and because the government’s forfeiture
allegations gave DePetris & Bachrach reasonable cause to believe that the funds
2
were subject to forfeiture, see id. § 853(n)(6)(B). We agree with the district court
that the assignment suffices to give appellants standing to seek an ancillary
hearing and that appellants have failed to state a superior claim to the property
under 21 U.S.C. § 853(n)(6)(A). However, we conclude that appellants’ petition
states a plausible claim that DePetris & Bachrach reasonably lacked cause to
believe that the property was subject to forfeiture and consequently entitles
appellants to continue pursuing relief under 21 U.S.C. § 853(n)(6)(B).
AFFIRMED IN PART AND VACATED IN PART.
RONALD E. DEPETRIS (Marion Bachrach, Thompson & Knight LLP, on
the brief), Southampton, New York, for Defendant‐Appellant
Rodney Watts and Interested Party‐Appellant DePetris & Bachrach,
LLP.
BRIAN D. MORRIS, Assistant United States Attorney (Varuni Nelson and
Michael L. Yaeger, Assistant United States Attorneys, of Counsel,
on the brief), for Loretta E. Lynch, United States Attorney for the
Eastern District of New York, Brooklyn, New York.
GERARD E. LYNCH, Circuit Judge:
Defendant‐appellant Rodney Watts and his counsel, interested party‐
appellant DePetris & Bachrach, LLP (“D&B”), appeal from a judgment of the
3
United States District Court for the Eastern District of New York (Kiyo A.
Matsumoto, Judge), granting the government’s motion to dismiss their petition
asserting an interest in property found subject to forfeiture under 18 U.S.C.
§ 982(a)(2) following the conviction of Watts’s co‐defendant, Courtney Dupree.
Watts and D&B (jointly, “petitioners”) claim that, as the beneficiary of an
assignment transferring a portion of the forfeited property in exchange for legal
services, D&B (1) possessed a superior interest in that portion of the property
under 21 U.S.C. § 853(n)(6)(A), and (2) was a bona fide purchaser reasonably
without cause to believe that the contested property was forfeitable under 21
U.S.C. § 853(n)(6)(B). They also claim that the contested funds cannot be reached
by a forfeiture order under § 982(a)(2) because Dupree, the criminal defendant,
never owned the funds in question. Finally, they claim that the government lacks
standing to challenge the validity of D&B’s assignment under state law. The
government responds that petitioners fail to state a claim on any of their grounds
for relief and, regardless, lack standing to seek an ancillary hearing because
D&B’s assignment was a fraudulent conveyance. The district court determined
that both parties had standing to litigate the issues, but agreed with the
government that petitioners failed to state any claims for relief.
4
We affirm in part and reverse in part. Because the government’s forfeiture
claim qualifies it as a creditor under New York law, the government has standing
to challenge D&B’s assignment as a fraudulent conveyance. Because the record
fails to establish whether the transferor of the contested funds was insolvent at
the time of the transfer so as to render D&B’s assignment a fraudulent
conveyance, the petitioners have, at this stage in the proceedings, alleged a
plausible interest in the property sufficient to create standing to seek an ancillary
hearing. Because the contested funds are subject to forfeiture as “proceeds” of
Dupree’s criminal activity and therefore only came into existence following the
commission of his criminal act, petitioners cannot claim that D&B had a superior
interest in those funds at the time of the offense as required by 21 U.S.C.
§ 853(n)(6)(A). Because the criminal forfeiture statute limits a third party’s right
to challenge a post‐indictment forfeiture order to the two grounds identified in 21
U.S.C. § 853(n)(6), petitioners may not challenge the inclusion of the contested
funds in the forfeiture order under § 982(a)(2).
We disagree, however, with the district court’s conclusion that petitioners
failed to state a plausible claim to relief under § 853(n)(6)(B). Because D&B
accepted the assignment of the contested funds shortly after a Monsanto hearing
5
in which the district court determined that the government failed to establish
probable cause to restrain the contested property, and because the petition
alleges no additional facts suggesting that D&B had reason to know that the
property was forfeitable as a matter of law, petitioners have plausibly alleged
that D&B was a bona fide purchaser reasonably without cause to believe that the
property was subject to forfeiture.
BACKGROUND
I. The Indictment
In July 2010, two magistrate judges in the Eastern District of New York
issued a series of warrants authorizing the government to seize several bank
accounts associated with GDC Acquisitions, LLC (“GDC”) as property
constituting or derived from proceeds traceable to a conspiracy to commit bank
fraud, mail fraud, and wire fraud under federal law. The bank accounts seized
included four accounts at JP Morgan Chase Bank in the name of Unalite
Southwest, LLC (“USW”), a wholly‐owned subsidiary of GDC, containing a total
of $983,790.11. On August 13, 2010, a grand jury indicted Courtney Dupree,
GDC’s president and chief executive officer, Rodney Watts, GDC’s chief financial
officer or chief investment officer, and Thomas Foley, GDC’s outside counsel or
6
chief operating officer, on charges of bank fraud in violation of 18 U.S.C. § 1344;
conspiracy in violation of 18 U.S.C. § 1349 to commit bank, mail, and wire fraud
in violation of 18 U.S.C. §§ 1344, 1341, and 1343; and making false statements to
influence a federally insured financial institution in violation of 18 U.S.C. § 1014.
The indictment alleged that, between January 2007 and July 2010, Dupree, Watts,
and Foley participated in a scheme to defraud Amalgamated Bank
(“Amalgamated”) by obtaining or attempting to obtain loan funds worth up to
$21 million for three wholly‐owned subsidiaries of GDC on the basis of false
financial statements and other material misrepresentations.
The August 13, 2010 indictment, as well as all subsequent superseding
indictments, included a criminal forfeiture allegation under 18 U.S.C.
§ 982(a)(2)(A), giving notice of the government’s intent to “seek forfeiture . . . of
any property constituting or derived from proceeds obtained directly or
indirectly as a result of such offenses.” On February 22, 2011, the government
also filed a Bill of Particulars identifying nine bank accounts that it sought to
have forfeited, including the four USW accounts at JP Morgan Chase.
7
II. Pretrial Restraint of Seized Funds
On January 10, 2011, Watts, represented by D&B, filed a motion seeking
release of the seized funds for use in paying his legal fees during the criminal
prosecution. After initially denying Watts a hearing, the district court directed
then‐Magistrate Judge Joan M. Azrack to conduct a hearing pursuant to United
States v. Monsanto, 924 F.2d 1186 (2d Cir. 1991), on the limited issue of the
forfeitability of USW’s four accounts at JP Morgan Chase. On July 27, 2011, the
district court adopted in part and modified in part Judge Azrack’s Report and
Recommendation. While finding that the government had demonstrated
probable cause to restrain $350,290.87 of USW’s funds in the JP Morgan Chase
accounts as traceable to the proceeds of the charged offense, it found that the
government had failed to demonstrate probable cause to restrain the remaining
$633,499.24 (the “contested funds”). The district court consequently ordered the
government to “release the remaining funds to [USW] promptly.” App’x at 128.
After the government requested a stay of the order the following day, the district
court entered a 30‐day stay on August 2, 2011.
On August 11, 2011, USW, acting through Dupree’s “Attorney in Fact,”
executed an assignment (the “Assignment”) of all its interests in the contested
8
funds to D&B. In relevant part, the Assignment stated:
In payment of invoices . . . for past legal services and for
future legal services that Assignee has provided or will
provide to Rodney Watts, Jr. . . . , and in partial
satisfaction of the obligation of the Assignor . . . to
advance funds for Mr. Watts’ defense, all deemed good
and valuable consideration received, Assignor hereby
unconditionally and irrevocably assigns, grants, and
transfers all rights, title, interest, and obligation in, to and
under . . . [a]ll funds in the Assignor’s bank accounts . . . at
JPMorgan Chase Bank . . . . The Assignor warrants and
represents that the aforementioned rights, title, interest
and benefits are free from all liens and encumbrances,
except to the extent that the United States seeks forfeiture.
App’x at 152. That same day, the government filed a motion seeking
reconsideration and clarification of the district court’s July 27, 2011 order. In
addition to requesting a reappraisal of the district court’s probable cause
determination, the government sought clarification as to whether it should
release the contested $633,499.24 to Watts or to Amalgamated, in light of
Amalgamated’s preexisting lien on all of GDC’s accounts.
At a hearing held on September 13, 2011, the district court denied the
request to revisit its probable cause determination. It further declined to resolve
D&B’s and Amalgamated’s competing claims to the property, and instead
directed the government to deposit the $633,499.24 in the Seized Asset Deposit
9
Fund at the Eastern District of New York pending further orders from a court
with jurisdiction over the dispute.
Watts appealed the district court’s refusal to release the contested funds,
and the district court stayed his criminal case pending appellate review. In the
meantime, the criminal charges against Dupree and Foley proceeded to a jury
trial in early December 2011. On December 30, 2011, the jury convicted Dupree
of bank fraud, conspiracy to commit bank fraud, and two counts of making false
statements under 18 U.S.C. § 1014. It acquitted Foley of all charges. On January
3, 2012, the same jury returned a Special Verdict finding that Dupree had
obtained funds constituting or derived from the proceeds traceable to his offenses
in the amount of $18,157,000, and that the funds in the eight bank accounts seized
by government, including USW’s four accounts at JP Morgan Chase, were all
subject to forfeiture as assets derived from proceeds traceable to those offenses.
The district court entered a preliminary order of forfeiture as to all the funds
seized from the eight accounts.
On April 30, 2012, in an unpublished summary order, a panel of this Court
held that the district court’s preliminary order of forfeiture following Dupree’s
conviction mooted Watts’s appeal of the district court’s September 2011 orders
10
regarding release of the contested funds. Emphasizing that the “district court’s
finding that the government lacked probable cause to continue to restrain the
funds [at the Monsanto hearing] . . . did not bar the government from seeking the
forfeiture of the funds following a trial,” the panel concluded that any remaining
claims Watts might have to the contested $633,499.24 should be adjudicated
through a post‐trial ancillary hearing. United States v. Watts, 477 F. App’x 816,
817 (2d Cir. 2012).
III. Ancillary Hearing
On May 8, 2012, pursuant to the procedures governing third‐party claims
to assets subject to forfeiture under 18 U.S.C. § 982, the government sent written
notice of the district court’s preliminary orders of forfeiture to potential
claimants, including Watts and D&B. On June 7, 2012, Watts and D&B filed a
joint Verified Petition (the “Petition”) claiming an interest in the contested funds
on the basis of the August 11, 2011 Assignment. The Petition alleged that Watts’s
employers had previously promised to pay any legal fees associated with his
criminal charges, and that USW’s conveyance of its interests in the contested
funds to D&B partially satisfied this preexisting “obligation . . . to advance funds
for Mr. Watts’ defense.” App’x at 136. Petitioners claimed that D&B was
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therefore entitled to the contested funds on two grounds: first, as heir to USW’s
superior interest in the JP Morgan Chase accounts as true owners of the funds
under 21 U.S.C. § 853(n)(6)(A), and second, as a bona fide purchaser for value
reasonably without cause to believe the funds were subject to forfeiture under 21
U.S.C. § 853(n)(6)(B).1
On August 10, 2012, the government moved to dismiss the Petition. First,
it argued that D&B lacked any cognizable claim to the forfeited assets because the
August 11, 2011 Assignment was a fraudulent conveyance, made by an insolvent
transferor without fair consideration in violation of New York law. Second, it
argued that D&B could not state a claim for relief under either prong of 21 U.S.C.
§ 853(n)(6), because D&B received the Assignment of the contested funds long
after the commission of Dupree’s offense, see id. § 853(n)(6)(A), and because D&B
had notice that the government sought forfeiture of the funds and failed to
purchase those funds for value, see id. § 853(n)(6)(B). Petitioners responded by
contesting the government’s standing to dispute the validity of the Assignment
under state law and filing a cross‐motion for judgment on the pleadings.
1
Watts joined the Petition as a third‐party beneficiary of the Assignment to D&B.
The parties do not challenge his status as a third‐party beneficiary on appeal.
12
On January 28, 2013, the district court granted the government’s motion to
dismiss and denied petitioners’ cross‐motion for judgment on the pleadings. See
United States v. Dupree, 919 F. Supp. 2d 254, 259 (E.D.N.Y. 2013). As a
preliminary matter, the district court dismissed petitioners’ attacks on the
government’s standing as contrary to the language of the forfeiture statute, which
expressly empowered the government to rebut a petitioner’s claims in an
ancillary forfeiture proceeding. See id. at 264‐65. Nevertheless, it determined
that the facts alleged in the Petition, assumed to be true, plausibly asserted that
the Assignment was a valid transfer, giving petitioners standing to stake their
claim to the contested funds. See id. at 267.
On the merits, however, the district court agreed with the government that
petitioners had failed to state any plausible claim for relief. First, it held that
petitioners could not claim priority of ownership over the contested funds under
§ 853(n)(6)(A) because, contrary to that provision, the Assignment granting D&B
an interest in the funds occurred years after the start of Dupree’s criminal
conspiracy. See id. at 268‐69. Second, it held that petitioners could not qualify
for relief under § 853(n)(6)(B) because, even assuming that D&B had purchased
USW’s funds for value, it was undoubtedly aware, as Watts’s counsel of record,
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that the government sought forfeiture of those funds. See id. at 270. Taken
together, the government’s initial seizure of the funds in July 2010, the forfeiture
count included in Watts’s indictment as early as August 13, 2010, and the
government’s Bill of Particulars identifying USW’s four accounts for potential
forfeiture ensured that D&B “had notice that the funds were forfeitable since well
before the execution of the Assignment on August 11, 2011.” Id.
The district court rejected petitioners’ argument that its July 27, 2011
determination that the government had failed to establish probable cause to
restrain $633,499.24 left D&B reasonably without cause to suspect that those
particular funds were still subject to forfeiture. Because, as this Court noted in
dismissing Watts’s appeal, the government’s failure to establish probable cause at
the Monsanto hearing “‘did not bar the government from seeking the forfeiture
of the funds following a trial’” and consequently “did not foreclose the ultimate
forfeitability of the [property],” id. at 271‐72, quoting Watts, 477 F. App’x at 817,
the district court insisted that its July 27, 2011 order could not have stripped D&B
of reasonable cause to believe that the funds could still be forfeited following
trial.
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Similarly, the district court rejected petitioners’ claims that D&B had no
grounds to suspect that the funds were subject to forfeiture because USW, rather
than Dupree, owned the bank accounts in question. Noting that 21 U.S.C.
§ 853(a)(1), which is incorporated into 18 U.S.C. § 982, explicitly authorizes the
forfeiture of “any property” “derived” from proceeds of a defendant’s offense,
and that the jury in Dupree’s trial had found that the funds in all four bank
accounts traced back to Dupree’s conspiracy, the court concluded that USW’s
ownership of the accounts neither precluded the forfeiture nor affected D&B’s
entitlement to relief as a bona fide purchaser under § 853(n)(6)(B). Id. at 273‐74.
DISCUSSION
I. Legal Standards Governing Forfeiture
Section 982 of Title 18 of the United States Code prescribes different
forfeiture penalties for different categories of federal crimes. See 18 U.S.C.
§ 982(a). In seeking forfeiture of USW’s accounts in this case, the government
relies on 18 U.S.C. § 982(a)(2), which provides:
The court, in imposing sentence on a person convicted of
a violation of, or a conspiracy to violate . . . section . . .
1341, 1343, or 1344 of this title, affecting a financial
institution, . . . shall order that the person forfeit to the
United States any property constituting, or derived from,
15
proceeds the person obtained directly or indirectly, as the
result of such violation.
18 U.S.C. § 982(a)(2). The procedures surrounding forfeiture under § 982(a)(2),
“including any seizure and disposition of the property and any related judicial or
administrative proceeding,” are governed by the provisions of 21 U.S.C. § 853.
Id. § 982(b)(1).
Among other things, § 853 establishes the procedures by which a third
party may claim an interest in funds ordered forfeited to the United States. As a
general matter, the section clarifies that “[a]ll right, title, and interest in
property . . . [subject to criminal forfeiture] vests in the United States upon the
commission of the act giving rise to forfeiture.” 21 U.S.C. § 853(c); see also Caplin
& Drysdale, Chartered v. United States, 491 U.S. 617, 627 (1989) (“[Section] 853(c)
reflects the . . . long‐recognized and lawful practice of vesting title to any
forfeitable assets, in the United States, at the time of the criminal act . . . .”).
Should an innocent third party claim a legal interest in the forfeitable
property, however, § 853(n) allows him to recover his interest through an
ancillary proceeding following the preliminary forfeiture order. See id. § 853(n);
Willis Mgmt. (Vt.), Ltd. v. United States, 652 F.3d 236, 246 (2d Cir. 2011). Under
16
§ 853(n), any third party “asserting a legal interest in property which has been
ordered forfeited to the United States pursuant to this section may . . . petition the
court for a hearing to adjudicate the validity of his alleged interest in the
property.” 21 U.S.C. § 853(n)(2). The petition, which is sworn and signed by the
petitioner, “shall set forth the nature and extent of the petitioner’s right, title, or
interest in the property, the time and circumstances of the petitioner’s acquisition
of the right, title, or interest in the property, any additional facts supporting the
petitionerʹs claim, and the relief sought.” Id. § 853(n)(3).
At the hearing, the petitioner must first establish his standing to challenge
the forfeiture order by demonstrating a “legal interest” in the forfeited property
under § 853(n)(2). United States v. Ribadeneira, 105 F.3d 833, 835 (2d Cir. 1997);
see also United States v. Timley, 507 F.3d 1125, 1129 (8th Cir. 2007). The
petitioner must then prove his entitlement to relief on the merits by establishing,
through a preponderance of the evidence, one of two superior claims to the
property under § 853(n)(6). See 21 U.S.C. § 853(n)(6); Pacheco v. Serendensky,
393 F.3d 348, 351 (2d Cir. 2004). Under § 853(n)(6)(A), the petitioner must
demonstrate that he “has a legal right, title, or interest in the property, . . . [that]
was vested in the petitioner rather than the defendant or was superior to any
17
right, title, or interest of the defendant at the time of the commission of the acts
which gave rise to the forfeiture of the property.” 21 U.S.C. § 853(n)(6)(A).
Under § 853(n)(6)(B), the petitioner must demonstrate that he “is a bona fide
purchaser for value of the right, title, or interest in the property and was at the
time of purchase reasonably without cause to believe that the property was
subject to forfeiture.” Id. § 853(n)(6)(B).
At the hearing, the petitioner “may testify and present evidence and
witnesses on his own behalf.” Id. § 853(n)(5). In response, the “United States
may present evidence and witnesses in rebuttal [of the petitioner’s claims] and in
defense of its claim to the property,” including “cross‐examin[ing] witnesses who
appear at the hearing.” Id. If the court determines by a preponderance of the
evidence that the petitioner has a superior interest in the property, the court
“shall amend the order of forfeiture in accordance with its determination.” Id.
§ 853(n)(6). Following an advance disposition of any third‐party petitions,
however, or in the absence of any such petitions, “the United States shall have
clear title to property that is the subject of the order of forfeiture and may
warrant good title to any subsequent purchaser or transferee.” Id. § 853(n)(7).
18
The procedures governing ancillary proceedings under § 853(n) are further
elaborated in Rule 32.2(c) of the Federal Rules of Criminal Procedure. Willis, 652
F.3d at 241. Rule 32.2(c)(1) provides that, where “a third party files a petition
asserting an interest in the property to be forfeited, the court must conduct an
ancillary proceeding.” Fed. R. Crim. P. 32.2(c)(1). Without proceeding to a
formal hearing, however, the “court may, on motion, dismiss the petition for lack
of standing, for failure to state a claim, or for any other lawful reason.” Id.
32.2(c)(1)(A). A motion to dismiss a third‐party petition “should be treated like a
motion to dismiss a civil complaint under Federal Rule of Civil Procedure 12(b).”
Willis, 652 F.3d at 241 (internal quotation marks omitted). To survive a motion to
dismiss, the petition need only “state[ ] enough facts to state a claim to relief that
is plausible on its face.” Id. at 241‐42 (internal quotation marks omitted).
We review a district court’s grant of a motion to dismiss de novo, and may
affirm “on any ground which finds support in the record, regardless of the
ground upon which the trial court relied.” McCall v. Pataki, 232 F.3d 321, 323 (2d
Cir. 2000) (internal quotation marks omitted). We must assume all facts alleged
in the petition to be true, affirming the dismissal only where the plaintiff fails to
plead any “factual content that allows the court to draw the reasonable inference
19
that” he is entitled to relief. Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321
(2d Cir. 2010) (internal quotation marks omitted).
II. Petitioners’ Standing to Assert a Claim under § 853(n)(2)
To establish standing to challenge an order of forfeiture under § 853(n), a
petitioner must demonstrate that he has a “legal interest in [the forfeited]
property.” Ribadeneira, 105 F.3d at 835; see also 21 U.S.C. § 853(n)(2). The extent
of a petitioner’s interest in the forfeited property is determined in accordance
with state law. Willis, 652 F.3d at 242. Where the petitioner has no valid interest
in the property under state law, “the inquiry ends, and the claim fails for lack of
standing.” Timley, 507 F.3d at 1130.
The parties do not dispute that USW had a valid legal interest in its four
accounts at JP Morgan Chase. Because USW assigned its entire interest in those
funds to D&B, petitioners may thus assert a claim to those funds under § 853(n)
so long as they can show that D&B’s Assignment from USW was valid under
New York law. See United States v. Three Hundred Sixty Four Thousand Nine
Hundred Sixty Dollars ($364,960.00) in U.S. Currency, 661 F.2d 319, 326 (5th Cir.
1981) (“Where, as here, the party challenging forfeiture is not the person in
possession of the property at the time it was seized but instead purports to be an
20
assignee of that person, the . . . claimant must show that the assignment was
valid . . . .”), superseded on other grounds by The Civil Asset Forfeiture Reform
Act of 2000, Pub. L. No. 106‐185, 114 Stat. 202. If, by contrast, the August 11, 2011
Assignment is void as a fraudulent conveyance under New York law, D&B has
no cognizable interest in the funds and petitioners have no standing to seek an
ancillary hearing. See United States v. Real Prop. Located at 5208 Los Franciscos
Way, Los Angeles, Cal., 385 F.3d 1187, 1192‐93 (9th Cir. 2004) (holding that
undisputed evidence that claimants’ interest in property was based on fraudulent
conveyance left district court with “no alternative other than to find that
[claimants] lacked . . . standing to contest the forfeiture”).
Under the New York Debtor and Creditor Law, “[e]very conveyance made
and every obligation incurred by a person who is or will be thereby rendered
insolvent is fraudulent as to creditors . . . if the conveyance is made or the
obligation is incurred without a fair consideration.” N.Y. Debt. & Cred. Law
§ 273.2 As the statutory language implies, a fraudulent conveyance under § 273
2
In its motion to dismiss, the government does not specify which provision of the
New York Debtor and Creditor Law it invokes to challenge the Assignment,
citing only a Bankruptcy Court case that itself cites N.Y. Debt. & Cred. Law
§§ 273, 274, and 275. We construe its motion as relying on N.Y. Debt. & Cred.
Law § 273, which best fits both the government’s arguments for dismissal and the
facts of the case.
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“is not void per se” in all its applications. Eberhard v. Marcu, 530 F.3d 122, 129
(2d Cir. 2008).3 Rather, as a transaction fraudulent only “as to creditors of the
transferor,” it is merely “voidable by creditors of the transferor.” Id. In order to
contest the validity of a transfer under § 273, it is thus “well settled” under New
York law that the challenger “must be a creditor.” Id.; see also Drenis v.
Haligiannis, 452 F. Supp. 2d 418, 428 (S.D.N.Y. 2006) (“In order to bring a cause of
action for fraudulent conveyance, the plaintiff must be a creditor of the transferor
of the alleged fraudulent conveyance.”).
The government insists that petitioners have no standing to assert a claim
to the contested funds under § 853(n)(2) because USW’s assignment of the funds
to D&B, the sole source of petitioners’ interest in the property, was a fraudulent
conveyance. Petitioners counter that the governments lacks standing to
challenge the validity of the Assignment because it is not a “creditor” of USW
under New York law. We find that the government qualifies as a “creditor” for
3
While Eberhard involves N.Y. Debt. & Cred. Law § 276, governing conveyances
made “with intent to defraud,” see id., the relevant language invoking a
transferor’s “creditors” is substantially the same in both provisions. Compare
N.Y. Debt. & Cred. Law § 276, with id. § 273.
22
the purposes of § 273,4 but conclude that, on the facts of the Petition, we must
accept the Assignment as a valid conveyance at this stage.
A. Government’s Status as “Creditor” of USW
The New York Debtor and Creditor Law defines a “creditor” as “a person
having any claim, whether matured or unmatured, liquidated or unliquidated,
absolute, fixed or contingent,” against the transferor. N.Y. Debt. & Cred. Law
§ 270. This definition has been characterized as a “broad” one. Shelly v. Doe, 671
N.Y.S.2d 803, 805 (3d Dep’t 1998); Drenis, 452 F. Supp. 2d at 428. It includes,
4
In dismissing petitioners’ challenge to the government’s standing, the district
court relied primarily on § 853(n)(5), which authorizes the “United States . . . [to]
present evidence and witnesses in rebuttal” of a petitioner’s claims. See 21
U.S.C. § 853(n)(5). The court reasoned that this provision clearly anticipates that
the government will have standing to contest the validity of a petitioner’s legal
interest in the property, including through allegations of a fraudulent transfer.
While we do not disagree with the district court’s conclusion, its reasoning
confuses the issue of the government’s standing to challenge the petitioner’s
claims under § 853(n) with the government’s standing to invalidate fraudulent
transfers under N.Y. Debt. & Cred. Law § 273. Petitioners do not question that
the government has standing to dispute petitioners’ third‐party claims at the
ancillary hearing, including by challenging the validity of the Assignment as a
fraudulent conveyance. What they dispute is whether, under New York law, the
government is one of the limited parties against whom a fraudulent conveyance
is considered “invalid” to begin with, such that the government’s allegations of
fraudulence can undermine petitioners’ claims to a legal interest in the property
under § 853(n)(2).
23
among other things, “one who has a right to maintain a tort action but has not
recovered judgment at the time of the transfer.” Drenis, 452 F. Supp. 2d at 428;
see also Shelly, 671 N.Y.S.2d at 805. New York courts have clarified that, in such
cases, “the relationship of debtor and creditor arises the moment the cause of
action accrues.” Shelly, 671 N.Y.S.2d at 805.
The government’s forfeiture claim constitutes a “claim” within the
meaning of § 270. We see no reason why the government’s claim to property
subject to forfeiture under 18 U.S.C. § 982(a)(2) is any different in this regard
from that of a plaintiff in a pending tort action. Just as a plaintiff’s right to
recover from a tortfeasor “arises the moment the cause of action accrues,” id., the
government’s claim to property subject to criminal forfeiture “vests in the United
States upon the commission of the act giving rise to forfeiture,” 21 U.S.C. § 853(c).
Whether the United States has received a special verdict entitling it to forfeiture
of that property at the time of the transfer, much like whether the plaintiff in a
tort case has yet “recovered judgment” on his cause of action, Drenis, 452 F.
Supp. 2d at 428, does not change the fact that it has a claim against the account
holder. In both cases, the “relationship of debtor and creditor arises the moment”
24
the creditor’s legal right to recover property from the defendant accrues. Shelly,
671 N.Y.S.2d at 805.
Petitioners essentially concede this point. Where the government
challenges a fraudulent conveyance of forfeitable property owned by a
defendant, they admit, “the government is by definition a creditor of the
transferor” “by virtue of its forfeiture claim against the criminal defendant.” The
difference in this case, they argue, is that the contested funds did not belong to
the criminal defendant – that is, to Dupree himself – but only to USW, an
innocent third party against whom the government has no forfeiture claim.
Petitioners’ argument effectively seeks to relitigate whether USW’s bank
accounts at JP Morgan Chase are subject to forfeiture as part of Dupree’s sentence
under § 982(a)(2) – a question discussed in greater detail below. For the purposes
of petitioners’ standing argument, it suffices to observe that the jury at Dupree’s
trial determined that USW’s accounts were forfeitable under § 982(a)(2) as
property derived from proceeds traceable to Dupree’s offenses. While those
assets may have rested in the hands of USW rather than those of Dupree, the fact
remains that, as property subject to a forfeiture under § 982(a)(2), the assets
“vest[ed] in the United States upon the commission” of Dupree’s crimes. See 21
25
U.S.C. § 853(c). To the extent that an order of criminal forfeiture renders the
government a “creditor” as to any property properly subject to that order, the
government’s forfeiture claim against USW’s accounts under § 982(a)(2) rendered
the government a “creditor” of USW at the time of the Assignment, regardless of
whether USW was charged with any crimes or was a party to the criminal trial.6
Contrary to petitioners’ claims, our holding in Eberhard v. Marcu, 530 F.3d
122 (2d Cir. 2008), does not compel a different outcome. In Eberhard, we held
that a federal securities receiver appointed to conserve a defendant’s estate
pending a securities fraud trial “st[ood] only in the shoes” of the defendant and
consequently could not invalidate any fraudulent transfers made by that
defendant under New York law. Id. at 133. Drawing a weak analogy to the facts
of that case, petitioners claim that the government’s order of forfeiture against
Dupree placed the government only “in the shoes” of Dupree himself, who
cannot qualify as a creditor of USW so as to challenge USW’s assignment to D&B.
As discussed above, however, the government’s right to forfeiture under
§ 982(a)(2) does not place the government “in the shoes” of the criminal
6
Petitioners do not contend, in connection with their standing argument, that the
government’s forfeiture order cannot validly encompass USW’s property as a
matter of law.
26
defendant. Instead, it gives the government an independent legal claim to any
assets traceable to the defendant’s crime, vesting such property in the
government from the moment of the crime’s commission. See 21 U.S.C. § 853(c).
Under the terms of § 853(c), that is, the government’s right to the forfeited
property does not arise because the government “inherits” the defendant’s
interests through the forfeiture order; it arises because the government has an
independent interest in that property that is superior to the defendant’s own
claims.
In this case, the government’s right to forfeiture of any property derived
from Dupree’s criminal proceeds, including the funds in USW’s accounts at JP
Morgan Chase, gave the government an independent legal claim to those funds.
That legal claim renders the government a “creditor” of USW with standing to
challenge the Assignment as a fraudulent conveyance under New York law.
B. Validity of Petitioners’ Assignment under § 273
Section 273 of the New York Debtor and Creditor Law provides that
“[e]very conveyance made and every obligation incurred by a person who is or
will be thereby rendered insolvent is fraudulent as to creditors . . . if the
conveyance is made or the obligation is incurred without a fair consideration.”
27
N.Y. Debt. & Cred. Law § 273. A debtor’s conveyance is thus “deemed
constructively fraudulent” under § 273 only if two separate elements are
satisfied: first, “it is made without ‘fair consideration,’” and second, “the
transferor is insolvent or will be rendered insolvent by the transfer in question.”
In re Sharp Int’l Corp., 403 F.3d 43, 53 (2d Cir. 2005).
A debtor is considered insolvent when the “present fair salable value of his
assets is less than the amount that will be required to pay his probable liability on
his existing debts as they become absolute and matured.” N.Y. Debt. & Cred.
Law § 271. Whether the debtor received “fair consideration” entails three
elements: first, “the recipient of the debtor’s property must either . . . convey
property in exchange or . . . discharge an antecedent debt in exchange”; second,
“such exchange must be a fair equivalent of the property received”; and third,
“such exchange must be in good faith.” Sharp, 403 F.3d at 53 (internal quotation
marks omitted). While transfers “made to benefit third parties” are generally
“not made for a fair consideration,” Rubin v. Manufacturers Hanover Trust Co.,
661 F.2d 979, 991 (2d Cir. 1981) (internal quotation marks omitted), fair
consideration may be deemed to exist “where the debtor’s discharge of a third
person’s debt also discharges his own debt to that third person,” id. at 992; see
28
also HBE Leasing Corp. v. Frank, 48 F.3d 623, 638 (2d Cir. 1995) (applying Rubin
to the New York debtor laws). Even a transfer satisfying an antecedent debt to a
third party, however, is not made for fair consideration where that third party is
“an officer, director, or major shareholder of the transferor.” Sharp, 403 F.3d at
54 (internal quotation marks omitted).
The government argues that USW’s assignment to D&B was a fraudulent
conveyance under § 273 because USW was insolvent at the time of transfer and
failed to receive fair consideration. First, the government claims that certain
statements made by the district court in the fall of 2011 demonstrate that USW
was effectively defunct at the time of the Assignment. Second, it claims that
petitioners failed to establish that USW had any pre‐existing obligation to pay
Watts’s legal fees, and that repayment of USW’s alleged antecedent debt to
Watts, a corporate officer, cannot constitute fair consideration under New York
law.
Without reaching the merits of whether USW’s payment of Watts’s legal
fees may constitute “fair consideration,” we conclude that, at this stage of the
proceedings, the record is simply too bare to support the government’s claims
that USW was insolvent so as to render its Assignment fraudulent under § 273.
29
The government’s allegation that USW was insolvent at the time of the
Assignment relies entirely on two statements made by the district court during
its September 13, 2011 hearing regarding release of USW’s contested funds, in
which the court interpreted the parties’ prior representations to suggest that
USW was “defunct” and “not operational.” Assuming that the transcript of this
hearing is a record of which we may take judicial notice, see Hong Mai Sa v. Doe,
406 F.3d 155, 158 (2d Cir. 2005) (noting that we “can take judicial notice of this
Court’s files as well as those of the district court”), the district court’s cursory
impressions of USW’s operational status – not a matter litigated by the parties at
the hearing – hardly provides compelling evidence, let alone a factual finding,
that USW was insolvent at the time of the Assignment. Indeed, the district
court’s characterization was immediately disputed by Watts’s attorney, who
insisted that USW “hasn’t been shut down” and “could function.”
It is true that, in interpreting § 273, New York courts have stated that “the
element of insolvency is presumed when a conveyance is made without fair
consideration, and the burden of overcoming such presumption is on the
transferee.” United States v. Alfano, 34 F. Supp. 2d 827, 845 (E.D.N.Y. 1999); see,
e.g., In re Estate of Steele, 925 N.Y.S.2d 250, 253‐54 (3d Dep’t 2011). But see Am.
30
Inv. Bank, N.A. v. Marine Midland Bank, N.A., 595 N.Y.S.2d 537, 538 (2d Dep’t
1993) (“The burden of proving both insolvency and the lack of fair consideration
is upon the party challenging the conveyance . . . .”); Murin v. Estate of Schwalen,
819 N.Y.S.2d 341, 343 (3d Dep’t 2006). Even assuming that generally to be the
case, we decline to give that presumption dispositive weight at this stage in the
proceedings, in evaluating a motion to dismiss. Because, quite understandably,
the Petition contains no allegations defending the solvency of USW in
anticipation of the government’s challenge, petitioners have received no
opportunity to rebut any adverse presumptions that may arise even assuming,
arguendo, that USW’s assignment lacked fair consideration. See 21 U.S.C.
§ 853(n)(3) (third party’s petition need only set forth “the nature and extent of the
petitioner’s right, title, or interest in the property, the time and circumstances of
the petitioner’s acquisition of the right, title, or interest in the property, . . . and
the relief sought”).
In reviewing a motion to dismiss, we must accept all facts alleged by the
petitioners as true, and may dismiss the petition only if those allegations fail to
state a “plausible” claim for relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). Because the facts alleged in the Petition, prior to petitioners’ receiving
31
the benefit of discovery or even notice of the government’s legal challenge, do not
suggest that it is implausible that USW was in fact solvent at the time of the
Assignment, we must assume that the Agreement was, as alleged in the Petition,
a valid conveyance.
Having determined that petitioners have plausibly alleged a legal interest
in the contested funds so as to establish standing under § 853(n)(2), we thus
proceed to examine whether petitioners have stated a plausible claim to relief
under § 853(n)(6).
III. Superior Interest under § 853(n)(6)(A)
To establish a claim to property subject to forfeiture under § 853(n)(6)(A), a
petitioner must demonstrate that he “has a legal right, title, or interest in the
property . . . [that] 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 commission
of the acts which gave rise to the forfeiture of the property.” 21 U.S.C.
§ 853(n)(6)(A) (emphasis added). The requirement that the petitioner’s interest
be evaluated “at the time of the commission of the acts” governs our analyses of
both when the property became “vested in the petitioner” and when the
petitioner’s interest became “superior to any . . . interest of the defendant.” See
32
United States v. Hooper, 229 F.3d 818, 821 (9th Cir. 2000) (internal quotation
marks omitted).
Subsection 853(n)(6)(A) works hand in hand with the “relation‐back”
doctrine embodied in § 853(c), which provides that all property subject to
forfeiture based on a criminal offense “vests in the United States upon the
commission of the [offense].” See 21 U.S.C. § 853(c). Because forfeitable property
vests in the government immediately upon the commission of a criminal act, a
third party may prevail under § 853(n)(6)(A) only by establishing that he “had a
legal interest in the forfeited property before the underlying crime was
committed” – that is, “before the government’s interest vested.” Timley, 507 F.3d
at 1130 (emphasis added). Where, by contrast, the petitioner obtains his interest
in the property after the commission of the crime giving rise to forfeiture, he may
defend his right to the property only under § 853(n)(6)(B), by establishing that he
acquired the interest as a bona fide purchaser for value without cause to believe
that the property was forfeitable. See 21 U.S.C. § 853(c) (“Any such property that
is subsequently transferred to a person other than the defendant . . . shall be
ordered forfeited to the United States, unless the transferee establishes in a
hearing pursuant to subsection (n) . . . that he is a bona fide purchaser for
33
value . . . .”); Hooper, 229 F.3d at 822 (“[I]f property is ‘subsequently
transferred,’ . . . the transferee is protected only as a bona fide purchaser.”).
For this reason, courts have recognized that a petitioner is unlikely ever to
prevail at an ancillary hearing under § 853(n)(6)(A) where the forfeited property
consists of “proceeds” derived from or traceable to a criminal offense. Because,
by definition, the “proceeds of an offense do not exist before the offense is
committed,” and because “the government’s interest under the relation‐back
doctrine immediately vests” upon the commission of that offense, any proceeds
that ensue from the criminal act belong to the government from the moment that
they come into existence. Timley, 507 F.3d at 1130; see also United States v.
Watkins, 320 F.3d 1279, 1282 (11th Cir. 2003); Hooper, 229 F.3d at 821‐22.
Accordingly, § 853(n)(6)(A) is better suited to defending a third party’s right to
the “instrumentalities” of a crime – property used by a defendant to facilitate his
criminal acts, but that pre‐exists those acts themselves – than to proceeds that
necessarily arise only after or upon the commission of the crime. Hooper, 229
F.3d at 822 (noting that, since “[p]roceeds of crime . . . do not precede the crime,”
petitioner cannot defend a claim to “proceeds” under § 853(n)(6)(A)).
34
In this case, the jury found that USW’s funds at JP Morgan Chase were
subject to forfeiture under § 982(a)(2) as “property constituting, or derived from,
proceeds [Dupree] obtained directly or indirectly, as the result of” his fraudulent
scheme. See 18 U.S.C. § 982(a)(2). There is consequently no question – nor do
petitioners try to dispute – that the contested funds came into USW’s possession
and were deposited in USW’s accounts only after the start of Dupree’s conspiracy
in 2007.7 Because all proceeds of Dupree’s criminal conspiracy automatically
vested in the government at that time, see Timley, 507 F.3d at 1131; United States
v. McClung, 6 F. Supp. 2d 548, 552 (W.D. Va. 1998), and because the contested
funds only came into USW’s ownership after that date, neither USW nor, by
virtue of the Assignment, D&B may colorably assert that its interest in the
7
The district court presumed that petitioners’ interest in the funds originated on
the date of D&B’s receipt of the funds on August 11, 2011. Because petitioners’
interest in the contested funds depends on the assignment to them of USW’s legal
interest, however, the appropriate date to consider is when USW itself acquired
title to those funds. See In re Stralem, 758 N.Y.S.2d 345, 347 (2d Dep’t 2003)
(“When a valid assignment is made, the assignee steps into the assignor’s shoes
and acquires whatever rights the latter had.”) (citing Furlong v. Shalala, 156 F.3d
384, 392 (2d Cir. 1998)); see also United States v. Currency Totalling $48,318.08,
609 F.2d 210, 214 (5th Cir. 1980) (“The right, title, and interest conveyed by the
assignment are twofold: first, an ownership interest in currency previously seized
by, currently possessed by, and potentially forfeitable to the United States; and
second, a right to assert those defenses to forfeiture that were available to [the
transferor] at the time of the assignment.”).
35
property “vested . . . or was superior to any right, title, or interest of the
defendant at the time of the commission of the acts which gave rise to the forfeiture.”
21 U.S.C. § 853(n)(6)(A) (emphasis added).8
Petitioners insist that their claim to the contested funds falls under the
exception to the relation‐back doctrine recognized in Willis Management
(Vermont), Ltd. v. United States, 652 F.3d 236 (2d Cir. 2011). In Willis, we
confirmed that a constructive trust “qualifies as a ‘legal right, title, or interest in
the property’ that ‘may be a superior interest’ to a defendant’s interest for the
purposes of . . . § 853(n)(6)(A).” Id. at 242; see also United States v. Schwimmer,
968 F.2d 1570, 1582 (2d Cir. 1992). The defendant in that case was convicted of
embezzling funds from his employer, which he subsequently used to build one
home and, through a mortgage on that home, obtain a line of credit to purchase a
8
It makes no difference, in this regard, whether the funds in USW’s bank
accounts were ever owned by Dupree himself or were acquired directly by USW.
Like petitioners’ attack on the government’s standing to challenge the
Assignment, any argument based on this distinction simply relitigates the
question of whether the proceeds were, as the jury concluded, subject to
forfeiture under 18 U.S.C. § 982(a)(2). So long as the funds were subject to
forfeiture and, consequently, vested in the government from the moment of the
crime’s commission under § 853(c), the government had a superior interest in
those funds the moment they came into existence, regardless of who owned the
bank account into which they were deposited.
36
second property. See Willis, 652 F.3d at 238‐39. Although the defendant’s
employer could certainly claim no “vested” or “superior” interest in those
properties at the time of the defendant’s offense, we held that the employer
might still be entitled to both homes under § 853(n)(6)(A) if the defendant’s
embezzlement of the employer’s funds gave rise to a constructive trust in favor of
the employer. See id. at 245.
Willis provides no support for the petitioners’ claims. To begin with, the
exception recognized in Willis hinged on the fact that, under Vermont law, the
defendant’s embezzlement may have entitled his employer to a constructive trust
over all properties acquired through the stolen funds. See id. at 245‐46.
Although New York law too recognizes constructive trusts, petitioners do not
even attempt to argue that they, or USW, are entitled to a constructive trust
under the facts of this case. See Counihan v. Allstate Ins. Co., 194 F.3d 357, 362
(2d Cir. 1999) (a constructive trust under New York law requires, at the least, “a
showing that property is held under circumstances that render unconscionable
and inequitable the continued holding of the property and that the remedy is
essential to prevent unjust enrichment”).
37
Petitioners invite us to expand the exception recognized in Willis beyond
the context of constructive trusts. They argue that this case is materially
indistinguishable from Willis because, as in Willis, the government seeks
forfeiture of property that from the moment of its existence belonged to a third
party rather than to Dupree. We reject that argument.
This case involves none of the critical equitable considerations that give
rise to constructive trusts. Entitling its beneficiary to any property acquired by
the use of funds stolen from him, a constructive trust arises “when, in the eyes of
equity, a plaintiff is the true owner of . . . [the] property” at issue due to his right
to the underlying assets from which it derives. Nechis v. Oxford Health Plans,
Inc., 421 F.3d 96, 103 (2d Cir. 2005) (internal quotation marks omitted). In these
circumstances, the trust “confers on the true owner of the property an equitable
interest in the property superior to” that of anyone who claims a later interest, In
re Koreag, Controle et Revision S.A., 961 F.2d 341, 352 (2d Cir. 1992) (internal
quotation marks omitted) – including, in effect, the government under § 853(c).
That equitable rationale does not apply where, far from representing the fruits of
the third party’s own lawful assets, the property subject to forfeiture would never
38
have vested in the third party in the first instance absent the defendant’s criminal
activity.
Put simply, recognizing a constructive trust in Willis would benefit the
victim of the crime. Because Vermont state law provided that title to stolen
property and its traceable proceeds remained in the hands of the victim, the
victim’s claim to that property could have been prior to any forfeiture to the
government. Here, in contrast, petitioners seek to assert priority, not on behalf of
any victim of Dupree’s fraud, but rather on behalf of the beneficiary of his crimes.9
Under such circumstances, the rationale of Willis is not merely distinguishable –
it cuts entirely the other way. The circumstances here present a classic case for
9
Even where the elements of a traditional constructive trust are involved, this
Court has cautioned that any exception to the relation‐back doctrine should be a
narrow one. On the facts of Willis itself, we explicitly “d[id] not foreclose the
possibility that a district court would have the discretion to deny a constructive
trust where justice would be better served by allowing some other manner of
compensating victims” under the forfeiture statute. 652 F.3d at 245‐46. As we
observed, § 853 provides at least one additional avenue of redress for third
parties beyond an ancillary hearing under § 853(n): § 853(i), which authorizes the
Attorney General to “grant petitions for mitigation or remission of forfeiture,
restore forfeited property to victims of a violation of this subchapter, or take any
other action to protect the rights of innocent persons which is in the interest of
justice.” 21 U.S.C. § 853(i)(1). The Attorney General’s discretion under § 853(i)
counsels against crafting any broad judicial exceptions to § 853(n)(6)(A), as it may
“provide[ ] a legal remedy which obviates the need for application of an
equitable remedy.” Ribadeneira, 105 F.3d at 837 n.5.
39
application of the statutory command that the proceeds of a defendant’s crime
are forfeited to the government from the moment of their creation.10
In light of our established reluctance to broaden the reach of § 853(n)(6)(A),
the district court properly held that petitioners were not entitled to any exception
to the relation‐back doctrine, under our precedent in Willis or otherwise.
Accordingly, the undisputed status of the contested funds as “proceeds” of
Dupree’s criminal offense, which necessarily came into existence following the
commission of that offense, precludes petitioners from establishing a superior
interest in the funds under § 853(n)(6)(A).
IV. Bona Fide Purchaser under § 853(n)(6)(B)
To establish a claim to forfeited property under § 853(n)(6)(B), a petitioner
must demonstrate that he is “a bona fide purchaser for value of the right, title, or
interest in the property and was at the time of purchase reasonably without cause
to believe that the property was subject to forfeiture.” 21 U.S.C. § 853(n)(6)(B).
10
Petitioners argue that we should treat USW as an innocent third party, since it
was not convicted of, or even charged with, any crimes. Even assuming arguendo
that this characterization is apt in the case of a corporation that receives the
proceeds of a crime committed in the course of business by a corporate officer
who exercises unilateral control over its finances, our conclusion is unaffected. It
suffices for us that USW was the beneficiary of the proceeds of the crime.
40
While § 853(n)(6)(A) works hand in hand with the relation‐back doctrine,
§ 853(n)(6)(B) provides a narrow exception to that principle, allowing a limited
category of petitioners who “acquired an interest in the forfeited property after
the government’s interest vested” to prevail at an ancillary hearing. Timley, 507
F.3d at 1130 (emphasis added).
In this case, there is no dispute that D&B, as Watts’s defense counsel, was
aware that the government’s indictment against Watts and Dupree included a
forfeiture allegation seeking “forfeiture . . . of any property constituting or
derived from proceeds obtained directly or indirectly as a result of [their]
offenses.” It was also aware, well before the August 11, 2011 Assignment, that
the government had filed a Bill of Particulars identifying USW’s four bank
accounts at JP Morgan Chase as among the properties it sought to have forfeited.
Based on these facts alone, it would be difficult to argue that D&B was
“reasonably without cause” to believe that the contested funds were subject to
forfeiture at the time of the Assignment. As the Supreme Court has observed, the
government’s identification in a criminal indictment of the property it seeks to
have forfeited, which reflects a grand jury’s determination that there is probable
cause to believe the property is forfeitable, generally suffices to alert a
41
defendant’s attorney that the property may be subject to forfeiture following the
trial. Because, in such circumstances, “the only way a lawyer could be a
beneficiary of § 853(n)(6)(B) would be to fail to read the indictment of his client,”
Caplin & Drysdale, 491 U.S. at 632 n.10, “it is highly doubtful that one who
defends a client in a criminal case that results in forfeiture could prove that he
was without cause to believe that the property was subject to forfeiture,” United
States v. Monsanto, 491 U.S. 600, 604 n.3 (1989) (internal quotation marks
omitted).
Notably, however, the Supreme Court’s decision in neither Caplin &
Drysdale nor Monsanto presumed that a criminal defendant is entitled to a pre‐
trial hearing to determine whether the government had probable cause to
continue restraining his property. See Caplin & Drysdale, 491 U.S. at 620‐21;
Monsanto, 491 U.S. at 603‐04.11 The Court in those cases consequently did not
consider whether, where the district court conducts a Monsanto hearing, the
government’s failure to establish probable cause to restrain the defendant’s
11
In Caplin & Drysdale, the defendant had received no pre‐trial hearing. 491 U.S.
at 620‐21. In Monsanto, while noting that the defendant had in fact received a
hearing before the district court, the Court explicitly declined to “consider . . .
whether the Due Process Clause requires [such] a hearing before a pretrial
restraining order can be imposed.” 491 U.S. at 615 n.10.
42
property may reasonably affect an attorney’s analysis. Seizing on that
distinction, petitioners insist that the district court’s July 27, 2011 ruling, holding
that the government failed to establish probable cause to restrain $633,499.24 of
USW’s funds as proceeds of the criminal offense, obviated the reasonable cause
that D&B would otherwise have had to believe that at least that portion of the
funds was subject to forfeiture under § 982(a)(2).
In United States v. Monsanto, 924 F.2d 1186 (2d Cir. 1991), the very case
that established a defendant’s right to an adversarial hearing on the pretrial
restraint of forfeitable assets in this Circuit, we expressly anticipated that the
government’s failure to demonstrate probable cause at such a hearing would
affect an attorney’s appraisal of whether his client’s property was subject to
forfeiture. The Monsanto case followed a somewhat tortuous appellate path,
which began when a panel of this Court held that due process required the
government to prove a “likelihood” of establishing the forfeitability of a
defendant’s property at an adversarial hearing in order to continue restraining
that property pretrial. See United States v. Monsanto, 836 F.2d 74, 83‐84 (2d Cir.
1987), on reh’g, 852 F.2d 1400 (2d Cir. 1988), rev’d, 491 U.S. 600 (1989), vacated,
924 F.2d 1186 (2d Cir. 1991). Where the government failed to carry that burden,
43
the panel clarified that any liberated funds spent by the defendant on legitimate
attorneys’ fees would remain exempt from forfeiture following the trial. See id.
at 84.
The Court sitting en banc rejected the panel’s holding. See United States v.
Monsanto, 852 F.2d 1400 (2d Cir. 1988), rev’d, 491 U.S. 600 (1989). While differing
widely in their reasoning, a majority of the Court agreed that, regardless of an
adversarial hearing, any restraining orders against the defendant’s property had
to be modified to permit the defendant to use the restrained assets to pay his
attorneys’ fees. Id. at 1402. The Supreme Court in turn reversed that ruling,
holding that neither the federal forfeiture statute nor the Constitution required an
exception to the government’s right to restrain property for any assets needed to
pay a defendant’s legitimate attorneys’ fees. Monsanto, 491 U.S. at 602, 616.
Without deciding whether due process demanded an adversarial hearing to
contest the validity of pretrial restraint, the Supreme Court concluded that such
restraints raised no constitutional concerns where, as in that case, the defendant’s
assets were “restrained . . . based on a finding of probable cause to believe that
the assets are forfeitable.” Id. at 615.
44
On remand, this Court, still sitting en banc, confined itself primarily to the
issue of whether due process required an adversarial hearing to restrain assets
that a defendant might otherwise use for legitimate defense fees.12 See Monsanto,
924 F.2d at 1188. Answering that question in the affirmative, we resurrected the
pretrial hearing first espoused by the original panel, though we limited the
government’s burden of proving the forfeitability of the defendant’s assets to
establishing “probable cause,” id., and declined to hold that any funds spent on
legitimate attorneys’ fees would remain exempt from post‐trial forfeiture, id. at
1203. In weighing the due process interests involved, a majority of this Court
rejected the dissent’s objection that a criminal defendant’s interest in this type of
pretrial hearing was only “slight,” because a defense lawyer’s understanding that
his fees could ultimately be seized by the government meant that the outcome of
a Monsanto hearing would presumably “have no effect” on the attorney’s
12
We also considered whether a district court could reconsider the grand jury’s
determinations of probable cause at such a hearing, concluding that a court could
do so. Monsanto, 924 F.2d at 1188. The parties contested a district court’s
prerogative to reconsider the grand jury’s probable cause determinations only as
to the defendant’s underlying guilt, not as to the forfeitability of the assets, which
all parties conceded fell within the court’s jurisdiction at such a hearing. See id.
at 1196. To the extent that Monsanto held that a defendant may challenge the
existence of probable cause as to his guilt, it has since been abrogated. See Kaley
v. United States, 134 S. Ct. 1090, 1095 & n.4, 1105 (2014).
45
willingness to take the case. Id. at 1194; see also id. at 1208 (Cardamone, J.,
dissenting). Because a Monsanto hearing entitled a defendant to “any relief from
a pretrial restraint of allegedly forfeitable assets” only if it revealed a “lack of
probable cause . . . as to . . . forfeitability of [those] restrained assets,” we
concluded that “it [wa]s hardly evident that counsel would be unavailable where
such a showing could successfully be made,” regardless of the lack of guarantees
regarding post‐trial forfeiture. Id. at 1194 (majority opinion).
Our opinion in Monsanto suggests that the outcome of a pretrial hearing
on the forfeitability of the defendant’s funds may affect a defense attorney’s
entitlement to relief under § 853(n)(6)(B). It presumes, in essence, that a defense
attorney could – and would – rely on the outcome of a Monsanto hearing to
appraise whether his client’s contested funds would ultimately be ordered
forfeited or would remain available to pay his fees. As the Court in Monsanto
recognized, a successful outcome for the defendant – that is, a judicial
determination that probable cause to find the property forfeitable was lacking –
could suggest to the attorney that the government would not be able to establish
forfeiture at trial. That recognition would be meaningless if we were to suggest
that the attorney’s conclusion could not, in at least some cases, be considered
46
“reasonable.” We have previously emphasized that the government’s burden of
demonstrating probable cause to believe that a defendant’s assets are forfeitable
at a Monsanto hearing is “relatively modest.” United States v. Bonventre, 720
F.3d 126, 131 (2d Cir. 2013). Where the government fails to carry that light
burden, an attorney might, under the right circumstances, be justified in
concluding that the government’s forfeiture claims against his client are devoid
of legal merit.
In rejecting petitioners’ argument, the district court noted that its July 27,
2011 order finding no probable cause to continue restraining USW’s contested
funds before the trial did not preclude the government from either seeking or even
obtaining an order of forfeiture against that property at trial. Dupree, 919 F.
Supp. 2d at 271‐72. That is undoubtedly true. But the relevant question is not
whether the outcome of a Monsanto hearing conclusively “foreclose[s] the
ultimate forfeitability” of a defendant’s property. Id. at 272. The question is
whether, following a district court’s neutral appraisal of the government’s
evidence and its determination that the government has failed to meet its
“modest” burden of establishing probable cause to restrain the funds, a defense
47
attorney may reasonably be without cause to believe that the challenged property is
“subject to forfeiture.”
The problem with the district court’s reasoning, and that urged by the
government, is that it effectively conflates whether an individual reasonably has
cause to believe that property is “subject to forfeiture” with whether the
government intends to pursue a forfeiture claim against that property. Yet
whether a defendant’s property is “subject to forfeiture” under federal law is not
solely a matter of the government’s intentions regarding that property. It is a
legal conclusion that must be proven, on the merits, to a court. The mere assertion
by the government that it believes the property forfeitable, stripped of the
reliability provided by the grand jury’s probable cause determination by the
court’s contrary conclusion after both sides have been heard, cannot be
conclusive of the attorney’s reason to believe the property is forfeitable.
When the government seeks to obtain an order of forfeiture, “Federal Rule
of Criminal Procedure 32.2(b)(1) . . . requires the sentencing court to determine
what property is subject to forfeiture under the applicable statute.” United States
v. Capoccia, 503 F.3d 103, 109 (2d Cir. 2007) (internal quotation marks omitted)
(emphasis added). That standard means that, among other things, “the court
48
must determine whether the government has established the requisite nexus
between the property and the offense.” Fed. R. Crim. P. 32.2(b)(1)(A) (emphasis
added). At various points in the proceedings, the government bears the burden
of proving this legal conclusion to varying degrees of certainty: as a matter of
probable cause at a post‐indictment hearing, see Monsanto, 924 F.2d at 1195, or
by a preponderance of the evidence at a bench trial or before a jury, see United
States v. Gaskin, 364 F.3d 438, 461 (2d Cir. 2004). Only if the government meets
the relevant legal threshold, however, may the property in question be
considered “subject to forfeiture” in any legal sense. Prior to that, while the
government has simply announced its intent to seek forfeiture through the
indictment, the property is seen merely as “potentially forfeitable,” Caplin &
Drysdale, 491 U.S. at 622, or “potentially subject to forfeiture,” id. at 650‐51
(Blackmun, J., dissenting); United States v. Kirschenbaum, 156 F.3d 784, 795 (7th
Cir. 1998).13
13
For essentially this same reason, petitioners’ claim under § 853(n)(6)(B) is not
foreclosed by the fact that, under the terms of the Assignment, USW warranted
the transferred funds as free from all liens and encumbrances “except to the
extent that the United States seeks forfeiture.” That USW did not warrant the
funds against the government’s right to “seek[ ] forfeiture” does not mean that
D&B could not reasonably believe that the funds were not, as a matter of law,
“subject to forfeiture,” even if the government sought to obtain them.
49
Indeed, relying solely on the government’s decision to seek forfeiture to
conclude that a defendant’s property is likely “subject to forfeiture” contradicts
the very purpose of holding a Monsanto hearing. As we emphasized in our final
opinion in Monsanto, because an “indictment . . . emerges from a nonadversarial
process,” restraining a defendant’s property based purely on that document
carries “a substantial risk of an erroneous deprivation of a defendant’s significant
property interest.” 924 F.2d at 1195. Precisely due to this weakness, we decided
that some “additional . . . safeguard” to appraise the likely forfeitability of
property was in order. Id. The core purpose of a Monsanto hearing, in short, is
to “provide a procedural check against the government’s discretion to limit . . .
defendants’ choice of counsel simply by obtaining a forfeiture charge in the
indictment,” Monsanto, 836 F.2d at 84 – constraining the government’s
“troubling” ability “to exercise an intolerable degree of power over any private
attorney who takes on the task of representing a defendant in a forfeiture case,”
Caplin & Drysdale, 491 U.S. at 650 (1989) (Blackmun, J., dissenting). If nothing
else, this Circuit’s requirement of a Monsanto hearing prior to continuing the
pretrial restraint of a defendant’s property must mean that the defendant and his
counsel can accord greater weight to the district court’s determinations of
50
probable cause following that hearing than to the government’s decision to seek
forfeiture to begin with.
In light of the due process concerns underlying our adoption of the
Monsanto hearing as a procedural check against the government’s forfeiture
allegations, and our recognition of the government’s relatively light burden of
proof at such a hearing, we conclude that the government’s failure to establish
probable cause at a Monsanto hearing may, under some circumstances, leave a
defense attorney “reasonably without cause to believe that [his client’s] property
was subject to forfeiture” for the purposes of § 853(n)(6)(B). Whether that belief
is truly reasonable in any given case will, of course, depend on the particular
facts proven. Where, for example, an attorney has reasonable grounds to believe
that his client acquired the contested property through innocent means and the
government fails to adduce any meaningful evidence to the contrary, a Monsanto
hearing may leave the attorney “reasonably without cause” to believe that the
government’s forfeiture claims have any valid legal foundation, even if the
government ultimately establishes forfeitability at trial. Where, by contrast, an
attorney has reason to know of the criminal origins of the property, but the
government fails to produce sufficient evidence of that criminal connection at the
51
pretrial hearing, an attorney may not rely on that fact to shirk off his reasonable
notice that the property was ultimately “subject to forfeiture.”
In this particular case, whether the Monsanto hearing left D&B reasonably
without cause to believe that the $633,499.24 was nevertheless “subject to
forfeiture” depends on a variety of circumstances: from where D&B believed
those funds were derived, how it believed they came into USW’s possession,
whether it received that information solely from Watts and his co‐defendants or
from some neutral parties, and what, if anything, it reasonably should have
inferred from discovery materials provided by the government, among other
questions. At this stage in the proceedings, based purely on the facts alleged in
the Petition and the incorporated documents, the record neither clarifies the
answers to those questions nor precludes a fact finder from ultimately resolving
those questions in D&B’s favor. Because petitioners have plausibly alleged that,
after the district court’s decision vacating the restraint on the contested funds for
lack of probable cause, they were reasonably without cause to believe that those
funds were subject to forfeiture, petitioners have pleaded sufficient facts to
survive a motion to dismiss on their claim that D&B was a bona fide purchaser
52
entitled to relief under § 853(n)(6)(B).14
V. Right to Forfeiture of USW’s Assets
Next, petitioners argue that the funds in USW’s bank accounts at JP
Morgan Chase are not subject to forfeiture under 18 U.S.C. § 982(a)(2) because
criminal forfeiture is an in personam proceeding that extends only to property
owned by the criminal defendant. Because, according to petitioners, the
contested funds were deposited directly into USW’s accounts and never passed
through Dupree’s hands, they could not lawfully be included in the district
court’s forfeiture order. Petitioners suggest that this principle both supports their
reasonable lack of cause to believe that the contested funds were “subject to
forfeiture” under § 853(n)(6)(B) and precludes the court from ordering USW’s
funds forfeited in the first place.
Petitioners’ argument runs contrary to this Circuit’s understanding of 18
U.S.C. § 982(a). The forfeiture provision that governs this case, § 982(a)(2),
provides that a court sentencing a person convicted of violating or conspiring to
14
We of course express no view on whether petitioners will be able to sustain
their allegations at a hearing, as the issue before us is only whether their petition
can be dismissed as a matter of law. Similarly, since the parties do not contest
before us whether D&B was a purchaser for value, we express no view on that
issue.
53
violate 18 U.S.C. §§ 1341, 1343, or 1344 “shall order that the person forfeit to the
United States any property constituting, or derived from, proceeds the person
obtained directly or indirectly, as the result of such violation.” 18 U.S.C.
§ 982(a)(2) (emphases added). In De Almeida v. United States, 459 F.3d 377 (2d
Cir. 2006), this Court confronted a similar challenge to a parallel provision of the
statute, § 982(a)(1), which authorizes a court to “order that the [defendant] forfeit
to the United States any property, real or personal, involved in such offense, or
any property traceable to such property.” 18 U.S.C. § 982(a)(1); see also De
Almeida, 459 F.3d at 381. We held that this statutory language “makes
sufficiently clear that criminal forfeiture is not a measure restricted to property
owned by the criminal defendant; it reaches any property that is ‘involved’ in the
offense.” De Almeida, 459 F.3d at 381 (emphasis in original). In light of the
judicial presumption toward interpreting similar statutory language consistently
across neighboring subsections of a statute, see, e.g., Sedima, S.P.R.L. v. Imrex
Co., 473 U.S. 479, 489 (1985), De Almeida counsels us to read § 982(a)(2) as
authorizing forfeiture of any property that is “derived” from proceeds obtained
through a defendant’s offense, whether or not that property was ever owned by
the criminal defendant. At the very least, De Almeida precludes petitioners from
54
relying on the ostensibly in personam nature of criminal forfeiture to establish the
reasonableness of their belief that USW’s funds were not subject to forfeiture
under § 853(n)(6)(B). As a precedential opinion interpreting a neighboring
provision of § 982(a), De Almeida more than sufficed to alert petitioners that
courts in this Circuit would likely interpret § 982(a)(2) to extend beyond the
defendant’s own property interests.
Petitioners insist that our more recent decision in United States v.
Contorinis, 692 F.3d 136 (2d Cir. 2012), compels a different outcome in this case.
In Contorinis, we held that an order of criminal forfeiture under 18 U.S.C.
§ 981(a)(1)(C), a provision reaching “[a]ny property, real or personal, which
constitutes or is derived from proceeds traceable to [the] violation,”15 could not
encompass proceeds that were never personally acquired or controlled by the
defendant. Id. at 147‐48. Petitioners read this holding as reaffirming an in
personam theory of criminal forfeiture, limiting the government’s reach to
property that was once in the defendant’s own possession.
15
While 18 U.S.C. § 981(a)(1)(C) is technically a civil forfeiture provision, it has
been integrated into criminal forfeiture law by 28 U.S.C. § 2461(c). Contorinis,
692 F.3d at 145 n.2.
55
Even assuming that Contorinis – which involved a different forfeiture
statute and hinged on a statutory definition of “proceeds” not obviously
applicable to this case, see id. at 145; 18 U.S.C. § 981(a)(2) – casts doubt on our
holding in De Almeida, petitioners’ argument is not available to them as third‐
party claimants under § 853. Having established a third party’s right to an
ancillary proceeding under § 853(n), that section explicitly provides that, “[e]xcept
as provided in subsection (n) . . . , no party claiming an interest in property subject
to forfeiture under this section may . . . commence an action at law or equity
against the United States concerning the validity of his alleged interest in the
property subsequent to the filing of an indictment.” 21 U.S.C. § 853(k) (emphasis
added). We have consistently interpreted § 853(k) to mean that an ancillary
proceeding under § 853(n) is “the only avenue for a post‐indictment third‐party
claim to forfeited property” under the criminal forfeiture statute. De Almeida,
459 F.3d at 381 (emphasis in original); see also DSI Associates LLC v. United
States, 496 F.3d 175, 183‐84 (2d Cir. 2007) (“It is . . . well settled that section 853(n)
provides the exclusive means by which a third party may lay claim to forfeited
assets . . . .”).
56
As outlined above, § 853(n) provides only two means by which a third‐
party claimant may establish his right to forfeitable property: either by
demonstrating that he possessed a “superior interest” at the time of the offense
under § 853(n)(6)(A), or by demonstrating that he was a “bona fide purchaser for
value” reasonably without cause to believe that the property was subject to
forfeiture under § 853(n)(6)(B). See 21 U.S.C. § 853(n)(6). Beyond those two
limited claims, the provision authorizes no challenges to the forfeitability of a
defendant’s property by interested third parties. Petitioners protest that § 853
manifests a clear concern with protecting innocent third‐party property from
criminal forfeiture – not least, as we noted in De Almeida, by accommodating
“[t]he likelihood that some property involved in an offense will be owned by
persons other than the criminal defendant . . . in [its] provision for an ancillary
proceeding.” 459 F.3d at 381. Yet just as there is no doubt that § 853 protects
third parties by entitling them to ancillary hearings on their claims, there is also
no doubt that it limits the scope of such ancillary hearings to the two grounds
identified in § 853(n)(6). Any additional challenges to an order of forfeiture
based on Contorinis must be raised – as was the challenge in Contorinis, see 692
F.3d at 139 – by the criminal defendant himself.
57
Because the criminal forfeiture statute does not authorize petitioners to
challenge the scope of a forfeiture order beyond the two grounds identified in
§ 853(n)(6), the district court properly rejected their claim that USW’s funds are
not subject to forfeiture under § 982(a)(2).16
VI. Judgment on the Pleadings
Finally, petitioners argue that the district court erred in failing to grant
them judgment on the pleadings, insisting that the Petition establishes their
entitlement to judgment as a matter of law. Because petitioners have failed to
state a claim under § 853(n)(6)(A), have no right to challenge the forfeiture order
under § 982(a)(2), and have merely alleged sufficient facts to present a plausible
claim to relief under § 853(n)(6)(B) that must be resolved by further proceedings,
petitioners’ motion was properly denied.
CONCLUSION
For the foregoing reasons, the district court’s order is AFFIRMED to the
extent that it (1) denied the government’s motion to dismiss petitioners’ claim for
16
Petitioners do not argue that § 853’s limitations on a third party’s right to
challenge a forfeiture order raise any constitutional concerns. Regardless, this
Court addressed such a constitutional claim in DSI Associates. That decision’s
determination that any constitutional challenge was not yet ripe applies equally
to the facts of this case. See 496 F.3d at 185‐87.
58
lack of standing, (2) granted the government’s motion to dismiss the Petition for
failure to state a claim under § 853(n)(6)(A), (3) rejected petitioners’ contention
that the contested property is not subject to forfeiture under § 982(a)(2), and
(4) denied petitioners’ motion for judgment on the pleadings. The district court’s
order is VACATED to the extent that it granted the government’s motion to
dismiss the Petition for failure to state a claim under § 853(n)(6)(B), and the case
is REMANDED to the district court for further proceedings consistent with this
opinion.
59