UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, :
U.S. Attorney’s Office :
555 Fourth Street, NW :
Washington, DC 20530, :
:
Plaintiff, : Civil Action No.: 18-2746 (RC)
:
v. : Re Document Nos.: 25, 26
:
$845,130.00 OF FUNDS ASSOCIATED :
WITH APEX CHOICE LTD., :
:
Defendant In Rem, and :
:
APEX CHOICE LTD., :
14/F, CHUN WO COMMERCIAL :
CENTRE, :
25 WING WO STREET, CENTRAL, :
HONG KONG :
:
Defendants. :
ORDER
GRANTING GOVERNMENT’S MOTION TO STAY
In this civil forfeiture action, Plaintiff the United States of America moved to stay the
instant matter for a period of 180 days. Gov’t Mot. to Stay (“Gov’t Mot.”), ECF No. 25.
Defendant Apex Choice, Ltd. (“Apex Choice”) responded to the Government’s motion opposing
the stay. Claimant’s Opp. to Gov’t Mot. to Extend Stay (“Def.’s Opp.”), ECF No. 28. The
Government subsequently filed a reply. Gov’t Reply to Claimant’s Opp. to Mot. to Stay (“Gov’t
Reply”), ECF No. 29.
When the United States moves for a stay, “the court shall stay the civil forfeiture
proceeding if the court determines that civil discovery will adversely affect the ability of the
Government to conduct a related criminal investigation or the prosecution of a related criminal
case.” 18 U.S.C. § 981(g)(1); see United States v. Sum of $70,990,605, 4 F. Supp. 3d 209, 211
(D.D.C. 2014). The Court must find both (1) a relation between the current forfeiture proceeding
and a criminal case or investigation, and (2) that “continuation of the forfeiture proceeding will
burden . . . the related investigation or case.” 18 U.S.C. 981(g)(2). The Court must first
determine whether the criminal case is related to the civil forfeiture proceeding by “consider[ing]
the degree of similarity between the parties, witnesses, facts, and circumstances involved in the
two proceedings, without requiring an identity with respect to any one or more factors.” 18
U.S.C. § 981(g)(4). The United States may also submit evidence ex parte in order to avoid
disclosure of any matter that may “adversely affect an ongoing criminal investigation or pending
criminal trial.” 18 U.S.C. § 981(g)(5). Next, courts must determine whether there would be an
adverse effect upon a criminal investigation or prosecution by continuation of the forfeiture
proceeding, and, if so, courts must grant a stay. United States v. All Funds on Deposit in
Suntrust Account Number XXXXXXXXX8359, 456 F. Supp. 2d 64, 65 (D.D.C. 2006).
The first statutory factor for granting a stay in a civil forfeiture proceeding is whether
there is a related criminal investigation or case involving the claimant. 18 U.S.C. §
981(g)(2)(A). Here, the Court finds that the Government, through its motion and sealed
affidavit, ECF No. 26, sufficiently demonstrated that the civil forfeiture proceeding and ongoing
criminal investigation of Wang Hui (“Wang”) are related because they arise from the same facts
and circumstances. Gov’t Mot. at 7 (“The potential for such adverse effects is present here,
because the operative facts and parties involved in the instant case are the same as those in: (1)
the criminal investigation related to the claimant’s activities; and (2) the extant criminal case
against 33 FTB defendants.”). According to case law in this Circuit, the actions are “clearly
related” where “a criminal investigation and a civil forfeiture action have common facts, similar
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alleged violations and some common parties.” Sum of $70,990,605, 4 F. Supp. 3d at 212
(quoting All Funds on Deposit in Suntrust Account 8359, 456 F. Supp. 2d at 65) (internal
quotations omitted). In this case, the investigation into Wang involves the same relevant facts,
i.e., the alleged laundering of funds between Wang’s companies and various front companies and
involves the same parties. See Gov’t Mot. at 7. The Government’s sealed affidavit further
supports the conclusion that both the criminal investigation and the civil forfeiture action rest on
many similar facts and circumstances.
Second, the Court must determine whether continuation of the forfeiture proceeding
would burden the related criminal investigation. 18 U.S.C. § 981(g)(2)(C). The Court finds that
civil discovery would adversely affect the ability of the Government to conduct its criminal
investigation. Adversity can be found when the discovery process “would burden law
enforcement officials who are otherwise conducting a contemporaneous criminal investigation”
or would lead to the disclosure of confidential information, the government’s criminal strategy,
or otherwise undiscoverable evidence in the criminal process. All Funds on Deposit in Suntrust
Account 8359, 456 F. Supp. 2d at 66. Courts will typically grant stays where the Government
shows some evidence that there will likely be prejudice to the related criminal prosecution
should the stay be denied. See Sum of $70,990,605, 4 F. Supp. 3d at 214–15 (refusing a stay
because the government offered “no evidence that it cannot take discovery because of the
pending criminal investigation”).
Here, the ex parte affidavit submitted by the Government provides substantial evidence
as to why a stay is appropriate. One reason why allowing civil discovery in this case would be
inappropriate is that the scope of civil discovery is generally far greater than that of criminal
discovery. “Where civil discovery would subject the government’s criminal investigation to
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‘early and broader civil discovery than would otherwise be possible in the context of the criminal
proceeding,’ a stay should be granted.” All Funds on Deposit in Suntrust Account 8359, 456 F.
Supp. 2d at 65–66 (quoting United States v. One Assortment of Seventy-Three Firearms, 352 F.
Supp. 2d 2, 4 (D. Me. 2005). Additionally, the Government will be subject to disclosure of
sensitive confidential witnesses through the discovery process, as well as general disruption to
the criminal investigation should investigators be required to respond to civil discovery requests.
See Gov’t Mot. at 9 (“Having depositions would allow the claimant to examine these witnesses,
which would expose the government’s potential trial strategy and require witnesses to divulge
sensitive information.”). These concerns still arise even though the defendants allege that they
will not engage in discovery. See Def.’s Opp. at 5 (“[T]here has been no civil discovery and it is
not likely that Claimant will even need civil discovery from the government.”); see United States
v. 2009 Dodge Challenger, VIN 2B3LJ44V49H561559, No. 03:11-cv-328, 2011 WL 6000790, at
*2 (D. Or. Nov. 30, 2011) (granting stay despite claimants not seeking discovery when the
government would “be compelled to compile and reveal information and evidence collected in
support of its criminal investigation” in order to oppose claimants’ motions).
For the foregoing reasons, the Court concludes that the Government has sufficiently
demonstrated the connection between the civil forfeiture proceeding and the ongoing criminal
investigation, and has demonstrated that civil discovery would adversely affect the
Government’s ability to conduct its criminal investigation. The Court therefore grants the
Government’s Motion to Stay for a period of 180 days.
* * *
For the reasons stated above, it is hereby ORDERED that:
1. The United States' motion to stay this proceeding (ECF No. 25) is GRANTED; and it is
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2. FURTHER ORDERED that this civil forfeiture case is STAYED for a period of one
hundred eighty (180) days from the date of this Order; and it is
3. FURTHER ORDERED that the United States’ motion for leave to file document under
seal (ECF No. 26) is GRANTED; and it is
4. FURTHER ORDERED that the government shall file a case status report every 60 days.
SO ORDERED.
Dated: November 10, 2020
RUDOLPH CONTRERAS
United States District Judge
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