United States District Court, Southern District of New York
May 13, 1991
UNITED STATES OF AMERICA, PLAINTIFF,
CONTENTS OF ACCOUNT NUMBER 11671-8 IN THE NAME OF LATINO AMERICANA EXPRESS, AND THE CONTENTS OF ACCOUNT NUMBER 11598-3 IN THE NAME OF LA UNION AUTO DEALER, AT BPD INTERNATIONAL BANK, 4186 BROADWAY, NEW YORK, NEW YORK, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Mukasey, District Judge.
OPINION AND ORDER
As disclosed to the parties at a conference on April 18,
1991, the motion of claimant Maruquel Investment, Inc. to
dismiss the complaint for lack of jurisdiction and for failure
to state a claim is denied. The defendant accounts are alleged
to be owned or controlled by Pedro Lora, a defendant in a
criminal case in this District who is accused of narcotics
trafficking. Complaint, ¶ 2.
Claimant has argued that because the account which is the
subject of this motion is located in Puerto Rico, this court
lacks in rem jurisdiction and the complaint therefore must be
dismissed. The relevant statute, however, permits the
Government to seek forfeiture of property "in the judicial
district in which the defendant owning such property is found
or in the judicial district in which the criminal prosecution
is brought." 18 U.S.C. § 981(h). To the extent there is
anything inconsistent in United States v. One Lear Jet
Aircraft, Serial No. 35A-280, 836 F.2d 1571, 1575 (11th Cir.
1988), cert. denied, 487 U.S. 1204, 108 S.Ct. 2844, 101 L.Ed.2d
881 (1989), that reasoning appears to be at odds with the
reasoning of our own Circuit in United States v. Aiello,
912 F.2d 4 (2d Cir. 1990). To the extent it is not, claimants'
argument that an in rem proceeding cannot be prosecuted in the
absence of the res has a certain appeal. E.g., Bank of New
Orleans and Trust Co. v. Marine Credit Corp., 583 F.2d 1063,
1067-68 (8th Cir. 1978). However, that does not take into
account the nature of this action, which seeks to forfeit
property that is alleged to be under the continuing control of
a defendant being prosecuted in this District. Such a contact
appears, to my eye, to satisfy the minimum contacts
requirements of International Shoe Company v. State of
Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and
Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683
(1977) and their progeny. Put another way, it does not appear
to deny due process to one alleged to be acting at the behest
of a defendant being prosecuted in this District to make that
entity litigate where its orders allegedly come from.
Claimant's second argument is that the complaint fails to
allege knowledge of the unlawful activity underlying the
transfers, and therefore fails to state a claim upon which
relief can be granted within the meaning of Fed.R.Civ.P.
12(b)(6). Here, the well-known standard is whether it appears
from the complaint that plaintiff can prove any set of facts
that will justify the relief it seeks. If it can, the motion
to dismiss must be denied. Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Considering
not only the complaint, but also the reasonable inferences that
may be drawn from its allegations, cf., Cable Science Corp. v.
Rochdale Village, Inc., 920 F.2d 147, 151 (2d Cir. 1990), it
appears that one or more of
the defendants in the criminal case were depositing funds to
the subject accounts in transactions methodically designed to
avoid statutory reporting requirements, and then quickly
transferring the funds so deposited to other accounts and
entities in transactions for which it was impossible to
discern a quid pro quo. Claimant indeed may not have been aware
of the underlying criminality, but it is fair to infer that the
defendants in the criminal case did not relinquish control over
the funds in question. It is therefore also fair to require
that claimant show its bona fides.
For the reasons set forth above, the motion to dismiss is