The opinion of the court was delivered by: SAND
HONORABLE LEONARD B. SAND, U.S.D.J.
This action stems from the Government's forfeiture of funds involved in a money laundering scheme from Cambiaria C & F ("C & F"), a now-defunct exchange house, and others, pursuant to 18 U.S.C. § 982. Various financial institutions and individuals -- Banco Popular, Filanbanco, Gregorio Ormaza, Guislain Wattel, Juan Jose Avellan, Francelana, S.A., Maria Cordero, Gustavo Vallejo Perez, Fernando Pena, Simon Coral, Secretej Cia. Ltda., Carlos Ariba, and Stella Barrera (hereafter "petitioners") -- all holding dollar checks drawn on C & F, have filed petitions pursuant to 21 U.S.C. § 853 (n)(2), asserting rights in the funds that are subject to the forfeiture order. The question before us is whether petitioners have a legal interest in the property seized.
On March 12, 1991, Jose Ribadeneira ("Ribadeneira") and Albio Alzate ("Alzate") were arrested and charged with laundering approximately thirty million dollars through C & F. A federal grand jury subsequently indicted C & F, Ribadeneira, and Alzate. On January 22, 1992, Ribadeneira and Alzate pled guilty to conspiracy and money laundering charges and agreed to the criminal forfeiture of various assets, including several accounts in the name of C & F. A Final Order of Forfeiture was entered on March 5, 1993, which forfeited to the United States approximately 2.1 million dollars from the seized C & F assets. On June 25, 1992, and August 6, 1992, the Government published, in the Miami Review and the New York Law Journal respectively, notice of the forfeiture order and of its intent to dispose of the funds contained in the order, in compliance with 21 U.S.C. § 853 (n)(1).
Petitioners are customers of C & F. After having obtained from the Court an extension of the requisite time within which to file petitions contesting the forfeiture order, pursuant to 21 U.S.C. § 853 (n)(2), on December 8, 1995, petitioners filed petitions claiming a legal interest in the seized assets. Specifically, they alleged that they had purchased United States dollar checks from C & F through transactions, whereby, with two exceptions, they exchanged an equivalent amount of Equadorian sucres for the dollar checks purchased. In two instances -- the exceptions noted above -- the dollar checks were purchased not with sucres but with American dollars.
Contending that under 21 U.S.C. § 853 (n)(2) and (n)(6), petitioners lack standing to contest the forfeiture, the Government seeks dismissal of the petitions. For the reasons stated below, we agree with the Government and dismiss the petitions.
The relevant statutory law provides that
Any person, other than the defendant, asserting a legal interest in property which has been ordered forfeited to the United States pursuant to this section may . . . petition the court for a hearing to adjudicate the validity of his alleged interest in the property. . . .
21 U.S.C. § 853 (n)(2) (emphasis added). Once a petition has been filed under (n)(2), the court conducts a hearing to determine whether
(A) the petitioner 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 under this section; or
21 U.S.C. § 853 (n)(6). If the court finds by a preponderance of the evidence that the petitioner falls within either of the above two categories, the court must amend the forfeiture order so as accordingly to restore a properly apportioned ...