The opinion of the court was delivered by: Sweet, District Judge.
Kil Young Maeng ("Maeng") has moved, on behalf of Han Kuk Kuen
Young, Inc. ("Han Kuk") and Interlink Finance Co. ("Interlink"),
for an enlargement of time to file a claim in this civil
forfeiture action. For the reasons stated below, Maeng's motion
This action seeks the forfeiture of the contents of three bank
accounts and $22,782.00 in United States currency (collectively,
the "defendant-in-rem funds") seized by the Internal Revenue
Service (the "IRS") in 1992 from Han Kuk and Interlink, two check
cashing services controlled by Maeng. The verified complaint
alleges that the defendant-in-rem funds (which aggregate
approximately $210,000) constitute property involved in the
transactions and attempted transactions in violation of the cash
reporting and anti-structuring provisions of 31 U.S.C. § 5313(a)
and 5324(a), and hence are subject to forfeiture to the United
States pursuant to 18 U.S.C. § 981(a)(1)(A).
According to the verified complaint, on July 17, 1997, a
federal grand jury in the Southern District of New York returned
an indictment charging Maeng with one count of conspiracy to
violate 31 U.S.C. § 5313(a), 5322(b) and 5324(a)(3) and with
eight substantive counts of violating 31 U.S.C. § 5313(a) and
5322(b). See United States v. Kil Young Maeng, S1 97 Cr. 645.
The indictments alleged, among other things, that from 1988 to on
or about July 17, 1992, Maeng, through his company Han Kuk,
cashed checks for more than $10,000 on behalf of his customers in
the garment industry without filing the required currency
transaction reports ("CTRs") with the Federal Government. The
indictment also alleged that on several occasions in July 1992,
Maeng and Han Kuk cashed multiple checks from the same customer
aggregating more than $10,000, even though each individual check
was for less than $10,000, without filing the required CTRs. The
indictment also contained a forfeiture allegation seeking
forfeiture of all property involved in Maeng's violations of the
currency reporting requirements of Title 31.
On February 27, 1998, Maeng executed a plea agreement (the
"Plea Agreement") in which, among other things, Maeng admitted
that the value of the funds involved in his currency reporting
offense was more than $20 million. The Plea Agreement also
resolved the Government's forfeiture claims against Maeng. The
Plea Agreement states that "the defendant agrees to forfeiture,
pursuant to Title 18, United States Code, Section 981(a)(1)(A),"
of the three bank accounts and currency which constitute the
defendant-in-rem funds in this action. (Plea Agreement at 1-2).
Maeng further agreed "to take whatever steps are necessary to
pass clear title [to the defendant-in-rem funds] to the United
States." The parties stipulated that Maeng did not act with
reckless disregard of the source of the funds, and that the funds
were the proceeds of lawful activity and were used for a lawful
purpose. Pursuant to the Plea Agreement, the Government dismissed
all but one count against Maeng and agreed not to seek forfeiture
of an additional two bank accounts that had been seized by the
On March 4, 1998, Maeng plead guilty to Count One of the
Indictment before the Honorable Sonia Sotomayor. The issue of
forfeiture was not addressed.
On July 29, 1998, in accordance with the Plea Agreement, the
Government commenced the instant action, pursuant to
18 U.S.C. § 981(a)(1)(A), to forfeit the defendant-in-rem funds. The
Government sent written notice of the commencement of this
action, via certified mail, to Maeng, Maeng's criminal defense
attorney, Mr. Anolik ("Anolik"), Han Kuk, and Interlink.
On or about August 2, 1998, Maeng and his daughter, Julia
Maeng, met with Anolik in preparation for Maeng's sentencing. Ms.
Maeng showed Anolik a newspaper article discussing the Supreme
Court's recent ruling in United States v. Bajakajian,
524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998). According to Maeng,
Anolik indicated that he would research the issues arising from
the Bajakajian decision and raise them at Maeng's sentencing.
Anolik also advised Maeng that the forfeiture was separate from
the original criminal case, and requested an additional retainer
On September 1, 1998, Maeng retained new counsel. On September
7, 1998, the Government received a letter from Maeng's counsel
proposing a "modification" of the terms of the Plea Agreement and
suggesting a "settlement" of the matter. The Government responded
in a letter dated September 11, 1998, rejecting Maeng's proposed
"settlement" and stating that the Government would oppose any
effort by Maeng to file a claim in this action in light of the
Maeng submitted a letter to the Court on October 5, 1998,
requesting permission to file a late claim. In a letter to the
Court dated October 13, 1998, the Government opposed Maeng's
request based, in part, on the fact that in Maeng had agreed to
forfeiture of the relevant funds as part of the Plea Agreement.
The parties appeared before the Court on October 14, 1998, at
which time the Government agreed that Maeng should be permitted
to file papers in support of his motion to file a late claim.
On October 23, 1998, Maeng filed the instant motion for an
order nunc pro tunc enlarging the time to file a Notice of
Claim. Oral argument was heard on November 18, 1998, at which ...