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United States of America v. $541

August 20, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
$541,395.06 U.S. CURRENCY, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Siragusa, J.

DECISION & ORDER

INTRODUCTION

This case is before the Court on the Motion of The United States of America ("the Government") seeking to strike the claim of Joseph R. Amisano, Esq. ("the claimant"). Applying the appropriate standard of law, the Court determines that the claimant lacks standing in this matter and grants the Government's application.

FACTUAL BACKGROUND

On September 28, 2010, the Government filed a Verified Complaint pursuant to 18 U.S.C. § 981 (a)(1)(A) and (a)(1)(C), seeking forfeiture of the proceeds of an alleged Ponzi scheme conducted by the late Ashvin Zaveri, including: $543,395.06 of United States currency; real property located at 7881 Hidden Oaks, Pittsford, New York; approximately one hundred thousand dollars worth of seized jewelry; two William Penn Life Insurance Company policies; and the rights, title, and interests in twenty-five of Zaveri's business partnerships. The Government asserts that the $543,395.06 in seized funds ("the defendant currency") represents proceeds of the alleged Ponzi scheme.

On June 15, 2010, the Government instructed Zaveri's attorney, the claimant, to take custody of the defendant currency alleging it represented fraudulent proceeds. The claimant deposited the defendant currency into an M&T bank account in his own name. Three days later, on June 18, 2010, the claimant, describing himself as Zaveri's agent, opened a commercial deposit account in Zaveri's name for the purpose of holding the defendant currency.

On October 7, 2010, the Court issued an Order for Issuance of Arrest Warrants in Rem for the defendant currency. On November 2, 2010, the Court held a proceeding regarding the Arrest Warrant in Rem and, the claimant alleges, on this date the Government caused the funds to be transferred out of his account with no notice to him and no opportunity to be heard.

On December 1, 2010, the Court ordered the M&T Bank branch holding the defendant currency to turn over the funds to the United States. On December 29, 2009, the Government served a copy of the Arrest Warrant in Rem, a Notice of Forfeiture Action, and Verified Complaint on the claimant. The Notice of Action stated

The person receiving direct notice of this action, who asserts an interest in any of the defendant property may contest the forfeiture by filing a claim (which must identify the specific property claimed, identify the claimant and the claimant's interest in the property, and be signed by the claimant under penalty of perjury) in the United States District Court, Western District of New York . . . by February 24, 2011, in accordance with Rule G(5) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. Additionally, any claimant must serve and file an Answer to the Complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure within 21 days after filing the claim.

Aff. in Support of Not. to Strike Claim ¶ 6.

On February 24, 2011, the claimant filed a Verified Claim asserting an ownership interest in the defendant currency as the signatory of the bank account from which it was seized.*fn1 In his Verified Claim, the claimant asserts he has a lien against Zaveri and the defendant currency as a result of $154,600 in unpaid legal fees that accrued by the time of Zaveri's death. On March 18, 2011, twenty-two days after filing a Verified Claim, the claimant filed an Answer, reasserting an alleged ownership interest in the defendant currency.

On May 24, 2012, the Government filed a Notice of Motion, moving this Court to strike Amisano's claim, contending he lacks standing under Article III of the Constitution and statutory standing under Rule G(8)(c) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions ("Forfeiture Rules").

Written responses to the motion were due June 29, 2012, however the claimant filed no written response. Oral ...


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