In re Restraint of all Assets Contained
860 F. Supp. 2d 32
D.D.C.2012Background
- US sought restraining order under 28 U.S.C. § 2467(d)(3) to preserve three UBS accounts in Curagao-linked money-laundering investigation.
- Curagao Court issued July 2011 Order seizing assets; US later sought enforcement in this Court.
- Curagao vacated July 2011 Order as to Ponsford and Tula but left intact a separate January 2012 Order.
- January 2012 Order authorized restraint on the three UBS accounts with Companies now named as suspects.
- Curagao Article 150/43 proceedings followed; April 2012 Curagao orders altered the landscape, sustaining some challenges and leaving January 2012 Order in effect.
- This Court, after briefing, granted US Motion to Amend to substitute January 2012 Order as basis for restraint and denied dissolving the restraint, with final status to be governed by Curagao proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the US may enforce the January 2012 Order under § 2467(d)(3). | US seeks to enforce Curagao’s January 2012 Order via § 2467(d)(3). | Ponsford/Tula argue lack of proper Curagao authority and due process issues. | Yes; court grants motion to amend. |
| Whether dual forfeiture applies to foreign restraint enforcement. | US contends dual forfeiture not required or satisfied here. | Ponsford/Tula argue dual forfeiture applies and may be unmet. | Dual forfeiture analysis unnecessary to deny, the January 2012 Order suffices under the record. |
| Whether the January 2012 Order complied with due process in Curagao proceedings. | Procedures resemble US equivalents; ex parte filings permissible. | Arguments of due process incompatibility given foreign proceedings. | Not due-process defeating; procedures are compatible. |
| Whether § 983(j)(l)(B) or § 983(j)(l)(A) governs the matter. | US relies on § 983(j)(l)(B). | Court should apply § 983(j)(l)(A). | § 983(j)(l)(A) applies; Curagao proceedings justify. |
| Whether a hearing is required before granting the Motion to Amend. | Ex parte submissions suffice under § 2467(d)(3). | Hearing not required given status of foreign proceedings. | No hearing needed; record supports grant. |
Key Cases Cited
- Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) (deference to foreign proceedings and due process considerations)
- Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176 (1982) (treaty interpretation and respect for executive decisions in foreign matters)
- Hwang Geum Joo v. Japan, 413 F.3d 45 (D.C.Cir. 2005) (Executive interpretation of treaties given weight; deference to foreign decisions)
- United States v. $129,727.00 U.S. Currency, 129 F.3d 486 (9th Cir. 1997) (forfeiture context and ex parte restraint considerations)