The opinion of the court was delivered by: Bassler, District Judge.
This is a civil action in rem for the forfeiture of funds located in
the three above-captioned bank accounts (collectively "the Defendant
Accounts" or "the Accounts"), pursuant to 21 U.S.C. § 881 (a)(6) and
18 U.S.C. § 981. The United States seeks forfeiture of the funds
because they are the alleged proceeds of Claimant Tasneem Jalal's illegal
narcotics sales. Claimant contends that the funds are instead the lawful
proceeds of his gold-trading activities in the United Arab Emirates.
The matter is now before the Court on Claimant's Motion to Dismiss
pursuant to Fed.R.Civ.P. 12(b)(6), or in the alternative for Summary
Judgment. Also pending is the Claimant's motion for a Protective Order
pursuant to Fed.R.Civ.P. 26(c). Broadly, Claimant contends that the
action should be dismissed because 1) it was not filed within the
five-year limitations period for commencement of forfeiture actions
prescribed by 19 U.S.C. § 1621; and 2) because the Government's near
eight-year delay between discovery of the funds' existence and
commencement of the forfeiture action has deprived Claimant of his due
process rights. Having heard oral argument on Claimant's motion and having
reviewed supplemental submissions, the Court now concludes that both of
Claimant's motions must be denied for the following reasons.
The facts material to Claimant's motion are not in dispute.*fn1
Claimant Jalal was arrested on or about August 19, 1992 for his
participation in the delivery of 250 grams of heroin into New Jersey.
Claimant was subsequently indicted for Conspiracy to Distribute and
Possess Heroin in violation of 21 U.S.C. § 846, and Possession with
Intent to Distribute Heroin in violation of 21 U.S.C. § 841. Jalal
pled guilty to both counts on October 15, 1992. After his guilty plea, but
prior to his sentencing, Jalal admitted that he had been engaged in the
trafficking of Heroin from Pakistan for approximately 16 years. He
further admitted that on the day of his arrest he had planned on
collecting a payment of approximately $48,000 for his heroin deliveries
over the previous three years.
On June 29, 1993, Jalal was sentenced to 108 months in prison by United
States District Judge Joseph H. Rodriguez. After serving his sentence,
Jalal, a national of Pakistan, was committed to the custody of the
Immigration and Naturalization Service. The INS deported Jalal to
Pakistan on September 26, 2000.
The records recovered demonstrate that the Defendant Accounts were
funded between November 24, 1991 and April 1, 1992, during the time that
Claimant Jalal was engaged in illegal narcotics trafficking. (Complaint
¶ 11.) Jalal claimed that his wealth, including the account funds,
derived from legitimate gold trading in Dubai.*fn2 (Decl. of Michael J.
Vaillancourt ("Vaillancourt Aff."), ¶ 3; Ex. B.) Despite being asked
to do so, Jalal indicated that he was unsure if he could produce any
documents to substantiate his claim. (Id.) As of the time the Government
instituted the forfeiture proceeding, Claimant had still failed to
provide any evidence to support the alleged legitimacy of his wealth.
In October, 1992, approximately 2 months after Jalal's arrest, agents
of the D.E.A. informally approached the police in Dubai to determine
whether the Defendant Accounts could be frozen while the investigation
into the source of the funds in the Accounts continued. (Vaillancourt
Aff. ¶ 4; Ex. C, ¶ 2.) As a result of this informal request,
police in the U.A.E. obtained a local court order freezing the funds in at
least one of the accounts. (Id.)
In or about August, 1994, representatives of the D.E.A. met with
authorities in the U.A.E., to further pursue the matter of the Defendant
Accounts. (Vaillancourt Aff. ¶ 5.) During that meeting, the local
police in the U.A.E. indicated that they were optimistic that the Dubai
court would entertain a motion to allow the Dubai Police or the United
States to seize the accounts if probable cause could be established that
the funds in the account were generated by narcotics trafficking, and
that the Dubai police would be willing to present the forfeiture case to
the Dubai court. (Id.) A similar meeting took place in Sharjah regarding
the accounts there. (Vaillancourt Aff. ¶ 6.)
During this same general period, several of the Emirates took the first
steps toward passage of a federal law in the U.A.E. on money laundering.
(Vaillancourt Aff. ¶ 7.) While this legislation was pending, in
January, 1995 U.S. authorities were informed that further unilateral
action would not be taken against the Accounts, and that forfeiture would
either need to be pursued through official diplomatic channels, or await
passage of asset forfeiture/seizure legislation in the U.A.E.
(Vaillancourt Aff. ¶ 8; Ex. C ¶¶ 3-4.)
Because no mutual assistance treaty existed between the United States
and the U.A.E., on November 21, 1995 the United States was forced to make
a treaty request for forfeiture of the funds pursuant to the United
Nations Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances. (Vaillancourt Aff. ¶ 11.) At the time the
United States made the treaty request it knew the request might not have
any effect, because at the time of the request the U.A.E. was not in
compliance with the Vienna Convention of 1988 concerning money
laundering, and because authorities in the U.A.E. had stated they would
not act on the Jalal matter until their legislative efforts on passage of
an asset forfeiture law were complete. (Vaillancourt Aff. ¶¶ 9-11.)
On September 27, 1999 the Senior Legal Advisor at the U.A.E. Ministry
of Foreign Affairs informed U.S. authorities that if the U.A.E. were
presented with a forfeiture order from an American court, the funds in the
Accounts would be forfeited pursuant to the United States' 1995 treaty
request (Vaillancourt Aff. ¶ 12; Ex. F.) He also informed U.S.
authorities that the accounts had been frozen by the U.A.E. since May,
1997 as a result of the November, 1995 treaty request. (Id.)
This action was commenced on May 21, 2000. On June 28, 2000 the U.S.
Department of Justice forwarded certified copies of the Verified
Complaint and Warrants for Arrest to the U.S. Embassy in Abu Dhabi.
(Vaillancourt Aff. ¶ 13; Ex. G.) On July 1, 2000 the Verified
Complaint and Warrants for Arrest were served under Diplomatic Note to
the Ministry of Foreign Affairs of the U.A.E. in Abu Dhabi. (Vaillancourt
Aff. ¶ 14.)
As an initial matter, at oral argument this Court sua sponte asked the
parties to brief whether the Court had in rem jurisdiction over the
accounts in question. Having reviewed the parties' post argument
submissions, for the following reasons the Court is satisfied that it has
jurisdiction to consider Claimant's motion in all respects.
28 U.S.C. § 1355 (a) provides a district court with original
subject matter jurisdiction to hear any forfeiture action that arises
under any Act of Congress. Further, 28 U.S.C. § 1355 (b)(1) & (2)
provide that when such a forfeiture action involves property located in a
foreign country, venue is proper in any "district court for the district
in which any of the acts or omissions giving rise to the forfeiture
Given those provisions, it is apparent that this Court has subject
matter jurisdiction over the Government's forfeiture action, which was
brought against the Defendant Accounts pursuant to 21 U.S.C. § 881.
Similarly, even though the Accounts are located abroad, because the
Accounts were allegedly funded with the proceeds of drug transactions
that occurred in New Jersey, venue for the Government's action is proper
before this Court.
Just because a district court has subject matter jurisdiction over a
forfeiture action and is the proper venue for the commencement of that
action, however, does not mean that a Court may reach the action's
merits. Absent in rem jurisdiction over the Defendant property, any
forfeiture order directed to the defendant property would be wholly
unenforceable. This state of affairs would defeat the entire purpose of
conducting the forfeiture proceeding in the first place.
In an in rem action, such as a forfeiture action brought pursuant to
21 U.S.C. § 881, while an "actual and continuous possession of the
res" is not required to sustain a Court's jurisdiction, a court must have
"actual or constructive control of the res" at the time the in rem
forfeiture suit is initiated. Republic National Bank of Miami v. United
States, 506 U.S. 80, 84-87, 113 S.Ct. 554, 121 L.Ed.2d 474 (1992), citing
The Brig Ann, 13 U.S. (9 Cranch) 289, 3 L.Ed. 734 (1815). In cases where
the res consists of property located in a foreign country, a district
court obtains constructive control over the property if the foreign state
sufficiently cooperates with the United States so as to make it likely
that a future forfeiture order against the property would be enforced.
See, e.g., United States v. All Funds in Any Accounts Maintained in the
Name of Meza, 63 F.3d 148, 154 (2d Cir. 1995)(constructive control
existed after British Government
froze funds pursuant to treaty request, and served copies of U.S. court's