The other thing I need to say to you, and that is that rebuttal is for rebuttal only, and we don't expect you to bring up any arguments in rebuttal that have not been addressed either by you or your opponent or adversary. And with that, we call the first case of the day in the United States of America versus Dong Dang, whom I don't know quite well, and that's it. Dong Dang. Dong Dang, Dong Dang, when? versus US tours in our medits. And we'll hear from Mr. Gentry representing US tours in the medits. Thank you, Your Honor, and may it please the court. We are here today on a case, a criminal forfeiture case. Persuant to 21 USC 853. Importantly, this is a criminal in personum forfeiture case brought by the United States following the criminal conviction of Dong Dang, when. I represent US tour and remittance incorporated, a California corporation, as well as no act in stout, a Texas law firm, that both have interest in the funds that the government is seeking to forfeit by this procedure. This case was dismissed in the trial court following a 12-B6 motion, and the allegation of the United States was that the ancillary petitioners being US tour and remittance, and no act in stout, failed to set forth a claim on which relief could be granted. The basis for that argument was that the funds in question, which were two checks, made payable to US tour and the no act in stout, were criminally forfeitable based on the conviction of Mr. Win. That's simply not the case. Under 21 USC 853, the opening paragraph says, any person convicted shall forfeit certain assets. In this case, it is undisputed that US tour and no act in stout are not a person convicted
. Therefore, they cannot be ordered to forfeit assets under Section 853. Likewise and relatedly, Federal criminal procedure 32.2, C2 requires that the trial court make a finding before entering a final order of forfeiture that the defendant, the convicted defendant, in this case, don Win has an interest in the property. The trial court erroneously held that whether don Win ever on the property is simply not a relevant question. And with all due respect to the trial court, that is simply not true and that is erroneous. But he does have an interest in it, doesn't he? No, respectfully, you're on a no, he does not. Well, but US tour is on solely by his wife, right? Yes, your honor, it is on solely by his wife, but as the law provides, a corporation is legally separate and distinct from the owners of that corporation. Well, I'm times. Most of the time. Most of the time. I believe the United States Supreme Court called it a fundamental aspect of United States corporate law. I think it's one of those times. This is one of those times, John. We're going to have one of those times where you, the corporate, bailed and made anything. Your honor is that you can't get the money. With all due respect, John, they have not pled that first and foremost
. Second, under Texas rules of bail piercing, they would be very unlikely to succeed, partly because US tour was not on solely by Dongwin. It was owned by two individuals, Dongwin and another individual. And more importantly, US tour has debts that they would have to pay. So even if there was some sort of shareholder ownership of the corporate assets, which has been roundly rejected by every court to consider that, before the shareholders can take the assets out of the company, the company would be obligated to satisfy its preexisting debts. Onwin is the wife? No, no, Your Honor. Dongwin is the husband, the male. He is the one that was tried and convicted. Right, that's what I thought. Okay, you mentioned him as having an interest, I thought. No, Your Honor, that is our position as a... That he and his wife would have a community interest in her interest in the company, wouldn't they? They would have a community interest in her ownership of shares of stock or membership units, but not in the assets that belong to that company. They own the shares of stock in the company that they do not own title to the actual assets. Your argument is simply that they use the wrong procedural device that they should have gone through the other civil forfeiture as to these parties, right? Yes, Your Honor. I mean, that is something that could have been done
. That does seem to be the basis of their argument. They argue repeatedly throughout their briefing that the money was quote unquote involved in Dongwin's criminal activity. And if that's the theory that the money itself is guilty of a crime, that requires a civil in-rim forfeiture where you proceed against the money. And, you know, I think Section 881, there's a whole statutory framework there. But in this case, for whatever reason, the United States chose not to do that. They chose to proceed against the defendant as a criminal forfeiture. Why did they do that? It was, if you know, I mean, was there some legal bar or questionable aspect of going through the civil instead of the criminal? Your Honor, again, I don't know exactly why, but my speculation, my belief is, is that civil forfeiture is now barred by the statute of limitations, which is a five-year statute. So, that, I would say, explains it. And I think that's why the fact that they didn't timely pursue civil forfeiture, now they're trying to shoehorn what is essentially a civil forfeiture argument into a criminal forfeiture case. And the law simply does not allow that to happen. The United States Supreme Court in the United States versus Bajakajian, I believe is how you pronounce it, clearly delineated the difference between civil and rim forfeatures where you proceed against the property because the property allegedly is involved in a crime and criminal in personam forfeatures where you proceed against a convicted defendant as a penalty. As the court said in Bajakajian, criminal forfeiture is designed to punish and you cannot punish someone who has not been convicted. And that's codified in 853, which starts by saying any person convicted shall forfeit. In this case, the government is trying to forfeit assets that do not belong to a person convicted. In fact, the United States indicted US tour and then subsequently on their own motion requested the US tour, that that indictment against US tour be dismissed. So they had the opportunity to try US tour, convict them and then forfeit the assets through a criminal forfeiture, but they didn't do that either
. And like I said, now at the 11th hour, they are trying to shoehorn what is a civil forfeiture proceeding into a criminal because they didn't file the civil forfeiture proceeding timely and they didn't try the criminal case against US tour and they had every opportunity to. The facts, I believe the facts are essentially undisputed, the facts that this is property belong to US tour and then derivatively to law firm. Number one, the seized, the physical seized assets were two checks from the Harris County District Attorney's Office made jointly payable to US tour and to no act in stout. Second, it's undisputed that those checks represented fund seized by the state of Texas from US tour's bank accounts. And lastly, if there was any question, the 127th District Court of Harris County has traditionally declared under Texas state law that this property belongs to US tour and to no act in stout. Therefore, it does not belong to Dong Wyn and simply cannot be forfeited criminally as an ansley received to Dong Wyn's criminal conviction. Several courts that have addressed this have recognized that criminal forfeiture can only reach the assets belong to the convicted defendant. The sixth circuit in US versus Odell and US versus Harris. The 11th circuit in US versus Kennedy. Ninth circuit in US versus Lester. The seventh circuit in US versus Ben Hur. Each of these cases held, quoting from Odell, we also recognize that Section 853 only entitles the government to forfeiture of the convicted defendants interest and nothing more. In this case, the convicted defendant has no interest in these seized checks. So the government is entitled to simply nothing under the criminal forfeiture statute. The government argues in their brief that all of this is cured by the relation back doctrine provided in Section 853. Generally what the relation back doctrine does is gives the government title to the assets that are otherwise forfeitable and makes that title effective as of the date of the criminal activity
. In this case, however, the only thing that is forfeitable is the interest of Dong Wyn. And since Dong Wyn has no interest in these funds, the relation back doctrine can't go back in time and give the government title to something. I'm saying, but what if we're persuaded by the government's argument that he does have an interest that can be reached? Then where does that put the relation back doctrine from your point of view? Your Honor, if Dong Wyn owned these funds, I'm assuming that he does. So how to, because we could decide that. Now, how does that affect your relation back there? What would you say then? Under the relation back doctrine, they would take whatever title Dong Wyn had at the time of the led, or he's been convicted. So at the time of the crimes. Where'd they really? I mean, then don't you fall back on the amended judgment of the district court amendment order forfeiter because it was improperly amended. Yes, Your Honor. Consequently, it doesn't matter about, yes, Your Honor, turning to that issue, there's only two ways that a trial court can amend a final judgment of conviction. Under Rule 35, which is plainly applicable here, within 14 days of sentencing or substantial cooperation. I don't believe anyone's alleging that that happened. And under 32.2, which allows the amendment to add property to the order of forefiture, that quote is subsequently located and identified. In this case, the government concedes on page 51 of their brief that these assets were not located and identified after the order of forefiture was entered. They were known about, they were located well before that order of forefiture. And the fact that they continually talk about them and that allegedly the evidence at the trial proved that these assets were used in the operation of Don Lwyn's business, shows that they knew about them well before the amended order of forefiture
. So by the plain text of the rule, Rule 32.2, you cannot amend the order of forefiture to add property that was not located and identified after it was entered. The government again, they failed. I have no relation back there, it's still, it's not applicable. Yes, Your Honor. The order is inbound. Their argument on that is, it has to be an order of forefiture, it has to be an order of forefiture. Yes, Your Honor. An order for the relation back principle to relate. Is that correct? Yes, Your Honor. And the amended order of forefiture that allegedly added these funds to it is simply void on its face. And the government takes a position that we, as the owners of this property, can't challenge this order that is void on its face. And that's simply not true under this circuit's president's in-rate camp. A void order is subject to collateral attack and is void ab initio. You know, what would the argument be if this fellow were a drug dealer? And he had the, he's agent of the big wig drug dealer and the money is in his hands pending the agent, the big wig getting it, getting the money is payment for a large shipment of drugs. Couldn't the government confiscate the money in his hands because he's the possessor of it? In the case of currency that was physically in his hands, yes, because there would not be a legal title to that currency
. But it leaked well and that's the whole point here. There's not legal title to money that's being laundered into US tours, but Dong-Win is the agent who directed that money into US tours. Yes, Your Honor, but in your drug kingpin example, I have no doubt that the United States would go after both the agent and the actual drug kingpin and if they convicted both of them, then they would have no barrier to the forefisher because they could... I mean, what Judge Jones has said seems to me to lead to the question, to lead to the conclusion that you've got a bunch of money out there that doesn't belong to anybody. Nobody has claim to it. Well, the government does because it's a little less of the time of the crime. Yes, but only, but they didn't file the proper order to force it if we accept all these arguments. The government never forceted the money, but it then belonged to your client because it's the illegal money to begin with that he never owned. So where does all this money go? Well, with all due respect, Your Honor, just so the record is... How does he claim it? The Algonquin is not my client. My client is US tour. Understand
. Your client is hardly a bonafide purchaser without notice, which is one of the provisions that's required by, I think it's say, 853C. Your Honor, there's two different procedures under 853L. Yes, he's got this stupidest wife in creation. Pardon me. Sorry. Your Honor, under 853N6A, an Ancillary petitioner can show that the title to the property was vested in the petitioner not the criminal defendant. As an Ancillary, an alternative argument, under 853N6B, a petitioner can show that they're a bonafide purchaser for value. We're not moving under 853N6B. You are not claiming any equitable rights had money. That's for sure. Your Honor, we would just say that when the government seeks to forfeit property, then it needs to follow the rules set forth to do it. And when it doesn't, then forfeiture should not be allowed. Okay, well, I think you're a good argument. Thank you, Your Honor. Ms. Rolesson, you're going to say it where you are now
. Yes, sir. And is that... Can you hear me all right, yes? Oh, we can hear your findings. And the mic... It's getting recorded as well. Okay. Give it the best you got. As may please the Court, Christine Rolesson, for the United States, the District Court properly dismissed the appellants' petitions because neither US tours nor the law firms stated facts, supporting a plausible claim to meet the statutory requirements under Section 853N6A. The petitioners were required to make their claim under Section 853. There were no factual disputes because all the petition..
. All the facts in the petition were taken as true. But that is their only avenue of attack. The case law is clear that the petitioners cannot attack the original preliminary order of forfeiture that was found by the 11th Circuit in Davenport. The validity of the preliminary order and the Court's requisite nexus finding or something of the petitioner starts with when he files his claim. But what is the preliminary order of forfeiture based on? On requisite nexus. So we're not talking about whether the defendant had an ownership interest. Under Rule 32.2B1A, the Court issues a preliminary order if the government has established the requisite nexus between the property and the offense. And this property, these seized funds, were the very funds that were being used, were being laundered. Are there any other reasons that the Court to order here as a complete purpose? Is that what you're saying? No. If you accept the general argument, you're just saying, maybe I'm missing a step. The Court found in the supplement to preliminary order of forfeiture the amended order. The amended order, okay. That the seized funds were involved in the money laundering and failure to file CTR violations. So it found the requisite nexus there is involved in. This property was involved in the crime. Now, and it forfeited it. Now a petitioner can come in under 853 and only under 853 and claim to have a preexisting interest. The problem with the appellance argument is they're focusing on the wrong who and on the wrong when. The petitioner must state what the petitioner's interest is in the money. And the petitioner must state what its interest was at the time of the criminal offense. Not later when the money was seized. Those are the requirements of 853 and 853 has been found. I mean, I thought I'd fallen in the argument now, but one thing is left dangling in my mind. Yes, sir. How did you get around the fact that the, or high relevant is the fact that it was ordered, the amended order is not supported by the two reasons that would make it a valid amendment. Well, I believe it does fit within 32.2. Congress set up the statutory framework under section 853. And then as the courts worked with it, they developed rule 32.2. And set up a procedure by which subsequently located property could be forfeited if it had been covered by the original order
. Now, and it forfeited it. Now a petitioner can come in under 853 and only under 853 and claim to have a preexisting interest. The problem with the appellance argument is they're focusing on the wrong who and on the wrong when. The petitioner must state what the petitioner's interest is in the money. And the petitioner must state what its interest was at the time of the criminal offense. Not later when the money was seized. Those are the requirements of 853 and 853 has been found. I mean, I thought I'd fallen in the argument now, but one thing is left dangling in my mind. Yes, sir. How did you get around the fact that the, or high relevant is the fact that it was ordered, the amended order is not supported by the two reasons that would make it a valid amendment. Well, I believe it does fit within 32.2. Congress set up the statutory framework under section 853. And then as the courts worked with it, they developed rule 32.2. And set up a procedure by which subsequently located property could be forfeited if it had been covered by the original order. The original order in this case was for $24 million of laundered money. And so when we get here to where there's an amended order of forfeiture, this was not technically subsequently located, but it was otherwise unavailable to the United States because the state had seized that money, and the state had an in-rem civil forfeiture proceeding against that money. And because they had jurisdiction, the federal courts could not take jurisdiction under sick gear of them. Or does that argument address his argument with respect to Pearson, the corporate veil that you can't, here's the corporate veil? Oh, we probably could. Could Pearson the corporate veil? But it's more direct and what we have done. In other words, he says you can't get this money because it's not mine. It's not the defendants. It's not his wife's. It is a corporations money. Well, he's not able to challenge whether this is the defendants money. The court found there was a requisite nexus between the property and the crime. And he has to come forward and state what the petitioner's interest is at the time of the criminal offense. And that's what they failed to do. US tours had no interest in that money at the time that the special customers were handing it over to be laundered and the defendant put it in his company's bank accounts in order to launder it. Dungwin was an officer or agent or something for US tours, right? He was the president and two-thirds owner and the court found that he used the.
. The original order in this case was for $24 million of laundered money. And so when we get here to where there's an amended order of forfeiture, this was not technically subsequently located, but it was otherwise unavailable to the United States because the state had seized that money, and the state had an in-rem civil forfeiture proceeding against that money. And because they had jurisdiction, the federal courts could not take jurisdiction under sick gear of them. Or does that argument address his argument with respect to Pearson, the corporate veil that you can't, here's the corporate veil? Oh, we probably could. Could Pearson the corporate veil? But it's more direct and what we have done. In other words, he says you can't get this money because it's not mine. It's not the defendants. It's not his wife's. It is a corporations money. Well, he's not able to challenge whether this is the defendants money. The court found there was a requisite nexus between the property and the crime. And he has to come forward and state what the petitioner's interest is at the time of the criminal offense. And that's what they failed to do. US tours had no interest in that money at the time that the special customers were handing it over to be laundered and the defendant put it in his company's bank accounts in order to launder it. Dungwin was an officer or agent or something for US tours, right? He was the president and two-thirds owner and the court found that he used the... He used that bank account to launder the money through double ledger. Yes. In fact, in the preliminary order the district court said the evidence shows that the defendant incorporated owned, operated, and controlled USTR for the purpose of laundering money and moving millions of dollars of money to Vietnam without filing CTRs as required. Those are the court findings, the appellate opinion that affirmed the defendant's conviction stated that the evidence demonstrated Dung was laundering proceeds from drug trafficking through his company US tours and that he had... The evidence showed that the defendant had USTR create two sets of ledgers to falsely state that deposits were below $3,000. Because the agreement was when somebody showed up with $100,000 in cash, Dung and USTR would not report on CTRs that more than $10,000 had been received and so it didn't have to get any customer identification. It broke all the money down into pieces smaller than $3,000 so that the special customers' names never appeared in the records and it kept two sets so it had one for the regulators and one that was discovered at the search. So this was the money running through the bank accounts and the court found it was involved in the actual crime and was subject to forfeiture. Now petitioners can't come and attack that supplement to notice a supplement to the forfeiture order. They can only come in and state, here's my interest at the time of the crime and that has been held to be constitutional and gives sufficient due process to third parties because if they don't have a qualifying interest under section 853, then it's not their problem if there was some kind of defect in the supplemental war. Oh, suppose you had Dung Wynn taking the money on behalf of USTRs and then putting it in a third party's bank account, you know, like his brother. Right. From what you're saying, the brother, could you have the supplemental order of forfeiture covering the money in the third and the completely separate third party account? Yes, you could
.. He used that bank account to launder the money through double ledger. Yes. In fact, in the preliminary order the district court said the evidence shows that the defendant incorporated owned, operated, and controlled USTR for the purpose of laundering money and moving millions of dollars of money to Vietnam without filing CTRs as required. Those are the court findings, the appellate opinion that affirmed the defendant's conviction stated that the evidence demonstrated Dung was laundering proceeds from drug trafficking through his company US tours and that he had... The evidence showed that the defendant had USTR create two sets of ledgers to falsely state that deposits were below $3,000. Because the agreement was when somebody showed up with $100,000 in cash, Dung and USTR would not report on CTRs that more than $10,000 had been received and so it didn't have to get any customer identification. It broke all the money down into pieces smaller than $3,000 so that the special customers' names never appeared in the records and it kept two sets so it had one for the regulators and one that was discovered at the search. So this was the money running through the bank accounts and the court found it was involved in the actual crime and was subject to forfeiture. Now petitioners can't come and attack that supplement to notice a supplement to the forfeiture order. They can only come in and state, here's my interest at the time of the crime and that has been held to be constitutional and gives sufficient due process to third parties because if they don't have a qualifying interest under section 853, then it's not their problem if there was some kind of defect in the supplemental war. Oh, suppose you had Dung Wynn taking the money on behalf of USTRs and then putting it in a third party's bank account, you know, like his brother. Right. From what you're saying, the brother, could you have the supplemental order of forfeiture covering the money in the third and the completely separate third party account? Yes, you could. And the brother would come in just as if the defendant had put bank robbery money in there. That's clearly not the brother's money. He puts it in there. We say it's subject to forfeiture. The court finds that there's the requisite nexus. Yes, it is. It's seized and it's in a preliminary order. The brother then has to come in and say what his interest is in the money at the time of the crime. And I assume what he would say is if we put him, if there was a million dollars of bad money in there, he'd say, well, that first 100,000 before they put it in, that was mine from the sale of my residents, from my salary, from whatever legitimate source and he would state his interest in that money. And then the order would be amended to exclude his interest. So you get the requisite nexus and then third parties come in and if they have a qualified interest under 853, you exclude that from the forfeiture order. And that solves the problem that Judge Jones you'd mentioned before. If somebody has cash and nobody really has title to it and you don't really know who has an interest in it. If that's cash with a requisite nexus to the crime, it's forfeited and then anybody with a legitimate interest in it comes in through 853 and makes their claim. What about the fact that the statute of limitation, you could have proceeded through civil forfeiture also, could you not? Could you? Normally we can but in this case we could not because the state had a civil in rem forfeiture so that money was unavailable to us and we could not institute. Oh, you couldn't get in rem jurisdiction
. And the brother would come in just as if the defendant had put bank robbery money in there. That's clearly not the brother's money. He puts it in there. We say it's subject to forfeiture. The court finds that there's the requisite nexus. Yes, it is. It's seized and it's in a preliminary order. The brother then has to come in and say what his interest is in the money at the time of the crime. And I assume what he would say is if we put him, if there was a million dollars of bad money in there, he'd say, well, that first 100,000 before they put it in, that was mine from the sale of my residents, from my salary, from whatever legitimate source and he would state his interest in that money. And then the order would be amended to exclude his interest. So you get the requisite nexus and then third parties come in and if they have a qualified interest under 853, you exclude that from the forfeiture order. And that solves the problem that Judge Jones you'd mentioned before. If somebody has cash and nobody really has title to it and you don't really know who has an interest in it. If that's cash with a requisite nexus to the crime, it's forfeited and then anybody with a legitimate interest in it comes in through 853 and makes their claim. What about the fact that the statute of limitation, you could have proceeded through civil forfeiture also, could you not? Could you? Normally we can but in this case we could not because the state had a civil in rem forfeiture so that money was unavailable to us and we could not institute. Oh, you couldn't get in rem jurisdiction. Correct. But we can still do it through criminal work. And the statute of limitations would run anyway. Correct. So the main problems with petitioners arguments are they have the wrong who because they're looking at defendant's interest, they need to be looking at their own interest under the wording of the statute. And the wrong when it's back at the time of the crime and really the wrong what it's the seized funds, it's not who holds title to the bank account. Does the court have any further questions? No, tell them. Thank you very much. All right. The government will rest on its courts dismissal, the petitions. Okay. It would be a firm. Thank you. Thank you, ma'am. Thank you for appearance. Mr
. Correct. But we can still do it through criminal work. And the statute of limitations would run anyway. Correct. So the main problems with petitioners arguments are they have the wrong who because they're looking at defendant's interest, they need to be looking at their own interest under the wording of the statute. And the wrong when it's back at the time of the crime and really the wrong what it's the seized funds, it's not who holds title to the bank account. Does the court have any further questions? No, tell them. Thank you very much. All right. The government will rest on its courts dismissal, the petitions. Okay. It would be a firm. Thank you. Thank you, ma'am. Thank you for appearance. Mr. Gentry, you won't tell us why she's not right. Thank you, your honor. First, I'd like to note that the government takes a position that the crime was receiving this money. That's simply not true. What what defendant when was convicted of is not filing paperwork with the government, failure to file the CTRs. So the win is not when the money changed hands from the original customers to us to or the win is win. Don win failed to file the CTRs. So even under the court's analysis, I mean, to the government's own analysis, there's simply no basis for this argument that you can't show title before the money ever went into your bank account. That's just wrong. Actually, I mean, it's an asamultaneous thing that once you receive the money in your hand, you have to file a CTR after deposits. You have you have a certain time frame and I don't know if it's tough in my head where it is. So I mean, it's 30 days, 30 days. If you don't intend to file it, then the crime takes place, the minute you receive the money and don't file it. Regardless of whether that's true or not, that is that has never been alleged or proven against US tour. US tour was not tried for this. US tour has not been convicted of anything
. Gentry, you won't tell us why she's not right. Thank you, your honor. First, I'd like to note that the government takes a position that the crime was receiving this money. That's simply not true. What what defendant when was convicted of is not filing paperwork with the government, failure to file the CTRs. So the win is not when the money changed hands from the original customers to us to or the win is win. Don win failed to file the CTRs. So even under the court's analysis, I mean, to the government's own analysis, there's simply no basis for this argument that you can't show title before the money ever went into your bank account. That's just wrong. Actually, I mean, it's an asamultaneous thing that once you receive the money in your hand, you have to file a CTR after deposits. You have you have a certain time frame and I don't know if it's tough in my head where it is. So I mean, it's 30 days, 30 days. If you don't intend to file it, then the crime takes place, the minute you receive the money and don't file it. Regardless of whether that's true or not, that is that has never been alleged or proven against US tour. US tour was not tried for this. US tour has not been convicted of anything. US tour is before this court as an innocent third party. They had they had the time. Oh, innocent third party. Innocent under the eyes of the law, your honor. They they they had the opportunity to lie to them. No, let's put it this way. Not guilty in the house of the law. But the her argument is that you had to come in and show your innocent possession. In other words, what what she's you're setting up a fall a strong man because you're saying that they had to, because she's saying that all that it was required for the preliminary forfeiture was the connection between the money and the crime. Respect, I understand. And that's what made it tainted money and therefore subject to forfeiture. And the possession of the money was in US tours, but it was still forfeited because it was the fruits of the crime or the evidence of the crime. And you're saying that you're the innocent third party, but that it's not the guilt of the third party that's relevant to the original trial. Respectfully, your honor. It is the guilt of the third party because in criminal in person and forfeiture only the assets of the convicted defendant are subject to forfeiture. 853 says that any person convicted shall forfeit
. US tour is before this court as an innocent third party. They had they had the time. Oh, innocent third party. Innocent under the eyes of the law, your honor. They they they had the opportunity to lie to them. No, let's put it this way. Not guilty in the house of the law. But the her argument is that you had to come in and show your innocent possession. In other words, what what she's you're setting up a fall a strong man because you're saying that they had to, because she's saying that all that it was required for the preliminary forfeiture was the connection between the money and the crime. Respect, I understand. And that's what made it tainted money and therefore subject to forfeiture. And the possession of the money was in US tours, but it was still forfeited because it was the fruits of the crime or the evidence of the crime. And you're saying that you're the innocent third party, but that it's not the guilt of the third party that's relevant to the original trial. Respectfully, your honor. It is the guilt of the third party because in criminal in person and forfeiture only the assets of the convicted defendant are subject to forfeiture. 853 says that any person convicted shall forfeit. 32.2C2 says that independent of all third party petitions, the district court must make an independent finding that the defendant had an interest in the forfeited property. And in this case, the district court cannot make those because they are simply not true. And if they are not true, then the district court cannot forfeit this money as an in-personnel proceeding. They had the opportunity to address everything that your honor said that this is fruits of the poisonous tree and that this is the proceeds of the crime. That were so. I mean, they had some claim to US tours money when they indicted the fellow, right? I mean, the money was forfeited. They filed their in-rim, their criminal forfeiture ancillary to the indictment. Did they not? To the indictment of Dong-Win. Never to the indictment of US tours. I mean, you could have come in if that was your argument, why didn't you come in at the very outside of the case making that claim? Your honor because 853 sub-K prevents intervention in the trial. And that's where the real due process flaws. Your claim is that a, it's ancillary and be it the you're the innocent third party. So if it's ancillary, why couldn't you place your argument at least before the court at that time? Because Section K, 853K says that third parties cannot intervene in the trial court, which makes the government's argument that now we, that the defendants, that these third parties cannot challenge those findings, they're essentially setting up that we could never challenge the findings. No matter how erroneous they are and do process simply requires more, my clients have never been tried, never been convicted of anything. All the factual findings at a trial of somebody else are simply not bearing, they have no bearing on my clients
. 32.2C2 says that independent of all third party petitions, the district court must make an independent finding that the defendant had an interest in the forfeited property. And in this case, the district court cannot make those because they are simply not true. And if they are not true, then the district court cannot forfeit this money as an in-personnel proceeding. They had the opportunity to address everything that your honor said that this is fruits of the poisonous tree and that this is the proceeds of the crime. That were so. I mean, they had some claim to US tours money when they indicted the fellow, right? I mean, the money was forfeited. They filed their in-rim, their criminal forfeiture ancillary to the indictment. Did they not? To the indictment of Dong-Win. Never to the indictment of US tours. I mean, you could have come in if that was your argument, why didn't you come in at the very outside of the case making that claim? Your honor because 853 sub-K prevents intervention in the trial. And that's where the real due process flaws. Your claim is that a, it's ancillary and be it the you're the innocent third party. So if it's ancillary, why couldn't you place your argument at least before the court at that time? Because Section K, 853K says that third parties cannot intervene in the trial court, which makes the government's argument that now we, that the defendants, that these third parties cannot challenge those findings, they're essentially setting up that we could never challenge the findings. No matter how erroneous they are and do process simply requires more, my clients have never been tried, never been convicted of anything. All the factual findings at a trial of somebody else are simply not bearing, they have no bearing on my clients. My clients have not, they are not guilty as a matter of law. And the government can't take facts from somebody else's trial. So she was wrong when she told me that if the money had been put in the account of Dongwins' brother, who was not associated with the crime, that it could not, there could not be a preliminary order of forfeiture. Was that wrong? Yes, Your Honor, that is wrong. And what's your best case for that position? Your Honor, I believe the best case for that position is Baja Kajian, where the United States Supreme Court draws the distinction between what is an in-personam forfeiture and what is an in-rim forfeiture. And they want to proceed in-personam, they need to have a conviction of the person who owns the assets. Or they need to plead some form of alter ego agency and they've done none of that. Okay. Thank you very much.
The other thing I need to say to you, and that is that rebuttal is for rebuttal only, and we don't expect you to bring up any arguments in rebuttal that have not been addressed either by you or your opponent or adversary. And with that, we call the first case of the day in the United States of America versus Dong Dang, whom I don't know quite well, and that's it. Dong Dang. Dong Dang, Dong Dang, when? versus US tours in our medits. And we'll hear from Mr. Gentry representing US tours in the medits. Thank you, Your Honor, and may it please the court. We are here today on a case, a criminal forfeiture case. Persuant to 21 USC 853. Importantly, this is a criminal in personum forfeiture case brought by the United States following the criminal conviction of Dong Dang, when. I represent US tour and remittance incorporated, a California corporation, as well as no act in stout, a Texas law firm, that both have interest in the funds that the government is seeking to forfeit by this procedure. This case was dismissed in the trial court following a 12-B6 motion, and the allegation of the United States was that the ancillary petitioners being US tour and remittance, and no act in stout, failed to set forth a claim on which relief could be granted. The basis for that argument was that the funds in question, which were two checks, made payable to US tour and the no act in stout, were criminally forfeitable based on the conviction of Mr. Win. That's simply not the case. Under 21 USC 853, the opening paragraph says, any person convicted shall forfeit certain assets. In this case, it is undisputed that US tour and no act in stout are not a person convicted. Therefore, they cannot be ordered to forfeit assets under Section 853. Likewise and relatedly, Federal criminal procedure 32.2, C2 requires that the trial court make a finding before entering a final order of forfeiture that the defendant, the convicted defendant, in this case, don Win has an interest in the property. The trial court erroneously held that whether don Win ever on the property is simply not a relevant question. And with all due respect to the trial court, that is simply not true and that is erroneous. But he does have an interest in it, doesn't he? No, respectfully, you're on a no, he does not. Well, but US tour is on solely by his wife, right? Yes, your honor, it is on solely by his wife, but as the law provides, a corporation is legally separate and distinct from the owners of that corporation. Well, I'm times. Most of the time. Most of the time. I believe the United States Supreme Court called it a fundamental aspect of United States corporate law. I think it's one of those times. This is one of those times, John. We're going to have one of those times where you, the corporate, bailed and made anything. Your honor is that you can't get the money. With all due respect, John, they have not pled that first and foremost. Second, under Texas rules of bail piercing, they would be very unlikely to succeed, partly because US tour was not on solely by Dongwin. It was owned by two individuals, Dongwin and another individual. And more importantly, US tour has debts that they would have to pay. So even if there was some sort of shareholder ownership of the corporate assets, which has been roundly rejected by every court to consider that, before the shareholders can take the assets out of the company, the company would be obligated to satisfy its preexisting debts. Onwin is the wife? No, no, Your Honor. Dongwin is the husband, the male. He is the one that was tried and convicted. Right, that's what I thought. Okay, you mentioned him as having an interest, I thought. No, Your Honor, that is our position as a... That he and his wife would have a community interest in her interest in the company, wouldn't they? They would have a community interest in her ownership of shares of stock or membership units, but not in the assets that belong to that company. They own the shares of stock in the company that they do not own title to the actual assets. Your argument is simply that they use the wrong procedural device that they should have gone through the other civil forfeiture as to these parties, right? Yes, Your Honor. I mean, that is something that could have been done. That does seem to be the basis of their argument. They argue repeatedly throughout their briefing that the money was quote unquote involved in Dongwin's criminal activity. And if that's the theory that the money itself is guilty of a crime, that requires a civil in-rim forfeiture where you proceed against the money. And, you know, I think Section 881, there's a whole statutory framework there. But in this case, for whatever reason, the United States chose not to do that. They chose to proceed against the defendant as a criminal forfeiture. Why did they do that? It was, if you know, I mean, was there some legal bar or questionable aspect of going through the civil instead of the criminal? Your Honor, again, I don't know exactly why, but my speculation, my belief is, is that civil forfeiture is now barred by the statute of limitations, which is a five-year statute. So, that, I would say, explains it. And I think that's why the fact that they didn't timely pursue civil forfeiture, now they're trying to shoehorn what is essentially a civil forfeiture argument into a criminal forfeiture case. And the law simply does not allow that to happen. The United States Supreme Court in the United States versus Bajakajian, I believe is how you pronounce it, clearly delineated the difference between civil and rim forfeatures where you proceed against the property because the property allegedly is involved in a crime and criminal in personam forfeatures where you proceed against a convicted defendant as a penalty. As the court said in Bajakajian, criminal forfeiture is designed to punish and you cannot punish someone who has not been convicted. And that's codified in 853, which starts by saying any person convicted shall forfeit. In this case, the government is trying to forfeit assets that do not belong to a person convicted. In fact, the United States indicted US tour and then subsequently on their own motion requested the US tour, that that indictment against US tour be dismissed. So they had the opportunity to try US tour, convict them and then forfeit the assets through a criminal forfeiture, but they didn't do that either. And like I said, now at the 11th hour, they are trying to shoehorn what is a civil forfeiture proceeding into a criminal because they didn't file the civil forfeiture proceeding timely and they didn't try the criminal case against US tour and they had every opportunity to. The facts, I believe the facts are essentially undisputed, the facts that this is property belong to US tour and then derivatively to law firm. Number one, the seized, the physical seized assets were two checks from the Harris County District Attorney's Office made jointly payable to US tour and to no act in stout. Second, it's undisputed that those checks represented fund seized by the state of Texas from US tour's bank accounts. And lastly, if there was any question, the 127th District Court of Harris County has traditionally declared under Texas state law that this property belongs to US tour and to no act in stout. Therefore, it does not belong to Dong Wyn and simply cannot be forfeited criminally as an ansley received to Dong Wyn's criminal conviction. Several courts that have addressed this have recognized that criminal forfeiture can only reach the assets belong to the convicted defendant. The sixth circuit in US versus Odell and US versus Harris. The 11th circuit in US versus Kennedy. Ninth circuit in US versus Lester. The seventh circuit in US versus Ben Hur. Each of these cases held, quoting from Odell, we also recognize that Section 853 only entitles the government to forfeiture of the convicted defendants interest and nothing more. In this case, the convicted defendant has no interest in these seized checks. So the government is entitled to simply nothing under the criminal forfeiture statute. The government argues in their brief that all of this is cured by the relation back doctrine provided in Section 853. Generally what the relation back doctrine does is gives the government title to the assets that are otherwise forfeitable and makes that title effective as of the date of the criminal activity. In this case, however, the only thing that is forfeitable is the interest of Dong Wyn. And since Dong Wyn has no interest in these funds, the relation back doctrine can't go back in time and give the government title to something. I'm saying, but what if we're persuaded by the government's argument that he does have an interest that can be reached? Then where does that put the relation back doctrine from your point of view? Your Honor, if Dong Wyn owned these funds, I'm assuming that he does. So how to, because we could decide that. Now, how does that affect your relation back there? What would you say then? Under the relation back doctrine, they would take whatever title Dong Wyn had at the time of the led, or he's been convicted. So at the time of the crimes. Where'd they really? I mean, then don't you fall back on the amended judgment of the district court amendment order forfeiter because it was improperly amended. Yes, Your Honor. Consequently, it doesn't matter about, yes, Your Honor, turning to that issue, there's only two ways that a trial court can amend a final judgment of conviction. Under Rule 35, which is plainly applicable here, within 14 days of sentencing or substantial cooperation. I don't believe anyone's alleging that that happened. And under 32.2, which allows the amendment to add property to the order of forefiture, that quote is subsequently located and identified. In this case, the government concedes on page 51 of their brief that these assets were not located and identified after the order of forefiture was entered. They were known about, they were located well before that order of forefiture. And the fact that they continually talk about them and that allegedly the evidence at the trial proved that these assets were used in the operation of Don Lwyn's business, shows that they knew about them well before the amended order of forefiture. So by the plain text of the rule, Rule 32.2, you cannot amend the order of forefiture to add property that was not located and identified after it was entered. The government again, they failed. I have no relation back there, it's still, it's not applicable. Yes, Your Honor. The order is inbound. Their argument on that is, it has to be an order of forefiture, it has to be an order of forefiture. Yes, Your Honor. An order for the relation back principle to relate. Is that correct? Yes, Your Honor. And the amended order of forefiture that allegedly added these funds to it is simply void on its face. And the government takes a position that we, as the owners of this property, can't challenge this order that is void on its face. And that's simply not true under this circuit's president's in-rate camp. A void order is subject to collateral attack and is void ab initio. You know, what would the argument be if this fellow were a drug dealer? And he had the, he's agent of the big wig drug dealer and the money is in his hands pending the agent, the big wig getting it, getting the money is payment for a large shipment of drugs. Couldn't the government confiscate the money in his hands because he's the possessor of it? In the case of currency that was physically in his hands, yes, because there would not be a legal title to that currency. But it leaked well and that's the whole point here. There's not legal title to money that's being laundered into US tours, but Dong-Win is the agent who directed that money into US tours. Yes, Your Honor, but in your drug kingpin example, I have no doubt that the United States would go after both the agent and the actual drug kingpin and if they convicted both of them, then they would have no barrier to the forefisher because they could... I mean, what Judge Jones has said seems to me to lead to the question, to lead to the conclusion that you've got a bunch of money out there that doesn't belong to anybody. Nobody has claim to it. Well, the government does because it's a little less of the time of the crime. Yes, but only, but they didn't file the proper order to force it if we accept all these arguments. The government never forceted the money, but it then belonged to your client because it's the illegal money to begin with that he never owned. So where does all this money go? Well, with all due respect, Your Honor, just so the record is... How does he claim it? The Algonquin is not my client. My client is US tour. Understand. Your client is hardly a bonafide purchaser without notice, which is one of the provisions that's required by, I think it's say, 853C. Your Honor, there's two different procedures under 853L. Yes, he's got this stupidest wife in creation. Pardon me. Sorry. Your Honor, under 853N6A, an Ancillary petitioner can show that the title to the property was vested in the petitioner not the criminal defendant. As an Ancillary, an alternative argument, under 853N6B, a petitioner can show that they're a bonafide purchaser for value. We're not moving under 853N6B. You are not claiming any equitable rights had money. That's for sure. Your Honor, we would just say that when the government seeks to forfeit property, then it needs to follow the rules set forth to do it. And when it doesn't, then forfeiture should not be allowed. Okay, well, I think you're a good argument. Thank you, Your Honor. Ms. Rolesson, you're going to say it where you are now. Yes, sir. And is that... Can you hear me all right, yes? Oh, we can hear your findings. And the mic... It's getting recorded as well. Okay. Give it the best you got. As may please the Court, Christine Rolesson, for the United States, the District Court properly dismissed the appellants' petitions because neither US tours nor the law firms stated facts, supporting a plausible claim to meet the statutory requirements under Section 853N6A. The petitioners were required to make their claim under Section 853. There were no factual disputes because all the petition... All the facts in the petition were taken as true. But that is their only avenue of attack. The case law is clear that the petitioners cannot attack the original preliminary order of forfeiture that was found by the 11th Circuit in Davenport. The validity of the preliminary order and the Court's requisite nexus finding or something of the petitioner starts with when he files his claim. But what is the preliminary order of forfeiture based on? On requisite nexus. So we're not talking about whether the defendant had an ownership interest. Under Rule 32.2B1A, the Court issues a preliminary order if the government has established the requisite nexus between the property and the offense. And this property, these seized funds, were the very funds that were being used, were being laundered. Are there any other reasons that the Court to order here as a complete purpose? Is that what you're saying? No. If you accept the general argument, you're just saying, maybe I'm missing a step. The Court found in the supplement to preliminary order of forfeiture the amended order. The amended order, okay. That the seized funds were involved in the money laundering and failure to file CTR violations. So it found the requisite nexus there is involved in. This property was involved in the crime. Now, and it forfeited it. Now a petitioner can come in under 853 and only under 853 and claim to have a preexisting interest. The problem with the appellance argument is they're focusing on the wrong who and on the wrong when. The petitioner must state what the petitioner's interest is in the money. And the petitioner must state what its interest was at the time of the criminal offense. Not later when the money was seized. Those are the requirements of 853 and 853 has been found. I mean, I thought I'd fallen in the argument now, but one thing is left dangling in my mind. Yes, sir. How did you get around the fact that the, or high relevant is the fact that it was ordered, the amended order is not supported by the two reasons that would make it a valid amendment. Well, I believe it does fit within 32.2. Congress set up the statutory framework under section 853. And then as the courts worked with it, they developed rule 32.2. And set up a procedure by which subsequently located property could be forfeited if it had been covered by the original order. The original order in this case was for $24 million of laundered money. And so when we get here to where there's an amended order of forfeiture, this was not technically subsequently located, but it was otherwise unavailable to the United States because the state had seized that money, and the state had an in-rem civil forfeiture proceeding against that money. And because they had jurisdiction, the federal courts could not take jurisdiction under sick gear of them. Or does that argument address his argument with respect to Pearson, the corporate veil that you can't, here's the corporate veil? Oh, we probably could. Could Pearson the corporate veil? But it's more direct and what we have done. In other words, he says you can't get this money because it's not mine. It's not the defendants. It's not his wife's. It is a corporations money. Well, he's not able to challenge whether this is the defendants money. The court found there was a requisite nexus between the property and the crime. And he has to come forward and state what the petitioner's interest is at the time of the criminal offense. And that's what they failed to do. US tours had no interest in that money at the time that the special customers were handing it over to be laundered and the defendant put it in his company's bank accounts in order to launder it. Dungwin was an officer or agent or something for US tours, right? He was the president and two-thirds owner and the court found that he used the... He used that bank account to launder the money through double ledger. Yes. In fact, in the preliminary order the district court said the evidence shows that the defendant incorporated owned, operated, and controlled USTR for the purpose of laundering money and moving millions of dollars of money to Vietnam without filing CTRs as required. Those are the court findings, the appellate opinion that affirmed the defendant's conviction stated that the evidence demonstrated Dung was laundering proceeds from drug trafficking through his company US tours and that he had... The evidence showed that the defendant had USTR create two sets of ledgers to falsely state that deposits were below $3,000. Because the agreement was when somebody showed up with $100,000 in cash, Dung and USTR would not report on CTRs that more than $10,000 had been received and so it didn't have to get any customer identification. It broke all the money down into pieces smaller than $3,000 so that the special customers' names never appeared in the records and it kept two sets so it had one for the regulators and one that was discovered at the search. So this was the money running through the bank accounts and the court found it was involved in the actual crime and was subject to forfeiture. Now petitioners can't come and attack that supplement to notice a supplement to the forfeiture order. They can only come in and state, here's my interest at the time of the crime and that has been held to be constitutional and gives sufficient due process to third parties because if they don't have a qualifying interest under section 853, then it's not their problem if there was some kind of defect in the supplemental war. Oh, suppose you had Dung Wynn taking the money on behalf of USTRs and then putting it in a third party's bank account, you know, like his brother. Right. From what you're saying, the brother, could you have the supplemental order of forfeiture covering the money in the third and the completely separate third party account? Yes, you could. And the brother would come in just as if the defendant had put bank robbery money in there. That's clearly not the brother's money. He puts it in there. We say it's subject to forfeiture. The court finds that there's the requisite nexus. Yes, it is. It's seized and it's in a preliminary order. The brother then has to come in and say what his interest is in the money at the time of the crime. And I assume what he would say is if we put him, if there was a million dollars of bad money in there, he'd say, well, that first 100,000 before they put it in, that was mine from the sale of my residents, from my salary, from whatever legitimate source and he would state his interest in that money. And then the order would be amended to exclude his interest. So you get the requisite nexus and then third parties come in and if they have a qualified interest under 853, you exclude that from the forfeiture order. And that solves the problem that Judge Jones you'd mentioned before. If somebody has cash and nobody really has title to it and you don't really know who has an interest in it. If that's cash with a requisite nexus to the crime, it's forfeited and then anybody with a legitimate interest in it comes in through 853 and makes their claim. What about the fact that the statute of limitation, you could have proceeded through civil forfeiture also, could you not? Could you? Normally we can but in this case we could not because the state had a civil in rem forfeiture so that money was unavailable to us and we could not institute. Oh, you couldn't get in rem jurisdiction. Correct. But we can still do it through criminal work. And the statute of limitations would run anyway. Correct. So the main problems with petitioners arguments are they have the wrong who because they're looking at defendant's interest, they need to be looking at their own interest under the wording of the statute. And the wrong when it's back at the time of the crime and really the wrong what it's the seized funds, it's not who holds title to the bank account. Does the court have any further questions? No, tell them. Thank you very much. All right. The government will rest on its courts dismissal, the petitions. Okay. It would be a firm. Thank you. Thank you, ma'am. Thank you for appearance. Mr. Gentry, you won't tell us why she's not right. Thank you, your honor. First, I'd like to note that the government takes a position that the crime was receiving this money. That's simply not true. What what defendant when was convicted of is not filing paperwork with the government, failure to file the CTRs. So the win is not when the money changed hands from the original customers to us to or the win is win. Don win failed to file the CTRs. So even under the court's analysis, I mean, to the government's own analysis, there's simply no basis for this argument that you can't show title before the money ever went into your bank account. That's just wrong. Actually, I mean, it's an asamultaneous thing that once you receive the money in your hand, you have to file a CTR after deposits. You have you have a certain time frame and I don't know if it's tough in my head where it is. So I mean, it's 30 days, 30 days. If you don't intend to file it, then the crime takes place, the minute you receive the money and don't file it. Regardless of whether that's true or not, that is that has never been alleged or proven against US tour. US tour was not tried for this. US tour has not been convicted of anything. US tour is before this court as an innocent third party. They had they had the time. Oh, innocent third party. Innocent under the eyes of the law, your honor. They they they had the opportunity to lie to them. No, let's put it this way. Not guilty in the house of the law. But the her argument is that you had to come in and show your innocent possession. In other words, what what she's you're setting up a fall a strong man because you're saying that they had to, because she's saying that all that it was required for the preliminary forfeiture was the connection between the money and the crime. Respect, I understand. And that's what made it tainted money and therefore subject to forfeiture. And the possession of the money was in US tours, but it was still forfeited because it was the fruits of the crime or the evidence of the crime. And you're saying that you're the innocent third party, but that it's not the guilt of the third party that's relevant to the original trial. Respectfully, your honor. It is the guilt of the third party because in criminal in person and forfeiture only the assets of the convicted defendant are subject to forfeiture. 853 says that any person convicted shall forfeit. 32.2C2 says that independent of all third party petitions, the district court must make an independent finding that the defendant had an interest in the forfeited property. And in this case, the district court cannot make those because they are simply not true. And if they are not true, then the district court cannot forfeit this money as an in-personnel proceeding. They had the opportunity to address everything that your honor said that this is fruits of the poisonous tree and that this is the proceeds of the crime. That were so. I mean, they had some claim to US tours money when they indicted the fellow, right? I mean, the money was forfeited. They filed their in-rim, their criminal forfeiture ancillary to the indictment. Did they not? To the indictment of Dong-Win. Never to the indictment of US tours. I mean, you could have come in if that was your argument, why didn't you come in at the very outside of the case making that claim? Your honor because 853 sub-K prevents intervention in the trial. And that's where the real due process flaws. Your claim is that a, it's ancillary and be it the you're the innocent third party. So if it's ancillary, why couldn't you place your argument at least before the court at that time? Because Section K, 853K says that third parties cannot intervene in the trial court, which makes the government's argument that now we, that the defendants, that these third parties cannot challenge those findings, they're essentially setting up that we could never challenge the findings. No matter how erroneous they are and do process simply requires more, my clients have never been tried, never been convicted of anything. All the factual findings at a trial of somebody else are simply not bearing, they have no bearing on my clients. My clients have not, they are not guilty as a matter of law. And the government can't take facts from somebody else's trial. So she was wrong when she told me that if the money had been put in the account of Dongwins' brother, who was not associated with the crime, that it could not, there could not be a preliminary order of forfeiture. Was that wrong? Yes, Your Honor, that is wrong. And what's your best case for that position? Your Honor, I believe the best case for that position is Baja Kajian, where the United States Supreme Court draws the distinction between what is an in-personam forfeiture and what is an in-rim forfeiture. And they want to proceed in-personam, they need to have a conviction of the person who owns the assets. Or they need to plead some form of alter ego agency and they've done none of that. Okay. Thank you very much