11-5151-cr
United States of America v. Church & Dwight Co. Inc., et al.



                                   UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st
day of February, two thousand thirteen.

PRESENT:

                    JOSÉ A. CABRANES,
                    RICHARD C. WESLEY,
                    DEBRA ANN LIVINGSTON,
                                 Circuit Judges.

_____________________________________

UNITED STATES OF AMERICA,

                               Appellee,

                    v.                                              No. 11-5151-cr

CHURCH & DWIGHT COMPANY, INCORPORATED,

                               Appellant,

LIN HU, JIAN WANG, HOY MUI CHEOW, YUN ZHOU
ZHANG AKA JASON ZHANG, JIAN RONG JIANG
AKA EDWARD, JIAN HU AKA MIKE, JIAN ZHONG HU
AKA ANDY,

                               Defendants,

_____________________________________


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FOR APPELLANT:                                          Geoffrey Potter, Aron Fischer, Patterson
                                                        Belknap Webb & Tyler LLP, New York, NY.

FOR APPELLEE:                                           Laura D. Mantell, Varuni Nelson, Assistant
                                                        United States Attorneys, Karen R. Hennigan,
                                                        Special Assistant United States Attorney, for
                                                        Loretta E. Lynch, United States Attorney,
                                                        Eastern District of New York, Brooklyn, NY.

        Appeal from a judgment of the United States District Court for the Eastern District of New

York (Brian M. Cogan, Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the District Court’s November 22, 2011 Order is

AFFIRMED.

        Appellant Church & Dwight Co., Inc. (“Church & Dwight”), the manufacturer of Trojan

brand condoms, appeals from the District Court’s November 22, 2011 Memorandum Decision and

Order dismissing its third-party claim, for lack of standing, to the proceeds of a property sale

forfeited to the appellee United States (“United States” or the “Government”) by defendant Lin Hu.

On appeal, Church & Dwight argues that it had a “legal interest,” for standing purposes, under 21

U.S.C. § 853(n)(2), arising from a civil settlement with two of the defendants, Lin Hu and Jian Hu.

We assume the parties’ familiarity with the facts and procedural history of this case, to which we

refer only as necessary to explain our decision to affirm. The facts presented below are undisputed.

        The current appeal arises as a result of two separate proceedings before Judge Cogan: (1) a

criminal prosecution by the Government against three of the named defendants, Lin Hu, Jian Hu,

and Jian Zhong Hu, for trafficking in a variety of counterfeit goods; and (2) a civil trademark

infringement action by Church & Dwight, against those same individuals, among others, for the sale

of Trojan counterfeit condoms (“civil case”). See United States v. Lin Hu, No. 08-CR-425, 2011 WL

5884918, at *1 (E.D.N.Y. Nov. 23, 2011).




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        In the criminal prosecution, two defendants, Lin Hu and Jian Hu (hereinafter “defendants”),

pleaded guilty to charges of trafficking in counterfeit goods, but neither defendant allocuted to

having trafficked in counterfeit condoms.1 Lin Hu, 2011 WL 5884918, at *1. Pursuant to their

guilty pleas, the District Court entered a final order of forfeiture (“forfeiture order”) in the amount

of $825,000 against the defendants. Id. Separately, Church & Dwight reached a settlement

agreement with the defendants to relinquish its trademark infringement claims against them in

exchange for certain conditions.

        The present dispute concerns $300,322.00 in proceeds from a property (“property

proceeds”) sold by Lin Hu, following the forfeiture order in the criminal case, but prior to the

settlement in the civil case. Id. at *1-2. Prior to its forfeiture order in the criminal case, the District

Court had frozen these proceeds through a temporary restraining order (later converted to a

preliminary injunction) in the Trojan civil case. Id. at *1. Following the forfeiture order, the parties

in the civil case specified in the settlement agreement that: (1) the defendants would pay to Church

& Dwight “a portion of” the property proceeds within five days of receiving a written directive,

signed by attorneys for both Church & Dwight and the Government, in an amount to be specified

by the written directive; (2) the defendants would not take a legal position on Church & Dwight’s

entitlement to the property proceeds; and (3) the defendants would retain the property proceeds in

an attorney escrow account “unless and until” they received the written directive.

        On April 6, 2011, the District Court entered a supplemental preliminary order of forfeiture

naming the property proceeds as substitute property pursuant to 21 U.S.C. § 853(p) because, “upon

the exercise of due diligence, law enforcement has been unable to locate any assets directly traceable

to the offense of conviction.” That order also provided that any third-party asserting a legal interest

in the forfeited proceeds must petition the Court within thirty days. On April 29, 2011, Church &


        1
            The third defendant, Jian Zhong Hu, is currently a fugitive in China. Lin Hu, 2011 WL 5884918, at *1.


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Dwight filed a Verified Claim and Statement of Interest (“Verified Claim”) before the District Court

asserting “superior rights, title, and interest in the [property proceeds] as compared to the

Government.” Lin Hu, 2011 WL 5884918, at *2. The District Court held that Church & Dwight

lacked a “legal interest,” under 21 U.S.C. § 853, in the property proceeds and dismissed its Verified

Claim for lack of standing pursuant to Federal Rule of Criminal Procedure 32.2(c)(1)(A).2 This

appeal followed.

                                                         DISCUSSION

         We review the district court’s dismissal of a third-party petition de novo. Pacheco v. Serendensky,

393 F.3d 348, 351 (2d Cir. 2004). Moreover, we treat a “motion to dismiss a third-party petition in a

forfeiture proceeding prior to discovery or a hearing . . . like a motion to dismiss a civil complaint

under Federal Rule of Civil Procedure 12(b),” Willis Mgmt. (Vt.), Ltd. v. United States, 652 F.3d 236,

241-42 (2d Cir. 2011) (internal quotation marks omitted). A third-party petition must only provide

“enough facts to state a claim to relief that is plausible on its face,” see Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007), to survive dismissal. “In reviewing the petition, we will assume that the facts

set forth in the petition are true, see Fed. R. Crim. P. 32.2(c)(1)(A), however, we are not required to

accept any legal conclusions included in the petition.” Willis Mgmt., 652 F.3d at 242.

         “Title 21 U.S.C. § 853, sets forth the procedure by which third parties seeking to recover an

alleged interest in forfeited property may obtain judicial resolution of their claim.” United States v.

Ribadeneira, 105 F.3d 833, 834 (2d Cir. 1997); see also DSI Assocs. LLC v. United States, 496 F.3d 175,

183 (2d Cir. 2007) (noting that it is “well settled that section 853(n) provides the exclusive means by

which a third party may lay claim to forfeited assets—after the preliminary forfeiture order has been



         2
           On appeal, Church & Dwight abandons arguments raised before the District Court that a stipulated
preliminary injunction and a default judgment, both in its civil case, gave rise to a “legal interest,” for purposes of
standing under 21 U.S.C. § 853(n)(2). Accordingly, those arguments are waived, see City of Syracuse v. Onondaga Cnty., 464
F.3d 297, 308 (2d Cir. 2006), and we do not consider them here.


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entered”). 21 U.S.C. § 853(n)(2) provides that “[a]ny person, other than the defendant, asserting a

legal interest in property which has been ordered forfeited to the United States pursuant to this

section may . . . petition the court for a hearing to adjudicate the validity of his alleged interest in the

property.” Under 21 U.S.C. § 853(n)(6),

                 [i]f, after the hearing, the court determines that the petitioner has
                 established by a preponderance of the evidence that . . . the petitioner
                 has a legal right, title, or interest in the property, and such right, title,
                 or interest renders the order of forfeiture invalid in whole or in part
                 because the right, title, or interest was vested in the petitioner rather
                 than the defendant or was superior to any right, title, or interest of
                 the defendant at the time of the commission of the acts which gave
                 rise to the forfeiture of the property under this section . . . the court
                 shall amend the order of forfeiture in accordance with its
                 determination.

          We have held that § 853(n)(2)’s “requirement of ‘a legal interest in property,’ which is

necessary for standing,” must be read as identical to “§ 853(n)(6)’s reference to ‘a right, title, or

interest in the property.’” Ribadeneira, 105 F.3d at 835. In other words, the standing inquiry is

“identical to one ‘on the merits’ to determine whether a third party meets the statute’s

requirements.” DSI Assocs., 496 F.3d at 183 n.9. In adjudicating whether a third-party petitioner has

standing under the statute, “courts have routinely dismissed third-party petitions without a hearing,”

where “a petitioner is not able to demonstrate a prima facie entitlement to relief.” Pacheco, 393 F.3d at

351-52.

          To determine whether a petitioner has a “legal interest in property” sufficient for standing

under § 853(n)(2), we look to the law of the relevant state, in this case, New York. See Willis Mgmt.,

652 F.3d at 242. On appeal, Church & Dwight argues that the settlement agreement conferred a

“legal interest” under New York law. Specifically, Church & Dwight claims that since the property

proceeds were to be held in escrow, pending the issuance of a written directive, Church & Dwight

was an escrow beneficiary with legal interests protected by the terms of the escrow agreement and by

fiduciary duties imposed upon the escrow agent. We disagree.


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       As the District Court held, the escrow account in this case “essentially [created a] ‘standstill’

which was clearly designed to neither enhance nor detract from whatever claim to the [property

proceeds] Church & Dwight might otherwise have,” while its Verified Claim was being adjudicated.

Lin Hu, 2011 WL 5884918, at *6. Because the condition precedent to Church & Dwight receiving

the proceeds—the Government signing a written directive—has not been, and never will be,

fulfilled, we hold that Church & Dwight has not demonstrated a prima facie entitlement to relief for

substantially the same reasons as the District Court below. See Pacheco, 393 F.3d at 351.

                                              CONCLUSION

       We have considered all of Church & Dwight’s arguments on appeal and find them to be

without merit. Accordingly, the District Court’s Order of November 22, 2011 is AFFIRMED.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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