                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA                          :
                                                  :
       v.                                         :       Criminal Action No.: 12-00189 (RC)
                                                  :
NANCY PRESTON,                                    :       Re Document No.:       60
                                                  :
       Defendant.                                 :

                                  MEMORANDUM OPINION

GRANTING GOVERNMENT’S MOTION TO DISMISS JAMES PRESTON’S PETITION ASSERTING AN
                       INTEREST IN CASH FORFEITED

                                      I. INTRODUCTION

       Defendant Nancy Preston was convicted of Mail Fraud in violation of 18 U.S.C. § 1341,

and on December 12, 2014, this Court entered a Final Order of Forfeiture forfeiting $239,069 to

the United States in the form of a money judgment pursuant to 18 U.S.C. § 981(a)(1)(C) and 28

U.S.C. § 2461(c). See Final Order of Forfeiture (“Final Order”), ECF No. 22. On June 17, 2014,

the Court amended the Final Order pursuant to Federal Rule of Criminal Procedure 32.2(e)(2)(A)

to include as substitute property pursuant to 21 U.S.C. § 853(p) cash in one Merrill Lynch

account held by Defendant’s husband, James Preston, and certain securities in a separate Merrill

Lynch account held by the James W. Preston Trust (the “Trust”). See Fourth Amended Order of

Forfeiture (“Fourth Amended Order” or “Order of Forfeiture”), ECF No. 43. On July 29, 2014,

James Preston filed a Petition asserting an interest in the substitute property pursuant to Federal

Rule of Criminal Procedure 32.2 and 21 U.S.C. § 853(n). See James W. Preston’s Petition

Asserting an Interest in Property (the “Petition”), ECF No. 48.
       The Government has filed a motion to dismiss the Petition as to its assertion of an interest

in the cash held in Mr. Preston’s Merrill Lynch account. 1 See Mot. Dismiss James Preston’s

Petition Asserting Interest in Cash Forfeited from Merrill Lynch Account Number 79522092

(“Motion to Dismiss”), ECF No. 60.


                                II. FACTUAL BACKGROUND

       From approximately 1992 to September 2011, Defendant Nancy Preston was the

Corporate Controller for Clyde’s Restaurant Group (“Clyde’s”). See Statement of the Offense at

1, ECF No. 6. On January 9, 2012, Ms. Preston confessed to agents of the Federal Bureau of

Investigation (“FBI”) that she had embezzled hundreds of thousands of dollars from Clyde’s.

See Decl. Supp. Gov’t’s Mot. Amend Order Forfeiture ¶ 4, ECF No. 42-1.

       Eleven days later, on January 20, 2012, there were two transfers from Merrill Lynch

account number XXX-X1295 held by Ms. Preston (“Ms. Preston’s 1295 Account”) to Merrill

Lynch account number XXX-X2092 held by her husband, James Preston (“Mr. Preston’s 2092

Account”): a cash transfer of $6,000 and a cash transfer of $5,500, for a total of $11,500 (the

“Cash”). See Petition at 2; Petition Ex. 2 at 16, ECF No. 48-1. 2 A statement for Merrill Lynch

account number XXX-X3888 held by the Trust (the “Trust Account”) indicates that the Trust

was formed under an agreement dated the same day. See Petition Ex. 3. Three days later, on

January 23, 2012, various securities (the “Securities”) were transferred from Ms. Preston’s 1295


1
        The Government filed a separate motion to dismiss the Petition as to its assertion of an
interest in the securities that originated in Ms. Preston’s account and were ultimately transferred
to the Trust’s account. See Mot. Dismiss James Preston’s Petition Asserting Interest in Certain
Merrill Lynch Securities, ECF No. 53.
2
      Mr. Preston filed all of the exhibits to his Petition as one attachment. See ECF No. 48-1.
The Court’s page citations are to the page numbers of that attachment, rather than the page
numbers of the individual exhibits.


                                                 2
Account to a separate account held by Mr. Preston, Merrill Lynch account number XXX-X1299

(“Mr. Preston’s 1299 Account”). Petition at 2; Petition Ex. 1 at 10. 3 In his Petition, Mr. Preston

alleges that “[t]he reason for the transfers is simple: Once Merrill Lynch discovered Mrs.

Preston’s criminal activity, it closed her account, forcing Mrs. Preston to transfer her funds to

Mr. Preston’s account.” Petition at 2. Soon thereafter, the Securities were transferred from Mr.

Preston’s 1299 Account to the Trust Account. See Petition at 2. Mr. Preston does not offer any

explanation for this transfer in his Petition.

        Mr. Preston alleges that neither he nor Ms. Preston intended for him to receive a benefit

as a result of the transfers and that he received no benefit. See Petition at 2–5. He alleges that

Ms. Preston transferred the Securities and the Cash to him “so that he could pay her debts.” Id.

at 5. He further alleges that, in order to pay those debts, rather than use the Cash or liquidate the

Securities, he “liquidated his own securities of the same value [as the Securities and the Cash 4]

because liquidating those securities would result in a lower tax liability for the Prestons.” Id. at

2. Mr. Preston claims that he used the proceeds of that liquidation in order to pay $150,000 to

the Government in a pre-judgment partial payment of Ms. Preston’s restitution obligation, Ms.

Preston’s legal fees, and federal and state taxes. See id. at 3. As support, Mr. Preston cites a

November 2012 account statement for the Trust Account, which lists an outgoing wire transfer

of $150,000 on November 19, 2012. See Petition Ex. 3 at 33. He also provides Ms. Preston’s


3
        In his Petition, Mr. Preston states that the total value of the Securities at the time of the
transfer to Mr. Preston’s 1299 Account was $190,567.41. See Petition at 2. From the account
statement for Mr. Preston’s 1299 Account provided as an exhibit to the Petition, however, the
total value at the time of the transfer appears to have been $190,529.27. See Petition Ex. 1 at 10.
The Petition also alleges that the total value of the Cash and the Securities was $202,029.27,
which would mean that the Securities were valued at $190,529.27. See Petition at 2.
4
       Throughout his Petition, Mr. Preston confusingly refers to both the Securities and the
Cash collectively as “the Securities.” See Petition at 2. The implications of this confusing
terminology are discussed, infra.


                                                  3
federal tax return for 2012 and a ledger from Cameron McEvoy, PLLC. See Petition Exs. 4–5.

In his Petition, Mr. Preston does not provide detail concerning which securities he liquidated or

which account held those securities, and he does not provide any explanation for why the

payment for Ms. Preston’s restitution obligation was made from the Trust Account. Mr. Preston

also does not explain how liquidating securities helped him avoid tax liability that he would have

incurred had he used the Cash to make the restitution payment or why generally he could not use

the Cash to make that payment.

       On August 29, 2012, the Government filed a Criminal Information against Ms. Preston in

this Court, and on September 26, 2012, Ms. Preston pleaded guilty to mail fraud in violation of

18 U.S.C. § 1341. See Information, ECF No. 1; Minute Entry (Sept. 26, 2012). On September

26, 2012, the Court entered a Consent Order of Forfeiture forfeiting $389,069 to the United

States in the form of a money judgment. See Consent Order of Forfeiture, ECF No. 9. On

December 9, 2012, after the wire transfer from the Trust Account, the Government filed a

consent motion seeking to reduce the forfeiture money judgment amount by $150,000 to account

for “a partial payment to the victim as compensation for its loss.” Consent Mot. for Final Order

of Forfeiture, ECF No. 17. On December 12, 2012, the Court granted the consent motion,

entering a Final Order of Forfeiture forfeiting $239,069 to the United States in the form of a

money judgment pursuant to 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c). See Final

Order. The Final Order provided that the Court shall retain jurisdiction to enforce the Final

Order and to amend it as necessary pursuant to Federal Rule of Criminal Procedure 32.2(e). See

id.

       On June 17, 2014, the Court amended the Final Order to include the Cash and the

Securities as substitute property pursuant to 21 U.S.C. § 853(p). See Fourth Amended Order.




                                                 4
The Government served the Fourth Amended Order on Mr. Preston, his counsel, and the Trust on

July 3, 2014. See Notice of Service, ECF No. 51. On July 29, 2014, Mr. Preston filed his

Petition asserting his interest in the substitute property. 5 See Petition.


                                           III. ANALYSIS

        The Government argues that the Petition should be dismissed with respect to its assertion

of an interest in the Cash, because the Petition fails to satisfy the pleading requirements of 21

U.S.C. § 853(n)(3) and fails to state a claim for relief under 21 U.S.C. § 853(n)(6). The Court

addresses these issues in turn.

                A. Legal Framework for Adjudication of Third Party Interests

        As a preliminary matter, it is useful for the Court to provide an overview of the legal

framework for adjudicating a third party’s asserted interest in property that has been ordered

forfeited to the United States.

        “The sole forum for a third party to address its interest in forfeited property is through a

third party ancillary proceeding” under 21 U.S.C. § 853(n). United States v. Emor, 785 F.3d

671, 675 (D.C. Cir. 2015) (citing 21 U.S.C. § 853(n)). Any third party asserting a “legal

interest” in forfeited property “may, within thirty days of the final publication of notice or his

receipt of notice . . . whichever is earlier, petition the court for a hearing to adjudicate the validity

of his alleged interest in the property.” 21 U.S.C. § 853(n)(2). A petitioner under Section 853(n)



5
        In his Petition, Mr. Preston alternatively requests that, if the Court finds that the
Securities and the Cash are subject to forfeiture, then the “Government refund him the $150,000
sum he paid to satisfy Mrs. Preston’s restitution obligation, as that was not intended to be a gift
made to Mrs. Preston.” Petition at 6. He does not, however, request that the Court compel the
Government to refund the payment, which appears to have already been paid to Clyde’s, let
alone provide any legal authority for the Court to do so. The Court also notes that Mr. Preston
does not reaffirm this request in his opposition to the Motion to Dismiss.


                                                   5
must have standing under Article III of the Constitution. See Emor, 785 F.3d at 676. A

petitioner must also have so-called “statutory standing,” which is “nothing more than an inquiry

into whether the statute at issue conferred a ‘cause of action’ encompassing ‘a particular

plaintiff’s claim.’” Id. at 677 (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc.,

134 S.Ct. 1377, 1387 (2014). The statute also requires a petition to set forth “the nature and

extent of the petitioner’s right, title, or interest in the property, the time and circumstances of the

petitioner’s acquisition of the right, title, or interest in the property, any additional facts

supporting the petitioner’s claim, and the relief sought.” 21 U.S.C. § 853(n)(3).

        “Congress did not intend section 853(n) to serve as a vehicle by which all innocent third

parties who are aggrieved by an order of criminal forfeiture can petition for judicial relief.”

United States v. Lavin, 942 F.2d 177, 185 (3d Cir. 1991). Rather, in order to be successful under

Section 853(n), a petitioner must establish by a preponderance of the evidence that his legal

right, title, or interest in the property meets the circumstances set forth in one of two provisions.

The petitioner may establish under Section 853(n)(6)(A) 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 [Section 853].

21 U.S.C. § 853(n)(6)(A). Or, the petitioner may establish under Section 853(n)(6)(B) that “the

petitioner is a boda fide purchaser for the value of the right, title, or interest in the property and

was at the time of purchase reasonably without cause to believe that the property was subject to

forfeiture under [Section 853].” 21 U.S.C. § 853(n)(6)(B). If a petitioner does not meet either of

these sets of criteria, then he is not entitled to relief.




                                                     6
        Rule 32.2 of the Federal Rules of Criminal Procedure provides that, in an ancillary

proceeding concerning a petition under Section 853(n), “the court may, on motion, dismiss the

petition for lack of standing, for failure to state a claim, or for any other lawful reason.” Fed. R.

Crim. P. 32.2(c)(1)(A). A motion to dismiss a petition under Section 853(n) prior to discovery or

a hearing is treated similarly to a motion to dismiss a civil complaint under Federal Rule of Civil

Procedure 12(b). See Willis Mgmt. (Vt.), Ltd. v. United States, 652 F.3d 236, 241–42 (2d Cir.

2011). “A third-party petition must only provide ‘enough facts to state a claim to relief that is

plausible on its face’ to survive dismissal.” United States v. Church & Dwight Co., 510 F. App’x

55, 57 (2d Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When

considering a motion to dismiss a petition, the Court assumes all facts set forth in the petition to

be true. See Fed. R. Crim. P. 32.2(c)(1)(A).

                      B. Pleading Requirements Under Section 853(n)(3)

        Section 853(n)(3) requires a petition to “set forth the nature and extent of the petitioner’s

right, title, or interest in the property, the time and circumstances of the petitioner’s acquisition

of the right, title or interest in the property, any additional facts supporting the petitioner’s claim,

and the relief sought.” 21 U.S.C. § 853(n)(3). These are not “simply technical requirements, but

are construed strictly to discourage false or frivolous claims.” United States v. Ceballos-Lepe,

977 F. Supp. 2d 1085, 1088–89 (D. Utah 2013) (citing United States v. Ginn, 799 F. Supp. 2d

645, 647 (E.D. La. 2010); United States v. Burge, 829 F. Supp. 2d 664, 667 (C.D. Ill. 2011)).

        The Government argues that the Petition fails to satisfy these requirements by not setting

forth the “time and circumstances” of Mr. Preston’s acquisition of his interest in the Cash. The

Government further argues that the Petition does not offer sufficient information concerning the

alleged closure of Ms. Preston’s 1295 Account that required her to transfer the Cash to Mr.




                                                   7
Preston’s 2092 Account. As support, the Government observes that the Petition does not allege

various details, such as when Merrill Lynch informed Ms. Preston that she needed to close the

account, how Merrill Lynch notified her, and what Merrill Lynch specifically told her. 6 See

Motion to Dismiss at 7.

        The Government also asks the Court to consider other evidence that the Government

argues demonstrates the falsity of Mr. Preston’s factual claim. See id. at 7 n.4. The Federal

Rules of Criminal Procedure, however, require the Court to assume that the facts set forth in the

Petition are true for purposes of ruling on a motion to dismiss. See Fed. R. Crim. P.

32.2(c)(1)(A); Emor, 785 F.3d at 677. The Court does not weigh evidence at this stage and

therefore does not consider the additional evidence put forth by the Government, however strong

it may appear to be. 7


6
        The Government also argues that the Petition’s explanation, by its own terms, only
applies to the transfer of the Securities and not the Cash. See Motion to Dismiss at 8. Indeed,
the Petition (and Mr. Preston’s opposition to the Motion to Dismiss) continually refer to
“securities” but not cash. See, e.g., Petition at 5 (“At the time of transfer of the securities, neither
Mr. Preston nor Mrs. Preston intended that the funds be conveyed for Mr. Preston’s benefit, nor
did Mr. Preston receive a benefit.”). The Petition also, however, refers to “Securities” as a
defined term, and a close reading of the Petition indicates that its use of the term includes the
Cash. The Petition defines the term as “securities valued at $202,029.27,” the transfers of which
are the subject of a parallel civil proceeding in which the Government seeks to void them as
fraudulent. Petition at 2. In that parallel civil proceeding, the Government does not seek to void
transfers of only “securities,” but rather, it seeks to void transfers of the same Cash and
Securities (which the Government alleges are valued at a total of $202,029.27) that are at issue in
Mr. Preston’s Petition. See Am. Compl., United States v. James W. Preston, et al., Case No. 13-
cv-00265 (RC) (D.D.C.), ECF No. 23. It appears, therefore, that the problem is merely one of
improper terminology (inexplicably referring to cash as “securities”). The Court reads the
Petition as alleging that Ms. Preston was forced to transfer both the Cash and the Securities
because Merrill Lynch said that it would close her accounts, which is supported by the text of the
Petition. See Petition at 2 (describing the transfers of the Securities and the Cash and describing
“[t]he reason for the transfers”).
7
        By a separate motion, the Government also asks the Court to take judicial notice of a
declaration by Greg Rose, in-house counsel for Merrill Lynch, which was filed in the parallel
civil case that the Government has brought against Mr. and Ms. Preston. See Mot. Court Take
Judicial Notice Public Record, ECF No. 70; Decl. Greg Rose, ECF No. 70-2. In his declaration,


                                                   8
       The issue for purposes of the Motion to Dismiss is whether the Petition sets forth

sufficient detail concerning the “time and circumstances” of the acquisition of Mr. Preston’s

interest in the Cash to satisfy the statutory requirement. In interpreting the “time and

circumstances” requirement, courts have held that a petition must “do more than state [the]

interest in a conclusory fashion.” United States v. Kokko, No. 06-cr-20065, 2007 WL 2209260,

at *5 (S.D. Fla. July 30, 2007). E.g., United States v. Vithidkul, No. 12-cr-624, 2014 WL

979206, at *2 (D. Md. Mar. 12, 2014) (faulting petitioners for stating only that they obtained

property “through previous employment” without additional detail); United States v. Fabian, No.

11-cr-157, 2013 WL 150361, at *5 (W.D. Mich. Jan. 14, 2013) (dismissing petition for, among

other things, failing to satisfy the time and circumstances requirement by indicating “merely a

year (with or without a ‘?’) or a range of years”).

       The Court finds that the Petition’s allegations are sufficient to satisfy the requirements of

Section 853(n)(3). The Petition sets forth the date Ms. Preston transferred the Cash to Mr.

Preston’s 2092 Account and attaches an account statement that lists the two transfers. See

Petition Ex. 2 at 16. It also sets forth the reason for these transfers by alleging that Merrill Lynch

required closure of Ms. Preston’s 1299 Account and that Mr. Preston paid full consideration for

the Cash by paying Ms. Preston’s debts in an equivalent value. See Petition at 2–6. The Petition

contains more than merely a conclusory assertion of Mr. Preston’s interest in the Cash.




Mr. Rose states that “[a]t no time did Merrill Lynch ask Mrs. Preston to close account xxx-x-
1295” and that Merrill Lynch maintained Ms. Preston’s 1295 Account until August 30, 2014,
“when the account was purged from the Merrill Lynch system following thirteen months of
inactivity.” Decl. Greg Rose ¶ 1. The Court finds that there are ample grounds to dismiss the
Petition without considering this declaration and therefore will deny the Government’s motion to
take judicial notice of the declaration as moot.


                                                  9
        The Government also argues that the Petition does not set forth the “nature and extent” of

Mr. Preston’s interest in the Cash, solely because it does not state a claim for relief under Section

853(n)(6). See Motion to Dismiss at 5–6. The statute’s text, however, does not expressly link

the “nature and extent” requirement of Section 853(n)(3) to the grounds for relief under Section

853(n)(6). The Court’s reading of the statute indicates that the two provisions, while related, are

separate and that a petitioner could satisfy the former while failing to plead a claim for relief

under the latter. The Court therefore finds that the Petition meets the pleading requirements of

Section 853(n)(3) and separately assesses whether the Petition states a claim for relief under

Section 853(n)(6).

                       C. Failure to State a Claim Under Section 853(n)(6)

        While the Petition meets the pleading requirements of Section 853(n)(3), it fails to state a

claim for relief under Section 853(n)(6).

        In order to survive a motion to dismiss, a petition must allege facts sufficient to state a

valid claim of relief. See Emor, 785 F.3d at 678; Church & Dwight Co., 510 F. App’x at 57. A

petitioner is only entitled to relief if he establishes that his legal right, title, or interest in the

forfeited property meets the circumstances set forth in either Section 853(n)(6)(A) or Section

853(n)(6)(B), and, therefore, he must allege facts sufficient to state a claim under one of the two

provisions. See United States v. Hailey, 924 F. Supp. 2d 648, 658 (D. Md. 2013) (“The

availability of a motion to dismiss indicates that to state a claim, one of the § 853(n)(6) bases

must be pled.”).

        As the Government observes, it is unclear from the Petition whether Mr. Preston is

pleading under Section 853(n)(6)(A) or Section 853(n)(6)(B). See Motion to Dismiss at 7–8.

Such a deficiency can be fatal to a petition. See, e.g., United States v. Ceballos-Lepe, 977 F.




                                                     10
Supp. 2d 1085, 1090 (D. Utah 2013) (dismissing a petition in part because the petitioner did not

“specif[y] in her petition whether her interest comes under § 853(n)(6)(A) or (6)(B)”). The

Petition does not specifically cite Section 853(n)(6) and it uses language that is similar to both

Section 853(n)(6)(A) and Section 853(n)(6)(B). See, e.g., Petition at 5 (stating as a section

heading that “Mr. Preston’s right, title and interest . . . is superior to Mrs. Preston’s interest . . .

.”); id. (stating that “Mr. Preston’s equivalent exchange made him a bona fide purchase [sic] for

value as contemplated by 21 U.S.C. § 853(n) because he did not know that paying full value for

[the Cash and the Securities] could subject him to any liability nor did he receive any financial

benefit for the exchange”); id. (stating that “Mrs. Preston received full consideration for her

transfer”); id. at 6 (requesting that the Court modify the Order of Forfeiture “to reflect that Mr.

Preston has a superior right, title and interest to the funds”). Even Mr. Preston’s response to the

Government’s observation in his opposition to the Motion to Dismiss fails to clear the confusion.

See James W. Preston’s Opp. Pl.’s Mot. Dismiss at 1, ECF No. 63 (arguing that the Court should

deny the Motion to Dismiss because it “fails to establish that Mr. Preston does not have a

superior right, title and interest to the funds”). 8 Though Mr. Preston states that his claim “falls

squarely under Section A,” he also states, without explicitly referencing Section 853(n)(6)(B),

that he “alternatively argued that ‘[his] equivalent exchange made him a bona fide purchaser for

value’ – a defense that is also applicable to this case.” Id. at 6 (quoting Petition at 5). The Court




8
        This argument also misstates the burden imposed by the criminal forfeiture statute. The
statute requires the petitioner to establish the applicability of either of the criteria in Section
853(n)(6). See 21 U.S.C. § 853(n)(6). The Government is not required to establish anything in
the ancillary proceeding. Moreover, during the motion to dismiss stage, the focus is on the
sufficiency of the Petition and the Court must take all factual allegations in the Petition as true.
See Fed. R. Crim. P. 32.2(c)(1)(A).


                                                    11
generously interprets the Petition (and Mr. Preston’s subsequent explanation) to claim that both

provisions are applicable in the alternative and will therefore address both of them.

                                      1. Section 853(n)(6)(A)

       To be successful under Section 853(n)(6)(A), a petitioner must establish that, “at the time

of the commission of the acts which gave rise to the forfeiture,” the interest in the forfeited

property was vested in the petitioner rather than the defendant or the petitioner’s interest was

superior to any interest of the defendant. 21 U.S.C. § 853(n)(6)(A). It is clear from the face of

the Petition that Mr. Preston did not have an interest in the Cash at the time of the commission of

the acts which gave rise to its forfeiture, because Ms. Preston did not transfer the Cash to him

until after the commission of those acts.

       The Cash was included in the Order of Forfeiture as substitute property pursuant to

Section 853(p), rather than as property subject to forfeiture under Section 853(a). Under Section

853(p), property becomes subject to forfeiture as substitute property when, as a result of any act

or omission of the defendant, property subject to forfeiture under Section 853(a) meets one of

five conditions. See 21 U.S.C. § 853(p)(1). When the Government sought to include the Cash in

the Order of Forfeiture as substitute property, it argued that Ms. Preston’s acknowledgement that

she “diverted Clyde’s money to pay her personal credit cards; charged corporate credit cards in

Clyde’s name to pay for her unauthorized personal expense; and used a Clyde’s vendor paid by

Clyde’s funds to obtain goods for her personal use” was sufficient to demonstrate the satisfaction

of one of those conditions. Gov’t’s Fourth Mot. Amend Order of Forfeiture at 7 (citing 21

U.S.C. § 853(p)(1)(B) (providing that property is subject to forfeiture as substitute property if

property subject to forfeiture under Section 853(a) “has been transferred or sold to, or deposited

with, a third party”)). The Court agreed, finding that the Cash was subject to forfeiture under




                                                 12
Section 853(p). See Fourth Amended Order at 2. For purposes of Section 853(n)(6)(A),

therefore, “the time of the commission of the acts which gave rise to the forfeiture” of the

Securities was when Ms. Preston transferred the embezzled Clyde’s funds to third parties.

        Ms. Preston admitted that she transferred the embezzled Clyde’s funds to third parties

from 2001 to 2011. See Statement of the Offense at 1. The Petition alleges that she did not

transfer the Cash to Mr. Preston until January 20, 2012. See Petition at 2; Petition Ex. 2 at 16.

Mr. Preston does not allege that he acquired his interest in the Cash prior to the transfer, and,

therefore, the Petition fails to state a claim under Section 853(n)(6)(A).

                                       2. Section 853(n)(6)(B)

        To be successful under Section 853(n)(6)(B), a petitioner must establish that he is a

“bona fide purchaser for value” of the property and that, at the time of purchase, he was

“reasonably without cause to believe that the property was subject to forfeiture.” 21 U.S.C. §

853(n)(6)(B). If the property at issue is cash, then in order to satisfy the former requirement, the

petitioner must show that, in exchange for receiving the cash, he gave something or performed a

service equivalent in value to the cash.

        Mr. Preston does not allege facts that are sufficient to state a claim under this provision

either. Mr. Preston alleges that he is a bona fide purchaser for value of the Cash, because he paid

Ms. Preston’s debts in an equivalent value, which, if true, would demonstrate that he was a “bona

fide purchaser for value.” See Petition at 2–5. With respect to the second requirement, Mr.

Preston alleges that he “did not know that paying full value for [the Cash and the Securities]

could subject him to any liability.” Id. at 5. This allegation, if true, is not sufficient to satisfy

Section 853(n)(6)(B). Even if Mr. Preston was an innocent bona fide purchaser of the Cash, he

still must allege that he was without cause to believe that the Cash was subject to forfeiture. See




                                                   13
United States v. Jimerson, 5 F.3d 1453, 1455 (11th Cir. 1993) (stating that Section 853 “does not

contain an innocent owner provision” and that “alleged innocence, standing alone, cannot defeat

the Government’s interest in criminally forfeited property”). Whether he knew that he could be

personally liable is not the correct standard. The statute concerns knowledge regarding whether

the property was subject to forfeiture. Mr. Preston makes no allegations concerning his

knowledge on this issue or whether a reasonable person would have known that the Cash was

subject to forfeiture. On the contrary, Mr. Preston actually alleges facts that, if true, would

demonstrate the inapplicability of the bona fide purchaser provision. According to the Petition,

Ms. Preston was forced to transfer the Cash and the Securities to him because of her criminal

activity, meaning that he was aware at the time of the transfers that Ms. Preston was subject to

criminal liability. Even more significantly, if the transfer had been made with the intention that

the Cash would be used to satisfy Ms. Preston’s restitution obligation, as he alleges, then Mr.

Preston was well aware that the Cash was subject to forfeiture.

       On the face of the Petition, it is implausible that Mr. Preston was a bona fide purchaser

for value who was reasonably without cause to believe that the Cash was subject to forfeiture.

The Petition therefore also fails to state a claim for relief under Section 853(n)(6)(B).


                                       IV. CONCLUSION

       For the foregoing reasons, the Court grants the Government’s Motion to Dismiss James

Preston’s Petition Asserting an Interest in Cash Forfeited from Merrill Lynch Account Number

XXX-X2092, ECF No. 60. An order consistent with this Memorandum Opinion is separately

and contemporaneously issued.


Dated: August 24, 2015                                              RUDOLPH CONTRERAS
                                                                    United States District Judge


                                                 14
