                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

__________________________________________
                                          )
SUNRISE ACADEMY, et al.,                  )
                                          )
            Petitioners,                  )
                                          )
      v.                                  )                   Misc. No. 11-0172
                                          )
UNITED STATES OF AMERICA                  )
                                          )
            Respondent.                   )
__________________________________________)


                                             OPINION

               Sunrise Academy and Core Ventures, LLC (together, “petitioners”) initiated this

legal action in an attempt to gain possession of approximately $2 million seized by the United

States as part of the ongoing criminal prosecution of Charles Emor, the founder of Sunrise. The

petitioners have filed a Motion for Return of Seized Property, claiming that they are the legal

owners of the seized funds and that the funds are not subject to criminal forfeiture. For its part,

the United States objects that the petitioners are barred by statute from contesting the

forfeitability of the seized assets at this time. Upon review of the parties’ arguments, the relevant

legal authorities, and the record in both this case and the related criminal case, the Court

concludes that the petitioners’ motion is premature. Consequently, the petitioners’ motion will

be denied without prejudice, and this miscellaneous action will be dismissed.


                                        I. BACKGROUND

               The criminal indictment of Charles Ike Emor alleges as follows: Mr. Emor

founded Sunrise Academy (“Sunrise”) in 1999 as a tax-exempt, non-profit organization. United
States v. Charles Ike Emor, Crim. No. 10-0298, Indictment ¶¶ 1-2 (D.D.C. Nov. 3, 2010) (“Emor

Indict.”). Mr. Emor served as the president and executive director of Sunrise and “maintained

complete control over Sunrise financial affairs.” Id. ¶¶ 1, 26. Organized as a private school

providing special education services to male students between the ages of 7 and 22, Sunrise

entered into contracts with the District of Columbia to enroll as students varying numbers of

District of Columbia residents who were entitled under federal law to receive special education

services but could not obtain those services in the District’s public schools. See id. ¶¶ 2, 5-9.

Between 2005 and 2009, Sunrise was paid more than $30 million under its contracts with the

District. Id. ¶ 15. Some of Sunrise’s funding derived from the federal Medicaid program, which

reimbursed Sunrise for counseling services that the school claimed to have provided to students

who were Medicaid beneficiaries. See id. ¶ 11.

                According to the indictment, Sunrise, under the direction of Mr. Emor, repeatedly

misrepresented the number of students who were attending the school under its contracts with the

District of Columbia, with the result that Sunrise received payment for services that were never

actually rendered to any student. Emor Indict. ¶¶ 27-29. Furthermore, large amounts of District

of Columbia and/or federal funds that were paid to Sunrise were not used to provide special

education services, but were instead diverted into bank accounts held by an entity called Core

Ventures, LLC (“Core”). Id. ¶ 35. To facilitate this diversion of funds, Mr. Emor, another

employee of Sunrise, and Mr. Emor’s adult son, who served on Sunrise’s board of directors,

purported to authorize a loan of more than $2 million to Core by Sunrise. Id. ¶ 36. The “loaned”

money was ostensibly to be used to operate a coffee shop that would be staffed by Sunrise

students. Id.



                                                  2
               The indictment alleges that the money transferred from Sunrise to Core was never

used or intended to be used for any legitimate business purpose, but instead was diverted for the

personal use of Mr. Emor. Emor Indict. ¶ 35. Mr. Emor organized Core as a for-profit

corporation in 2008 and was the sole owner and officer of the company. Id. ¶ 18. Mr. Emor used

Sunrise funds transferred to Core for a variety of personal transactions, including for the

purchase of “luxury watches, gold cuff links, diamond bracelets, real properties, residential

furniture, exercise equipment, electronics, arcade video games, [and] luxury vehicles.” Id. ¶ 27;

see also id. ¶ 51. He structured various financial transactions to conceal his diversion and

personal use of funds from Sunrise. See id. ¶¶ 38-44.

               Based on these alleged activities, Mr. Emor has been indicted on 10 counts of

mail fraud, 13 counts of wire fraud, 2 counts of interstate transportation of stolen property, 1

count of theft from a program receiving federal funds, 9 counts of money laundering, 1 count of

first-degree theft, and 1 count of first-degree fraud. See Emor Indict. ¶¶ 54-72. The indictment

also alleges that certain property of Mr. Emor is subject to forfeiture. Id. at 31-34. Among the

property allegedly subject to forfeiture to the United States is more than $2 million seized by the

government from bank accounts maintained by Core. See id. at 31, 33.

               The indictment against Mr. Emor was returned on November 3, 2010. On March

31, 2011, Sunrise and Core filed this miscellaneous action and the pending motion for return of

the funds seized from Core’s bank accounts.1 Sunrise contends in the petitioners’ papers that

Core is Sunrise’s “wholly-owned affiliate,” Motion for Return of Seized Property (“Mot.”) at 1,

and both petitioners assert that the allegations contained in the indictment against Mr. Emor are


       1
               It is unclear who currently controls Sunrise and/or Core, and so it is not clear who
has authorized counsel for either entity to file this action and seek the relief requested.

                                                  3
“meritless.” Id. at 2. The petitioners further argue that since the allegations of wrongdoing by

Mr. Emor lack merit, the seized funds are not subject to forfeiture and so should be released by

the government. Id. at 2-3.2


                                         II. DISCUSSION

               Before the Court may address the merits of the petitioners’ attacks on the

allegations against Mr. Emor, it must determine as an initial matter whether the relief requested

by the petitioners is available at this time and in this procedural posture. The government seeks

forfeiture of the seized assets in question as part of its criminal prosecution of Mr. Emor. See

Emor Indict. at 31-34. Criminal forfeiture proceedings are governed by 21 U.S.C. § 853 and

Rule 32.2 of the Federal Rules of Criminal Procedure. See FED . R. CRIM . P. 32.2 advisory

committee note (2000 adoption) (“Rule 32.2 consolidates a number of procedural rules governing

the forfeiture of assets in a criminal case.”). Under the scheme established by the statute and the

Rule, the government may, as it has here, obtain a warrant for the seizure of property if a court

“determines that there is probable cause to believe that the property to be seized would, in the

event of conviction [of the defendant in the associated criminal prosecution], be subject to




       2
                 Several weeks after the submission of their motion for the return of seized
property, the petitioners moved for leave to file a supplemental memorandum in which they
argued that the seized property should be released because the affidavit submitted by the
government in support of its application for a seizure warrant was false or misleading. See
Supplemental Memorandum in Support of Motion for Return of Seized Property at 2-5. The
Court granted the petitioners’ motion for leave to file the supplemental memorandum. The Court
has also granted the government’s motion to file a supplemental opposition to petitioners’
supplemental memorandum. The Court finds that petitioners’ supplemental filing merely makes
additional attacks on the substance of the government’s indictment of Mr. Emor. For the reasons
set forth in this Opinion, such attacks by the petitioners are not properly before the Court and will
not be given further consideration at this time.

                                                 4
forfeiture and that an order [to prevent disposal or dissipation of the property] may not be

sufficient to assure the availability of the property for forfeiture.” 21 U.S.C. § 853(f).

               Thus, to seize property allegedly subject to forfeiture, the United States need only

show, in a non-adversary setting, that there is probable cause to believe that the property is

forfeitable and in danger of dissipation. Once that showing has been made, neither Section 853

nor Rule 32.2 provides for any further inquiry into the property’s forfeitability until the defendant

in an associated criminal proceeding is found or pleads guilty “on any count in [the] indictment

or information regarding which criminal forfeiture is sought.” FED . R. CRIM . P. 32.2(b)(1)(A).

At that point in the proceedings, either the court or the jury must determine, based on the

evidence presented at trial and/or any additional evidence presented with respect to the forfeiture

issue, “whether the government has established the requisite nexus between the property and the

offense committed by the defendant.” FED . R. CRIM . P. 32.2.(b)(1)(A), (b)(5)(B). If the finder of

fact decides that the government has met its burden, then the court must enter “a preliminary

order of forfeiture setting forth the amount of any money judgment, directing the forfeiture of

specific property, and directing the forfeiture of any substitute property if the government has

met the statutory criteria.” FED . R. CRIM . P. 32.2(b)(2)(A). “The Court must enter the order

without regard to any third party’s interest in the property.” Id.

               After the entry of the preliminary forfeiture order, the court may conduct an

“ancillary proceeding” to adjudicate the claims of any third-party — i.e., any party other than the

criminal defendant or the United States — who asserts an interest in the property to be forfeited.

FED . R. CRIM . P. 32.2(c)(1); see 21 U.S.C. § 853(n). Those claims are determined by the court

after an adversarial hearing at which the third-party claimant “may testify and present evidence



                                                  5
and witnesses on his own behalf, and cross-examine witnesses. . . .” 21 U.S.C. § 853(n)(5). The

ancillary proceeding “does not involve relitigation of the forfeitability of the property; its only

purpose is to determine whether any third party has a legal interest in the forfeited property.”

FED . R. CRIM . P. 32.2 advisory committee note (2000 adoption).

                As the foregoing description of the statutory scheme governing criminal forfeiture

suggests, Congress envisioned that any third-party claims to property seized by the government

and alleged to be forfeitable would be adjudicated only after the conviction of the defendant in

the associated criminal proceeding. Indeed, third parties are explicitly barred by Section 853

from presenting their claims in any other manner:

                        Except as provided in subsection (n) of this section, no
                party claiming an interest in property subject to forfeiture under
                this section may —

                       (1) intervene in a trial or appeal of a criminal case
                involving the forfeiture of such property under this section; or

                        (2) commence an action at law or equity against the United
                States concerning the validity of his alleged interest in the property
                subsequent to the filing of an indictment or information alleging
                that the property is subject to forfeiture under this section.

21 U.S.C. § 853(k). Similarly, Rule 32.2 provides that “[d]etermining whether a third party has

[any interest in property subject to forfeiture] must be deferred until any third party files a claim

in an ancillary proceeding” held after the entry of a preliminary forfeiture order in the criminal

case. FED . R. CRIM . P. 32.2(b)(2)(A).

                These provisions would seem to definitively establish that third parties are

forbidden by statute from doing exactly what the petitioners attempt to do here: challenging the

forfeitability of property prior to a trial or plea in the related criminal case. The petitioners



                                                   6
protest, however, that there is no statutory bar to their motion because (1) Rule 41(g) of the

Federal Rules of Criminal Procedure authorizes the relief they request, see Mot. at 16-17, and

(2) Section 853(k) bars intervention only in the “trial or appeal of a criminal case,” not the

pretrial phase of such a proceeding. Id. at 19-21.

                Neither of these arguments is persuasive. Pursuant to Rule 41(g), “[a] person

aggrieved by an unlawful search and seizure of property or by the deprivation of property may

move for the property’s return . . . .” FED . R. CRIM . P. 41(g). This general pronouncement,

however, must give way to Rule 32.2(b)(2)(A)’s specific requirement that adjudication of any

third-party claims to property be deferred until after the entry of a preliminary forfeiture order.

See Gozlon-Peretz v. United States, 498 U.S. 394, 407 (1991) (“A specific provision controls

over one of more general application.” (citing Crawford Fitting Co. v. J.T. Gibbons, Inc., 482

U.S. 437, 445 (1987)).

                As for the petitioners’ argument that Section 853(k) forbids intervention into

criminal trials but not criminal pretrial proceedings, this strained reading of the statute makes

little sense. See United States v. Rogers, Crim. No. 09-0441, 2010 WL 1872855, at *5 (N.D. Ga.

Apr. 12, 2010) (dismissing this interpretation of the statute as “read[ing] § 853(k)(1) too

literally”). Pretrial proceedings are preliminary preparations leading to trial; it is difficult to

discern why a third party would be permitted to inject itself into those proceedings but not the

trial itself. Furthermore, the petitioners’ reading of the statute conflicts with Rule 32.2, which

quite clearly prohibits adjudication of third-party claims at any point prior to the entry of a

preliminary forfeiture order. See FED . R. CRIM . P. 32.2(b)(2)(A).




                                                   7
               The statutory scheme governing criminal forfeiture proceedings thus affords third-

party claimants only one avenue for asserting their interests in property allgedly subject to

forfeiture: an ancillary proceeding held after the entry of a preliminary order of forfeiture in the

criminal case. See Libretti v. United States, 516 U.S. 29, 44 (1995) (“Congress has determined

that § 853(n) . . . provides the means by which third-party rights must be vindicated.”); United

States v. Cone, 627 F.3d 1356, 1358 (11th Cir. 2010) (“Section 853 affirmatively bars

interference [in a criminal case involving a forfeiture component] by non-party petitioners

outside of the ancillary proceeding described in Section 853(n) and in Federal Rule of Criminal

Procedure 32.2(c).”); United States v. Cox, 575 F.3d 352, 358 (4th Cir. 2009) (“Third parties

claiming an interest in the property have no right to intervene in the criminal proceeding . . .

before the entry of a preliminary order of forfeiture.”); accord De Almeida v. United States, 459

F.3d 377, 381 (2d Cir. 2006); United States v. Puig, 419 F.3d 700, 703 (8th Cir. 2005); United

States v. Nava, 404 F.3d 1119, 1125 (9th Cir. 2005). The petitioners protest, however, that “due

process considerations require the Court to entertain” their motion for the return of property.

Mot. at 21. While the petitioners without question are entitled to a hearing to adjudicate their

interest in the seized assets, they have failed to demonstrate that due process requires such a

hearing to be held in advance of Mr. Emor’s criminal trial.

               The scheme established by 21 U.S.C. § 853 and Rule 32.2 provides for a post-

deprivation hearing for third-party claimants, but, as has already been discussed, allows that

hearing to be held only after the conclusion of the criminal trial or the entry of a plea of guilty by

the defendant, and after the entry of a preliminary order of forfeiture. See 21 U.S.C. § 853(n);

FED . R. CRIM . P. 32.2(b)(2)(A). The ancillary proceeding to which third-party claimants are



                                                  8
entitled under that scheme is extensive; both claimants and the government may present evidence

and witnesses, who are subject to cross-examination. See 21 U.S.C. § 853(n)(5). Discovery is

also permitted. See FED . R. CRIM . P. 32.2(c)(1)(B). Such a means of adjudicating the interests of

third-parties in forfeitable property has been found constitutionally adequate by other courts.

See, e.g., United States v. Holy Land Found. for Relief & Dev., 493 F.3d 469, 477-78 (5th Cir.

2007) (en banc); United States v. McHan, 345 F.3d 262, 270 (4th Cir. 2003). Indeed, the

petitioners here do not contend that the format of the ancillary proceeding fails to comply with

the requirements of due process. Instead, the petitioners complain that the ancillary proceeding

comes too late, and that they have a right under the Due Process Clause to an “early opportunity”

— in the form of a pretrial evidentiary hearing — to challenge the seizure of the assets in

question. Mot. at 21, 24.

               To determine the process that is constitutionally due to the petitioners, the Court

turns to the three-part balancing test first announced in Mathews v. Eldridge, 424 U.S. 319

(1976). See United States v. E-Gold, Ltd., 521 F.3d 411, 417 (D.C. Cir. 2008) (applying the

Mathews test to determine whether due process requires a pretrial evidentiary hearing regarding

the forfeitability of assets needed by a criminal defendant to obtain counsel of his choice). That

test involves a weighing of the following factors:

               First, the private interest that will be affected by the official action;
               second, the risk of an erroneous deprivation of such interest
               through the procedures used, and the probable value, if any, of
               additional or substitute procedural safeguards; and finally, the
               Government’s interest, including the function involved and the
               fiscal and administrative burdens that the additional or substitute
               procedural requirement would entail.




                                                   9
Mathews v. Eldridge, 424 U.S. at 335. The weighing of those factors is distinctive in this case

because the Court’s task here is not so much to determine what process is due, but rather when.

Since the petitioners are entitled by statute to an evidentiary hearing, which will follow any

criminal conviction of Mr. Emor in short order, see 21 U.S.C. § 853(n)(4), the additional pretrial

process they request would, at best, result in the release of their property some time sooner than

would otherwise be the case.3

               The United States Court of Appeals for the District of Columbia Circuit has thus

far recognized only one interest so weighty that it justifies a pretrial evidentiary hearing and

determination regarding assets allegedly subject to criminal forfeiture: a criminal defendant’s

Sixth Amendment right to counsel. See United States v. E-Gold, Ltd., 521 F.3d at 417-18, 421.

Where a criminal defendant submits evidence that he must rely exclusively on assets seized from

him to pay for counsel of his choice, due process requires that the accused be afforded a pretrial

opportunity to challenge the seizure. See id. A criminal defendant’s interest in obtaining counsel

of his choice is, for obvious reasons, of supreme importance. See United States v. Gonzalez-

Lopez, 548 U.S. 140, 150 (2006) (classifying the right to counsel of choice as a “structural”

element of the “‘framework within which the trial proceeds’”). It is also time-sensitive. In order

for the defendant’s counsel of choice to be effective, s/he must participate in pretrial and trial

proceedings; the loss of the right to counsel of choice becomes “effectively . . . permanent” once

the trial has concluded. United States v. E-Gold, Ltd., 521 F.3d at 418.




       3
              Mr. Emor’s trial is scheduled to begin in August 2011, so the post-trial ancillary
proceeding to which petitioners are entitled would likely take place in October or November
2011.

                                                  10
               The petitioners’ interest in unfettered use of the assets allegedly belonging to them

during the months preceding Mr. Emor’s trial is obviously far less pressing than the right of an

accused to counsel of his or her choice. The petitioners contend that they have an immediate

need to use the seized assets “to pay the cost of Mr. Emor’s defense and to fund [Sunrise’s]

charitable obligations.” Reply at 3. These conclusory allegations carry little weight. Mr. Emor’s

right to counsel is personal and can be asserted by him alone; Sunrise has no Sixth Amendment

right which is threatened by the government’s continued restraint of the assets in question, and it

has made no attempt to demonstrate that it has standing to assert Mr. Emor’s rights on his behalf.

See Fair Employment Council of Greater Washington, Inc. v. BMC Marketing Corp., 28 F.3d

1268, 1281 (D.C. Cir. 1994) (explaining the requirements of third-party standing doctrine).

Furthermore, the petitioners have given the Court no reason to believe that either Sunrise or Core

will be significantly damaged if adjudication of their claims is postponed pending a post-trial

ancillary proceeding. Obviously, if the petitioners had an additional $2 million in their

possession, they would be able to cover more business expenses. See Reply Brief of Sunrise

Academy and Core Ventures, LLC (“Reply”) at 2 (claiming that “Core lacks funds to proceed

with [its] effort” to open a coffee shop that would be run by “former [Sunrise] students”). But

there is no reason to believe that an additional delay of a few months in the adjudication of the

petitioners’ claims will affect the viability of either organization; indeed, there is no evidence

whatsoever before the Court regarding the near-term financial obligations of either Core or

Sunrise.

               The petitioners’ interest in the early release of the seized funds thus does not

weigh significantly in favor of a pretrial hearing. The same is true of the second Mathews factor,



                                                 11
“the risk of an erroneous deprivation of [petitioners’] interest . . . , and the probable value of

procedural alternatives.” United States v. E-Gold, Ltd., 521 F.3d at 418. Because the assets in

question have been seized on the basis of a probable cause finding reached in a nonadversarial

context by a magistrate judge, there is some risk that the seizure may ultimately be proven

erroneous. See id. (“The inherent risk in allowing the deprivation of a property interest through

ex parte proceedings accounts for the general rule that a prior adversary hearing is required,

absent special circumstances.” (internal quotation marks and citation omitted)). But an erroneous

deprivation will be detected either by the Court or a jury at or immediately after the criminal trial

in an adversary proceeding leading, if the government prevails, to issuance of a preliminary order

of forfeiture, and the petitioners’ interest in the property then can be litigated at the post-trial

ancillary proceeding. The only added benefit of a pretrial hearing would be an earlier, but

preliminary, determination. And again, unlike a criminal defendant who stands to lose the right

to meaningful choice of counsel, the petitioners do not appear to run the risk of a comparably

significant injury if they are forced to wait a few months for the result of an ancillary proceeding.

                Finally, the government’s interest in avoiding additional pretrial process initiated

by third parties is strong. Mr. Emor has a constitutional right to a speedy criminal trial, one that

would be endangered if third-party claimants to seized property were generally permitted to

demand the adjudication of their property interests before the government could turn its attention

to prosecuting a criminal trial. Furthermore, as the Seventh Circuit has pointed out, Congress

identified the relevant governmental interests in drafting 21 U.S.C. § 853. See United States v.

Moya-Gomez, 860 F.2d 706, 729 (7th Cir. 1988). Explaining why that statute does not provide




                                                   12
for a pretrial, post-seizure hearing on the validity of any forfeiture allegations contained in an

indictment, the relevant Senate Report states:

               [Such a hearing] would require the government to prove the merits
               of the underlying criminal case and forfeiture counts and put on its
               witnesses well in advance of trial. . . . [Such] requirements m[ight]
               make pursuing a restraining order [or seizure warrant] inadvisable
               from the prosecutor’s point of view because of the potential for
               damaging premature disclosure of the government’s case and trial
               strategy. . . .

S. Rep. No 98-225, reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3378-78 (quoted

in United States v. Moya-Gomez, 860 F.2d at 729); accord United States v. Kaley, 579 F.3d

1246, 1257 (11th Cir. 2009) (a pretrial challenge to indictment’s forfeiture allegations “would

require the Government to preview its case”).

               While these governmental interests are outweighed by a criminal defendant’s

interest in obtaining the counsel of his or her choice, see United States v. E-Gold, Ltd., 521 F.3d

at 419, the result is not the same when those governmental interests are weighed only against

petitioners’ interest in gaining access to seized funds a few months earlier than would otherwise

be the case. In those circumstances, the interests of the government, the public, and the criminal

defendant in a fair and orderly trial on the merits of the criminal indictment must take precedence

over the petitioners’ desire for earlier adjudication of their claims. See United States v.

Lazarenko, 476 F.3d 642, 651 (9th Cir. 2007) (third-party claimants’ due process rights were not

violated where delay between seizure of assets and post-trial ancillary proceeding was not

“unreasonable”); United States v. McHan, 345 F.3d at 269-70 (Due Process Clause is not

offended by statutory scheme limiting participation of third-party claimants in criminal forfeiture

proceedings to post-trial ancillary proceeding). This conclusion, of course, is based on the



                                                  13
premise that Mr. Emor’s trial will take place soon; a lengthy postponement of that trial might

possibly alter the calculus. For that reason, the Court’s dismissal of the petition submitted by

Sunrise and Core will be without prejudice.

               An Order consistent with this Opinion shall issue this same day.

               SO ORDERED.


                                                      /s/_______________________________
                                                      PAUL L. FRIEDMAN
                                                      United States District Judge
DATE: June 17, 2011




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