{"id":"court_sdny_641_0","court":"SDNY","case_no":"23-cr-00118","doc_number":641,"sub_number":0,"doc_type":"ORDER","filed_date":"2025-04-06","title":"UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA","summary_zh":null,"summary_en":null,"body_en":"1\n\nUNITED STATES DISTRICT COURT\nSOUTHERN DISTRICT OF NEW YORK\n\nUNITED STATES OF AMERICA\n\n-  v. -\n\nYVETTE WANG\na/k/a “Yanping,”\na/k/a “Y,”\n\nDefendant.\n\nTHIRD-PARTY PETITION TO\nADJUDICATE PETITIONER’S\nINTEREST IN FORFEITED\nPROPERTY AND TO AMEND THE\nPRELIMINARY ORDER OF\nFORFEITURE\n- VERIFIED CLAIM OF\n\nS4 23 Cr. 118 (AT)\n\nPetitioner\n (“Petitioner”) files this Third-Party Petition to Adjudicate\nPetitioner’s Interest in Forfeited Property and to Amend the Preliminary Order of Forfeiture,\npursuant to 21 U.S.C. § 853(n) and Federal Rule of Criminal Procedure 32.2(c) (the “Petition”).\nPetitioner seeks the return of funds in which Petitioner has a legal right, title, and/or interest\n(“Petitioner’s Property”) (as more fully defined below) and that the United States Government\n(the “Government”) improperly seized as part of an order of forfeiture entered into with\nDefendant Yvette Wang (“Defendant Wang”). Specifically, Petitioner’s Property was improperly\nseized by the Government when the Government seized all the funds in bank account number\n5090042770 at Silvergate Bank held in the name of Hamilton Opportunity Fund SPC (“Account\n2770”). However, any order of forfeiture reaching the funds in Account 2770, including\nPetitioner’s Property, was unlawful and improper as Defendant Wang has no legal right, title, or\ninterest in either Account 2770 or Petitioner’s Property. The Forfeiture Order (as more fully\ndefined below) is therefore rendered invalid as to Petitioner’s Property because right, title, or\ninterest in Petitioner’s Property was vested in the Petitioner rather than Defendant Wang, and was\n\n---\n\n2\n\nsuperior to any right, title, or interest of Defendant Wang at the time of the commission of the\nacts which gave rise to the Forfeiture Order (as defined below). As such, this Court should amend\nthe Forfeiture Order to remove Petitioner’s Property from the Forfeiture Order and order that the\nGovernment immediately return Petitioner’s Property to Petitioner. In support of Petitioner’s\nclaim, Petitioner states as follows:\nI.\nPRELIMINARY STATEMENT\nIt appears that the funds in Account 2770, including Petitioner’s Property, were purely\n“collateral damage” in the Government’s seizure of assets prior to its prosecution of Defendant\nWang and Miles Guo (“Defendant Guo”). It has been over two and a half years since the seizure\nof Account 2770, and in that time span, there has never been any explanation as to how Account\n2770 (including Petitioner’s Property) is related to any of the offenses to which Defendant Wang\npled guilty, a necessary prerequisite to a valid forfeiture order under the law. There was never any\nshowing that any proceeds of any unlawful activity to which Defendant Wang pled guilty were\never deposited in Account 2770; no showing that any proceeds of such activity were ever\ncommingled with Petitioner’s Property; and, indeed, no showing that Defendant Wang ever had\nanything to do with Account 2770 or even knew of its existence.\nAs will be shown below, Petitioner is a beneficiary of a constructive trust over Petitioner’s\nProperty and Petitioner’s Property cannot be seized by the Government in this case. Neither\nDefendant Wang, nor the Government who now stands in her shoes, have ever demonstrated that\nthey have any interest whatsoever in Petitioner’s Property in Account 2770 or in Account 2770 in\ngeneral. While Defendant Wang consented to the forfeiture of “all her right, title, and interest” in\nAccount 2770 (and thus, Petitioner’s Property) in the Forfeiture Order (ECF No. 488 at 2-3), her\nconsent has no legal bearing as to Account 2770 or Petitioner’s Property. Defendant Wang never\nhad such “right, title, and interest” in Account 2770 – there is no evidence that she was a signatory\n\n---\n\n3\n\non Account 2770, ever deposited money into Account 2770, or otherwise had any control over\nAccount 2770, and there is no evidence that Defendant Wang ever directed anyone, directly or\nindirectly, to deposit any money into Account 2770. Defendant Wang cannot forfeit property that\nshe does not own, and in which she has no interest. In fact, it appears that the Court never\nestablished that Petitioner’s Property is even subject to forfeiture in the first instance, as required\nby Fed.R.Crim.P. 32.2.(b)(1)(A).\nFor all the foregoing reasons, and for the reasons demonstrated below, Petitioner\nrespectfully requests that this Court: (1) grant this Petition; (2) amend the Forfeiture Order to\nexclude Petitioner’s Property; (3) order the immediate return of Petitioner’s Property to Petitioner;\n(4) order that Petitioner is entitled to recover Petitioner’s attorneys’ fees and costs incurred in\nconnection with this Petition and grant Petitioner leave to submit an application for such attorneys’\nfees and costs; and (5) grant such and other relief that is necessary and just.\nII.\nBACKGROUND FACTS\nA. Petitioner’s Property\n1.\nHamilton Opportunity Fund SPC (“Hamilton Opportunity Fund”), a Cayman\nIslands Segregated Portfolio Company, provided Petitioner with an Offering Memorandum (the\n“Offering Memorandum”) dated January 20, 2022. A true and correct copy of the Offering\nMemorandum is attached hereto as Exhibit A.\n2.\nHamilton Opportunity Fund is a “fund specializing in equity investments selected\nby the Investment Manager [as that term is defined in the Offering Memorandum] with a view to\nlong-term capital gains.” Exhibit A, Offering Memorandum at 33. The Investment Manager (as\nthat term is defined in the Offering Memorandum) had identified an opportunity to invest in a bank\n(the “Digital Bank”) (as more fully described in Offering Memorandum at 33). In connection with\nthis investment, Hamilton Opportunity Fund sought to raise capital by issuing various classes of\n\n---\n\n4\n\nshares. Id. at 34.\n3.\nThe Offering Memorandum offered Petitioner an opportunity to acquire Class B\nShares attributed to a segregated portfolio of Hamilton Opportunity Fund - Hamilton M&A Fund\nSP (the “M&A Fund”).\n4.\nDefendant Wang was not a director or member of, and otherwise lacked any\ncorporate or equity interest in, the M&A Fund or Hamilton Opportunity Fund.  The evidentiary\nrecord is devoid of any evidence to the contrary.\n5.\nDefendant Wang did not make any investments in the M&A Fund; again, the\nevidentiary record is devoid of any evidence to the contrary.\n6.\nOn February 2, 2022, Petitioner submitted an application (the “Subscription\nAgreement”) to Hamilton Opportunity Fund for a subscription for $110,000 worth of Class B\nShares in the M&A Fund. A true and correct copy of the Subscription Agreement is attached hereto\nas Exhibit B.\n7.\nOn February 2, 2022, Hamilton Opportunity Fund, on behalf of the M&A Fund,\napproved and accepted the Subscription Agreement. See Exhibit B, Subscription Agreement at\n15.\n8.\nOn February 2, 2022, pursuant to the terms of the Subscription Agreement,\nPetitioner wired $110,050 (the “Petitioner’s Property”) to Account Number 5090042770 at\nSilvergate Bank. A true and correct copy of the wire confirmation is attached hereto as Exhibit C.\n9.\nThe account to which Petitioner wired Petitioner’s Property to is Account 2770.\n10.\nPursuant to the terms of the Offering Memorandum, Petitioner is entitled to\nredemption of Petitioner’s shares at the Petitioner’s option. Exhibit A, Offering Memorandum at\n17; see also id. at 53 (stating that subject to certain limitations, “Class B Shares may be redeemed\n\n---\n\n5\n\nat the option of the Shareholder on any Redemption Day”).\n11.\nThe assets of Hamilton Opportunity Fund are “kept segregated, separate and\nseparately identifiable from those of any other segregated portfolios of the Fund and any general\nassets of the Fund.” Exhibit A, Offering Memorandum at 12. In addition, pursuant to the laws of\nthe Cayman Islands, it is the duty of Hamilton Opportunity Fund to “segregate, and keep\nsegregated, portfolio assets of each segregated portfolio separate and separately identifiable from\nsegregated portfolio assets of any other segregated portfolio.” Exhibit A, Offering Memorandum\nat 22-23 (citing the Companies Act (Revised) of Cayman Islands, Part XIV, 219(6)(b)).\nB. Seizure of Account 2770\n12.\nOn September 18, 2022, the Government seized the entire balance of the funds in\nAccount 2770.\n13.\nTo date, there are no documents available publicly as to what probable cause the\nGovernment had to seize the funds in Account 2770.\nC. The Criminal Case Against Defendant Wang and Defendant Guo and the\nForfeiture Order\n14.\nOn March 6, 2023, the Government filed an indictment against Defendant Wang\nand Defendant Guo, and a third defendant, William Je, who has never been arraigned. ECF No. 2.\n15.\nOn May 3, 2024, the Government filed a superseding information (the\n“Superseding Information”) against Defendant Wang. ECF No. 325. The Superseding Information\ncharged Defendant Wang with one count of Conspiracy to Commit Wire Fraud (Count I)\n(Superseding Information at 1-2) and one count of Conspiracy to Commit Money Laundering\n(Count II) (Superseding Information at 2-4). The Superseding Information also contained a\nForfeiture Allegation (the “Forfeiture Allegation”). Superseding Information at 4.\n16.\nOn the same day, May 3, 2024, Defendant Wang pled guilty to Count I and Count\n\n---\n\n6\n\nII as charged in the Superseding Information.\n17.\nAlso on May 3, 2024, this Court entered a Consent Preliminary Order of Forfeiture\nas to Specific Property/Money Judgment (“Original Forfeiture Order”). ECF No. 329.\n18.\nIn the Original Forfeiture Order, Defendant Wang consented to forfeit, “all her\nright, title, and interest in” certain assets, including Account 2770, because such property\n“constitute[ed] proceeds of the offenses charged in Count One that the Defendant personally\nobtained and/or property involved in offense charged in Count Two of the [Superseding]\nInformation.” Original Forfeiture Order at 2-6 (emphasis added).\n19.\nDefendant Guo did not plead guilty to any of the offenses charged against him.\nAccordingly, a jury trial was held between May 22, 2024 and July 16, 2024 (the “Guo Trial”). On\nJuly 16, 2024, the jury found Defendant Guo guilty of racketeering conspiracy, conspiracy to\ncommit wire fraud, conspiracy to commit money laundering, conspiracy to commit securities\nfraud, securities fraud, wire fraud, and money laundering. ECF No. 395. As of the date of this\nPetition, Defendant Guo has not yet been sentenced.\n20.\nOn January 6, 2025, Defendant Wang was sentenced.\n21.\nOn January 7, 2025, this Court entered a Consent Preliminary Order of Forfeiture\nas to Specific Property/Money Judgment (the “Forfeiture Order”) ECF No. 488. As it pertains to\nPetitioner, the Forfeiture Order is substantially similar to the Original Forfeiture Order in all\nmaterial respects. In the Forfeiture Order, Defendant Wang consented to forfeit, “all her right, title,\nand interest in” certain assets, including Account 2770, because such property “constitute[ed]\nproceeds of the offenses charged in Count One that the Defendant personally obtained and/or\nproperty involved in offense charged in Count Two of the [Superseding] Information.” Forfeiture\nOrder at 2-11 (emphasis added).\n\n---\n\n7\n\n22.\nThe assets in Account 2770 are described in both the Original Forfeiture Order and\nthe Forfeiture Order as follows:\n$89,992,861.75 in United States currency formerly on deposit in account\nnumber 5090042770 at Silvergate Bank, held in the name of \"Hamilton\nOpportunity Fund SPC\" and seized by the Government on or about September\n18, 2022 (23-FBl-000074).\n\nOriginal Forfeiture Order at 3; Forfeiture Order at 3.\nIII.\nARGUMENT\n23.\nIn an ancillary criminal forfeiture proceeding pursuant to 21 U.S.C. § 853(n) and\nFederal Rule of Criminal Procedure 32.2(c)(1), this Court must determine, by a preponderance of\nthe evidence, whether a petitioner has a legal right, title, or interest in the property to be forfeited,\nand whether such right, title, or interest renders the order of forfeiture invalid, in whole or in part,\nbecause such interest was vested in the petitioner rather than the defendant, or was superior to any\nright, title, or interest of the defendant at the time of the commission of the acts which gave rise to\nthe forfeiture of the property. See 21 U.S.C. § 853(n)(6)(A).\n24.\nHere, Petitioner has a legal right, title, or interest in Petitioner’s Property pursuant\nto 21 U.S.C. §853(n)(6)(A) by virtue of a constructive trust over such property. Moreover,\nPetitioner’s interest in Petitioner’s Property was both vested in Petitioner and was superior to any\nright Defendant Wang had in Petitioner’s Property because Defendant Wang had no legal right,\ntitle or, interest in either Petitioner’s Property or Account 2770. In other words, Defendant Wang\ncould not forfeit her interest in Account 2770 because she had no interest that was properly subject\nto criminal forfeiture. Accordingly, the Forfeiture Order should be modified to remove Petitioner’s\nProperty, and Petitioner’s Property should be returned to Petitioner.\n\n---\n\n8\n\nA. The Government Failed to Demonstrate that the Funds in Account 2770,\nIncluding Petitioner’s Property, Were Properly Subject to Forfeiture in the First\nInstance, Making the Forfeiture Order Improper as to Such Funds\n25.\nThe Government has no legal cause to retain Petitioner’s Property because there is\nno evidence that the Government has ever demonstrated that Petitioner’s Property, and Account\n2770 in general, is actually forfeitable property, as required by Fed.R.Crim.P. 32.2.(b)(1)(A).\n26.\n“When the government seeks to obtain an order of forfeiture, ‘Federal Rule of\nCriminal Procedure 32.2(b)(1) ... requires the sentencing court to determine what property is\nsubject to forfeiture under the applicable statute.’” U.S. v. Watts, 786 F.3d 152, 172 (2d Cir. 2015)\n(citing U.S. v. Capoccia, 503 F.3d 103, 109 (2d Cir.2007)). Pursuant to Fed.R.Crim.P. 32.2, “if\nthe government seeks forfeiture of specific property, the court must determine whether the\ngovernment has established the requisite nexus between the property and the offense.”\nFed.R.Crim.P. 32.2.(b)(1)(A) (emphasis added); Watts, 786 F.3d at 172. “At various points in the\nproceedings, the government bears the burden of proving this legal conclusion to varying\ndegrees of certainty: as a matter of probable cause at a post-indictment hearing. . .or by a\npreponderance of the evidence at a bench trial or before a jury.” Id. (emphasis added) (internal\ncitations omitted). “Only if the government meets the relevant legal threshold, however, may the\nproperty in question be considered ‘subject to forfeiture’ in any legal sense. Prior to that, while the\ngovernment has simply announced its intent to seek forfeiture through the indictment, the property\nis seen merely as ‘potentially forfeitable’ . . . or ‘potentially subject to forfeiture.’” Id. (internal\ncitations omitted).\n27.\nThis means that before the court reaches the question of whether the petitioner is\nentitled to the return of the property under §853(n), it is necessary to determine if the property in\ndispute is actually forfeitable in the first instance. If not, the government had no statutory authority\nto seize the property. If the property was improperly seized, the government must return the\n\n---\n\n9\n\naccounts seized regardless of whether the petitioner can meet the criteria set forth in §853(n). See\ne.g. United States v. Delco Wire & Cable Co., 772 F. Supp. 1511, 1518 (E.D.PA, 1991).\n28.\nA full and complete Fed. R. Crim. P. 32.2.(b)(1)(A) inquiry is critical to the fair\nadministration of justice. The entire forfeiture system rests upon the supposition that a court has\nconducted an inquiry and determined that the property is subject to forfeiture. In enacting ancillary\nproceeding statutes, Congress chose to place the burden of proof on the third-party during an\nancillary proceeding, since “the United States will have already proven its forfeiture allegations in\nthe criminal case beyond a reasonable doubt.” S. REP. 98-225, 209, 1984 U.S.C.C.A.N. 3182,\n3392.\n29.\nIn this matter, there has never been a determination of whether there exists a nexus\nbetween Account 2770 and any of the offenses Defendant Wang was charged with (and pled guilty\nto), and, as a result, Petitioner is forced to file this Petition. Based on all the information contained\nin the publicly-available documents in both Defendant Wang’s and Defendant Guo’s criminal case,\nthe Government cannot prevail with respect to Account 2770.\n30.\nHere, in the Superseding Information, the Government included a Forfeiture\nAllegation as to both Counts I and Count II and sought forfeiture of specific property. Superseding\nInformation at 4. There is no evidence in the record that the Government even attempted to show,\nlet alone that it met its burden to show, a nexus between Account 2770, and the offenses to which\nDefendant Wang pled guilty.\n31.\nAs to Count I, the Forfeiture Allegation states that, “[a]s a result of committing the\nwire fraud offense alleged in Count One of this Superseding Information, YVETTE WANG, a/k/a\n“Yanping” a/k/a “Y,” the defendant, shall forfeit to the United States pursuant to Title 18, United\n\n---\n\n10\n\nStates Code, Section[] 981(a)(1)(C)1. . .and Title 28, United States Code, Section 2461(c), any and\nall property, real and personal, that constitutes or is derived from proceeds traceable to the\ncommission of said offense.” Superseding Information at 4. The Government must prove the\nelements of forfeiture under 18 U.S.C. § 981(a)(1)(C) by a preponderance of the evidence. 18\nU.S.C. § 983(c)(1). Moreover, “if the Government’s theory of forfeiture is that the property was\nused to commit or facilitate the commission of a criminal offense, or was involved in the\ncommission of a criminal offense, the Government shall establish that there was a substantial\nconnection between the property and the offense.” 18 U.S.C. § 983(c)(3).\n32.\nThe record is devoid of any allegations pertaining to how funds in Account 2770\nare, or are derived from, proceeds traceable to Defendant Wang’s conspiracy to commit wire fraud.\nThe Superseding Information alleges that “[f]rom at least in or about 2018 until at least on or about\nMarch 15, 2023, coconspirators made false representations to investors that they would receive\nstock in exchange for their investments in GTV, the Himalaya Farm Alliance organization, and\nGClubs, and that they would receive cryptocurrency in exchange for their investments in the\nHimalaya Exchange [(the “Fraud Scheme”)]. Through the [Fraud Scheme], YVETTE WANG,\na/k/a “Yanping,” a/k/a “Y,” the defendant, and her coconspirators, including Miles Guo, induced\ninvestors to invest more than $1 billion into entities Guo controlled.” Superseding Information at\n2. There are no allegations in the Superseding Information regarding Defendant Wang depositing\nany proceeds from the Fraud Scheme into Account 2770. Similarly, there are no allegations in the\nSuperseding Information that as a result of the Fraud Scheme, any investors deposited money into\n\n1 18 U.S.C. § 981(a)(1)(C) provides that “[a]ny property, real or personal, [is subject to forfeiture]\nwhich constitutes or is derived from proceeds traceable to a violation of” various specified\noffenses, including violations of 18 U.S.C. § 1343, wire fraud, as charged against Defendant Wang\nin Count I.\n\n---\n\n11\n\nAccount 2770. Nor can there be any such allegations, as the only deposits into Account 2770 were\nfrom investors who were investing in the Digital Bank – an investment that is not implicated in\nany way by the “Fraud Scheme” described in the Superseding Information.  To be sure, Petitioner\naffirms that Petitioner was never a victim of any conduct by Defendant Wang alleged in the\nSuperseding Information and does not believe that any of Petitioner’s Property was ever used in\nany unlawful activity.\n33.\nFinally, there was no relevant testimony during Defendant Guo’s trial concerning\nAccount 2770. There was no testimony regarding whether any of the proceeds of the Fraud Scheme\nwere ever deposited into Account 2770, nor, for that matter, whether Defendant Wang ever\ndeposited any money into Account 2770. Simply put, there is nothing in the record that would\nindicate there is a nexus between Account 2770 and Defendant Wang’s wire fraud charge, let alone\nsufficient evidence to determine that the Government met its burden of showing, and the Court\nproperly adjudicated, that the appropriate nexus exists for forfeiture of Account 2770 to be proper.\n34.\nAs to Count II, the Forfeiture Allegation states that, “[a]s a result of committing the\nmoney laundering offense alleged in Count Two of this Information, YVETTE WANG, a/k/a\n“Yanping” a/k/a “Y,” the defendant, shall forfeit to the United States pursuant to Title 18, United\nStates Code, Section 982(a)(1)2, any and all property, real and personal, involved in said offense,\nor any property traceable to such property, including but not limited to a sum of money in United\nStates currency representing the amount of property involved in said offense.” Superseding\nInformation at 4. As to Count II, The Government “must prove the elements of forfeiture under 18\n\n2 18 U.S.C. § 982(a)(1) provides that “[t]he court, imposing sentence on a person convicted of an\noffense in violation of section 1956 [the money-laundering statute] of this title . . . shall order that\nthe person forfeit to the United States any property, real or personal, involved in such offense, or\nany property traceable to such property.” 18 U.S.C. § 982(a)(1) (emphasis added).\n\n---\n\n12\n\nU.S.C. § 982(a)(1) by a preponderance of the evidence.” U.S. v. Beltramea, 785 F.3d 287, 290 (8th\nCir. 2015).\n35.\nThe Superseding Information alleges that Defendant Wang committed conspiracy\nto launder money because Defendant Wang “knowing that the property involved in certain\nfinancial transactions represented the proceeds of some form of unlawful activity, would and did\nconduct and attempt to conduct such financial transactions. . .and which in fact involved the\nproceeds of specified unlawful activity, to wit, proceeds of the wire fraud scheme alleged in Count\nOne of this Information.” Superseding Information at 3.\n36.\nIt is unclear how Account 2770 could be forfeited for the money laundering charge\nin Count II. From the allegations, the charge of money laundering arises from Defendant Wang\nengaging in financial transactions with the “proceeds of the wire fraud scheme alleged in Count\nOne.” Superseding Information at 3.  As argued above, there is no evidence that funds in Account\n2770 had any relation to the Fraud Scheme alleged in Count I (see ¶¶ 31-33, above) – there is no\nevidence that such funds “constitute[d] or [were] derived from proceeds traceable to the\ncommission of” wire fraud. See e.g. 18 U.S.C. § 981(a)(1)(C). Since funds in Account 2770 were\nnot Fraud Scheme proceeds nor were they derived from Fraud Scheme proceeds, such funds could\nnot serve as the basis for the money laundering charge in Count II and cannot be forfeited as part\nof Defendant Wang’s conviction for Count II.\n37.\nThe overt acts that the Government alleges to support the money laundering charge\nfurther fail to show how the funds in Account 2770 can be forfeitable. In the Superseding\nInformation, the Government sets forth two acts evidencing money laundering. Superseding\nInformation at 3. Although the Government states that these two overt acts were “among others”\nthat Defendant Wang committed in furtherance of the alleged conspiracy to launder money\n\n---\n\n13\n\n(Superseding Information at 3), these other acts were never identified.\n38.\nFirst, per the Superseding Information, on May 20, 2020, Defendant Wang opened\na bank account in the name of GTV, which, notably, Account 2770 was not. Superseding\nInformation at 3. On June 2, 2020, Defendant Wang transferred approximately $200 million to\nthat account. Id. The funds transferred into the GTV account were from a JP Morgan Chase Bank\naccount held by Saraca Media Group, Inc. (“Saraca”) (Guo Trial, 05/31/2024, 953:25-954:4; Guo\nTrial, 06/26/2024, 4359:1-14), not from Account 2770. There was never any testimony that any\nmoney from Account 2770 ever went into the Saraca JP Morgan Chase Bank account to then be\ntransferred to the GTV account cited in the Superseding Information. Moreover, Account 2770 did\nnot even exist in 2020.\n39.\nThe second act the Government alleges is that “on or about June 5, 2020,”\nDefendant Wang “authorized a wire transfer of $100 million from GTV’s parent company, Saraca,\nto a high-risk hedge fund, for the benefit of Saraca and its ultimate beneficial owner, Defendant\nGuo’s son.” Superseding Information at 3-4. First, this plainly alleges that the money was\ntransferred from a Saraca account, which Account 2770 was demonstrably not. Also, again, there\nwas never any testimony that any money from Account 2770 ever went into a Saraca account.\nMoreover, once again, Account 2770 did not even exist in 2020.\n40.\nAs seen from the above argument, there are no allegations or testimony regarding\nAccount 2770 whatsoever. The only reference in the record to Account 2770 is Defendant Wang’s\nconsent to forfeit it. However, “a defendant’s consent to forfeiture [does not] abrogate the\nrequirement that a nexus exist between the property sought for forfeiture and the conviction of\noffense.” Beltramea, 785 F.3d at 291. As the Eighth Circuit stressed, “[t]he district court had an\nindependent duty to ensure that the required nexus exists.” Id. (emphasis added).\n\n---\n\n14\n\n41.\nHere, there are no factual allegations in the Superseding Information, in the\nOriginal Forfeiture Order or the Forfeiture Order as to even an alleged nexus between Account\n2770 and the offenses to which Defendant Wang pled guilty.\n42.\nThe Government’s continued retention of the funds in Account 2770, without\nshowing that there is a nexus, is wrong and inequitable. Should the Government retain the funds\nin Account 2770, it will be unjustly enriched, since the funds belong to third parties, including\nPetitioner, who are (1) not Defendant Wang or Defendant Guo; and (2) not involved the Fraud\nScheme, let alone victims of such a scheme.  See, e.g., U.S. v. Bajakajian, 524 U.S. 321, 332 (1998)\n(explaining that a criminal “forfeiture serves no remedial purpose, is designed to punish the\noffender, and cannot be imposed upon innocent owners.”) (emphasis added).\nB. Petitioner Has Interest in Petitioner’s Property Because There Exists a\nConstructive Trust Over Such Property\n43.\nEven putting aside the Government’s failure to properly demonstrate that the funds\nin Account 2770 were part of any activity alleged in the Superseding Information, Petitioner’s\nProperty should be returned to Petitioner because Petitioner has a greater interest in it than does\nDefendant Wang, or, now, the Government.\n44.\nUnder the doctrine of constructive trusts, Petitioner’s Property is protected and\nremains the property of Petitioner regardless of any other ownership claims, including Defendant\n\n---\n\n15\n\nWang’s or the Government, standing in her shoes. The Second Circuit3 has held that “a\nconstructive trust qualifies as a ‘legal right, title, or interest in the property’ that ‘may be a superior\ninterest’ to a defendant’s interest for the purposes of a forfeiture statute analogous to 21 U.S.C. §\n853(n)(6)(A).” Willis Mgmt. (Vermont), Ltd. v. United States, 652 F.3d 236, 242 (2d Cir. 2011).\n45.\n“A constructive trust is an equitable remedy, necessarily flexible to accomplish its\npurpose.” Counihan v. Allstate Ins. Co., 194 F.3d 357, 361 (2d Cir. 1999) (emphasis added). “Its\npurpose is to prevent unjust enrichment, although unjust enrichment does not necessarily implicate\nthe performance of a wrongful act. . .What is necessary is that the court identify a party who is\nholding property under such circumstances that in equity and good conscience he ought not to\nretain it.” Id. (internal citations omitted).\n46.\n“Whether a party is unjustly enriched is a legal conclusion reached through the\napplication of principles of equity. . . A court of equity in decreeing a constructive trust is bound\nby no unyielding formula. The equity of the transaction must shape the measure of relief. . . Unjust\nenrichment results when a person retains a benefit which, under the circumstances of the transfer\nand considering the relationship of the parties, it would be inequitable to retain.” Id. (internal\n\n3 “The federal common law choice-of-law rule is to apply the law of the jurisdiction having the\ngreatest interest in the litigation.” In re Koreag, Controle et Revision S.A., 961 F.2d 341, 350 (2d\nCir. 1992), aff'd in part sub nom. Refco F/X Assocs., Inc. v. Mebco Bank, S.A., No. 89 CIV. 3071\n(WK), 1992 WL 200748 (S.D.N.Y. July 31, 1992). Here, there are three competing jurisdictions\nwhose laws could apply: New York, California, and Cayman Islands. Petitioner’s payment of\nPetitioner’s Property was pursuant to the Subscription Agreement, which is governed by Cayman\nIslands law. See Exhibit B, Subscription Agreement at 8, ¶ 2(s). Account 2770 was an account in\na California bank when Petitioner deposited Petitioner’s Property. Since Account 2770 was seized\n(pursuant to a search and seizure warrant issued by a court in New York state), the funds are now\nin possession of the Government in New York. New York is the forum state of this case. From\nthese facts, New York has the greatest interest in this litigation, and its laws should apply to an\nimposition of a constructive trust. However, to the extent that the Government challenges this\nchoice-of-law determination, Petitioner reserves all rights to request that this Court impose a\nconstructive trust over Petitioner’s Property under California and/or Cayman Islands law.\n\n---\n\n16\n\ncitations omitted).\n47.\nThe New York Court of Appeals outlined several factors to be considered in\ndetermining whether a constructive trust should be imposed in certain circumstances, including\n“(1) a confidential or fiduciary relation, (2) a promise, (3) a transfer in reliance thereon and (4)\nunjust enrichment.” Sharp v. Kosmalski, 40 N.Y.2d 119, 121 (1976). However, New York courts\nhave long held that “these factors are merely useful guides and are not talismanic.” Counihan, 194\nF.3d at 362 (citing to a plethora of New York state cases that have stated this proposition).\n48.\nHere, there is a constructive trust for the benefit of Petitioner over Petitioner’s\nProperty as of the date that it was deposited into Account 2770.\n49.\nPetitioner entered into a confidential and/or fiduciary relationship4 with Hamilton\nOpportunity Fund when Petitioner executed the Subscription Agreement in order to acquire certain\nClass B shares in Hamilton M&A Fund SP.  Per the Subscription Agreement, Hamilton\nOpportunity Fund SPC made a promise to Petitioner that Petitioner’s Property would be invested\nin the Digital Bank. In reliance on this promise, the Petitioner wired Petitioner’s Property to\nAccount 2770 as instructed in the Subscription Agreement. The Government’s improper seizure\nof Account 2770 forced a breach of Hamilton Opportunity Fund SPC’s promise to invest\nPetitioner’s Property into the Digital Bank. Because of Government’s seizure, Petitioner is not\neven able to exercise his Right of Redemption to obtain back Petitioner’s Property. This would\n\n4 Even if the Court determines that the relationship was not confidential and/or there was no\nfiduciary relationship between Hamilton Opportunity Fund and Petitioner, such would not be\ndeterminative, as the absence of a fiduciary relationship does not preclude the Court from finding\na constructive trust exists. See Koreag, 961 F.2d at 353 (stating that “[w]e do not believe, however,\nthat the lack of a fiduciary relationship between [the parties] automatically defeats [a] claim of\nconstructive trust. Although a fiduciary relationship is one of the factors cited by New York courts,\nthe absence of any one factor will not itself defeat the imposition of a constructive trust when\notherwise required by equity”).\n\n---\n\n17\n\nresult in unjust enrichment to the benefit of the Government since the Government is now retaining\nPetitioner’s Property without any legal cause to do so. See, e.g., U.S. v. Coluccio, 51 F.3d 337, 340\n(2nd Cir. 1995) (finding that imposition of a constructive trust was proper where, amongst other\nreasons, Government’s forfeiture caused a breach of an implied promise); Torres v. $36,256.80\nU.S. Currency, 25 F.3d 1154, 1159 (2d Cir. 1994) (finding a constructive trust appropriate  where\n“The government’s forfeiture forced a breach of that promise that may result in a potentially unjust\nenrichment of the government (and commensurate unjust impoverishment of [the plaintiff]).”)\n50.\nAccordingly, Petitioner has shown that a constructive trust should be imposed over\nPetitioner’s Property. Such a constructive trust “qualifies as a ‘legal right, title, or interest in the\nproperty’ that ‘may be a superior interest’ to a defendant’s interest for the purposes of a forfeiture\nstatute analogous to 21 U.S.C. § 853(n)(6)(A).” Willis, 652 F.3d at 242.\n51.\nThe property upon which the constructive trust is sought – Petitioners Property - is\neasily traceable. See Exhibit C.\n52.\nMoreover, the imposition of a constructive trust is fully available to Petitioner, even\nif the Government contends that others are owed restitution from any forfeited property. “When a\nparty can directly trace its assets, without resorting to fictions or presumptions, a constructive trust\nis available even in cases involving multiple fraud victims.” U.S. v. Ovid, 2012 WL 2087084, *7\n(E.D.N.Y., Jun. 8, 2012). “[C]ourts are not free to disregard the law of constructive trusts when a\nclaimant can directly trace its property, even if this leaves one innocent victim better off than\nanother equally innocent victim.” Id. The “orthodox approach to multiple-fraud cases” is to\n“return[] identifiable assets to their owners, turning to pro rata distribution only when specific\nidentification or transactional tracing is impossible.” Id. at *8 (citing Restatement (Third) of\nRestitution & Unjust Enrichment, § 59 Reporter’s Note G, at 437).\n\n---\n\n18\n\nC. Petitioner Has a Superior Interest in the Petitioner’s Property\n53.\nPetitioner’s interest in Petitioner’s Property is absolutely superior to any interest\nthat the Government or Defendant Wang may have in Petitioner’s Property.\n54.\n21 U.S.C. § 853(n) is clear that, in addition to Petitioner’s interest in the forfeited\nproperty, that Petitioner must demonstrate, by a preponderance of the evidence, that Petitioner’s\ninterest “renders the order of forfeiture invalid in whole or in part because the right, title, or interest\nwas vested in the petitioner rather than the defendant or was superior to any right, title, or interest\nof the defendant at the time of the commission of the acts which give rise to the forfeiture of the\nproperty under this section.” 21 U.S.C. § 853(n)(6)(A) (emphasis added).\n55.\nHere, as set forth above, Defendant Wang never had any interest in Petitioner’s\nProperty or Account 2770; indeed, the record is entirely silent as to what the relationship is\nbetween Defendant Wang, the Fraud Scheme, and Account 2770.\n56.\nIt is axiomatic that neither the Government nor Defendant Wang can argue that they\nhave a superior interest in a property in which they never had an interest. Likewise, Defendant\nWang cannot forfeit her interest in a property in which she had no interest.\nD. Petitioner is Entitled to Costs and Attorneys’ Fees\n57.\nThe Petitioner has been required to retain legal counsel and has incurred costs to\nfile this petition asserting Petitioner’s right to Petitioner’s Property and to challenge the forfeiture\nof Petitioner’s Property. Upon prevailing in this proceeding, Petitioner reserves all rights to recover\nattorneys’ fees and costs incurred in connection with this Petition and may recover Petitioner’s\ncosts and reasonable attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), 28\nU.S.C. § 2412. Federal courts have consistently held that § 853(n) proceedings are civil for the\npurposes of allowing a successful claimant to collect attorney’s fees under the EAJA. See United\nStates v. Cox, 575 F.3d 352, 355 (4th Cir. 2009); United States v. Douglas, 55 F.3d 584, 588 (11th\n\n---\n\n19\n\nCir. 1995); U.S. v. Bailey, 2015 WL 1893610 at *20 (W.D.N.C. Apr. 27, 2015).\nIV.\nCONCLUSION\n58.\nFor the reasons stated above, Petitioner has an interest in Petitioner’s Property,\nwhich renders the Forfeiture Order invalid as to such property. See e.g. 21 U.S.C. § 853(n)(6)(A).\nDefendant Wang does not have any right, title, or interest in Petitioner’s Property, and never did.\nPetitioner has proven, and can prove at any necessary hearing, by preponderance of evidence that\nthe Forfeiture Order needs to be amended to exclude Petitioner’s Property.\n59.\nTherefore, Petitioner respectfully requests that this Court: (1) grant this Petition;\n(2) amend the Forfeiture Order to exclude Petitioner’s Property; (3) order the immediate return of\nPetitioner’s Property to Petitioner; (4) order that Petitioner is entitled to recover Petitioner’s\nattorneys’ fees and costs incurred in connection with this Petition and grant Petitioner leave to\nsubmit an application for such attorneys’ fees and costs; and (5) grant such and other relief that is\nnecessary and just.\nDated: April 2, 2025\nRespectfully submitted,\n\n/s/ Jeffrey S. Gavenman\n\nJeffrey S. Gavenman, Esq.\nJeremy W. Schulman, Esq.\nSCHULMAN BHATTACHARYA, LLC\n6116 Executive Boulevard, Suite 425\nNorth Bethesda, MD 20852\n(240) 356-8550\njgavenman@schulmanbh.com\njschulman@schulmanbh.com\n\n/s/ Paul W. Butler\n\nPaul W. Butler, Esq.\nBUTLER LEGAL STRATEGIES\n1201 Connecticut Avenue, NW, Suite 531\nWashington, D.C. 20036\npaul@butlerlegalstrategies.com\nCounsel for Petitioner\n\n---\n\n20\nATTESTATION AND OATH\nPursuant to 21 U.S.C. § 853(n)(3), I,\n attest and declare under\npenalty of perjury that my claim to this property is not frivolous and that the information provided\nin support of this claim is true and correct, to the best of my knowledge and belief.\nExecuted on this _05_____ day of April, 2025\nSignature","body_zh":null,"key_entities":["forfeiture","Guo","Je","853(n)","Saraca","GTV","Gavenman","Miles Guo","Himalaya","William Je","Torres","Himalaya Exchange"],"ecf_references":[{"doc_number":2,"court":"SDNY"},{"doc_number":325,"court":"SDNY"},{"doc_number":329,"court":"SDNY"},{"doc_number":395,"court":"SDNY"},{"doc_number":488,"court":"SDNY"}],"word_count":5994,"status":"published","published_at":"2025-04-06 00:00:00","created_at":"2025-04-06","updated_at":"2026-07-06 20:55:44"}