{"id":"court_sdny_785_0","court":"SDNY","case_no":"23-cr-00118","doc_number":785,"sub_number":0,"doc_type":"FORFEITURE","filed_date":"2026-01-09","title":"U.S. Department of Justice [Type text]","summary_zh":"检方信函 —— 美国诉 Ho Wan Kwok 等人案（郭文贵 / Guo Wengui / Miles Guo），SDNY 23-CR-118 (AT) ECF #785（2026年1月9日立案）。美国检方就没收财产免除申请（petitions for remission）与《美国法典》第21卷第853(n)条第三方财产主张的法律区别及设立特别主事的立场回应法院质询，指出普通债权人与诈骗受害者通常缺乏第853(n)条的法定诉讼资格，并提请法院依据《强制受害者赔偿法》（MVRA）裁定本案刑事赔偿不具可行性。","summary_en":"Government Letter — United States v. Ho Wan Kwok et al. (Miles Guo / Guo Wengui), SDNY 23-CR-118 (AT), ECF No. 785 (filed January 9, 2026). The Government responded to the Court's inquiry regarding the legal distinctions between administrative petitions for remission and third-party claims under 21 U.S.C. § 853(n), as well as the appointment of a special master, asserting that general creditors and fraud victims typically lack standing under § 853(n), and requested an order finding criminal restitution impracticable under the Mandatory Victim Restitution Act.","body_en":"U.S. Department of Justice\n[Type text]\n                                                       United States Attorney\nw                                                      Southern District of New York\n\n                                                       The Jacob K. Javits Federal Building\n                                                       26 Federal Plaza, 37th Floor\n                                                       New York, New York 10278\n\n                                                       January 9, 2026\n\nBY ECF\nHonorable Analisa Torres\nUnited States District Judge\nSouthern District of New York\n500 Pearl Street\nNew York, NY\n\n       Re:     United States v. Miles Guo, S3 23 Cr. 118 (AT)\n\nDear Judge Torres:\n\n        The Government respectfully writes in response to the Court’s Order, which requests the\nGovernment’s views on “(1) the differences between petitions for remission of forfeited assets and\nclaims submitted under § 853(n), and whether the Government proposes any method for resolving\nthe various claims; and (2) its position on the Court’s appointment of a special master to make\nrecommendations related to third-party claims.” Dkt. 782 (citations omitted). In addition, the\nGovernment respectfully requests that the Court enter an order finding that restitution would be\nimpracticable in this case under the Mandatory Victim Restitution Act (“MVRA”), 18 U.S.C.\n§ 3663A.\n\n       A. The Differences Between Petitions for Remission of Forfeited Assets and Claims\n          Submitted Under § 853(n)\n\n               1. Claims Submitted Under § 853(n)\n\n         Title 21, United States Code, Section 853 sets forth comprehensive procedural rules for the\nadministration of forfeiture, including when a third party, or petitioner, can claim an ownership\ninterest superior to the Government’s interest in forfeitable property through an “ancillary\nproceeding.” 21 U.S.C. § 853(n). Third parties have 30 days following notice (absent extension)\nto file a claim with the district court asserting an interest in specific property that the Government\nseeks to finally forfeit, which will then be adjudicated as part of an ancillary proceeding. See 21\nU.S.C. § 853(n)(6). Section 853(n) provides that any third-party petitioner has standing to assert\nits claim to specific property, where the petitioner demonstrates “an interest in a particular, specific\nasset, as opposed to a general interest in an entire forfeited estate or account.” United States v.\nRibadeneira, 105 F.3d 833, 835-36 (2d Cir. 1997) (emphasis added). Thus, in order to contest the\nforfeiture of a specific asset, a petitioner must establish that he has standing—i.e., a “legal interest\nin” that asset. 21 U.S.C. § 853(n)(2). As a result, general creditors have no standing to file a\n§ 853(n) claim, because they have no interest in specific forfeited property. See Ribadeneira, 105\nF.3d at 835-36; see also DSI Assocs. LLC v. United States, 496 F.3d 175, 184 (2d Cir. 2007) (“As\n\na general creditor of Kings Holdings and Gordon, DSI does not possess a ‘legal right, title, or\ninterest in the property’ that was forfeited as required for standing under section 853(n)(6)(A).”);\nUnited States v. McCorkle, 143 F. Supp. 2d 1311, 1319 (M.D. Fla. 2000) (“A general creditor has\nno ‘vested’ or ‘superior’ interest in particular assets forfeited unless he not only has secured a\njudgment against the debtor, but also has perfected a lien against the particular item.”).\n\n        Courts have determined that fraud victims are typically general creditors and thus lack\nstanding to assert a § 853(n) claim. United States v. Lesak, No. 07 Cr. 0396 (GEL), 2009 WL\n1788411, at *4-6 (S.D.N.Y. 2009) (“Crime victims are typically general creditors.” (citing United\nStates v. Eldick, 223 F. App’x 837 (11th Cir. 2007)); see also Eldick, 223 F. App’x at 839-40 (“A\nfraud victim who voluntarily transfers property to the defendant has a cause of action in tort against\nthe defendant but has no greater interest in the forfeited property than does any other general\ncreditor. Title to the funds in question no longer belongs to the victim; it belongs to the\ndefendant.”) 1.\n\n       Once a petitioner demonstrates standing, there are two avenues, set forth in § 853(n)(6), by\nwhich he or she may prevail in claiming forfeited property, namely, where:\n\n               (A) the petitioner has a legal right, title, or interest in the property,\n               and such right, title, or interest renders the order of forfeiture invalid\n               in whole or in part because . . . [it] was vested in the petitioner rather\n               than the defendant or was superior to any right, title, or interest of\n               the defendant at the time of the commission of the acts which gave\n               rise to the forfeiture of the property under this section; or\n\n               (B) the petitioner is a bona fide purchaser for value of the right, title,\n               or interest in the property and was at the time of purchase reasonably\n               without cause to believe that the property was subject to forfeiture\n               under this section.\n\n21 U.S.C. § 853(n)(6); see Pacheco v. Serendensky, 393 F.3d 348, 353 (2d Cir. 2004) (“Under the\nstatute, one of two conditions must adhere for an intervenor to receive relief.”). The burden is on\nthe petitioner to demonstrate his or her claim by a preponderance of the evidence. See 21 U.S.C.\n§ 853(n)(6); Watts, 786 F.3d at 160.\n\n1\n  In limited circumstances, where a court has imposed the equitable remedy of creating a\nconstructive trust, a fraud victim may have standing to assert a § 853(n) claim. In general terms,\n“a constructive trust arises when, in the eyes of equity, a [person] is the true owner of the property\nat issue due to his right to the underlying assets from which it derives.” United States v. Watts, 786\nF.3d 152, 168 (2d Cir. 2015) (internal quotation marks and alterations omitted). The creation of a\nconstructive trust, however, requires both the absence of an adequate legal remedy and direct\ntracing of the petitioner’s property to the assets subject to forfeiture. See In re First Central\nFinancial Corp., 377 F.3d 209, 215 (2d Cir. 2004). In other words, there would still have to be a\ngreater showing than mere victimhood.\n\n        Section 853(n)(6)(A) applies to third parties who had an interest in property before the\nsubject crime was committed (i.e., before the Government’s interest vested). This “leads inevitably\nto the conclusion that § 853(n)(6)(A) is likely never to apply to proceeds of the crime.” United\nStates v. Hooper, 229 F.3d 818, 821-22 (9th Cir. 2000); see also United States v. King, No. 10 Cr.\n122 (JGK), 2012 WL 2261117, at *6 (S.D.N.Y. June 18, 2012) (“[W]here a petitioner claims an\ninterest in property purchased with crime proceeds, § 853(n)(6)(A) will likely never apply, because\ncrime proceeds, by definition, do not precede the commission of criminal activity but instead result\nfrom that criminal activity.”).\n\n        Section 853(n)(6)(B) applies to third parties who innocently acquired property after the\ncrime. United States v. Chowaiki, 369 F. Supp. 3d 565, 572 (S.D.N.Y. 2019) (citing Watts, 786\nF.3d at 166). In order to state a claim for relief under § 853(n)(6)(B), a claimant must allege facts\nsufficient to prove three elements: (1) a legal interest in the property; (2) that the interest was\nacquired by the petitioner as a bona fide purchaser for value; and (3) that the interest was acquired\nat a time when the claimant was reasonably without cause to believe that the property was subject\nto forfeiture. See 21 U.S.C. ' 853(n)(6)(B); United States v. Allmendinger, 10 Cr. 248-01, 2012\nWL 966615, at *2 (E.D. Va. Mar. 21, 2012).\n\n               2. Petitions for Remission\n\n         Although victims, as general creditors, are foreclosed from § 853(n) claims, aside from\nrestitution, their remedy is to seek recovery through the remission process of the Money\nLaundering, Narcotics and Forfeiture Section (“MNF”) (formerly the Money Laundering and\nAsset Recovery Section of the Department of Justice’s Criminal Division), as discussed below.\n\n        Pursuant to 28 C.F.R. Part 9, victims who do not have standing to pursue § 853(n) claims\nmay be eligible for remission drawn from forfeited funds if they can demonstrate several factors,\nincluding (among others): (1) that they have suffered a “pecuniary loss of a specific amount [that]\nhas been directly caused by the criminal offense, or related offense” and “is supported by\ndocumentary evidence”; and (2) “[t]he victim did not knowingly contribute to, or participate in,\nbenefit from, or act in a willfully blind manner towards the commission of the offense, or related\noffense, that was the underlying basis of the forfeiture.” 28 C.F.R. § 9.8(b)(1), (3). Generally, MNF\nwill grant remission on a pro rata basis where the amount to be distributed is less than the value\nof the victims’ losses. 28 C.F.R. § 9.8(e). Additionally, the regulations permit the use of trustees\nor other non-government personnel to assist in the processing and determination of remission\nclaims, particularly in cases involving a large number of victims, as if the case here. 28 C.F.R.\n§ 9.8(d).\n\n       B. Resolving the § 853(n) Claims in this Case\n\n       Following the entry of a preliminary order of forfeiture as to Yanping Wang, as well as the\npreliminary order of forfeiture as to Guo, Dkt. 719, 2 approximately 134 purported § 853(n) claims\n\n2\n Prior to January 20, 2026, the Government intends to file a motion for an amended preliminary\norder of forfeiture to add approximately four additional assets obtained by the Government: two\n\nwere filed on the docket. 3 The Government is reviewing those purported claims, and is in the\nprocess of categorizing each to determine whether a purported claim is from (i) a general creditor,\nsuch as a victim demonstrating an interest in recovering their loss from crime proceeds; (ii) a party\nwith standing to assert an interest under § 853(n)(6)(A); or (iii) a party with standing to assert an\ninterest under § 853(n)(6)(B).\n\n        The Government believes the appointment of a special master to assist the Court in its\nevaluation of the purported § 853(n) claims is warranted. The special master can review the\napproximately 134 filed claims in parallel with the Government and recommend to the Court\nwhich, if any, of those claims should be dismissed because they are claims made by general\ncreditors. With respect to any remaining claims, the Government will evaluate on a case-by-case\nbasis the appropriate disposition for each and recommend to the Court further proceedings. (The\nGovernment would consider whether those dismissed claims should be treated as petitions for\nremission.) Indeed, the Government is presently reviewing all the purported claims and estimates\nits review will take additional weeks to complete. As to each claim that is not dismissed upon\nrecommendation of the special master, the Government would either (i) move the Court for its\ndismissal; or (ii) make a proposal to the Court for further proceedings, whether recognizing a\nstipulation of settlement between the parties, adjudicating a dismissal motion, or setting a\ndiscovery schedule and date for a forfeiture hearing to dispose of the claim. To the extent there is\nadditional litigation between a claimant and the Government, the special master can further assist\nthe Court, as appropriate, in adjudicating the claim.\n\n       C. Restitution Is Impracticable In This Case Under the Mandatory Victim\n          Restitution Act\n\n        Under the MVRA, restitution to persons “directly and proximately harmed” by the\ndefendant’s counts of conviction is ordinarily mandatory. See 18 U.S.C. §§ 3663A(a)(1),\n(c)(1)(A)(ii). The MVRA, however, recognizes that, in certain cases, restitution cannot be\nmandatory because its imposition would be impossible, including when “the number of\nidentifiable victims is so large as to make restitution impracticable,” or when imposing restitution\nwould require “determining complex issues of fact related to the cause or amount of the victim’s\nlosses” which “would complicate or prolong the sentencing process.” Id. § 3663A(c)(3). In\nsituations where restitution is impracticable, the Government routinely seeks to return money to\nvictims through the remission process, governed by 28 C.F.R. Part 9. When a court makes a finding\nthat a restitution order is impracticable, the Department of Justice regularly uses a forfeiture\nremission process to compensate victims, and it would do so in this case. See, e.g., United States\nv. Madoff, 09 Cr. 213 (DC), Dkt. 106 & United States v. Bonventre, 10 Cr. 228, Dkt. 318 (Madoff\n\nchecks made payable to G Club entities, and certain funds held in deposit in foreign banks accounts\nheld in the name of co-defendant Kin Ming Je and/or his wife.\n3\n  In addition, the Government has received approximately 238 purported § 853 claims by mail,\nwhich will be treated as petitions for remission, given that § 853(n) claimants must “petition the\ncourt,” not the Government. See 21 U.S.C. § 853(n)(2). Should the Court wish to treat these as\nthird-party claims, however, the Government will provide them to the Court for the Court’s\nadjudication.\n\nPonzi scheme); United States v. Sharma, 18 Cr. 340, Dkt. 407 (multi-million-dollar cryptocurrency\nscheme); United States v. Dos Santos, 20 Cr. 398, Dkt. 283 (multi-million-dollar cryptocurrency\nscheme); United States v. Samuel Bankman-Fried, 22 Cr. 673, March 28, 2024 Minute Order;\nUnited States v. Do Kwon, 23 Cr. 151, Dkt. 64 (forty-billion dollar cryptocurrency scheme).\n\n        The forfeiture statutes authorize the Attorney General to “grant petitions for mitigation or\nremission of forfeiture, restore forfeited property to victims of a violation of this subchapter, or\ntake any other action to protect the rights of innocent persons which is in the interest of justice and\nwhich is not inconsistent with the provisions of this section.” 21 U.S.C. § 853(i)(1). It is the policy\nof the Department of Justice, consistent with the Crime Victims’ Rights Act, to ensure that crime\nvictims receive “full and timely restitution as provided in law.” See 18 U.S.C. § 3771(c)(1).\nAccordingly, when the Government seizes property in connection with a criminal case, the\nGovernment’s goal is to forfeit the property and then, in remission proceedings administered by\nthe Attorney General through his delegee, the MNF Chief, to distribute funds to victims.\nFrequently MNF will distribute those assets through a remission program by which victims may\npetition for portions of forfeited property. See, e.g. Sharma, 2022 WL 1910026, at *2. In order to\nqualify for remission, a crime victim must provide information to the Government to support\nspecific elements, including that they suffered a specific pecuniary loss directly caused by the\ncriminal offense, that the victim did not contribute to the offense, that the victim has not been in\ncompensated for the loss from another means, and that the victim has no other recourse available.\nSee generally 28 C.F.R. § 9.8(b).\n\n         Because of the complexity of this case and the number of victims involved, awarding\nrestitution to victims in accordance with 18 U.S.C. § 3663A would be extremely costly and\nadministratively impractical. The cost and time associated with calculating each victim’s loss,\ndetermining whether the victim has already been compensated through the Securities and\nExchange Commission (“SEC”) or otherwise, and then paying out a percentage of each of the\nvictims’ losses would delay payment and diminish the amount of money actually paid to victims.\nTherefore, consistent with the Government’s frequent approach in complex cases with numerous\nvictims, the Government does not seek restitution, and instead moves for entry of an order finding\nthat restitution would be impracticable in this case. 18 U.S.C. § 3663A(c)(3).\n\n         Indeed, this Court has ordered compensation through a remission process in lieu of\nrestitution for Yanping Wang, Guo’s co-defendant. Dkt. 495. The facts underlying the Court’s\ndecision with respect to Wang are largely similar and equally applicable to Guo. Victims’ interests\nwill be best served in this case through remission of finally forfeited funds through MNF’s\nremission process. An alternative arrangement whereby restitution is calculated and distributed to\nvictims by the Government and the Court would be nearly impossible administratively, and would\ncome at great expense to victims’ recovery. In order to enter an order of restitution, the Court\nwould need to determine and corroborate each victim’s losses. That would require determining\nand corroborating, for each of the thousands of victims, both the amount of funds the victim\nprovided the Guo Enterprise, any partial refunds from the Guo Enterprise, the amount a victim was\ncompensated through the SEC’s disgorgement process, and potentially any funds returned to the\nvictim through collateral means. That task is all the more challenging given the global nature of\nthe defendant’s fraud. Instead, a process whereby the Government distributes finally forfeited\n\nfunds through a contracted claims administrator will promote efficiency, and will not “complicate\nor prolong the sentencing process” at the expense of the victims. 18 U.S.C. § 3663A(c)(3).\n\n       D. Conclusion\n\n         Accordingly, the Government respectfully requests that the Court: (1) appoint a special\nmaster to assist the Court in evaluating § 853(n) claims; and (2) enter an order finding that\nrestitution would be impracticable in this case.\n\n                                           Respectfully submitted,\n\n                                           SEAN S. BUCKLEY\n                                           Attorney for the United States\n                                           Acting Under Authority Conferred by 28 U.S.C. § 515.\n\n                                     by:       /s/\n                                           Micah F. Fergenson\n                                           Ryan B. Finkel\n                                           Justin Horton\n                                           Juliana N. Murray\n                                           Assistant United States Attorneys\n                                           (212) 637-2190 / 6612 / 2276 / 2314\n\ncc:    Counsel of Record (by ECF)","body_zh":null,"key_entities":["853(n)","forfeiture","Guo","Crime Victim","MVRA","Yanping Wang","Torres","Miles Guo","Je","Kin Ming Je","Analisa Torres","Horton","Fergenson","Murray","Finkel","853(i)","CIPA"],"ecf_references":[{"doc_number":64,"court":"SDNY"},{"doc_number":106,"court":"CTB"},{"doc_number":283,"court":"CTB"},{"doc_number":318,"court":"SDNY"},{"doc_number":407,"court":"CTB"},{"doc_number":495,"court":"SDNY"},{"doc_number":719,"court":"CTB"},{"doc_number":782,"court":"SDNY"}],"word_count":2760,"status":"published","published_at":"2026-01-09 00:00:00","created_at":"2026-01-09","updated_at":"2026-08-17 09:56:30"}