United States District Court, D. Connecticut
RULING ON MOTION FOR SUMMARY JUDGMENT
F. MARTINEZ UNITED STATES MAGISTRATE JUDGE.
United States of America commenced this civil forfeiture
action seeking forfeiture of $822, 694.81 in a Bank of
America account in the names of Godwin and Winifred Ezeemo
(the "Ezeemos"). The government alleges that the $822,
694.81 (the "defendant currency") is subject to
forfeiture pursuant to 18 U.S.C. § 981(a)(1)(A), because
it is the product of money laundering in violation of 18
U.S.C. § 1956(a)(1)(A)(i), or pursuant to 18 U.S.C.
§ 981(a)(1)(C), because it is the product of wire fraud
or conspiracy to commit wire fraud in violation of 18 U.S.C.
§ 1343. (ECF #1, Verified Compl. ¶6.) The Ezeemos
contest the government's forfeiture action. They do not
dispute that certain deposits to the BOA account were
obtained by fraud but maintain that they were not aware of
the fraud. Pursuant to Fed.R.Civ.P. 56, the Ezeemos move for
summary judgment as to the government's forfeiture
action. (ECF #119.) For the reasons that follow, the motion
moving party is entitled to summary judgment where the record
reveals 'no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.'
Fed.R.Civ.P. 56(a)." Natofsky v. City of New
York, 921 F.3d 337, 344 (2d Cir. 2019). A fact is
"material" if it "might affect the outcome of
the suit under the governing law," and a dispute is
"genuine" if "a reasonable jury could return a
verdict for the nonmoving party" based on it.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). "The evidentiary standard that must be met by
the moving party is a high one, since a court is obliged
'to draw all inferences in favor of the party against
whom summary judgment is sought,' Ramseur v. Chase
Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989), and to
'construe the evidence in the light most favorable to the
nonmoving party,' United States v. All Funds
Distributed to Weiss, 345 F.3d 49 (2d Cir. 2003)."
United States v. Collado, 348 F.3d 323, 327 (2d Cir.
government did not file a memorandum in opposition in
response to the Ezeemos' summary judgment motion. The
Second Circuit has made clear, however, that a district court
may not grant a motion for summary judgment "without
first examining the moving party's submission to
determine if it has met its burden of demonstrating that no
material issue of fact remains for trial." Vermont
Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244
(2d Cir. 2004). "If the evidence submitted in support of
the summary judgment motion does not meet the movant's
burden of production, then summary judgment must be denied
even if no opposing evidentiary matter is presented."
Id. (internal quotation marks omitted). See
Giannullo v. City of New York, 322 F.3d 139, 141 (2d
Cir. 2003)(noting that the "non-movant is not required
to rebut an insufficient showing"). "Moreover, in
determining whether the moving party has met this burden of
showing the absence of a genuine issue for trial, the
district court may not rely solely on the statement of
undisputed facts contained in the moving party's Rule
56.1 statement. It must be satisfied that the citation to
evidence in the record supports the assertion." Vermont
Teddy Bear Co., 373 F.3d at 244; Giannullo, 322 F.3d at 143
n. 5 (stating that not verifying in the record the assertions
in the motion for summary judgment "would derogate the
truth-finding functions of the judicial process by
substituting convenience for facts").
following facts, taken from the Ezeemos' Local Rule
56(a)1 statement (ECF #119-2) and supporting exhibits (ECF
#119-4 - #119-43), are undisputed unless otherwise indicated.
Ezeemos are Nigerian citizens who operate businesses in
Nigeria. (ECF #119-2, Local Rule 56(a)1 ¶6; ECF #119-42 at
5.) As part of their business, they purchase goods from
Blount International, a U.S. company in Oregon, for resale in
Western Africa. (ECF #119-2, Local Rule 56(a)1 ¶16.)
They maintain bank accounts in Nigeria. (ECF #119-4, Ezeemo
Dep. at 40.) They also have a joint checking account at Bank
of America ("BOA"). (ECF #119-2, Local Rule 56(a)1
¶37.) The BOA account initially was a personal checking
account. (ECF #119-5, Ezeemo Dep. at 17.) The Ezeemos
subsequently used the account to purchase U.S. currency. (ECF
#119-5, Ezeemo Dep. at 19.) They wanted U.S. dollars to pay
their U.S suppliers. (ECF #119-4, Ezeemo Dep. at 14-15,
#119-5, Ezeemo Dep. at 19.)
procure U.S. currency, Godwin Ezeemo contacted an individual
named Abubaker Lade ("Lade") in Lagos, Nigeria.
(ECF #119-4, Ezeemo Dep. at 15.) Lade worked in Lagos as a
"marketer" for a local Nigerian Bureau de Change
that handles private foreign currency transactions. (ECF.
#119-7, Lade Dep. at 66.) Lade testified that he was
unlicensed, although Ezeemo testified to the contrary. (ECF
#119-7, Lade Dep. at 65-66.) Lade's job was to obtain
customers for the Bureau de Change. (ECF #119-7, Lade Dep. at
66.) To do so, he went "outside" to the local
"market" and "warehouse." (ECF #119-7,
Lade Dep. at 68.) Godwin Ezeemo used a Bureau de Change to
obtain U.S. dollars because he was able to move more money
more quickly than he would if he used a bank. (ECF #119-4,
Ezeemo Dep. at 16; ECF #119-5, Ezeemo Dep. at 14.)
ordered "bulk" purchases of U.S. dollars - such as
$500, 000 - from Lade. (Doc. #119-5, Ezeemo Dep. at 54.) They
negotiated the exchange rate. (ECF #119-7, Lade Dep. at
110-11.) Ezeemo gave Lade the BOA account information so Lade
could make deposits/wire the U.S. dollars into the account.
(ECF #119-2, Local Rule 56(a)1 ¶48.) Lade gave the
Ezeemos' BOA account information to others. (ECF #119-7,
Lade Dep. at 13.) Over time Lade caused deposits in varying
amounts to be made into the Ezeemos' BOA account. (ECF
#119-5, Ezeemo Dep. at 21-22.) Lade gave Godwin Ezeemo the
wire confirmation receipt and/or deposit slip for every wire
transfer or deposit into the BOA account. (ECF #119-2, Local
Rule 56(a)1 ¶51.) After Godwin Ezeemo saw the online
confirmation of payment into his BOA account, he paid Lade in
naira (Nigerian currency) for each transaction. (ECF #119-2,
Local Rule 56(a)1 ¶53.) The Ezeemos used the U.S.
currency that was deposited in the BOA account to pay for
their purchases from Blount. (ECF #119-41, Ezeemo Aff.
Ezeemo did not know how Lade obtained the funds that were
deposited into the BOA account. (ECF #119-5, Ezeemo Dep. at
22.) When Ezeemo reviewed his account, it showed wire
transfers from various individuals, none of whom Ezeemo knew.
(ECF #119-5, Ezeemo Dep. at 26.) Ezeemo did not know where
the money came, nor did he know the identity of those
depositing it. Indeed, he stated that he could not "be
bothered with who pays this money into my account" and
"d[id] not query Lade on how he does his business."
(ECF #119-5, Ezeemo Dep. at 26, 28, 31.) He knew that Lade
caused the transfers because the "confirmation slip that
comes from him tells the proof." (ECF #119-5, Ezeemo
the money deposited into the BOA account was obtained
fraudulently. The victims were subject to different
types of scams but all were tricked into putting money into
the BOA account.(ECF. #119-1 at 16.) U.S. Secret Service
Agent Michael Shove investigated the deposits made into the
BOA account. (ECF #119-2, Local Rule 56(a)1 at
victim was a law firm. On February 9, 2012, the law firm of
Weycer, Kaplan, Pilaski and Zuber (the "Weycer law
firm") wired $194, 340 into the BOA account. (ECF
#119-5, Ezeemo Dep. at 41.) After the transfer, Ezeemo could
not access his account. (ECF #119-5, Ezeemo Dep. at 41.) He
called BOA and was told his account was frozen because the
$194, 340 transfer was fraudulent. (ECF #119-5, Ezeemo Dep.
at 42, 65, 75, 78.) Ezeemo stopped using Lade to obtain
foreign currency and authorized his attorney to make a
complaint against Lade with the Nigerian Police. (ECF #119-5,
Ezeemo Dep. at 47.) The March 1, 2012 police report stated
that the basis for the complaint was "fraudulent
deceitful transfer of $194, 340 to the account of Mr.
Ezeemo." (ECF #119-5, Ezeemo Dep. at 92; ECF #119-17 at
3.) Lade was arrested but not charged with a crime and
released. (ECF #119-7, Lade Dep. at 101.)
that the account was "frozen" after the $194, 340
wire transfer by the Weycer law firm, the Ezeemos continued
to use the account. Transfers into the account continued,
including one for $154, 210.86 and another for $40, 000, both
by persons and entities the Ezeemos did not
know. (ECF #119-5, Ezeemo Dep. at 59-60, ECF
#119-6, W. Ezeemo Dep. at 29.)
March 23, 2012, the government seized the defendant currency
and thereafter filed this civil forfeiture action. The
Ezeemos concede that "several people were defrauded by a
scam" but maintain that they had no knowledge of any
fraud and that they legally purchased the U.S. currency. (ECF
#119-1 at 16.)
Ezeemos first argue that they are entitled to summary
judgment on the government's forfeiture action because
they did not violate the underlying criminal statutes
prohibiting wire fraud or money laundering. (Doc. #119-1 at
7-12.) Their argument fails.
forfeiture proceedings are governed by 18 U.S.C. § 983.
Section 983(c) provides that "[i]n a suit or action
brought under any civil forfeiture statute for the civil
forfeiture of any property . . . the burden of proof is on
the Government to establish, by a preponderance of the
evidence, that the property is subject to forfeiture."
"In civil forfeiture, the United States brings a civil
action against the property itself as an in rem proceeding -
'[i]t is the property which is proceeded against, and . .
. held guilty and condemned as though it were conscious
instead of inanimate and insentient.' . . ."
United States v. Contorinis,692 F.3d 136, 146 (2d
Cir. 2012)(citations omitted). The "claimant's
culpability in the underlying criminal conduct is
irrelevant." United States v. $6, 207, 757
F.Supp.2d 1155, 1163 (M.D. Ala. 2010). See United States
v. Cherry,330 F.3d 658, 666 n.16 (4th Cir. 2003)
("The most notable distinction between civil and
criminal forfeiture is that civil forfeiture proceedings are
brought against property, not against the property owner; the
owner's culpability is irrelevant in deciding whether
property should be forfeited."); Vereda, Ltda. v.
United States,271 F.3d 1367, 1376 (Fed. Cir.
2001)("in an in rem forfeiture . . . the guilt or
innocence of the property owner is irrelevant in view of the
fact that the action resulting in forfeiture is 'directed
against [the] guilty property, rather than against the
offender himself'"); United States v. $90,
000.00 in U.S. Funds, No. 5:12-CV-169(CAR), 2012 WL
5287888, at *3 (M.D. Ga. Oct. 23, 2012)("A civil
forfeiture action is a proceeding in rem and operates under
the legal fiction that objects and property can be guilty of
wrongdoing, making any actual guilt related to the owner
irrelevant."); United States v. A Parcel of Land
Located at 5185 S. Westwood Drive Republic, Mo., No.
09-03357-CV-S-DGK, 2012 WL 1113197, at *4 (W.D. Mo. Apr. 2,
2012) ("Civil forfeiture is an in rem action ...