Opinion
Civil Action No. 99-0584-CB-S
August 14, 2000
CONSENT DECREE BETWEEN CLAIMANT MICROCOMPUTERS PERIPHERALS SERVICES, INC., AND THE UNITED STATES
This civil forfeiture action was brought by the United States seeking,inter alia, the forfeiture of $31,250 in drug proceeds transferred into Citibank account number 3200444883, held in the name of MICROCOMPUTER PERIPHERALS SERVICES, INC., (hereinafter "Claimant") pursuant to Title 18, United States Code, Sections 981(a)(1)(A) and 984, which provide for the forfeiture of any property involved in, or traceable to property involved in, a violation of the anti-money laundering laws of the United States, namely, Title 18, United States Code, Sections 1956 and 1957. Claimant is the holder of the referenced bank account. This case arises out of the laundering of drug proceeds into Claimant's bank account at the instruction of Colombian money brokers who work for Colombian narcotics trafficking cartels. Accordingly, the United States has probable cause to believe that the funds in the bank account are subject to forfeiture as property involved in a money laundering offense.
The instant complaint was filed against numerous bank accounts, including the account referenced in the text. This Consent Decree applies only to the funds in the referenced account.
Explanation of the Columbian Black Market Peso Exchange
The facts of this case, as alleged by both sides, are entirely consistent with a common scheme for laundering money through what is known as the Black Market Peso Exchange. Under this scheme, Colombian money brokers facilitate the exchange of U.S. dollars and other currencies (principally Colombian pesos) between narcotics traffickers and South American businesses, with the money broker earning a sizeable commission for his services. The scheme is successful because drug dealers hold large quantities of U.S. dollars derived from drug trafficking that they need to convert to local currencies, while businesses or individuals in South America seek U.S. dollars to pay for the importation of goods or services, or for offshore investments, while avoiding local governmental scrutiny, taxes, duties, and/or red tape associated with the legitimate currency exchange mechanisms in their countries.
In a typical case, the broker seeks out or is approached by Colombian drug traffickers who have drug proceeds in the form of U.S. dollars in the United States. The broker agrees to buy the drug dollars for a specific price, and agrees to pay the drug dealer in local currency. The broker then finds or is contacted by a customer in Colombia or another South American country who desires to purchase U.S. dollars. The broker negotiates a dollar/peso exchange rate with his customer and the customer tells the broker where the U.S. dollars thus purchased need to be sent or delivered.
Based upon the customer's instructions the broker, in coordination with the drug trafficker, causes drug proceeds in the form of U.S. dollars to be wire transferred to the account the customer has designated. Occasionally, this account is the customer's own account, but more frequently the customer designates the account of a fourth party — i.e. a vendor of goods or services who has sold such goods or services to the broker's customer, has sent the customer an invoice, and is awaiting payment in U.S. dollars.
transfers constitute a common form of payment, but dollars are also delivered to peso exchange customers, or to their designated fourth parties, in the form of cash and other negotiable instruments, such as cashier's checks, postal orders, money orders, or checks endorsed to unnamed payees.
The broker, in the mean time, will transfer the pesos or other local currency received from his customer to the drug trafficker, in accordance with the drug trafficker's instructions. Such payments may be in the form of cash, or in the form of peso checks made out to fictitious parties, checks in blank payee form, multiple checks in small denominations made payable to numerous payees, or in any combination of these forms, so that they are readily negotiable and virtually untraceable.
Thus, without using any formal currency exchange mechanisms, drug traffickers convert drug dollars they held in the U.S. into local currencies for use in South America, and businesses or individuals convert local currencies into U.S. dollars that they then use to make investments or to satisfy debts owed to vendors of goods or services. That the overwhelming majority of U.S. dollars purchased through the black market peso exchange involve drug proceeds is common knowledge throughout Colombia and other South American countries. Moreover, companies in the United States, Europe and elsewhere who do a high volume of business in Colombia and other South American drug-source countries, know or should know about this underground method of obtaining U.S. dollars, particularly in instances where the payment on invoices for goods or services sold to South American customers comes not from the customer directly, but in the form of a wire transfer, cash payment, or delivery of negotiable instruments made payable in blank or to other payees from a third-party bank account in the United States.
The "Innocent Owner" Defense
Section 981(a)(2) protects so-called innocent owners from the forfeiture of laundered drug proceeds. See United States v. All Monies, 754 F. Supp. 1467, 1473 (D. Haw. 1991) (drug money that has been purchased on the black market is forfeitable from the purchaser's bank account, unless the purchaser is "innocent owner"); United States v. Basler Turbo-67, 906 F. Supp. 1332 (D. Ariz. 1995) (person who knows property was purchased with funds traceable to the black market in Colombia is not an innocent owner; that black market funds come from drug dealing is common knowledge in that country); United States v. Funds Seized From Account Number 20548408 at Baybank, N.A., 1995 WL 381659 (D. Mass. 1995) (wealthy Colombian who purchased 182 dollar-denominated money orders totaling $100,000 was innocent owner because he did not recognize structured nature of instruments). To satisfy the innocent owner defense, a claimant must prove "that he did not know of the illegal activity, did not willfully blind himself to the illegal activity, and did all that reasonably could be expected to prevent the illegal use" of his property. United States v. All Monies, 754 F. Supp. at 1478.
Position of the United States
The United States contends that Claimant knew or should have known that it was receiving funds through the Black Market Peso Exchange, and that Claimant therefore would be unable to satisfy its burden of proof under Section 981(a)(2). The factors that should have put Claimant on notice that it was receiving funds subject to forfeiture included, but were not limited to, the following: 1) the payment was made in U.S. dollars on behalf of a customer in a region of the world known as the source of illegal drugs, and also known as a place where U.S. dollars derived from drug trafficking are routinely sold on the black market and used to pay for imports from overseas; 2) the funds came from a third party or third parties unknown to the Claimant, not from Claimant's customer; 3) payment did not appear to come from accounts held by purchasers of Claimant's goods or services, or from accounts those purchasers had previously used to pay the Claimant, 4) there was no invoice or customer information given on the wire transfer authorization.
Position of the Claimant
The Claimant contends that it is a bona fide purchaser or "innocent owner" of any drug proceeds wired into Citibank account number 3200444883. In particular, Claimant maintains that the drug proceeds it received were for computer monitors sold to Claimant's Colombian customer Marjorie Computer. Claimant further asserts that it did not know, had no reason to know, nor was willfully blind to the fact that funds wired into Citibank account number 3200444883 for the benefit of its customer Marjorie Computer were the proceeds of drug trafficking.
Agreement of the Parties
Accordingly, Claimant and the United States (hereinafter "the parties"), under the sound policy of law favoring settlement, without adjudication of any issue of fact or law and, sharing the goal of insuring that legitimate sales and banking channels are not utilized by drug traffickers and drug organizations to launder their illegal proceeds from drug transactions, hereby agree to enter into this Consent Decree.
THEREFORE, on the joint motion of the parties it is hereby ORDERED, ADJUDGED, AND DECREED:
Upon agreement of the parties the Court HEREBY FINDS:
1. The term "Claimant" as used herein includes Claimant's principals, subsidiaries, successors, representatives, agents, designees, assigns, partners, officers, and directors;
2. The Complaint filed in this action states a claim upon which relief may be granted against defendant property, to wit, $31,250 in drug proceeds transferred into Citibank account number 3200444883. Process was fully issued as to defendant property and all identifiable individuals and entities that may have a claim to or cognizable property interest in the seized monies have been served and have had adequate notice and time in which to file a claim and an answer. This Court has jurisdiction over the parties to this Consent Decree, the defendant property, and the subject matter of this Consent Decree;
3. The parties hereto have entered into the Consent Decree freely and without coercion. The parties to this Consent Decree further acknowledge that they have read the provisions of the Consent Decree, that they fully comprehend its provisions, and are prepared to abide by them. The parties further stipulate that this Consent Decree embodies all of the agreements between the parties and that the parties have not relied upon any representation or statement not included herein;
4. This Consent Decree resolves all issues raised by the United States in its Complaint as to the defendant property and the parties accept this Consent Decree as final and binding as to all issues raised by the United States in its Complaint as to the defendant property;
5. The United States agrees and stipulates to the unfreezing of any and all money frozen in Citibank account number 3200444883.
6. The parties hereby waive all rights to appeal or to otherwise challenge or contest the validity of this Consent Decree; and
7. Entry of this Consent Decree is in the public interest.
UPON THESE AND THE BELOW ACKNOWLEDGMENTS AND STIPULATIONS IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
1. Any and all money in Citibank account number 3200444883 is hereby returned to Claimant and is released from any arrest warrant in rem issued by this Court;
2. Claimant acknowledges that it has been made aware of the operation of a money laundering system known as the Black Market Peso Exchange and the role that system plays in the laundering of drug proceeds that are in the form of U.S. dollars. Claimant also acknowledges that it has been made aware of the role that vendors of goods and services play in the consummation of such money laundering offenses when they accept payment for goods and services in the form of U.S. dollars from third parties who are not associated with the person to whom the goods and services were sold.
3. In all future business dealings in which Claimant provides, or agrees to provide, goods, services, or goods and services, for export to, use in, sale or resale in Colombia or Panama, Claimant shall exercise due diligence to verify that any payment of $3,000 or more for such goods, services, or goods and services is made by the person or entity that purchased Claimant's goods, services, or goods and services, or is made directly by an individual or entity with a valid and verifiable debt to the individual or entity that purchased Claimant's goods, services, or goods and services. This duty to exercise due diligence exists for all payments of $3,000 or more where there is any reason to believe that payment is made by, through, or behalf of someone other than the individual or entity that purchased Claimant's goods, services, or goods and services.
In addition, to the extent that Claimant provides, or agrees to provide, goods, services, or goods and services for export to, use in, sale or resale in Colombia or Panama, Claimant shall not accept payment for such goods, services, or goods and services in cash, cashier's check(s), money order(s), postal order(s) or any bearer or third party endorsed negotiable instrument(s) — to the extent the aggregate of such cash or negotiable instruments received for the benefit of one of claimant's customers exceeds $3,000 in any 48 hour period — unless Claimant exercises due diligence to verify the legitimate nature, source, ownership and control of the funds or negotiable instruments involved in such payments. Claimant will retain documentation to support all verifications required by this Section for five (5) years from the time of the transaction and will make such documentation available for inspection at the request of any federal law enforcement agency of the United States.
4. After the effective date of this agreement, each time any individual or entity to which Claimant provided, or agreed to provide, goods, services, or goods and services, for export to, use in, sale or resale in Colombia or Panama attempts a payment of the type described in the preceding paragraph, Claimant shall file a written report of such occurrence, containing the same information required on an IRS Form 8300, with the USCS. Within 15 days of the occurrence, a report shall be filed with either the USCS office nearest to where the Claimant has its principal place of business. or the USCS office nearest to the Claimant's branch office involved in the attempted payment. The reporting requirements of this paragraph are in addition to, and in no way relieves the Claimant from, any other currency transaction reporting requirements it might have, including, but not limited to, those set forth in 26 U.S.C. § 6050I and 31 U.S.C. § 5313 5316.
5. Claimant agrees to make itself aware of and to comply with all record-keeping requirements pertaining to the export of merchandise from the United States including, but not limited to, 15 C.F.R. § 30.1 through 30.16, 19 C.F.R. § 163.0 through 163.5, and 19 U.S.C. § 1508, and such records as are required to be kept and maintained by Claimant shall be provided to the USCS or other United States law enforcement entity within ten (10) days after demand.
6. Claimant shall use due diligence to confirm that all payments it receives from any individual or entity to which Claimant provided, or agreed to provide, goods, services, or goods and services, for export to, use in, sale or resale in Colombia or Panama, involve currency exchanges made through either legitimate international banking channels (i.e., wire transfers from domestic or foreign accounts held in the customer's name to Claimant's U.S. accounts) or through foreign currency exchange entities authorized and licensed by the foreign country in which the customer resides (e.g., in Colombia, the "Superintendencia Bancaria") to conduct international currency transfers.
7. Claimant agrees to provide the United States with the name, address, phone numbers and other identifying information, including that pertaining to any principal owners or shareholders, when known, for the business(es) or individual(s) on whose behalf Claimant received the identified drug proceeds that were sent into Citibank account number 3200444883, as identified in the above captioned action.
8. Claimant agrees to provide to the United States with copies of all credit applications, purchase orders, invoices, shipping documents, insurance documents, bills of lading, air waybills, export documents pertaining to any business transactions Claimant had with the business(es) or individual(s) on whose behalf Claimant received the identified drug proceeds sent into Citibank account number 3200444883, as identified in the above-captioned action, along with a description of Claimant's prior relationship with this (these) business(es) or individual(s), and other documentation Claimant possesses relating to prior or ongoing business transactions with this (these) business(es) or individual(s).
9. Claimant hereby agrees that, in addition to any other fine, penalty, or forfeiture which may be imposed, any violation of this Consent Decree will operate for Claimant as an automatic debarment from holding for five (5) years an United States export-import license and as a five (5) year debarment from doing business with the United States and/or any department or agency thereof.
10. Claimant agrees and acknowledges that the United States may enter this Consent Decree on any registry maintained by the law enforcement agencies of the United States of decrees, orders, letters or other documents whereby vendors of goods and services have been put on notice of the operation of the money laundering system known as the Black Market Peso Exchange.
11. Claimant shall, within ten (10) calendar days of the entry of this Consent Decree, provide a copy of this Consent Decree to their high level management employees and, within forty-five (45) calendar days, Claimant, at its own expense, will arrange to have the Consent Decree translated into any native language which its management personnel speak so that such personnel fully understand all of the provisions of this Consent Decree.
12. The parties shall attempt to resolve informally any disputes that may occur under this Consent Decree. If the parties are unable to reach agreement within ninety (90) calendar days after a matter has been brought to the attention of one of the parties by another party, the issue may be submitted by either party to the Court for resolution.
13. The United States' agreement to and the Court's approval of this Consent Decree is expressly premised upon the truthfulness, accuracy, and completeness in every material part of the records provided and representations made by Claimant to the United States. If, upon motion by the United States, this Court finds that any of such records or representations made failed to disclose material information or directly misrepresented material facts, the United States may request that this Consent Decree be reopened for the purpose of disqualifying Claimant from holding for five (5) years an United States export-import license and as a five (5) year debarment from doing business with the United States and/or any department or agency thereof.
14. Claimant covenants and agrees to and do hereby forever release, save and hold harmless the United States and its officials, officers, employees, and agents from any claim, liability, obligation, appeal, action or demand, known or unknown, existing or arising in the future, in connection with, arising out of, or incident to all property arrested and/or seized, and/or forfeited in this action, brought by any person or entity.
15. Claimant agrees this Consent Decree does not entitle it to seek or to obtain attorney's fees as a prevailing party under the Equal Access to Justice Act, 28 U.S.C. § 2412, and Claimant, further waives any rights to attorney's fees, costs; and expenses that may arise under said provision of law or any other provision.
16. Claimant expressly waives any claim or right of action it may have against the United States, or any of its agencies, departments, employees or agents, for violation of its Constitutional, statutory, or personal rights, which may entitle it to collect pecuniary or punitive damages, attorney's fees, or costs, including, but not limited to, actions pursuant to Title 42, United States Code, Section 1983, the Federal Torts Claims Act, or any cause of action for the violation of any Constitutional or statutory rights. As to any possible tax obligations owed to the United States the terms of this Consent Decree do not affect the tax obligations, tax fines, tax penalties, or any other tax obligations that Claimant may owe the United States government.
17. The parties stipulate that pursuant to Title 28, United States Code, Section 2465 a Certificate of Reasonable Cause may be entered by the Court.
18. While this claim in the case is completed, for the purposes of enforcing the Consent Decree, the Court shall retain jurisdiction of this action from the date of entry of this Consent Decree for five (5) years. After five (5) years this matter shall be dismissed unless the United States moves for its continuation for good cause shown. The United States shall give notice of any such motion to Claimant or Claimant's successors in interest.