Case 1:23-cr-00118-AT Document 611 Filed 04/04/25 Page 1 of 20
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`THIRD-PARTY PETITION TO
`ADJUDICATE PETITIONER’S
`INTEREST IN FORFEITED
`PROPERTY AND TO AMEND THE
`PRELIMINARY ORDER OF
`FORFEITURE
`- VERIFIED CLAIM OF
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`S4 23 Cr. 118 (AT)
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`UNITED STATES OF AMERICA
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` -
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` v. -
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`YVETTE WANG
`a/k/a “Yanping,”
`a/k/a “Y,”
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`Defendant.
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`Petitioner
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` (“Petitioner”) files this Third-Party Petition to Adjudicate
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`Petitioner’s Interest in Forfeited Property and to Amend the Preliminary Order of Forfeiture,
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`pursuant to 21 U.S.C. § 853(n) and Federal Rule of Criminal Procedure 32.2(c) (the “Petition”).
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`Petitioner seeks the return of funds in which Petitioner has a legal right, title, and/or interest
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`(“Petitioner’s Property”) (as more fully defined below) and that the United States Government
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`(the “Government”) improperly seized as part of an order of forfeiture entered into with
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`Defendant Yvette Wang (“Defendant Wang”). Specifically, Petitioner’s Property was improperly
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`seized by the Government when the Government seized all the funds in bank account number
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`5090042770 at Silvergate Bank held in the name of Hamilton Opportunity Fund SPC (“Account
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`2770”). However, any order of forfeiture reaching the funds in Account 2770, including
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`Petitioner’s Property, was unlawful and improper as Defendant Wang has no legal right, title, or
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`interest in either Account 2770 or Petitioner’s Property. The Forfeiture Order (as more fully
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`defined below) is therefore rendered invalid as to Petitioner’s Property because right, title, or
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`interest in Petitioner’s Property was vested in the Petitioner rather than Defendant Wang, and was
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`Case 1:23-cr-00118-AT Document 611 Filed 04/04/25 Page 2 of 20
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`superior to any right, title, or interest of Defendant Wang at the time of the commission of the
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`acts which gave rise to the Forfeiture Order (as defined below). As such, this Court should amend
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`the Forfeiture Order to remove Petitioner’s Property from the Forfeiture Order and order that the
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`Government immediately return Petitioner’s Property to Petitioner. In support of Petitioner’s
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`claim, Petitioner states as follows:
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`I.
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`PRELIMINARY STATEMENT
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`It appears that the funds in Account 2770, including Petitioner’s Property, were purely
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`“collateral damage” in the Government’s seizure of assets prior to its prosecution of Defendant
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`Wang and Miles Guo (“Defendant Guo”). It has been over two and a half years since the seizure
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`of Account 2770, and in that time span, there has never been any explanation as to how Account
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`2770 (including Petitioner’s Property) is related to any of the offenses to which Defendant Wang
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`pled guilty, a necessary prerequisite to a valid forfeiture order under the law. There was never any
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`showing that any proceeds of any unlawful activity to which Defendant Wang pled guilty were
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`ever deposited in Account 2770; no showing that any proceeds of such activity were ever
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`commingled with Petitioner’s Property; and, indeed, no showing that Defendant Wang ever had
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`anything to do with Account 2770 or even knew of its existence.
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`As will be shown below, Petitioner is a beneficiary of a constructive trust over Petitioner’s
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`Property and Petitioner’s Property cannot be seized by the Government in this case. Neither
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`Defendant Wang, nor the Government who now stands in her shoes, have ever demonstrated that
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`they have any interest whatsoever in Petitioner’s Property in Account 2770 or in Account 2770 in
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`general. While Defendant Wang consented to the forfeiture of “all her right, title, and interest” in
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`Account 2770 (and thus, Petitioner’s Property) in the Forfeiture Order (ECF No. 488 at 2-3), her
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`consent has no legal bearing as to Account 2770 or Petitioner’s Property. Defendant Wang never
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`had such “right, title, and interest” in Account 2770 – there is no evidence that she was a signatory
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`Case 1:23-cr-00118-AT Document 611 Filed 04/04/25 Page 3 of 20
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`on Account 2770, ever deposited money into Account 2770, or otherwise had any control over
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`Account 2770, and there is no evidence that Defendant Wang ever directed anyone, directly or
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`indirectly, to deposit any money into Account 2770. Defendant Wang cannot forfeit property that
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`she does not own, and in which she has no interest. In fact, it appears that the Court never
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`established that Petitioner’s Property is even subject to forfeiture in the first instance, as required
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`by Fed.R.Crim.P. 32.2.(b)(1)(A).
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`For all the foregoing reasons, and for the reasons demonstrated below, Petitioner
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`respectfully requests that this Court: (1) grant this Petition; (2) amend the Forfeiture Order to
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`exclude Petitioner’s Property; (3) order the immediate return of Petitioner’s Property to Petitioner;
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`(4) order that Petitioner is entitled to recover Petitioner’s attorneys’ fees and costs incurred in
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`connection with this Petition and grant Petitioner leave to submit an application for such attorneys’
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`fees and costs; and (5) grant such and other relief that is necessary and just.
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`II.
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`BACKGROUND FACTS
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`A. Petitioner’s Property
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`1.
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`Hamilton Opportunity Fund SPC (“Hamilton Opportunity Fund”), a Cayman
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`Islands Segregated Portfolio Company, provided Petitioner with an Offering Memorandum (the
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`“Offering Memorandum”) dated January 20, 2022. A true and correct copy of the Offering
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`Memorandum is attached hereto as Exhibit A.
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`2.
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`Hamilton Opportunity Fund is a “fund specializing in equity investments selected
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`by the Investment Manager [as that term is defined in the Offering Memorandum] with a view to
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`long-term capital gains.” Exhibit A, Offering Memorandum at 33. The Investment Manager (as
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`that term is defined in the Offering Memorandum) had identified an opportunity to invest in a bank
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`(the “Digital Bank”) (as more fully described in Offering Memorandum at 33). In connection with
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`this investment, Hamilton Opportunity Fund sought to raise capital by issuing various classes of
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`Case 1:23-cr-00118-AT Document 611 Filed 04/04/25 Page 4 of 20
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`shares. Id. at 34.
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`3.
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`The Offering Memorandum offered Petitioner an opportunity to acquire Class B
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`Shares attributed to a segregated portfolio of Hamilton Opportunity Fund - Hamilton M&A Fund
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`SP (the “M&A Fund”).
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`4.
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`Defendant Wang was not a director or member of, and otherwise lacked any
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`corporate or equity interest in, the M&A Fund or Hamilton Opportunity Fund. The evidentiary
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`record is devoid of any evidence to the contrary.
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`5.
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`Defendant Wang did not make any investments in the M&A Fund; again, the
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`evidentiary record is devoid of any evidence to the contrary.
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`6.
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`On January 25, 2022, Petitioner submitted an application (the “Subscription
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`Agreement”) to Hamilton Opportunity Fund for a subscription for $120,000.00 worth of Class B
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`Shares in the M&A Fund. A true and correct copy of the Subscription Agreement is attached hereto
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`as Exhibit B.
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`7.
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`On January 25, 2022, Hamilton Opportunity Fund, on behalf of the M&A Fund,
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`approved and accepted the Subscription Agreement. See Exhibit B, Subscription Agreement at
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`15.
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`8.
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`On January 27, 2022, pursuant to the terms of the Subscription Agreement,
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`Petitioner wired 171,462.64 AUD (noted as equivalent to $120,500.00) to Account Number
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`5090042770 at Silvergate Bank. A true and correct copy of the wire confirmation is attached hereto
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`as Exhibit C.
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`9.
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`10.
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`The account to which Petitioner wired Petitioner Property to is Account 2770.
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`Pursuant to the terms of the Offering Memorandum, Petitioner is entitled to
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`redemption of Petitioner’s shares at the Petitioner’s option. Exhibit A, Offering Memorandum at
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`Case 1:23-cr-00118-AT Document 611 Filed 04/04/25 Page 5 of 20
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`17; see also id. at 53 (stating that subject to certain limitations, “Class B Shares may be redeemed
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`at the option of the Shareholder on any Redemption Day”).
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`11.
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`The assets of Hamilton Opportunity Fund are “kept segregated, separate and
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`separately identifiable from those of any other segregated portfolios of the Fund and any general
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`assets of the Fund.” Exhibit A, Offering Memorandum at 12. In addition, pursuant to the laws of
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`the Cayman Islands, it is the duty of Hamilton Opportunity Fund to “segregate, and keep
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`segregated, portfolio assets of each segregated portfolio separate and separately identifiable from
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`segregated portfolio assets of any other segregated portfolio.” Exhibit A, Offering Memorandum
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`at 22-23 (citing the Companies Act (Revised) of Cayman Islands, Part XIV, 219(6)(b)).
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`B. Seizure of Account 2770
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`12.
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`On September 18, 2022, the Government seized the entire balance of the funds in
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`Account 2770.
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`13.
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`To date, there are no documents available publicly as to what probable cause the
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`Government had to seize the funds in Account 2770.
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`C. The Criminal Case Against Defendant Wang and Defendant Guo and the
`Forfeiture Order
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`14.
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`On March 6, 2023, the Government filed an indictment against Defendant Wang
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`and Defendant Guo, and a third defendant, William Je, who has never been arraigned. ECF No. 2.
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`15.
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`On May 3, 2024, the Government filed a superseding information (the
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`“Superseding Information”) against Defendant Wang. ECF No. 325. The Superseding Information
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`charged Defendant Wang with one count of Conspiracy to Commit Wire Fraud (Count I)
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`(Superseding Information at 1-2) and one count of Conspiracy to Commit Money Laundering
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`(Count II) (Superseding Information at 2-4). The Superseding Information also contained a
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`Forfeiture Allegation (the “Forfeiture Allegation”). Superseding Information at 4.
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`Case 1:23-cr-00118-AT Document 611 Filed 04/04/25 Page 6 of 20
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`16.
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`On the same day, May 3, 2024, Defendant Wang pled guilty to Count I and Count
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`II as charged in the Superseding Information.
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`17.
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`Also on May 3, 2024, this Court entered a Consent Preliminary Order of Forfeiture
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`as to Specific Property/Money Judgment (“Original Forfeiture Order”). ECF No. 329.
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`18.
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`In the Original Forfeiture Order, Defendant Wang consented to forfeit, “all her
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`right, title, and interest in” certain assets, including Account 2770, because such property
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`“constitute[ed] proceeds of the offenses charged in Count One that the Defendant personally
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`obtained and/or property involved in offense charged in Count Two of the [Superseding]
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`Information.” Original Forfeiture Order at 2-6 (emphasis added).
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`19.
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`Defendant Guo did not plead guilty to any of the offenses charged against him.
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`Accordingly, a jury trial was held between May 22, 2024 and July 16, 2024 (the “Guo Trial”). On
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`July 16, 2024, the jury found Defendant Guo guilty of racketeering conspiracy, conspiracy to
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`commit wire fraud, conspiracy to commit money laundering, conspiracy to commit securities
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`fraud, securities fraud, wire fraud, and money laundering. ECF No. 395. As of the date of this
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`Petition, Defendant Guo has not yet been sentenced.
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`20.
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`21.
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`On January 6, 2025, Defendant Wang was sentenced.
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`On January 7, 2025, this Court entered a Consent Preliminary Order of Forfeiture
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`as to Specific Property/Money Judgment (the “Forfeiture Order”) ECF No. 488. As it pertains to
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`Petitioner, the Forfeiture Order is substantially similar to the Original Forfeiture Order in all
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`material respects. In the Forfeiture Order, Defendant Wang consented to forfeit, “all her right, title,
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`and interest in” certain assets, including Account 2770, because such property “constitute[ed]
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`proceeds of the offenses charged in Count One that the Defendant personally obtained and/or
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`property involved in offense charged in Count Two of the [Superseding] Information.” Forfeiture
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`Case 1:23-cr-00118-AT Document 611 Filed 04/04/25 Page 7 of 20
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`Order at 2-11 (emphasis added).
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`22.
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`The assets in Account 2770 are described in both the Original Forfeiture Order and
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`the Forfeiture Order as follows:
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`$89,992,861.75 in United States currency formerly on deposit in account
`number 5090042770 at Silvergate Bank, held in the name of "Hamilton
`Opportunity Fund SPC" and seized by the Government on or about September
`18, 2022 (23-FBl-000074).
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`Original Forfeiture Order at 3; Forfeiture Order at 3.
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`III. ARGUMENT
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`23.
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`In an ancillary criminal forfeiture proceeding pursuant to 21 U.S.C. § 853(n) and
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`Federal Rule of Criminal Procedure 32.2(c)(1), this Court must determine, by a preponderance of
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`the evidence, whether a petitioner has a legal right, title, or interest in the property to be forfeited,
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`and whether such right, title, or interest renders the order of forfeiture invalid, in whole or in part,
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`because such interest was vested in the petitioner rather than the defendant, or was superior to any
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`right, title, or interest of the defendant at the time of the commission of the acts which gave rise to
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`the forfeiture of the property. See 21 U.S.C. § 853(n)(6)(A).
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`24.
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`Here, Petitioner has a legal right, title, or interest in Petitioner’s Property pursuant
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`to 21 U.S.C. §853(n)(6)(A) by virtue of a constructive trust over such property. Moreover,
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`Petitioner’s interest in Petitioner’s Property was both vested in Petitioner and was superior to any
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`right Defendant Wang had in Petitioner’s Property because Defendant Wang had no legal right,
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`title or, interest in either Petitioner’s Property or Account 2770. In other words, Defendant Wang
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`could not forfeit her interest in Account 2770 because she had no interest that was properly subject
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`to criminal forfeiture. Accordingly, the Forfeiture Order should be modified to remove Petitioner’s
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`Property, and Petitioner’s Property should be returned to Petitioner.
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`Case 1:23-cr-00118-AT Document 611 Filed 04/04/25 Page 8 of 20
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`A. The Government Failed to Demonstrate that the Funds in Account 2770,
`Including Petitioner’s Property, Were Properly Subject to Forfeiture in the First
`Instance, Making the Forfeiture Order Improper as to Such Funds
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`25.
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`The Government has no legal cause to retain Petitioner’s Property because there is
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`no evidence that the Government has ever demonstrated that Petitioner’s Property, and Account
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`2770 in general, is actually forfeitable property, as required by Fed.R.Crim.P. 32.2.(b)(1)(A).
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`26.
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`“When the government seeks to obtain an order of forfeiture, ‘Federal Rule of
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`Criminal Procedure 32.2(b)(1) ... requires the sentencing court to determine what property is
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`subject to forfeiture under the applicable statute.’” U.S. v. Watts, 786 F.3d 152, 172 (2d Cir. 2015)
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`(citing U.S. v. Capoccia, 503 F.3d 103, 109 (2d Cir.2007)). Pursuant to Fed.R.Crim.P. 32.2, “if
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`the government seeks forfeiture of specific property, the court must determine whether the
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`government has established the requisite nexus between the property and the offense.”
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`Fed.R.Crim.P. 32.2.(b)(1)(A) (emphasis added); Watts, 786 F.3d at 172. “At various points in the
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`proceedings, the government bears the burden of proving this legal conclusion to varying
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`degrees of certainty: as a matter of probable cause at a post-indictment hearing. . .or by a
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`preponderance of the evidence at a bench trial or before a jury.” Id. (emphasis added) (internal
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`citations omitted). “Only if the government meets the relevant legal threshold, however, may the
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`property in question be considered ‘subject to forfeiture’ in any legal sense. Prior to that, while the
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`government has simply announced its intent to seek forfeiture through the indictment, the property
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`is seen merely as ‘potentially forfeitable’ . . . or ‘potentially subject to forfeiture.’” Id. (internal
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`citations omitted).
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`27.
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`This means that before the court reaches the question of whether the petitioner is
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`entitled to the return of the property under §853(n), it is necessary to determine if the property in
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`dispute is actually forfeitable in the first instance. If not, the government had no statutory authority
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`Case 1:23-cr-00118-AT Document 611 Filed 04/04/25 Page 9 of 20
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`to seize the property. If the property was improperly seized, the government must return the
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`accounts seized regardless of whether the petitioner can meet the criteria set forth in §853(n). See
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`e.g. United States v. Delco Wire & Cable Co., 772 F. Supp. 1511, 1518 (E.D.PA, 1991).
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`28.
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`A full and complete Fed. R. Crim. P. 32.2.(b)(1)(A) inquiry is critical to the fair
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`administration of justice. The entire forfeiture system rests upon the supposition that a court has
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`conducted an inquiry and determined that the property is subject to forfeiture. In enacting ancillary
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`proceeding statutes, Congress chose to place the burden of proof on the third-party during an
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`ancillary proceeding, since “the United States will have already proven its forfeiture allegations in
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`the criminal case beyond a reasonable doubt.” S. REP. 98-225, 209, 1984 U.S.C.C.A.N. 3182,
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`3392.
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`29.
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`In this matter, there has never been a determination of whether there exists a nexus
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`between Account 2770 and any of the offenses Defendant Wang was charged with (and pled guilty
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`to), and, as a result, Petitioner is forced to file this Petition. Based on all the information contained
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`in the publicly-available documents in both Defendant Wang’s and Defendant Guo’s criminal case,
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`the Government cannot prevail with respect to Account 2770.
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`30.
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`Here, in the Superseding Information, the Government included a Forfeiture
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`Allegation as to both Counts I and Count II and sought forfeiture of specific property. Superseding
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`Information at 4. There is no evidence in the record that the Government even attempted to show,
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`let alone that it met its burden to show, a nexus between Account 2770, and the offenses to which
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`Defendant Wang pled guilty.
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`31.
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`As to Count I, the Forfeiture Allegation states that, “[a]s a result of committing the
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`wire fraud offense alleged in Count One of this Superseding Information, YVETTE WANG, a/k/a
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`“Yanping” a/k/a “Y,” the defendant, shall forfeit to the United States pursuant to Title 18, United
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`Case 1:23-cr-00118-AT Document 611 Filed 04/04/25 Page 10 of 20
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`States Code, Section[] 981(a)(1)(C)1. . .and Title 28, United States Code, Section 2461(c), any and
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`all property, real and personal, that constitutes or is derived from proceeds traceable to the
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`commission of said offense.” Superseding Information at 4. The Government must prove the
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`elements of forfeiture under 18 U.S.C. § 981(a)(1)(C) by a preponderance of the evidence. 18
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`U.S.C. § 983(c)(1). Moreover, “if the Government’s theory of forfeiture is that the property was
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`used to commit or facilitate the commission of a criminal offense, or was involved in the
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`commission of a criminal offense, the Government shall establish that there was a substantial
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`connection between the property and the offense.” 18 U.S.C. § 983(c)(3).
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`32.
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`The record is devoid of any allegations pertaining to how funds in Account 2770
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`are, or are derived from, proceeds traceable to Defendant Wang’s conspiracy to commit wire fraud.
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`The Superseding Information alleges that “[f]rom at least in or about 2018 until at least on or about
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`March 15, 2023, coconspirators made false representations to investors that they would receive
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`stock in exchange for their investments in GTV, the Himalaya Farm Alliance organization, and
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`GClubs, and that they would receive cryptocurrency in exchange for their investments in the
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`Himalaya Exchange [(the “Fraud Scheme”)]. Through the [Fraud Scheme], YVETTE WANG,
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`a/k/a “Yanping,” a/k/a “Y,” the defendant, and her coconspirators, including Miles Guo, induced
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`investors to invest more than $1 billion into entities Guo controlled.” Superseding Information at
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`2. There are no allegations in the Superseding Information regarding Defendant Wang depositing
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`any proceeds from the Fraud Scheme into Account 2770. Similarly, there are no allegations in the
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`Superseding Information that as a result of the Fraud Scheme, any investors deposited money into
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`1 18 U.S.C. § 981(a)(1)(C) provides that “[a]ny property, real or personal, [is subject to forfeiture]
`which constitutes or is derived from proceeds traceable to a violation of” various specified
`offenses, including violations of 18 U.S.C. § 1343, wire fraud, as charged against Defendant Wang
`in Count I.
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`Case 1:23-cr-00118-AT Document 611 Filed 04/04/25 Page 11 of 20
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`Account 2770. Nor can there be any such allegations, as the only deposits into Account 2770 were
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`from investors who were investing in the Digital Bank – an investment that is not implicated in
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`any way by the “Fraud Scheme” described in the Superseding Information. To be sure, Petitioner
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`affirms that Petitioner was never a victim of any conduct by Defendant Wang alleged in the
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`Superseding Information and does not believe that any of Petitioner’s Property was ever used in
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`any unlawful activity.
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`33.
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`Finally, there was no relevant testimony during Defendant Guo’s trial concerning
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`Account 2770. There was no testimony regarding whether any of the proceeds of the Fraud Scheme
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`were ever deposited into Account 2770, nor, for that matter, whether Defendant Wang ever
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`deposited any money into Account 2770. Simply put, there is nothing in the record that would
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`indicate there is a nexus between Account 2770 and Defendant Wang’s wire fraud charge, let alone
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`sufficient evidence to determine that the Government met its burden of showing, and the Court
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`properly adjudicated, that the appropriate nexus exists for forfeiture of Account 2770 to be proper.
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`34.
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`As to Count II, the Forfeiture Allegation states that, “[a]s a result of committing the
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`money laundering offense alleged in Count Two of this Information, YVETTE WANG, a/k/a
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`“Yanping” a/k/a “Y,” the defendant, shall forfeit to the United States pursuant to Title 18, United
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`States Code, Section 982(a)(1)2, any and all property, real and personal, involved in said offense,
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`or any property traceable to such property, including but not limited to a sum of money in United
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`States currency representing the amount of property involved in said offense.” Superseding
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`Information at 4. As to Count II, The Government “must prove the elements of forfeiture under 18
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`2 18 U.S.C. § 982(a)(1) provides that “[t]he court, imposing sentence on a person convicted of an
`offense in violation of section 1956 [the money-laundering statute] of this title . . . shall order that
`the person forfeit to the United States any property, real or personal, involved in such offense, or
`any property traceable to such property.” 18 U.S.C. § 982(a)(1) (emphasis added).
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`U.S.C. § 982(a)(1) by a preponderance of the evidence.” U.S. v. Beltramea, 785 F.3d 287, 290 (8th
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`Cir. 2015).
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`35.
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`The Superseding Information alleges that Defendant Wang committed conspiracy
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`to launder money because Defendant Wang “knowing that the property involved in certain
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`financial transactions represented the proceeds of some form of unlawful activity, would and did
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`conduct and attempt to conduct such financial transactions. . .and which in fact involved the
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`proceeds of specified unlawful activity, to wit, proceeds of the wire fraud scheme alleged in Count
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`One of this Information.” Superseding Information at 3.
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`36.
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`It is unclear how Account 2770 could be forfeited for the money laundering charge
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`in Count II. From the allegations, the charge of money laundering arises from Defendant Wang
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`engaging in financial transactions with the “proceeds of the wire fraud scheme alleged in Count
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`One.” Superseding Information at 3. As argued above, there is no evidence that funds in Account
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`2770 had any relation to the Fraud Scheme alleged in Count I (see ¶¶ 31-33, above) – there is no
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`evidence that such funds “constitute[d] or [were] derived from proceeds traceable to the
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`commission of” wire fraud. See e.g. 18 U.S.C. § 981(a)(1)(C). Since funds in Account 2770 were
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`not Fraud Scheme proceeds nor were they derived from Fraud Scheme proceeds, such funds could
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`not serve as the basis for the money laundering charge in Count II and cannot be forfeited as part
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`of Defendant Wang’s conviction for Count II.
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`37.
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`The overt acts that the Government alleges to support the money laundering charge
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`further fail to show how the funds in Account 2770 can be forfeitable. In the Superseding
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`Information, the Government sets forth two acts evidencing money laundering. Superseding
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`Information at 3. Although the Government states that these two overt acts were “among others”
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`that Defendant Wang committed in furtherance of the alleged conspiracy to launder money
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`Case 1:23-cr-00118-AT Document 611 Filed 04/04/25 Page 13 of 20
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`(Superseding Information at 3), these other acts were never identified.
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`38.
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`First, per the Superseding Information, on May 20, 2020, Defendant Wang opened
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`a bank account in the name of GTV, which, notably, Account 2770 was not. Superseding
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`Information at 3. On June 2, 2020, Defendant Wang transferred approximately $200 million to
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`that account. Id. The funds transferred into the GTV account were from a JP Morgan Chase Bank
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`account held by Saraca Media Group, Inc. (“Saraca”) (Guo Trial, 05/31/2024, 953:25-954:4; Guo
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`Trial, 06/26/2024, 4359:1-14), not from Account 2770. There was never any testimony that any
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`money from Account 2770 ever went into the Saraca JP Morgan Chase Bank account to then be
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`transferred to the GTV account cited in the Superseding Information. Moreover, Account 2770 did
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`not even exist in 2020.
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`39.
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`The second act the Government alleges is that “on or about June 5, 2020,”
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`Defendant Wang “authorized a wire transfer of $100 million from GTV’s parent company, Saraca,
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`to a high-risk hedge fund, for the benefit of Saraca and its ultimate beneficial owner, Defendant
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`Guo’s son.” Superseding Information at 3-4. First, this plainly alleges that the money was
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`transferred from a Saraca account, which Account 2770 was demonstrably not. Also, again, there
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`was never any testimony that any money from Account 2770 ever went into a Saraca account.
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`Moreover, once again, Account 2770 did not even exist in 2020.
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`40.
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`As seen from the above argument, there are no allegations or testimony regarding
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`Account 2770 whatsoever. The only reference in the record to Account 2770 is Defendant Wang’s
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`consent to forfeit it. However, “a defendant’s consent to forfeiture [does not] abrogate the
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`requirement that a nexus exist between the property sought for forfeiture and the conviction of
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`offense.” Beltramea, 785 F.3d at 291. As the Eighth Circuit stressed, “[t]he district court had an
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`independent duty to ensure that the required nexus exists.” Id. (emphasis added).
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`Case 1:23-cr-00118-AT Document 611 Filed 04/04/25 Page 14 of 20
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`41.
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`Here, there are no factual allegations in the Superseding Information, in the
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`Original Forfeiture Order or the Forfeiture Order as to even an alleged nexus between Account
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`2770 and the offenses to which Defendant Wang pled guilty.
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`42.
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`The Government’s continued retention of the funds in Account 2770, without
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`showing that there is a nexus, is wrong and inequitable. Should the Government retain the funds
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`in Account 2770, it will be unjustly enriched, since the funds belong to third parties, including
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`Petitioner, who are (1) not Defendant Wang or Defendant Guo; and (2) not involved the Fraud
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`Scheme, let alone victims of such a scheme. See, e.g., U.S. v. Bajakajian, 524 U.S. 321, 332 (1998)
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`(explaining that a criminal “forfeiture serves no remedial purpose, is designed to punish the
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`offender, and cannot be imposed upon innocent owners.”) (emphasis added).
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`B. Petitioner Has Interest in Petitioner’s Property Because There Exists a
`Constructive Trust Over Such Property
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`43.
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`Even putting aside the Government’s failure to properly demonstrate that the funds
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`in Account 2770 were part of any activity alleged in the Superseding Information, Petitioner’s
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`Property should be returned to Petitioner because Petitioner has a greater interest in it than does
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`Defendant Wang, or, now, the Government.
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`44.
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`Under the doctrine of constructive trusts, Petitioner’s Property is protected and
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`remains the property of Petitioner regardless of any other ownership claims, including Defendant
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`Case 1:23-cr-00118-AT Document 611 Filed 04/04/25 Page 15 of 20
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`Wang’s or the Government, standing in her shoes. The Second Circuit3 has held that “a
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`constructive trust qualifies as a ‘legal right, title, or interest in the property’ that ‘may be a superior
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`interest’ to a defendant’s interest for the purposes of a forfeiture statute analogous to 21 U.S.C. §
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`853(n)(6)(A).” Willis Mgmt. (Vermont), Ltd. v. United States, 652 F.3d 236, 242 (2d Cir. 2011).
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`45.
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`“A constructive trust is an equitable remedy, necessarily flexible to accomplish its
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`purpose.” Counihan v. Allstate Ins. Co., 194 F.3d 357, 361 (2d Cir. 1999) (emphasis added). “Its
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`purpose is to prevent unjust enrichment, although unjust enrichment does not necessarily implicate
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`the performance of a wrongful act. . .What is necessary is that the court identify a party who is
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`holding property under such circumstances that in equity and good conscience he ought not to
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`retain it.” Id. (internal citations omitted).
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`46.
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`“Whether a party is unjustly enriched is a legal conclusion reached through the
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`application of principles of equity. . . A court of equity in decreeing a constructive trust is bound
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`by no unyielding formula. The equity of the transaction must shape the measure of relief. . . Unjust
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`enrichment results when a person retains a benefit which, under the circumstances of the transfer
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`and considering the relationship of the parties, it would be inequitable to retain.” Id. (internal
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`3 “The federal common law choice-of-law rule is to apply the law of the jurisdiction having the
`greatest interest in the litigation.” In re Koreag, Controle et Revision S.A., 961 F.2d 341, 350 (2d
`Cir. 1992), aff'd in part sub nom. Refco F/X Assocs., Inc. v. Mebco Bank, S.A., No. 89 CIV. 3071
`(WK), 1992 WL 200748 (S.D.N.Y. July 31, 1992). Here, there are three competing jurisdictions
`whose laws could apply: New York, California, and Cayman Islands. Petitioner’s payment of
`Petitioner’s Property was pursuant to the Subscription Agreement, which is governed by Cayman
`Islands law. See Exhibit B, Subscription Agreement at 8, ¶ 2(s). Account 2770 was an account in
`a California bank when Petitioner deposited Petitioner’s Property. Since Account 2770 was seized
`(pursuant to a search and seizure warrant issued by a court in New York state), the funds are now
`in possession of the Government in New York. New York is the forum state of this case. From
`these facts, New York has the greatest interest in this litigation, and its laws should apply to an
`imposition of a constructive trust. However, to the extent that the Government challenges this
`choice-of-law determination, Petitioner reserves all rights to request that this Court impose a
`constructive trust over Petitioner’s Property under California and/or Cayman Islands law.
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`Case 1:23-cr-00118-AT Document 611 Filed 04/04/25 Page 16 of 20
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`citations omitted).
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`47.
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`The New York Court of Appeals outlined several factors to be considered in
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`determining whether a constructive trust should be imposed in certain circumstances, including
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`“(1) a confidential or fiduciary relation, (2) a promise, (3) a transfer in reliance thereon and (4)
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`unjust enrichment.” Sharp v. Kosmalski, 40 N.Y.2d 119, 121 (1976). However, New York courts
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`have long held that “these factors are merely useful guides and are not talismanic.” Counihan, 194
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`F.3d at 362 (citing to a plethora of New York state cases that have stated this proposition).
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`48.
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`Here, there is a constructive trust for the benefit of Petitioner over Petitioner’s
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`Property as of the date that it was deposited into Account 2770.
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`49.
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`Petitioner entered into a confidential and/or fiduciary relationship4 with Hamilton
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`Opportunity Fund when Petitioner executed the Subscription Agreement in order to acquire certain
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