ROSEMARY M. COLLYER, District Judge.
The United States Government submits a renewed application to register and enforce restraining orders issued by courts in the Federative Republic of Brazil, to preserve assets of persons being criminally prosecuted in Brazil. The Renewed Application is presented pursuant to 28 U.S.C.
The Government seeks to register and enforce restraining orders issued by Brazilian courts, to preserve $11,372,844.19, plus accrued interest, held in the following eleven accounts:
These eleven bank accounts are collectively referred to here as the "Accounts." The individuals, who were signatories on the Accounts, owned or controlled the Accounts and are referred to as the "Beneficial Owners." The corporations named on the Accounts — Chettair, Farswiss, Harborside, Safeport, Tigrus, Avion, Gatex, Harber, Mabon, and Midland — are offshore companies, incorporated in the British Virgin Islands. Application [Dkt. 1] at 10-15. The Accounts were held at the Valley National
The Beneficial Owners
As part of those criminal prosecutions, the Accounts are subject to eight restraining orders issued by courts in Brazil. See Renewed App. [Dkt. 59], Exs. A-H (Brazilian Restraining Orders); see also Dallagnol Aff., Att. A (Order of Court of the First Instance in Sao Paulo ratifying restraining order against the Harborside and Safeport Accounts). The Government filed this suit seeking to register and enforce restraining orders issued by the Brazilian courts (including the Brazilian Restraining Orders at issue here), and the Court issued a restraining order. See Restraining Order [Dkt. 2].
The United States and Brazil are parties to a Mutual Legal Assistance Treaty (MLAT), whereby the United States is obligated, inter alia, to assist Brazil in forfeiture matters. See Treaty on Mutual Legal Assistance in Criminal Matters, U.S. — Brazil, Oct. 14, 1997, S. Treaty Doc. No. 105-42 (ratified by U.S. Sept. 28, 1998). On February 12, 2008, Brazil sent a formal MLAT request to the United States, seeking enforcement of its courts' restraining orders on the Accounts, including the Brazilian Restraining Orders at issue here.
The MLAT request arose from the Brazilian prosecution of numerous individuals including the Beneficial Owners. The individuals
Ms. Nolasco was indicted in the United States and, on October 4, 2004, pleaded guilty to charges of operating an unlicensed money remitter business in violation of 18 U.S.C. § 1960 and to charges of tax evasion. See United States v. Nolasco, Crim. No. 04-617 (D.N.J.). In her plea agreement, Ms. Nolasco admitted that all of the Accounts were involved in an offense in violation of 18 U.S.C. § 1960 or are traceable to such property, and thus are subject to forfeiture. Id., Plea Agreement [Dkt. 26] at 4. In the course of the criminal prosecution of Ms. Nolasco, the U.S. District Court for the District of New Jersey issued seizure warrants for more than $21 million located in U.S. bank accounts, including the Accounts at issue here. In December 2004, a consent judgment of forfeiture was entered, but account holders filed claims for the return of the funds. The District of New Jersey granted summary judgment to the account holders, finding that the funds were not properly forfeited because Ms. Nolasco had no legal interest in them. See id., Order [Dkt. 153], Am. Order [Dkt. 154], Order Releasing property [Dkt. 157]. Before the funds were released, however, the New York County Attorney's Office initiated a state civil forfeiture action and obtained a writ of attachment on the Accounts. See Mot. to Intervene [Dkt. 7] at 7-8. Litigation ensued, but eventually the New York forfeiture case was dismissed as moot because the funds were transferred out of New York's jurisdiction to the United States pursuant to the MLAT request. Id.
The Beneficial Owners allegedly operated the Accounts and effectively controlled the offshore corporations in whose name the Accounts were opened. The Brazilian government asserts that the corporations were shell corporations, mere fronts for illegal activity by the Beneficial Owners. Dallagnol Aff. ¶ 5(19). In Brazil, the Beneficial Owners are charged with violations of Brazilian criminal laws against the operation of illegal or unlicensed financial institutions, conspiracy to commit criminal financial activity, and the laundering of proceeds of crime. See generally Dallagnol Aff. ¶ 6; Brazilian Restraining Orders. Specifically, the Beneficial Owners are charged with the following crimes: Brazilian Law 7492/86, Art. 4 (prohibiting fraudulent operation of a financial institution); Art. 16 (prohibiting operation of an unauthorized financial institution); Art. 22, (prohibiting unauthorized money exchange operations); Brazilian Law 9613/98, Art. 1 (prohibiting concealment and disguise of the true nature, origin, location, disposition, movement, or ownership of assets that result from acts against the Brazilian financial system); and Brazilian Penal Code § 288 (criminal conspiracy). See, e.g., Renewed App., Ex. B at 1.
The Brazilian authorities allege that the Accounts are subject to forfeiture because Brazilian law provides that property involved in money laundering is subject to prejudgment restraint and later forfeiture.
Dallagnol Aff. ¶¶ 5(10)-(12), (15). Brazilian law provides for a "double degree of jurisdiction," whereby after a sentence is imposed by the first trial court, the parties can appeal and the court of appeals reviews de novo both the facts and the law; in essence, this first appeal gives a defendant a right to a second trial. Id. ¶ 5(4). The cases are subject to three levels of appeal before a final judgment of conviction and forfeiture is entered. Id.; Status Report [Dkt. 13] at 7.
While the Brazilian Restraining Orders remain in place, the prosecutions of the Beneficial Owners of the Accounts are continuing and the Brazilian courts have not entered any final judgments of either acquittal or conviction. The status of the Brazilian prosecutions is as follows:
The Brazilian trial court acquitted the Beneficial Owners of the Avion Account, Gustavo Zerfan Harber and Michael Homci Harber. However, the prosecutor appealed, and thus there is no final judgment in that case. Dallagnol Aff. ¶ 6(5). With regard to the Midland Account and Beneficial Owners Henrique Lamberti and Marianel Gandolfo Miranda, the Brazilian prosecution is currently suspended due to the defendants' challenge to service of process. Id. ¶ 6(3). Messrs. Lamberti and Gandolfo Miranda live in Uruguay. It is anticipated that when the service issue is resolved, the prosecution will resume. Id. As to the Harborside and Safeport Accounts, the Brazilian court voided the prior criminal conviction of Beneficial Owner Mr. da Cunha Canto Kneese
As noted above, the offshore corporations named on the Accounts cannot be subject to criminal prosecution in Brazil. See Mottola Aff. ¶ 17. Even so, the corporations may contest the restraint of property in which they claim an interest in Brazilian courts. See Dallagnol Aff. ¶¶ 5(10), (14), (17), (18). So far, they have not done so. Id. ¶ 5(18).
The Government originally filed this suit on April 25, 2008, seeking to register and enforce restraining orders as requested in the MLAT. Four days later, the Court issued an order restraining various accounts, including the Accounts at issue here. See Restraining Order [Dkt. 2]. Formal notice was provided to interested persons located in Brazil and to the offshore corporations via their registered
In 2010, the D.C. Circuit ruled in a different case that 28 U.S.C. § 2467(d)(3) did not allow restraint of assets in the United States that had not yet been the subject of a final judgment of forfeiture in a foreign country. See In re Brown Bros. Harriman & Co. Account No. 8870792 in the name of Tiger Eye Inv. Ltd., 613 F.3d 1122, 1126-27 (D.C.Cir.2010) ("Tiger Eye"). In recognition of the ruling in Tiger Eye, the Government moved to amend this Court's restraining order to continue the restraint on Accounts already named in final Brazilian forfeiture judgments and to release other Accounts as to which final judgment had not yet been obtained in Brazil. Mot. to Amend [Dkt. 37]. Congress then amended 28 U.S.C. § 2467(d)(3), and the Government submitted the Renewed Application now before the Court. In light of the Renewed Application, the Court denied as moot the Government's motion to amend. See Minute Order (Feb. 24, 2011).
The following Beneficial Owners and corporations named on the Accounts have intervened in this matter and have filed objections to the Government's Renewed Application: Chettair Business, Inc., Harborside Corporation, Safeport Investment Corporation, Midland Financial, Inc., Avion Resources Ltd., Tigrus Corporation, Pompeu Costa Lima Pinheiro Maia, Isabel Cristina Maia, and Farswiss Asset Management Ltd. (collectively "Intervenors"). See Intervenors' Opps. [Dkts. 69, 70, 79]. The Intervenors joined in each of the others' objections. The Gatex, Harber, and Mabon Corporations have not filed any objections to the Renewed Application.
The Renewed Application to enforce the Brazilian Restraining Orders is brought under the federal law that governs the enforcement of foreign judgments, 28 U.S.C. § 2467(d)(3), as amended by the Preserving Foreign Criminal Assets for Forfeiture Act of 2010 ("2010 Amendment"). Before the 2010 Amendment, 28 U.S.C. § 2467(d)(3) provided:
28 U.S.C. § 2467(d)(3)(A) (emphasis added) (pre-2010 version). Critically, the 2010 Amendment rewrote subsection (A), that part of the statute that Tiger Eye had ruled allowed only post judgment restraining orders. As amended, 28 U.S.C. § 2467(d)(3)(A) now reads:
28 U.S.C. § 2467(d)(3)(A) (emphasis added).
As the law now stands, a proceeding under 28 U.S.C. § 2467 ("§ 2647 Proceeding") to enforce and register a foreign restraining order arises from a foreign court's determination that property may
In a § 2647 Proceeding, a court may "register and enforce a foreign restraining order that has been issued by a court of competent jurisdiction in [a] foreign country and certified by the Attorney General." 28 U.S.C. § 2467(d)(3)(B). Six criteria must be met before a court can enforce a foreign restraining order:
The Government argues that these six criteria have been met and that the Court should issue an order registering and enforcing the Brazilian Restraining Orders. See Renewed App. at 14-17. It notes: first, the United States and Brazil are parties to a formal MLAT; second, the underlying criminal conduct for these offenses, if committed in the United States, would violate U.S. criminal laws and would be subject to forfeiture; third, the Department of Justice certified that it is in the interest of justice for the United States to seek enforcement of the Brazilian Restraining Orders specified in the MLAT request;
Not assuaged, the Intervenors insist that their due process rights are violated by the enforcement of a foreign restraining order without a prerestraint hearing. They also contend the Government has not established dual forfeitability — i.e., the Government has not presented sufficient evidence that the alleged violations of Brazilian law giving rise to forfeiture would
The Intervenors complain vehemently about "the initial seizure of the Accounts by New York state courts, arguing that this violated due process. They emphasize that the original forfeiture of the Accounts in the Nolasco prosecution was reversed (since Ms. Nolasco had no claim to the funds). The Accounts originally were seized while the funds were under the jurisdiction of the State of New York and before they were transferred to the United States pursuant to the MLAT request. The propriety of the actions of New York courts is not subject to review by this Court. The only issue here is whether, under 28 U.S.C. § 2467, as amended, the Government is entitled to an order to register and enforce these Brazilian prejudgment restraining orders. Notably, this is not a suit for forfeiture under U.S. law.
The Intervenors also raise arguments that pursuant to statute and the U.S. Constitution, they are entitled to a due process prerestraint hearing. They claim that proceeding under 28 U.S.C. § 2467 (a "§ 2467 Proceeding") requires a prerestraint hearing because it states that "the procedural due process protections for a restraining order under section 983(j) of title 18" must be provided. 28 U.S.C. § 2467(d)(3)(A)(ii). The argument has facial appeal but does not stand up upon scrutiny of the plain statutory language of § 983(j).
Section 983(j) of Title 18 provides:
18 U.S.C. § 983(j)(1) (emphasis added). Section 983(j) speaks in terms of procedural steps for civil forfeiture to the United States. In a § 2467 Proceeding, Congress has directed that "references in such section 983(j) to civil forfeiture or the filing of a complaint shall be deemed to refer to the applicable foreign criminal or forfeiture proceedings." 28 U.S.C. § 2467(d)(3)(A)(ii)(II)(aa). Thus, the pendency of a foreign criminal proceeding satisfies the terms of 18 U.S.C. § 983(j), which permits a court to enter a restraining order upon the institution of foreign criminal or forfeiture proceedings.
In addition to their statutory arguments, the Intervenors claim they have a constitutional right to a prerestraint hearing. They assert that the lack of a prerestraint hearing violates their rights under the due process clause of the Fifth Amendment. U.S. Const. amend. V (providing that no person "shall be deprived of life, liberty, or property, without due process of law ..."). Due process mandates notice and an opportunity to be heard "at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
To determine whether due process requires a hearing in a particular case, a court must examine the factors set forth in Mathews v. Eldridge. United States v. E-Gold, Ltd., 521 F.3d 411, 415 (D.C.Cir.2008); see also United States v. Holy Land Found. for Relief and Dev., 493 F.3d 469, 475 (5th Cir.2007) (citing cases). Mathews v. Eldridge defined the relevant factors for consideration as follows: (1) the private interest that will be affected by the restraint; (2) the risk of an erroneous deprivation of such interest through the procedures used; (3) the probable value, if any, of additional or substitute procedural safeguards; and (4) the Government's interest, including the burdens that the hearing would entail. Holy Land 493 F.3d at 475 (citing Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. 893). Thus, when the Government seeks to restrain assets in order to remove them from the control of a defendant, the due process clause comes into play and a predeprivation hearing "would normally be in order." E-Gold, 521 F.3d at 416-17. However, under extraordinary circumstances notice and a hearing may be postponed until after the deprivation. Id. at 417. Extraordinary circumstances exist, for example, where there is a need for prompt action (such as to freeze monies that could be quickly dissipated) and there is an important government interest at stake (such as to separate a criminal from ill-gotten gains or to lessen the economic power of organized crime), leading courts to permit the restraint of assets without a prerestraint hearing. See id. at 415-16 ("[I]n the case of a criminal proceeding in which the government may ultimately have rights in the property at issue, immediate protective measures must be taken in order to prevent dissipation or deterioration of the assets before the time for trial is reached.") In contrast, in United States v. James Daniel Good Real Property, 510 U.S. 43, 52-57, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993), the Supreme Court found that a hearing was required before real property could be restrained. In that case, there were no exigent circumstances requiring immediate restraint of the real estate at issue because there was no evidence that the property would be sold or would deteriorate before a prerestraint hearing could be held.
While the Court will not grant a prerestraint hearing under the circumstances of this case, Intervenors also request a post restraint hearing. See Opp. [Dkt. 70] at 9. It is not clear whether Intervenors have a right to a post restraint hearing. Due process does not automatically require a post restraint hearing, but one may be granted upon a properly supported motion. United States v. Jones, 160 F.3d 641, 647 (10th Cir.1998).
Courts have required a post restraint hearing when assets might be restrained for a long period of time. In United States v. Crozier, 777 F.2d 1376 (9th Cir. 1985), the Ninth Circuit required a post restraint hearing where assets were restrained and would continue to be restrained for an extended period. Emphasizing that due process requires an opportunity to be heard at a meaningful time and in a meaningful manner, the court found that the risk of an erroneous deprivation of property was high where the criminal case was filed and the defendant's property was seized five years previously and the trial and appeals might take several years more. 777 F.2d at 1383-84.
Courts also have required a post restraint hearing to protect a criminal defendant's Sixth Amendment right to counsel in cases where the defendant asserts that he needs access to the restrained funds in order to pay defense counsel. E-Gold, 521 F.3d at 421.
Applying Mathews v. Eldridge, the Court here finds that the risk of an erroneous deprivation is high because the property was restrained years ago — in 2008 pursuant to the original restraining order
Intervenors also argue that putting the burden on them of showing a lack of due process in the foreign criminal prosecution is unfair and itself violates due process.
Intervenors further insist that the Accounts cannot be subject to the Brazilian Restraining Orders because the Accounts were held by corporations and the corporations are not, and cannot be, subject to prosecution in Brazil. Yet Brazilian law does not concern itself with the location of the funds or with the identity of the current holders. Instead, Brazilian law focuses on the source of the funds: monies are forfeitable if they are the proceeds or the instrument of crime. Dallagnol Aff. ¶ 5(12) ("[S]equestration, under Brazilian Law, is possible whenever there is a crime that bore assets.... [I]t is not important who is in possession of the assets when they are seized, but what is their origin."); Aras Aff. ¶¶ 65-66 (stating that Brazilian law provides that all assets owned or controlled by a criminal defendant may be restrained and upon conviction, the Brazilian court may order the forfeiture of an amount equal to the sum total of all offenses committed, together with any property that was used to commit an offense). Brazilian legal officials have formally notified this Court that these specific Accounts are subject to forfeiture in Brazil if the criminal prosecutions of the Beneficial Owners are successful. See Dallagnol Aff. ¶ (10) (forfeiture of the proceeds and instruments of crime is an effect of criminal conviction in Brazil). For purposes of the U.S. Government's request for initial registration and enforcement of the Brazilian Restraining Orders, that notification is sufficient.
Intervenors contend that the United States has not submitted evidence
At least some of the underlying criminal conduct for these offenses, if committed in the United States, would violate U.S. criminal laws, namely 18 U.S.C. § 1956 (money laundering) and § 1960 (unlicensed money remitting).
Inasmuch as the law was amended during the course of this litigation, Intervenors argue that a § 2467 Proceeding under the amended law constitutes a retroactive application of criminal law and violates the Ex Post Facto Clause of the U.S. Constitution. The Ex Post Facto Clause forbids the making of a punitive law that applies retroactively. U.S. Const. Art. I, § 9 cl. 3; id., § 10 cl. 1; Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). It applies to legislation that is criminal or penal in nature, rather than civil or remedial. United States v. All Assets Held at Bank Julius Baer & Co., Ltd., 571 F.Supp.2d 1, 7 (D.D.C.2008). Intervenors contend that the 2010 Amendment — which rewrote 28 U.S.C. § 2467(d)(3)(A) to allow restraining orders before or after the initiation of foreign criminal or forfeiture proceedings — "imposes the punishment of forfeiture for an act after its commission." Opp. [Dkt. 69] at 15.
The Ex Post Facto Clause requires determination of (1) whether Congress
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). These factors are not exhaustive, but they are "useful guideposts." Smith, 538 U.S. at 97, 123 S.Ct. 1140.
Intervenors argue that factors 2, 4, 5, 6, and 7 weigh in favor of finding that the 2010 Amendment is punitive. They maintain that the seizure of a person's property historically has been viewed as punishment; the enforcement of a foreign government's criminal judgment serves as a deterrent; the behavior resulting in the restraint of property is defined as a crime, both in Brazil and in the United States; and the purpose of 28 U.S.C. § 2467(d)(3) is to freeze the proceeds of a crime to ensure that the monies are not spent, transferred, or hidden. Intervenors suggest that the alternative purpose of a § 2647 Proceeding (to hold property safe during criminal prosecution) "far exceeds what is necessary to accomplish the alternative purpose as the seizure is permitted to occur `at any time' and the United States government has authority to freeze a person's assets for a period that could be years ... based solely on a foreign official's allegation that the owner of the assets violated that country's law." Opp. [Dkt. 69] at 19. Intervenors insist that most of the relevant factors favor a finding that the statute is punitive as applied here. They urge the Court to find that the law cannot be applied retroactively because to do so would violate the Ex Post Facto Clause.
This argument, however cogent, is contrary to all precedent and ultimately unconvincing. Congress intended the 2010 Amendment to be remedial, not punitive. It viewed the 2010 Amendment as a way to "close the loophole" and prevent criminals from shielding ill-gotten assets. 156 Cong. Rec. H8539-01 (2010) at 8540. The Supreme Court has long held that U.S. forfeiture statutes are civil, not criminal, in nature. In United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), the Court determined that Congress intended 18 U.S.C. § 981 and 21 U.S.C. § 881 to be civil proceedings. 518 U.S. at 288, 116 S.Ct. 2135. The Court emphasized that forfeiture proceedings are in rem against property and not in personam against a person. It found "little evidence ... that forfeiture proceedings... are so punitive in nature as to render them criminal." Id. at 290, 116 S.Ct. 2135. See also Julius Baer, 571 F.Supp.2d at 8
In a similar manner, a § 2467 Proceeding was intended by Congress to operate as a civil action that may be complementary to, but not the same as, a criminal prosecution. See UBS Fin. Servs., 860 F.Supp.2d at 41-42. This conclusion is supported by the fact that a § 2467 Proceeding is in rem against the allegedly illgotten property and not against any person. Notably, it is located in Title 28, Chapter 163 of the U.S.Code, which includes other civil remedies. See 28 U.S.C. §§ 2461-67. Further, as discussed above, a court must ensure that a § 2467 Proceeding complies with the due process protections established by 18 U.S.C. § 983(j), which apply to civil matters in the United States. Because a § 2467 Proceeding is civil in nature, the limitations on criminal proceedings imposed by the Ex Post Facto Clause do not apply.
Whether the amended law can be applied retroactively is a different question. Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), set forth a two-step analysis to determine if a civil statute can be applied retroactively. First, if Congress expressly states that a new statute is intended to have retroactive effect, then it can be so applied. Second, if legislative intent is not clear, there is a presumption against retroactivity. 511 U.S. at 280, 114 S.Ct. 1483. In that instance, a court must determine whether the new statute actually would have a retroactive effect, i.e., "whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id.
The statutory interpretation urged by Intervenors already was presented in a different context, unsuccessfully, to the Second Circuit in United States v. Certain Funds Contained in Accounts Located at the Hong Kong and Shanghai Banking Corp., 96 F.3d 20 (2d Cir.1996). Hong Kong and Shanghai Banking involved a civil forfeiture action under 28 U.S.C. § 1355(b), as amended, which allowed forfeiture of property in a foreign country that constituted proceeds of drug smuggling. The Second Circuit held that the amendment to 28 U.S.C. § 1355(b), which extended jurisdiction for civil forfeiture to property outside the United States, applied retroactively without violating the Ex Post Facto Clause. The Second Circuit determined that the statute could be applied retroactively because it "would not take away any rights possessed by a party, increase liability, or attach new legal consequences to past conduct." 96 F.3d at 24.
Id.
The 2010 Amendment to 28 U.S.C. § 2467 is analogous to the statutory amendment addressed in Hong Kong and Shanghai Banking. Because the 2010 Amendment does not expressly state that it is retroactive, the Court decides whether it is truly retroactive. Upon such analysis, it is obvious that the 2010 Amendment does not impair any rights, does not increase liability for past conduct, and does not attach new consequences to past conduct. The Beneficial Owners never had any legal right to property derived from
A further sound argument supports this § 2467 Proceeding. Statutes that enlarge or limit the jurisdiction of federal courts do not affect substantive rights but only address the power of a federal court to address a claim or dispute. See Landgraf, 511 U.S. at 274, 114 S.Ct. 1483 ("We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed."). The Court finds that 28 U.S.C. § 2467 is such a jurisdictional rule, as it "grants federal courts jurisdiction to enforce foreign forfeiture and confiscation judgments" and "to enter such orders as may be necessary to enforce the [foreign] judgment." Tiger Eye, 613 F.3d at 1126. The 2010 Amendment, permitting the restraint of assets at the pre and post judgment stages of foreign proceedings, expands the temporal jurisdiction of U.S. courts to register and enforce foreign restraining orders. Before the 2010 Amendment, federal courts had authority to issue restraining orders on foreign request only after a foreign forfeiture judgment had been entered. Id. at 1126-27. As revised to provide wider temporal jurisdiction, 28 U.S.C. § 2467 does not affect substantive rights and is, therefore, not barred as having retroactive application.
Intervenors Harborside and Safeport corporations assert that "there is no foreign forfeiture action" against them. Opp. [Dkt. 69] at 3. This claim is based on the fact that the underlying conviction of Beneficial Owner Mr. da Cunha Canto Kneese was "voided by a higher court in Brazil on the grounds that the judge who heard the case was incompetent." Id. at 2. Intervenors filed an affidavit of former Brazilian trial court judge Fernando Mottola, who attested that the incompetence of a judge voids any decisions that judge made, as if the proceedings before him never took place. Id., Ex. A (Mottola Aff.) ¶¶ 7, 9, 14. However, Intervenors do not dispute that, in the underlying case and in the context of Brazilian law, the term "incompetent" merely meant that the initial prosecution was in an "improper venue." Dallagnol Aff. ¶ 3(1), (2), (4). The Regional Court of the 4th Region found that the trial court that convicted Mr. da Cunha Canto Kneese (the Court of the First Instance in Curitiba, State of Parana) was the wrong venue and ordered the case transferred to the Court of the First Instance in Sao Paulo, State of Sao Paulo. Mottola Aff., Ex. A (Order of Regional Court of the 4th Region, dated May 19, 2011). At the time the Mottola Affidavit was filed, no new case had been commenced against Mr. da Cunha Canto Kneese. Mottola Aff. ¶ 14. Since that time, however, the case was transferred, and most importantly, the Court of the First Instance in Sao Paulo ratified the restraining order previously issued against the Harborside and Safeport Accounts.
For the foregoing reasons, the Government's Renewed Application to register and enforce the Brazilian Restraining Orders [Dkt. 59] will be granted. The restraining Order issued April 29, 2008 [Dkt. 2] is superseded by the accompanying Superseding Restraining Order.
