UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

UNITED STATES OF AMERICA,

Plaintiff, Case No.: 1:20-cv-23278-MGC

v. 

REAL PROPERTY LOCATED AT 7505 AND 

7171 FOREST LANE, DALLAS, TEXAS 75230, 

WITH ALL APPURTENANCES, IMPROVEMENTS, 

AND ATTACHMENTS THEREON, AND ANY 

RIGHT TO COLLECT AND RECEIVE ANY PROFIT,

RENT, INCOME, AND PROCEEDS THEREFROM, 

Defendant,

____________________________________________/

UNITED STATES OF AMERICA,

Plaintiff, Case No.: 1:20-cv-23279-RNS

v. 

ALL RIGHT TO AND INTEREST IN PNC 

CORPORATE PLAZA HOLDINGS LLC HELD,

CONTROLLED, OR ACQUIRED, DIRECTLY OR 

INDIRECTLY, BY OPTIMA CBD INVESTMENTS 

LLC AND/OR CBD 500 LLC, INCLUDING ANY 

INTEREST HELD IN OR SECURED BY THE REAL 

PROPERTY AND APPURTENANCES LOCATED 

AT 500 WEST JEFFERSON STREET, LOUISVILLE, 

KY 40202, et al.,

Defendant,

____________________________________________/

CLAIMANTS’ TIME-SENSITIVE JOINT MOTION TO VACATE

EX PARTE RESTRAINING ORDER

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The individual-Claimants and entity-Claimants, through undersigned 

counsel,1 jointly move to vacate the applicable Ex Parte Restraining Orders, ECF#6 

(Cooke), ECF#5 (Scola), failing which, the Court should convene a prompt, 

adversarial evidentiary hearing with respect to the basis for the restraining order, and 

for any and all relief the Court deems just and appropriate. 

I. Factual and Procedural Background 

On August 6, 2020, the Government filed two Verified Complaints for 

Forfeiture In Rem, both of which generally allege that forfeiture is permissible 

because, under the United States’ interpretation and application of Ukrainian law, 

various investments in the United States are “traceable to an international conspiracy 

to launder money embezzled and fraudulently obtained from PrivatBank [in the 

Ukraine].” See ECF#1:1, 15-16 (Cooke); ECF#1:1, 16-17 (Scola). Specifically, the 

United States alleges that so-called “misappropriated funds” were used to purchase 

interests in property located in Kentucky and Dallas. See ECF#1:1-2, 15-16 (Cooke); 

ECF#1:1-2, 16-17 (Scola). According to the Government, “Kolomoisky and 

Boholiubov recruited their American counterparts Korf and Laber [to] ... establish[] 

a complex system of entities in order to facilitate the laundering of the 

misappropriated funds, and to invest the funds in property and businesses in the 

United States.” ECF#1:19 (Cooke); ECF#1:19 (Scola). The Verified Complaints 

plead seven counts for civil forfeiture of properties located in Texas and Kentucky. 

ECF#1:32-38 (Cooke); ECF#1:38-44 (Scola). The verification pages are signed by 

supervisory special agent with the FBI Matthew B. Hoke. ECF#1:41 (Cooke); 

ECF#1:46 (Scola).

1 Because the entity-Claimants are corporations that “cannot appear pro se, and must be 

represented by counsel” Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385 (11th Cir. 1985), counsel 

have appeared for the entity-Claimants to protect their interests at the outset, while reserving rights 

to seek modification of the restraining order to provide funds for the legal defense.

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A. Initial Outreach To The Government

On the morning of August 10, 2020, counsel for Claimants emailed the 

Government, stated that they would like to propose “interlocutory sale of the 

properties” and requested a conference call to discuss. Hours later, the government 

agreed to meet and confer while simultaneously filing, in Judge Scola’s case, an Ex 

Parte Application for Post-Complaint Restraining Order, (the “Ex Parte

Application” or “Application”), under seal, which claimed that it was “likely that 

individuals with that expertise would try to further secrete and launder the asset to 

avoid forfeiture.” ECF#4:6-7 (Scola). The Government did not disclose to the Court 

that the undersigned counsel was reaching out to cooperatively negotiate an 

interlocutory sale of the properties, a material fact that would have detracted from 

the Government’s narrative that exigent circumstances required ex parte relief. The 

Government knew that the Kentucky property was already under contract to be sold, 

with a closing date scheduled for months later, in October 2020. During the meet 

and confer held on August 11, 2020, the Government indicated its amenability to an 

interlocutory sale and stated that it would get back to counsel, without disclosing to 

undersigned that the Ex Parte Application (ECF#4) had already been filed.

Thereafter, on September 3, 2020, the Government filed, in Judge Cooke’s 

case, 20-cv-23278-MGC, another Ex Parte Application for Post-Complaint 

Restraining Order, again under seal, and again claimed that “it is highly likely that 

individuals with that expertise would try to further secrete and launder the asset to 

avoid forfeiture” of the property at issue in that case. ECF#5:5 (Cooke). The 

Government did not disclose to counsel that it had filed the Ex Parte Applications

under seal and did not inform the Court that it was actively in discussion with the 

undersigned counsel regarding the disposition of the properties, in an effort to reach 

a good faith accommodation voluntarily and in an open and transparent fashion. 

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B. Ex Parte Application and Order—Kentucky Property (Scola)

As discussed in section I.A, ante, within hours of counsel openly reaching out 

to discuss a potential interlocutory sale of the Kentucky property, the Government 

filed under seal its Ex Parte Application, dated August 10, 2020. ECF#4 (Scola).

The Ex Parte Application sought restraint of, among other things, “real property and 

appurtenances located at 500 West Jefferson Street, Louisville, KY 40202 (‘PNC 

Plaza’) [and] any profit, rent, income, and proceeds therefrom.” ECF#4:1-2 (Scola).

The Ex Parte application also sought to insert the Government as the de facto

manager of the corporate entities that hold the real property, including “allow[ing] 

the United States to join in the Defendant Asset’s management, including by 

directing key business decisions about day to day operations and to monitor 

compliance with the Order by all lawful means available.” Id.

On August 14, 2020, the Court adopted the Government’s proposed order 

verbatim, ECF#4-1(Scola), and entered its Ex Parte Restraining Order, 

ECF#5(Scola). The Ex Parte Order restrains the relevant Kentucky “real property 

and appurtenances [as well as] any profit, rent, income, and proceeds therefrom.” 

ECF#5:1-2 (Scola). It further requires the Claimants to “allow the United States to 

join in the Defendant Asset’s management, including by directing key business 

decisions about day to day operations,” effectively substituting the Government as 

ex parte property manager. Id. at 2-3. . Further, the Order prohibits all persons with 

a legal claim to the “Defendant Asset” from, among other things, “wasting, 

secreting, damaging, diminishing the value of, disposing of, or removing from the 

jurisdiction of this Court” their interests “unless approved in writing by the 

Government.” Id. The Ex Parte Order also “require[s] [Claimants] to maintain the 

present contracts and agreements related to the Defendant Asset” and thereby

mandates the consummation of the “sale [of the PNC Plaza / Kentucky property] as 

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agreed to in the Purchase and Sale Agreement dated July 17, 2020 and amended on 

July 23, 2020.” Id. at 2-3. 

The closing mandated by the Order is scheduled for October 16, 2020, and 

PNC Plaza / Kentucky property is expected to sell for approximately $23 million 

dollars. The Ex Parte Order then compels the Claimants to transfer the sale proceeds 

“into the custody of the United States Marshals Service pending the outcome of this 

action.” Id. at 3.

C. Ex Parte Application and Order—Dallas Property (Cooke)

On September 3, 2020, the Government filed, under seal, its Ex Parte 

Application for Post-Complaint Restraining Order, which sought restraint of, among 

other things, “all right to and interest in the real property located at 7505 and 7171 

Forest Lane, Dallas, Texas 75230, with all appurtenances, improvements, and 

attachments thereon (the ‘CompuCom Campus’).” ECF#5:1 (Cooke). The Ex Parte 

Application also sought to direct the business operations of the owners of the Dallas 

property, including requiring “approval in writing, by the Government” before 

taking any action that might affect the value of the property, and further requiring 

the owners to “maintain the present contracts and agreements related to the 

Defendant Asset, and adhere to all provisions of any applicable contract or 

agreement, and to maintain the present condition of the Defendant Asset, including 

timely payment of the mortgage, insurance, utilities, taxes, and assessments[.]” Id. 

at 6. 

On September 4, 2020, the Court adopted the Government’s proposed order 

verbatim, ECF#5-1 (Cooke), and entered its Ex Parte Restraining Order, ECF#6

(Cooke). The Ex Parte Order restrains the relevant Dallas property “with all 

appurtenances, improvements, and attachments thereon [as well as] any right to 

collect and receive any profit, rent, income, and proceeds therefrom,” ECF#6:1, 

requires that the Claimants (a) obtain “approv[al] in writing by the Government” 

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before taking any action that might affect the value of the property (presumably 

including rental income), id. at 2:¶5.a, (b) “maintain the present contracts and 

agreements related to the Defendant Asset,” id. at 2:¶5.b, and (c) “maintain the 

current levels of rent, income, and any other proceeds it receives in the course of 

such operation,” Id. at 2:¶5.c. 

D. Claimants Further Confer with Government and Contest Seizure 

On October 5, 2020, Claimants filed claims contesting the forfeitures. 

ECF#10, #11, #12 (Cooke); ECF#17, #18, #19 (Scola). On several occasions, 

Claimants have conferred with the Government in an effort to reach an 

accommodation to obviate the need for the instant motion. The PNC Plaza / 

Kentucky property (Scola), is expected to sell for approximately $23 million, which 

after paying off debt and fees, should net for Claimant Optima CBD 500, LLC, (the 

95% owner of the property), approximately $7 million. 

Claimant Optima CBD 500 LLC (“CBD 500”) is owned 100% by Claimant 

Optima CBD Investments LLC (“CBD Investments”). Claimant CBD Investments

also owns a subsidiary named E. 12th Street LLC, which in turn owns a vacant lot 

in Cleveland. This vacant lot is mortgaged under a joint loan agreement, which is 

currently in default. CBD Investments was motivated to enter into the sale of CBD 

500’s Kentucky property in order to use some of the $7 million in closing proceeds 

from the sale of CBD 500’s Kentucky property to repay the mortgage holder of CBD 

Investment’s vacant lot and thereby avoid foreclosure of the mortgage on CBD 

Investment’s vacant lot, with the prospect of altogether freeing the vacant lot from 

the loan obligation.

Accordingly, Claimants proposed to government counsel that approximately 

$500,000 to $2 million of the proceeds of the sale of Kentucky property be available 

to repay the mortgage holder of the vacant lot (amount to be negotiated with the 

mortgage holder), in exchange for the Government obtaining a corresponding lien 

Case 1:20-cv-23279-MGC Document 22 Entered on FLSD Docket 10/12/2020 Page 6 of 19
on CBD Investment’s vacant lot in the same amount pending the outcome of this 

forfeiture proceeding. It bears repeating that Claimants’ sale of CBD 500’s Kentucky 

property was motivated in large part to generate cash to pay the mortgage holder of 

the CBD Investment’s vacant lot and thereby avoid foreclosure of the mortgage. If 

the proceeds of the sale of CBD 500’s Kentucky property were not going to be 

available to pay the mortgage holder of the vacant lot, Claimants would have 

endeavored to (and now would endeavor to) structure the deal with the buyer of the 

Kentucky property, if possible, to generate funds that CBD Investments could use 

(with permission of the Court, as required) to pay the mortgage holder of the vacant 

lot.

In addition to sustaining the vacant lot, the entity-Claimants proposed to the 

Government that the sale proceeds from the Kentucky property also be available to 

pay for bona fide legal fees in defense of the instant forfeiture action. The entityClaimants are corporations that “cannot appear pro se and must be represented by 

counsel.” Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385 (11th Cir. 1985). As the 

Ex Parte Restraining Order would, by its terms, command the sale of the Kentucky 

property but then prohibit use of the sale proceeds, the entity-Claimants would not 

have cash flow to fund the defense of this forfeiture action.

To date, the Government has refused any compromise with regard to the 

Kentucky property (Scola). The parties have not engaged in any discussion regarding

modification of the Ex Parte Restraining Order with regard to the Dallas property 

(Cooke).

II. Summary of the Argument 

The Ex Parte Applications were plainly unconstitutional pursuant to United 

States v. James Daniel Good Real Prop., 510 U.S. 43, 52–57, 62 (1993), which holds 

that due process requires a hearing before the government may seize real property 

pending the resolution of a civil forfeiture action. The real property and ownership 

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of the companies which hold the real property and exist solely to manage the real 

property could not be constitutionally seized without a pre-restraint hearing, 

especially where there were no exigent circumstances and counsel was actively 

apprising the Government of a contemplated sale and endeavoring to work with the 

Government cooperatively to effectuate the same.

Because of the manner in which the Government chose to proceed after 

Claimants’ counsel began negotiations with the Government, Claimants had no 

opportunity to challenge the ex parte restraint of their interests in the property. 

Claimants have since conferred with the Government, and the Government asserts 

that the Claimants are not entitled to any post-restraint hearing, despite the Supreme 

Court’s decision in Good Real Prop., 510 U.S. at 52-57, which mandates a hearing 

before the government may seize real property pending the resolution of a civil 

forfeiture action.

The Government’s Ex Parte Applications also cite 18 U.S.C. § 983 as their 

legal basis but ignore § 985, which governs civil forfeiture of real property and 

interests in real property. The Government indisputably sought and obtained the 

restraint of “real property” and have obtained an order that expropriates the interests 

derived therefrom, including “profit, rent, income, and proceeds” as well as 

compelling participation in various aspects of realty management. The Government 

should have notified the Court—especially given the ex parte nature of the 

application—that § 985 and its procedural protections govern real property 

forfeiture, not § 983.

Pursuant to section 985(d), the Government was required to either: (1) afford 

the property owners a pre-restraint hearing at which they would be heard on the issue 

of probable cause; or (2) demonstrate an emergency justifying an ex parte

determination of probable cause for seizure of the property. See 18 U.S.C. §§ 

985(d)(1)(A)-(B)(i-ii). For, the Government lawfully to proceed ex parte, it had to 

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demonstrate exigent circumstances. See id. at § 985(d)(1)(A)-(B)(ii). With a lis 

pendens already in place, the Government had no need for a more intrusive order, 

particularly given that Claimants, through counsel, had notified the Government of 

their intentions. See id. at § 985(d)(2)(“the Government shall show that less 

restrictive measures such as a lis pendens ... would not suffice to protect the 

Government’s interests in preventing the sale, destruction, or continued unlawful use 

of the real property.”).

Even assuming arguendo that the Government adequately identified an actual 

emergency supported by articulable evidence, (it did not—and could not because 

counsel was transparent and actively reaching out and consulting with the 

Government), Claimants remain entitled to “a prompt post-seizure hearing during 

which the property owner shall have an opportunity to contest the basis for the 

seizure.” Id. at § 985(e) (emphasis added). Claimants maintain that any ex parte, prehearing restraint of real property would have been unconstitutional based on the 

holding of Good Real Property, but even the minimum protection of § 985(e) was 

ignored, and the applicability of § 985 was never even disclosed to the Court. To 

date, Claimants have not been afforded a hearing and the Government still disputes 

entitlement to a prompt hearing, despite section 985(e)’s clear language.2

Moreover, even if the Ex Parte Application and Order did not implicate 

interests in real property, (and they do), the claimants would still be entitled to a 

prompt post-restraint hearing, pursuant to due process case law. The Government 

2 As to the Kentucky property (Scola), this motion is especially time-sensitive insofar as the 

Government intends for the mandated sale to convert the real property into cash and then argue 

that a hearing is no longer required. See 18 U.S.C. § 985(f)(2)(“This section— does not apply to 

forfeitures of the proceeds of the sale of such property or interests....”). But the Government 

cannot short circuit the procedural requirements of § 985(e) by orchestrating an ex parte forced 

sale. If an interest in real property is seized at the outset, then Claimants are entitled to the 

procedural protections of section 985(e) at the outset, and the post-seizure hearing must therefore 

be provided “prompt[ly]”— at the outset. In any event, a hearing is still required as to the Dallas 

property (Cooke), for which no sale is imminent.

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cannot expropriate and commandeer tens-of-millions-of-dollars-worth of real 

property without a hearing, based solely on a threadbare verification page and ex 

parte motion under seal. Due process, equity, and fundamental fairness affords the 

Claimants far more — including but not limited to a meaningful hearing and 

opportunity to confront meritless allegations. 

III. Legal Principles—Statutory and Constitutional

“The procedures governing civil forfeiture proceedings are mapped out across 

several overlapping statutory provisions in the United States Code.” In re 650 Fifth 

Ave. & Related Properties, No. 08 CIV. 10934 (LAP), 2020 WL 995886, at *3 

(S.D.N.Y. Mar. 2, 2020) (Preska, J.). “Seeing as civil forfeiture involves the seizure 

and confiscation of private property, that statutory framework necessarily reflects 

the bedrock requirements of the Due Process Clause of the Fifth Amendment, which 

provides that ‘[n]o person shall . . . be deprived of life, liberty, or property, without 

due process of law.’ ” Id. (citing U.S. Const. amend. V). 

“Section 985 of Title 18 of the United States Code codifies rules specifically 

applicable to civil forfeiture of ‘real property and interests in real property.’” Id. at 

*4 (quoting 18 U.S.C. § 985(f)(1)). “That statute lays out a general rule that ‘real 

property that is the subject of a civil forfeiture action shall not be seized before entry 

of an order of forfeiture.’” Id. (quoting 18 U.S.C. § 985(b)(1)(A)). The statute, 

however, carves out two situations where real property may be seized prior to the 

entry of an order of forfeiture. Id. First, where the Government has notified the court 

that it intends to effect a pretrial seizure of real property, a court may “issue[ ] a 

notice of application for warrant, cause[ ] the notice to be served on the property 

owner and posted on the property, and conduct[ ] a hearing in which the property 

owner has a meaningful opportunity to be heard.” Id. (quoting §§ 985(d)(1)(A)-

(B)(i)). Second, where the Government has provided the same notice to the court, 

the court may make an ex parte determination that there is probable cause for 

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forfeiture and that “exigent circumstances . . . permit the Government to seize the 

property without prior notice and an opportunity for the property owner to be heard.” 

Id. (quoting 18 U.S.C. § 985(d)(B)(ii)).3

To oversimplify the issue: if real property is involved, under § 985, the 

Government may seize the property before a trial only if (1) there is a hearing where 

property owners may be heard on the issue of probable cause or (2) there is an 

emergency justifying an ex parte determination of probable cause for seizure of the 

property. Id. However, where the property has been seized ex parte, the Court “shall 

conduct a prompt post-seizure hearing during which the property owner shall have 

an opportunity to contest the basis for the seizure.” Id. at § 985(e) (emphasis added).

Even outside the context of seizure of real property, “considerations of due 

process can require the court to hold a post-restraint pretrial hearing in certain 

circumstances.” United States v. Melrose E. Subdivision, 357 F.3d 493, 499 (5th Cir. 

2004). “Although there does not seem to be a reported holding to this effect 

regarding . . . 18 U.S.C. § 983(j), authorities interpreting its criminal analogue, 21 

U.S.C. § 853(e), are in broad agreement that due process requires the district court 

to hold a prompt hearing at which the property owner can contest the restraining 

3 The Government failed to demonstrate the existence of exigent circumstances (via an unverified 

motion, no less) for an intrusive ex parte order which effectuated a seizure, even if nominally 

denominated as only a “restraining” order. See Section III(A), infra. 

For purposes of paragraph (1)(B)(ii), to establish exigent circumstances, the 

Government shall show that less restrictive measures such as a lis pendens, 

restraining order, or bond would not suffice to protect the Government’s 

interests in preventing the sale, destruction, or continued unlawful use of the real 

property.

18 U.S.C. § 985(d)(2). The Government obtained lis pendens, the Government knew that the 

closing date for the sale of the Kentucky property was not scheduled until months later (Scola), 

the Government knew that there was no risk of an imminent sale of the Dallas property (Cooke), 

and, moreover, counsel was openly discussing the potential sales with government counsel. Under 

these circumstances, the Government did not and could not demonstrate the requisite exigency. 

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order—without waiting until trial to do so.” Id. (collecting cases). “This is the same 

approach that the Supreme Court has taken in civil cases where property is seized 

based on an ex parte proceeding.” United States v. Kaley, 579 F.3d 1246, 1257 (11th 

Cir. 2009) (citing Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974)). “The Supreme 

Court has held that, in these situations, the debtor is, at least, owed a post-restraint 

hearing to determine whether probable cause actually exists.” Id. (citing Mitchell, 

416 U.S. at 607; Fuentes v. Shevin, 407 U.S. 67, 92 (1972).

The need for a post-restraint hearing is even more compelling in a preindictment civil case such as this one because: “[i]n the criminal context, an ex parte

pretrial restraining order under 21 U.S.C. § 853(e)(1)(A) is at least supported by a 

grand jury finding of probable cause, but that need not be the case in civil 

forfeitures”; the “ultimate resolution of a civil forfeiture case may be longer in 

coming, as such a case is not governed by the speedy trial considerations operative 

in a criminal case”; and “While a claimant in a civil forfeiture case might hope to 

regain restrained property quickly by filing a motion for summary judgment, the 

government can block this tactic by moving to stay the civil forfeiture proceeding 

pending the criminal trial [or investigation].” Melrose, 357 F.3d at 503 n.9. 

In any event, in all instances, due process requires a hearing before the 

government may seize real property pending the resolution of a civil forfeiture 

action. See Good Real Prop., 510 U.S. 43 at 52–57, 62.

A. The Ex Parte Order Effectively Substituted the Government in Place 

of the Property Owners and Stripped the Claimants of All Property 

Rights and, Therefore, Constituted A Quintessential “Seizure.” 

18 U.S.C. § 985(f)(3) provides that “[t]his section— shall not affect the 

authority of the court to enter a restraining order relating to real property.” But 

because the so-called, Ex Parte Restraining Orders impose more than just a restraint 

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on alienation—even if not physical occupation—they effect a seizure within the 

meaning of section 985 and the Due Process Clause.

As other Courts have put it, the entire thrust of the Supreme Court’s reasoning 

in Good Real Property is that physical possession is not the sine qua non of real 

property seizure. See United States v. Property Identified as Lot Numbered 718, 20 

F. Supp.2d 27, 36 (D.D.C. 1998) (“What is a seizure? In Good Real Property, it was 

something less than physical eviction — the collection of rent.”); see also United 

States v. 408 Peyton Rd., S.W., Atlanta, Fulton County, GA, 162 F.3d 644, 650 (11th 

Cir. 1998) (“[T]he Supreme Court in Good did not intend for physical control to be 

of paramount importance when determining whether a constitutionally cognizable 

‘seizure’ of real property has taken place.”). “A seizure of property occurs when 

there is some meaningful interference with an individual’s possessory interests in 

that property.” In re 650 Fifth Ave, 2020 WL 995886, at *5 (noting that “limited 

conception[s] of seizure face[] powerful headwinds in the caselaw.”).

Judge Scola’s Ex Parte Restraining Order mandates a property sale and inserts 

the Government as property manager “including by directing key business decisions 

about day to day operations.” ECF#5:3 (Scola). Judge Cooke’s Ex Parte Restraining 

Order interferes with the Claimants’ “right to collect and receive any profit, rent, 

income, and proceeds” from their real property, ECF#6:1-2 (Cooke), by requiring 

that the Claimants (a) obtain “approv[al] in writing by the Government” before 

taking any action that might affect the value of the property (presumably including 

rental income), id. at 2:¶5.a, (b) “maintain the present contracts and agreements 

related to the Defendant Asset,” id. at 2:¶5.b, and (c) “maintain the current levels of 

rent, income, and any other proceeds it receives in the course of such operation,” Id.

at 2:¶5.c. The mere “step of asserting control over the property,” Good Real Prop., 

510 U.S. at 59, “cause[s] the requisite impact to Claimants’ exercise of their property 

rights such that they amount to a seizure of real property.” In re 650 Fifth Ave., 2020 

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WL 995886, at *6. Accordingly, the procedural requirements of section 985 apply, 

notwithstanding 18 U.S.C. § 985(f)(3).

B. Due Process Of Law Mandates A Hearing 

Even if section 985 were not in play, the Fifth Circuit case cited by the 

Government in a footnote to each of its Ex Parte Applications, ECF#5:4 n.3 (Cooke), 

ECF#4:6 n.2 (Scola), purportedly in support of the proposition that no hearing is 

required, actually supports Claimants’ position that a hearing is required. That case, 

United States v. Melrose E. Subdivision, “assume[d] without deciding that due 

process can mandate a post-restraint hearing under § 983(j)(1)(A).” 357 F.3d at 500. 

In performing its analysis, the Fifth Circuit recognized that the need for a postrestraint hearing is even more compelling in a pre-indictment civil case such as this 

one because: “[i]n the criminal context, an ex parte pretrial restraining order under 

21 U.S.C. § 853(e)(1)(A) is at least supported by a grand jury finding of probable 

cause, but that need not be the case in civil forfeitures”; the “ultimate resolution of 

a civil forfeiture case may be longer in coming, as such a case is not governed by the 

speedy trial considerations operative in a criminal case”; and “[w]hile a claimant in 

a civil forfeiture case might hope to regain restrained property quickly by filing a 

motion for summary judgment, the government can block this tactic by moving to 

stay the civil forfeiture proceeding pending the criminal trial.” Id. at 503 n.9.

“[A]uthorities . . . are in broad agreement that due process requires the district 

court to hold a prompt hearing at which the property owner can contest the 

restraining order—without waiting until trial to do so.” Id. (collecting cases). 

“Seeing as civil forfeiture involves the seizure and confiscation of private property, 

that statutory framework necessarily reflects the bedrock requirements of the Due 

Process Clause of the Fifth Amendment, which provides that ‘[n]o person shall . . . 

be deprived of life, liberty, or property, without due process of law.’ ” In re 650 Fifth 

Ave., 2020 WL 995886, at *3 (Preska, J.). (citing U.S. Const. amend. V). “This is 

Case 1:20-cv-23279-MGC Document 22 Entered on FLSD Docket 10/12/2020 Page 14 of 19
the same approach that the Supreme Court has taken in civil cases where property is 

seized based on an ex parte proceeding.” United States v. Kaley, 579 F.3d 1246, 

1257 (11th Cir. 2009) (citing Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974)). “The 

Supreme Court has held that, in these situations, the debtor is, at least, owed a postrestraint hearing to determine whether probable cause actually exists.” Id. (citing 

Mitchell, 416 U.S. at 607; Fuentes v. Shevin, 407 U.S. 67, 92 (1972) ). At a 

minimum, a post restraint hearing is required at which the Claimants can challenge 

the Government’s factual predicate. 

In any event, in all instances, due process requires a hearing before the 

government may seize real property pending the resolution of a civil forfeiture 

action. See Good Real Prop., 510 U.S. at 52–57, 62.

C. The Requisite “Opportunity To Contest The Basis For The Seizure” 

Includes The Right To Cross Examine.

“The government’s decision to seek a pretrial seizure is not without some 

consequence.” United States v. Contents of Accounts, No. 3:10-CV-228-H, 2010 WL 

2556849, at *11 n.20 (W.D. Ky. June 18, 2010), aff'd in part, appeal dismissed in 

part, 629 F.3d 601 (6th Cir. 2011). “[I]t would seem questionable that the 

government could take property and then hide the witness whose affidavits 

supported the taking.” Id. In the instant case, the sole factual predicate for the ex 

parte seizure of the $23 million dollar asset and substitution of the Government as 

ex parte property manager is a single verification page executed by Matthew M. 

Hoke, “supervisory special agent with the FBI . . . assigned to the investigation in 

this case.” ECF#1:46. Agent Hoke swears that the facts are “true to [his] own 

knowledge, except that those matters herein stated to be alleged on information and 

belief, and as to those matters, [he] believe[s] them to be true.” Id. The “sources of 

[his] knowledge and information and the grounds of [his] belief” include 

Case 1:20-cv-23279-MGC Document 22 Entered on FLSD Docket 10/12/2020 Page 15 of 19
“information supplied by other law enforcement officers, experts, and other 

witnesses, as well as [his] investigation of this case.” Id. 

Agent Hoke’s verified complaint contains factual allegations spanning several

decades with facts and circumstances transpiring simultaneously on different 

continents, in different languages, not to mention the many legal conclusions that 

are interwoven with numerous provisions of the Ukrainian Criminal Code. 

Demonstration of a likelihood to prevail requires admissible evidence, not 

inadmissible hearsay or information and belief. Due process permits Claimants to 

engage in an examination of Agent Hoke. See United States v. Contents of Wells 

Fargo Bank Account XXX5826 in name of Auto. Consultants of Hollywood, Inc., No. 

1:13-CV-716, 2014 WL 12781321, at *5 (S.D. Ohio Feb. 4, 2014); Contents of 

Accounts, 2010 WL 2556849, at *11 n.20. “Both parties may present any additional 

evidence or testimony at the hearing that is relevant to the issue of probable cause to 

believe that the seized assets will ultimately be found to be forfeitable.” Contents of 

Wells Fargo Bank Account XXX5826, 2014 WL 12781321, at *5. Given that the only 

evidence submitted in support of probable cause to date is the single verification 

page of Agent Hoke, the “opportunity to contest the basis for the seizure” necessarily 

includes the opportunity to examine Agent Hoke and his basis for the factual 

assertions.

D. Insofar as the Ex Parte Order was Improvidently Entered, The 

Government is Liable to Claimants for Proceeds Realized During the 

Improvident Restraint.

A long line of cases have concluded that, even where property is later “found 

to be subject to forfeiture after the process due has been afforded,” the Government 

must “return [] any rents received or other proceeds realized from the property during 

the period” in which property was illegally seized without an appropriate hearing. 

408 Peyton Rd., 162 F.3d at 645. “[I]f property is seized ex parte and the Government 

Case 1:20-cv-23279-MGC Document 22 Entered on FLSD Docket 10/12/2020 Page 16 of 19
can show at the § 985(e) post-seizure adversarial hearing that there is probable cause 

to believe the property is connected to crime, but cannot establish exigent 

circumstances, then the ex parte seizure is illegal and the proper remedy is to give 

the owner lost profits or rents for the period of illegal seizure a period terminated by 

a finding confirming the existence of probable cause following an adversarial 

hearing.” United States v. Bowman, 341 F.3d 1228, 1235 (11th Cir. 2003) (emphasis 

added); see also United States v. Real Property Located at 1184 Drycreek Road, 

Granville, OH, 174 F.3d 720, 728 (6th Cir. 1999); United States v. Marsh, 105 F.3d 

927, 932 (4th Cir. 1997); United States v. All Assets & Equip of W. Side Bldg. Corp., 

58 F.3d 1181, 1193 (7th Cir. 1995); United States v. 20832 Big Rock Drive, 51 F.3d 

1402, 1406 (9th Cir. 1995); United States v. 51 Pieces of Real Prop. Roswell, N.M., 

17 F.3d 1306, 1315–16 (10th Cir. 1994); United States v. 1461 W. 42nd St., Case 

No. 91-1077-CIV-DAVIS, ECF No. 644, (S.D. Fla. Mar. 10, 1999), aff’d, 251 F.3d 

1329, 1337 (11th Cir. 2001); United States v. Real Prop. Located at Incline Village, 

958 F. Supp. 482, 490 (D. Nev. 1997). 

Here, both Restraining Orders were obtained by the Government ex parte, 

without affording the property owners the statutory and constitutional process they 

were due under section 985 and the Constitution, see Good Real Prop., 510 U.S. at 

52–57, 62, and, moreover, without any exigent circumstances. To the extent that the 

Government has orchestrated an end-run-around the procedural protections codified 

in section 985(e), the Court should order the Government to “return [] any rents 

received or other proceeds realized from the property during the period” in which 

property was illegally seized without an appropriate hearing, including the proceeds 

of any forced sale of the Kentucky property (Scola) that deprives Claimants of 

income needed to funds other operations, e.g., paying the mortgage holder of CBD 

Investment’s vacant lot.

Case 1:20-cv-23279-MGC Document 22 Entered on FLSD Docket 10/12/2020 Page 17 of 19
CONCLUSION

Claimants submit that the Ex Parte Restraining Orders should be vacated. 

Claimants reserve all other objections to this Court’s jurisdiction, including subject 

matter jurisdiction. Claimants’ effort to preserve their rights and dissolve the Ex 

Parte Orders should not be construed as a waiver of any rights, all of which are 

expressly reserved.

WHEREFORE, Claimants respectfully move this Court to vacate the Ex Parte 

Restraining Orders, failing which, to promptly scheduling a post-seizure, adversarial 

evidentiary hearing.

REQUEST FOR A PROMPT HEARING

Pursuant to Local Rule 7.1(b)(2), the Claimants hereby request a hearing on 

this motion because of the substantial and complex legal issues raised, the 

importance of the rights at stake, and the utility of discussing the factual nuances of 

the case. 

CERTIFICATION REGARDING PRE-FILING CONFERENCE

Pursuant to Local Rule 7.1(a)(3), undersigned counsel conferred with counsel 

for the United States in a good faith effort regarding the matters set forth in this 

Motion. The United States opposes the relief requested in the Motion.

Respectfully submitted,

Black, Srebnick, Kornspan & Stumpf, P.A.

201 South Biscayne Blvd., Suite 1300

Miami, FL 33131 / Tel: (305) 371-6421

By: /s/ Howard Srebnick

Howard Srebnick

 Florida Bar No. 919063

 HSrebnick@RoyBlack.com

Robert T. Dunlap

 Florida Bar No. 11950

 RDunlap@RoyBlack.com 

Case 1:20-cv-23279-MGC Document 22 Entered on FLSD Docket 10/12/2020 Page 18 of 19
Kasowitz Benson Torres LLP

1633 Broadway

New York, New York 10019

(212) 506-1700 

Marc E. Kasowitz 

Mark P. Ressler

Ronald R. Rossi

Sarmad M. Khojasteh

Joshua Paul

Pro Hac Vice Anticipated

MKasowitz@kasowitz.com

MRessler@kasowitz.com

RRossi@kasowitz.com 

SKhojasteh@kasowitz.com 

JPaul@kasowitz.com 

Attorneys for Claimants Korf and the 

Corporate Entities

Scott A. Srebnick, P.A.

201 South Biscayne Boulevard

Suite 1210

Miami, FL 33131

Telephone: (305) 285-9019

Facsimile: (305) 377-9937

Scott@srebnicklaw.com 

Attorney for Claimant Laber

Case 1:20-cv-23279-MGC Document 22 Entered on FLSD Docket 10/12/2020 Page 19 of 19