United States Court of Appeals Fifth Circuit 

## FILED April 4, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-11282

UNITED STATES OF AMERICA, Pl aint iff- Appellee,

versus HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, ETC. ET AL, Defendants, DAVID J. STRACHMAN, in his capacity as administrator of the Estate of Yaron Ungar; DVIR UNGAR; YISHAI UNGAR; JUDITH UNGAR; MEIR UNGAR; MICHAL COHEN; AMICHAI UNGAR; DAFNA UNGAR, Appellants.

Appeal from the United States District Court fo r the Northern District of Texas

Before BENAVIDES, STEWART, and OWEN, Circuit Judges. CARL E. STEWART, Circuit Judge: David J. Strachman, in his capacity as administrator of the Estate of Yaron Ungar; Dvir Ungar; Yishai Ungar; Judith Ungar; Meir Ungar; Michal Cohen; Amichai Ungar; and Dafna Ungar,1 According to the indictment against HLF, “The Harakat al-Muqawama al-Islamiyya is Arabic

fo r ‘The Islamic Resistance Movement’ and is known by the acronym HAMAS. HAMAS, which is som etimes referred to by it s fo llo wers as ‘ The Movement,’ i s a terrori st organization based in the 2 challenges a Texas federal district court ’s restraining order that indefinitely freezes specific bank accounts th at allegedly had been levied pursuant to writs of execution, issued by New York, South Carol ina, and Washington federal district courts, in order to sati sfy a judgment the appellants obtained against assets of the Hol

y Land Foundation For Relief and Development. The allegedly levied bank accounts are only som

e of the assets specified in, or otherwise covered by, the restraining order. Additionally, S trachman urges this court to grant a Motion for Summary Disposition and Vacatur obviating our consideratio n of the merit s of the appeal. For the fo llo wing reasons, we deny the Motion fo r Summary Disposition, and vacate and remand to the district court fo r further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY A fo rty -two count indict ment , filed July 26, 2004, charged Hol y Land Foundation fo r Relief and Development (“HLF”) wit h mat erial support of a terrori st organization, tax evasion, and mo ney laundering and sought fo rfeiture of HLF property . The Government obtained an ex parte restraining order, on Septem

ber 24, 2004, from the District Court fo r the Northern District of Texas in order to preserve HLF’s assets fo r the fo rfeiture requested in the indict ment . The restraining order indefinit ely freezes the assets of HLF and its financial agents. Appellant David Strachman represents the estates of husband and wife, Yaron and Ef rat Ungar, who were killed during a terrori st attack. In February 2004, Strachman, alo ng wit h members of the Ungar family and their representatives, (“the Ungars”) obtained a $ 116,409,123 def ault judgment against Hamas 1 in Rho de Island’s federal district court pursuant to the civil provisions ofWest Bank and Gaza Strip.”

2 Enacted as part of the Ant it errori sm Act of 1991 (“ATA”), 18 U.S.C. § 2333 provides a cause of action fo r American nationals injured in their person, property , or business by reason of an act of int ernational terrori sm. Estates of Ungar ex. rel. Strachman v. Palestinian Auth. , 304 F. Supp. 2d 232 (D.R.I. 2004). 3 the Ant it errori sm Act of 1991, 18 U.S.C. § 2333. 2 See Estates of Ungar ex. rel. Strachman v. Palestinian Auth. , 304 F. Supp. 2d 232, 238, 242 (D.R.I. 2004)

. The Rhode Island federal district court determ

ined that its judgment was enforceable against the assets of HLF. Id. at 241. Based on this judgment, federal district courts in New York, South Carol ina, and Washington issued writs of execution against HLF th at the Ungars allege were levied in the respective jurisdictions on or before Septem ber 13, 2004. The Ungars appeal the restraining order against HLF, requesting that it be vacated, th at the district court be directed to refrain from entering further orders th at restrain the property and, in the alt ernative, th at this court direct the district court to conduct a hearing and provide the Ungars an opportunity to brief and argue these issues. II. STANDARD OF REVIEW Alt hough we review a district court’s order of injunction for abuse of discretion, where the distr ict court’s deci sio n t o grant a m otion for injunction turns on the application of statutes or procedural rules, our review of th at int erpretation is de novo. Cf. Castillo v. Cameron County, Tex. , 238 F.3d 339, 347 (5th Cir. 2001) (“Alt hough the district court’s decision to continue the injunct io ns is to be reviewed fo r an abuse of discret io n, because the district court’s decision to terminate or continue the injunct io ns turns on the application of § 3626(b) of the [Prison Litigation Reform Act of 1995], that int erpretation is reviewed de novo.” (citations omitted)).3 In Estates of Ungar ex rel. Strachman , 304 F. Supp. 2d at 241, the court explained the blo cking

as follows: On December 4, 2001, the Office of Foreign Asset Control [“OFAC”], a divisio n of the Treasury Departm

ent, determ

ined th at the HLF acts “fo r or on behalf of ” Hamas and was thus a Specially Designated Terrorist under Executive Order 12947 and a Specially Designated Global Terrori s t under Executive Order 13224. H oly Land Found. for Relief & Dev. v. Ashcroft , 219 F. Supp. 2d 57, 64 (D. D.C. 2002). These designations allo wed the Treasury Departm ent to blo ck all of the HLF’s funds, accounts, and real property. Id. 4 III. DISCUSSION A. Overview The assets at issue are the f unds in certain “blocked” HLF bank accounts located in New York, South Carol

ina, and Washington th at were specified, by state and account number, in the Texas district court’s restraining order. 3 The Ungars assert th at, before the Texas district court entered this restraining order on Septem ber 24, 2004, they had levied writs of execution on these funds pursuant to ju dgments obtained in New York, South Carolina, and Washington federal district courts. According to the Ungars, this placed these funds in the possess io n of those courts and thereby divested the Texas district court of jurisdiction to enter this restraining order. The Ungars appeal, contending th at this court should vacate the restraining order because the Texas district court was wit hout jurisdiction to enter it , and/or because the attachment provision of the Terrori sm Risk Insurance Act o f 2002 (“TRIA”) section 201(a), 28 U.S.C. § 1610(f)(1)(A) (2000), overrides criminal fo rfeiture provisions. The Ungars further contend th at they are entitled to have this ex parte restraining order vacated because it was directed toward them yet , in vio lat io n of their Fift h Amendme nt due process rights, they were given no notice or hearing. Accordingly, we must determ

ine (1 ) wh ether the Texas district court had jurisdiction to enter this order restraining funds th at were subject to a levied writ of execution issued by a federal district court in each of th ree5

other states and, if so, whether the provisions of TRIA supercede the criminal forfeiture provisions attendant to this § 853(e)(1)(A) order; and (2) whether the Federal Rule of Civil Procedure 65 notice provisions apply to this 21 U.S.C. § 853(e)(1)(A) restraining order and, if so, whether the Ungars possess the Fifth Amendment rights they claim were violated by the absence of notice and hearing. In addition to their appeal, however, the Ungars filed a Motion fo r Summary Disposition and Vacatur asking this court not to reach the merit s of their appeal and, instead, to summarily render judgment in their favor because this ex parte restraining order had expired on its f ace and did not

com ply wit h Federal Rule of Civil Procedure 65 hearing and notice requirements. The motion also requests th at this court direct the district court to provide the Ungars an opportunity to be heard and to present thei

r arguments in opposition, if the Government seeks a new restraining order. The Government opposes summary disposition and contends that the Ungars lack standing to appeal the restraining order. The Government also argues th at this case does not meet the standard fo r summary disposition. Prior to reaching the merits, we first address the Ungars’ standing to appeal the restraining order, then examine whether this case is appropriate for summary disposition. B. The Ungars’ Standing to Appeal The Ungars assert th at they have standing to appeal the restraining order because it affects their int erests. The Ungars also argue th at they are the main targets of the restraining order, yet they have had no opportunity to oppose, contest, or be heard. The Ungars contend th at their int erests are perfectly aligned against the int erests of the defendant and the Government, therefore neither party will raise and protect their rights if they are not permitted to do so themselves.6

By contrast, the Government arg ues that the Ungars are statutorily barred from asserting HLF’s rights in a fo rfeiture proceeding. The Government asserts th at thir d parties may participate in fo rfeiture proceedings only (1) in hearings concerning post-indict ment restraint on forfeitable property where they can assert their own due process claims or claims of irreparable injury, and (2) in postconviction ancillary proceedings, where they can assert their interest in the forfeitable property. “[W]hen standing is placed in issue in a case, the question is whether the person whose standing i s challenged is a proper party to request an adjudication of a particular issue and no t whether the issue it self is justiciable.” Flast v. Cohen , 392 U.S. 83, 99-100 (1968). The th ree requirements th at constitute the “irreducible constitutional minimum” of standing are “injury in fact,” causation, and redressability. Vt. Agency of Natural Res. v. United States ex rel. Stevens , 529 U.S. 765, 771 (2000) (citations om it ted). The fir st, “injury in fact ,” requires that the appellant show personal harm th at is concrete, distinct and palpable, as well as actual or imminent

. Whitmore v. Ark. , 495 U.S. 149, 155 (1990). To sati sfy the second requirement, the appellant “must establish a causal connection between the injury and the conduct com plained of --the injury has to be fairly traceable to the challenged action of the defendant, and not the result of som e thir d party not before the court.” McConnell v. Fed. Election Comm’n , 540 U.S. 93, 225 (2003) (int ernal quotation marks, alt erations, and cit ation om

it ted). The thir d requirement, redressability , i s present if t here is a “substantial likeliho od th at the requested relief will remedy the alleged injury in fact.” Id. (int ernal quotation marks om it ted, cit ing Stevens, 529 U.S. at 771); see also Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982) (“[A]t an irreducible minimum, Art. III requires the party who invo kes the court’s authority to show th at he personally has suffered

som e actual or th

reatened injury as a result of the putatively illegal conduct of the defendant, and th at7

the injury fairly can be traced to the ch allenged action and i s likely t o be redressed by a favorable decis io n.” (citations and internal quotation marks omitted))

. “The [appellant] must clearly and specifically set fo rth facts sufficient to sati sfy these Art. III standing requirements. A federal court is powerless to create it s own jurisdiction by embellishing otherwise deficient allegations of standing.” Whitmore , 495 U.S. at 155-56. “While there is a general rule th at non-p arti es to a suit do not have standing to appeal, we have previously stated th at exceptions exist. For inst ance, in Castillo [,]

. . . we reaffirmed the principle th at if the decree affects a thir d party ’s int erests, he is often allowed to appeal.” S EC v. Forex Asset Mgmt. LLC , 242 F.3d 325, 329 (5th Cir. 2001) (citation and internal quotation marks

om it ted). If an injunct io n extends to non-parties, they may appeal from it

. United States v. Chagra , 701 F.2d 354, 359 (5th Cir. 1983). The indict ment ’s fo rfeiture count asserts the Government’s interest in these blo cked assets. The indictment and the Government’s application fo r the restraining order each detail the fact that the HLF property is blo cked to all except OFAC and thir d parties like the Ungars. The purpose of th e restraining order was to keep OFAC, the Ungars, and others like the Ungars, from interfering wit h t he Government’s interest in these assets. Moreover, the Ungars are specifically mentioned in the Government’s Applicati on fo r Post-indictment Restraining Order, and the restraining order includes a list of, inter alia, the same assets the Ungars claim to have levied in parti al sati sfaction of their judgment against Hamas. The order of injunct io n restrains “person s, financial institutions, or other entities who have any int erest or control over the subject property .” If the Ungars are persons who have any int erest or control over th e property at i ssue, then the restraining order is directed toward them. The Ungars allege th at they have “a personal stake in the outcom e of the controversy ,”4 Pursuant to 28 U.S.C. § 1292(a)(1), we have jurisdiction over an appeal from the district court’s

int erlocutory order th at granted the injunct io n. Alt hough the Ungars could have as ked the di strict court to vacate i

ts order, § 1292 imposes no jurisdictional requirement that they do so. 8 and argue th at the dispute at bar “t ouches upon the legal relations of parties having adverse legal int erests.” Flast , 392 U.S. at 101 (c it ati ons and int ernal quotation marks omitted). Having purportedl

y levied writs of execution issued by federal district courts against som e of the HLF assets expressly named in this restraining order, the Ungars appear to have an int erest in, and arguably may have some control over, these assets. It is true th at the Ungars did not participate in the proceedings bef ore the Texas district court. 4 Nevertheless, on the face of the injunct io n and the pleadings th at gave ri se thereto, it appears th at the injunct io n seeks to keep the Ungars from obtaining specific assets th at are the subject of federal writs of execution th at the Ungars claim to have levied. Under this scenario, we find th at the Ungars have standing to appeal this restraining order. C. Motion for Summary Disposition and Vacatur The Ungars’ Motion fo r Summary Disposition and Vacatur asserts th at the restraining order has expired and is “facially void under Rule 65” and that, therefore, sum mary disposition is appropri ate. The Gove r nment opposes summary disposition and contends th at this case is not appropri ate for summary disposition. Summary disposition is proper “[in] th ose cases where time is trul y of the essence,” or where “t he position of one of the parties is clearly right as a mat ter of law so th at there can be no substantial question as to the outcom

e of the case.” Groendyke Transp., Inc. v. Davis , 406 F.2d 1158, 1162 (5th Cir. 1969). Summary disposition also may be appropri ate in other sit uations, such as when the5 In Aerojet , the United States District Court for the Northern District of Florida dissolved an

injunct io n specifically to encourage inst igation of a state court suit to quiet ti tle, and Aerojet appealed the dissolution order. Aerojet , 476 F.2d at 186. In a related state court suit to quiet ti tle, Aerojet sought and obtained removal to the District Court fo r the Southern District of Flo rida. Id

. at 185-186. As to Aerojet’s appeal of the order dissolving the injunct io n, this court fo und th at it would be a waste of mo ney and judicial energies to allo w full briefing and argument because the “express grounds fo r the district court’s (Northern District) order have now evaporated.” Id . at 186. 9 grounds fo r an order granting or dissolving an injunct io n no lo nger exist. See Aerojet-Gen. Corp. v. Askew , 476 F.2d 184, 186 (5th Cir. 1973). 5 Despite the Ungars’ assertion, the inst ant restraining order i s not facially void. The order states th at it “shall remain in full fo rce and effect until further order of this Court,” and thus it has not expired on its face. Accordingly, we do not summarily vacate the injunction on that basis. Relying on United S t ates v. Thier , 801 F.2d 1463, 1468 (5th Cir. 1986), the Ungars also argue th at this 21 U.S.C. § 853(e)(1)(A) restraining order should be summarily vacated because it is t he equivalent of an ex parte tem porary restraining order that was not issued in compliance with Federal Rule of Civil Procedure 65. It is true th at this restraining order was issued pursu ant to 21 U.S.C. § 853(e)(1)(A) in order to protect the Government’s interest in assets alleged to be subject to criminal fo rfeiture. It is also true th at, under Their , Federal Rule of Civil Procedure 65 notice and hearing requirements fo r ex parte orders apply to § 853(e)(1)(A) restraining orders. Yet, as discussed infra in Part III.F.2., Their has been overruled, albeit on grounds other th an it s holding that Federal Rule of Civil Procedure 65 governs § 853(e)(1)(A) restraining orders, and a panel of this court has questioned whether Rule 65 still governs § 853(e)(1)(A) restraining orders. Accordingly, we find th at the merits of the opposing positions at bar are not so clear as to warrant summary disposition, and we deny the Ungars’ request that we summarily dispose of this appeal without reaching its merits. D. Jurisdiction of the Texas District Court to Enter the Restraining Order6 In custodia legis means “[i]n the custody or keeping of the law.” Black’s Law Dictionary , 691

(5th ed. 1979); see also In re Chesnut , 422 F.3d 298, 301 (5th Cir. 2005) (explaining th at in custodia legis means “lit erally, ‘in the custody of the law’; loosely, ‘in the care of the court’”). 10 1. Overview of Jurisdictional Issue On Septem

ber 24, 2004, the Texas district court ordered th at “persons, financial inst it utions, or other enti

ties who have any interest or control over the subject property are hereby rest rained, enjo ined and prohibited

. . . from

. . . distributing” any o f t he HLF funds listed in Attachment A to the Government’s application fo r the restraining order. Prior to Septem ber 24, 2004, funds in som e of the accounts list ed in At tachment A were levied pursuant to a writ of execution issued by a federal district court in each of the following states: New York, South Carolina, and Washington. Cit ing Wong Shing v. M/V Mardina Trader , 564 F.2d 1183, 1188 (5th Cir. 1978), the Ungars contend th at these accounts were wit hdrawn from the jur isdiction of all o ther courts because the levied writs of execution placed them in custodia legis

. 6 Th e Ungars contend that other courts of

com petent jurisdiction had already taken possession of the bank accounts, therefore, the Texas district court had no jurisdiction to issue an order restraining transfer or other disposition of these HLF funds. By contrast, the Government contends that property is placed in custodia legis only via an in rem judgment. According to the Government, the Ungars’ action and judgment against Hamas was in personam, and registration of this in personam judgment in other federal district courts did not convert their action int o an in rem proceeding. The Government asserts th at because there was no in rem proceeding before them, the courts th at issued writs of ex ecuti on did not have exclusive jurisdiction over HLF assets and, therefore, the Texas district court had juris d ict io n to enter the restraining order. 2. Applicable Law11

The procedure and proceedings on, and in aid of, a judgment or execution thereof “shall be in accordance wit h the practice and procedure of the state in which the di strict court i s held . . . except that any statute of the Unit ed States governs to the extent th at it is applicable.” Fed. R. Civ. P. 69(a). In the inst ant context, to “levy” is “[t]o take or seize property in execution of a judgment”; to “garnish” is “t o attach (property held by a thir d party) in order to sati sfy a debt”; and to “attach” is “[t]o take or seize under legal authority . Black's Law Dictionary , 927, 702, 136 (8th ed.2004). A garnishee is “a person or inst it ution (such as a bank) th at is indebted to or is bailee fo r another whose property has been subjected to garnishment.” Black’s Law Dictionary , 691 (5th ed. 1979); see also N.Y.C.P.L.R. § 105 (i) (McKinney 1997) (“A ‘garnishee’ is a person who owes a debt to a judgment debtor, or a person other th an the judgment debtor who has property in his possession or custody in which a judgment debtor has an interest.”). The Ungars are judgment creditors, having obtained a judgment against HLF’s assets. Each financial inst it ution served with a writ of execution is a garnishee, a holder of property in which the judgment debtor, HLF, has an interest. The writs of execution contain the following language:

YOU ARE COMMANDED, th at of the goods, chattels and other assets of HAMAS

. . . in yo ur district, yo u cause to be made the total sum of [$116,409,123.00] which lat ely in the Unit ed States District Court fo r the District of Rhode Island, [the Ungars] recovered against HAMAS

. . . , in an action between [the Ungars and Hamas], and said judgment was entered on February 11, 2004, in favor of [the Ungars] and registered on [6/1/2004 in S.D., N.Y.; 7/29/2004 in W.D., Wa.; 8/24/2004 in D., S.C.] . . . . Pursuant to § 201 of the Terrori sm Risk Insurance Act of 2002

. . . this Writ shall also be ef

fective to execute upon the goods, chattel s and other assets of The Hol y Land Foundation

. . . (“HLF”) in sati sfaction of [the Ungars’] judgment against [Hamas], and the phrase, “goods, chattels and other assets of HAMAS

. . .” appearing herein shall therefore also include goods, chattels and other assets of the HLF.12

Each levy specifies the HLF account(s) and purports to be signed by a Unit ed States Marshal or deputy

. The Washington levy shows personal service upon the financial inst it ution on Septem ber 3, 2004, and the South Carolina levy shows personal service on September 14, 2004. The New York levy indicates th at it was served upon a financial inst it ution, b ut the date of service is illegible and there is no indication of whether the service was personal or otherwise. New York, South Carol

ina, and Washington have similar yet dis ti nct m eans of handling execution of the Ungars’ judgment by levying upon HLF bank accounts. Our review of the record reveals th at none of the levies was perfected so as to transfer possession or control of HLF’s int erest in t he bank accounts to the respective federal district courts or to the Ungars in such a manner that the Ungars may now challenge the Texas district court’s jurisdiction to enter the restraining order. 2. The New York Levy In New York, levy of a writ of execution upon a bank account is accomplished by the service of the proper docum

ents upon the bank by the sheriff

. N.Y.C.P.L.R.§ 5232 (McKinney 1997). Once this is done, the levy is valid for ninety days. Id

. At the expiration of ninet y days aft er a levy is made by service of the execution, or of such further time as the court, upon mo tion of the judgment creditor or support col lection unit has provided, the levy shall be void except as to property or debt s which have been transferred or paid to the sheriff or to the support collection unit or § as to which a proceeding under sections 5225 or 5227 has been brought. Id. ; see also Lennox v. Brady , 101 N.Y.S. 2d 22, 24 (N.Y. Sup. Ct. 1950) (stating that “a levy is rendered void where the property levied upon under a warrant of attachment is not reduced to actual possession” or turnover proceedings inst it uted, wit hin the ninet y day period). The record does not indicate th at, (1) during the ninet y days aft er levy upon the New York bank account, HLF property

was transferred int o the possession or control of the sheriff; or (2) the Ungars perfected the levy by7 Alt hough not a part of the instant record, the docket of the District Court for the Southern

District of New York reveals th at, on April 11, 2005, the Ungars inst it uted turnover proceedings against the New York banks, pursuant to sections 5225 or 5227 of the New York Civil Practice Law and Rules –well after the date in early December 2004 when the levy became void. 13 com mencing a turnover proceeding directed against the holder of the property . If eit her is not done wit hin the ninet y day period, the levy is vo id. S ee generally N.Y.C.P.L.R.§§ 5232, 5225, 5227 (McKinney 1997); Wordie v. Chase Manhattan Bank , 529 N.Y.S.2d 1,1 (N.Y. App. Div. 1988). The Ungars assert th at service of the proper docum ents upon the New York banks occurred

on Septem

ber 2, 2004. Assuming arguendo th at this is true, the record ref lects no transfer of the funds from the banks to the Unit ed States Marshal or sheriff, and no acknowledgment or other indication by the banks th at the Unit ed States Marshal or sheriff has control of HLF’s int erest in the accounts. Likewise, the record reflects no com mencement of turnover proceedings. 7 Accordingly, the levy became void on or about December 2, 2004. Alt hough it is arguable whether the New York levy divested the Texas district court of jurisdiction to enter the restraining order as to the funds in New York accounts, it i s undisputed that the New York levy is void. “It is well-settled that no recovery may be had fo r lo sses which the purportedl y injured party might have prevented by reasonable effo rts and expenditures.” Wordie , 140 A.D. 2d at 436, 529 N.Y.S. 2d at 2 (citation om it ted). The Ungars allo wed the New York levy t o l apse and become void by failing to pursue, within the prescribed ninet y day period, the statutory mechanisms available to perfect the levy. Cf. id .; but see In re Flax , 179 B.R. 408 (E.D. N.Y. 1995) (“New York courts have not held the Sheriff’s failure to obtain possession of the property to be seized fat al to the lieno r’s int erest in every case, but the courts have made an exception only where the failure is caused by a thir d party ’s failure to com ply wit h the14

Sheriff’s directives to turn over the property .”). There being no valid New York levy, we decline to grant relief to the Ungars based upon a levy allowed to become void by their inaction. 3. The South Carolina Levy In South Carol

ina, a judgment creditor executes upon pe rsonal property of the judgment deb tor vi a attachm

ent. S. C. Code Ann. § 15-19-10 (1976). Personal property is bo und for four

mo nt hs from the date of levy. S. C. Code Ann. § 15-39-100 (1979). As in New York, a So uth Carol ina bank may com

ply wit h the levy and give possession to the sheriff upon levy, but there must be a separate garnishment action against the bank in order to make a levy effective if the bank does not give the sheriff possession or control

. See Johnson v. Serv. Mgmt. Inc. , 478 S.E.2d 63 (S.C. 1996); Johnson v. Serv. Mgmt. Inc. , 459 S.E.2d 900 (S.C. Ct. App.1995), aff’d , 478 S.E.2d 63 (S.C. 1996). There is no valid levy until the sheriff has eit her possession or the power to possess or control

. McManus v. Bank of Greenw ood , 171 S.E. 473 (S.C. 1933). The inst ant reco rd contains no indication that the South Carolina bank gave possession or control of the bank account (or HLF’s int erest therein) to the Unit ed States Marshal or sheriff, and

no indication the Ungars com menced the requisite action to make the levy effective. Accordingly, the Ungars have not shown th at the South Carol ina levy divested the Texas district court of jurisdiction to restrain t he funds in HLF’s South Carolina bank accounts. 4. The Washington Levy Under Washington state law, when a judgment creditor seeks to obtain a judgment debtor’s property from a bank as garnishee, there must be a specific proceeding in which a writ of garnishment is directed to the bank. Wash. Rev. Cod. Ann. §§ 6.27.20 - 6.27.370 passim (West 1995); see also Yakima Adjustment Serv., Inc. v. Durand , 622 P.2d 408, 412 (Wash. Ct. App. 1981) (“[U]pon being15

served wit h a writ of garnishment the garnishee must answer and disclose what funds, if any, he holds th at are due or owing to a defendant. He must serve the answer on a defendant, [Wash. Rev. Cod. §§ 6.27.110, 6.27.190], who may thereafter controvert it by way of affidavit

. The issue is thus fo rm ed and the matter then tried.”). While a garnishment is an in rem proceeding th at places property in custodi a legis , the garnishment provisions are separate and distinct from the provisions fo r writ of execution and levy. U. S. Fid. & Guar. Co. v. Hollenshead , 98 P 749, 750 (Wash. 1909). Compare Wash. Rev. Cod. Ann. § 6.17.160(7) (West 1995) (“Other int angible personal property may be levied on by serving

a copy of th e writ on, or mailing it to, the j udgment debtor in the manner as required by RCW 6.17.130, together with a description of the property.”); Wash. Rev. Cod. Ann. § 6.27.080 (West 1995) (“A writ of garnishment is effective against property in the possession or control of a financial inst it ution only if the writ of garnishment is directed to and names a branch as garnishee defendant.”). Thus, the Ungars’ Washington levy could have been valid i f it were in execution of a judgment rendered in a garnishment proceeding

. Nothing in the record shows th at the Ungars served a writ of garnishment upon the Washington bank. The record reveals nothing about garnishment proceeding,

or a judgment (or execution/levy thereof) that resulted from such a proceeding. Accordingly, there appears to have been no bar to the Texas district court’s jurisdiction to enter the restraining order as to the HLF bank accounts in Washington. 5. Summary of Jurisdictional Analysis Neither the South Carol ina no r the Washington levy placed HLF funds in the custody of a court or it s of

ficer so as to remove the funds from the jurisdiction of the Te xas district court. The New York levy arguably divested other courts of jurisdiction during the ninet y day period fo llo wing8 The Ungars and the Government agree th at the Ungars’ judgment against Hamas, the nature of

HLF’s blo cked assets, and the related New York, South Carol ina, and Washington federal district court j udgments are within the scope of § 1610(f)(1)(A). 16 service, but th at levy is void and therefore is not a proper basis fo r the relief requested by the Ungars. Under these circumstances, the Ungars have not dem onstrated that the Texas district court was wit hout jurisdiction to include the HLF bank accounts in South Carol ina or Washington in it s order restraining HLF assets. Moreover, the Ungars may not challenge entry of this restraining order on the basis of a levy they allo wed to become void. For these reasons, the Ungars’ juris dictional argument fails. E. The Terrori sm Risk Insurance Act of 2002 § 201(a) and 21 U.S.C. § 853 The Ungars next argue th at the Terrori sm Risk Insurance Act of 2002 (“TRIA”) section 201(a), 28 U.S.C. § 1610(f)(1)(A) (2000), permits attachments and executions “no twith standing any other provision of law,” and th at the legis lat ive purpose of the TRIA is such that § 1610(f)(1)(A) trum ps any fo rfeiture provi sio ns and proceedings. Thus, they contend, § 1610(f)(1)(A) overrides statutory limit ations on attachment and execution, and all blo cked HLF assets are subject to execution under § 1610(f)(1)(A), wit hout regard to whether they are taint ed pr operty oth erwise subject to restraint or criminal fo rfeiture. The basis fo r this argument is the § 1610(f)(1) (A) prov isio n t hat, “no twith standing any other provision of law, . . .” blocked assets (such as the restrained HLF bank accounts) “shall be subject to execution or attachm ent in aid of execution of any judgment relating to a claim” such as the claim upon which the Ungars prevailed against Hamas. 8 28 U.S.C. § 1610(f)(1)(A) (2000); Estates of Ungar ex rel. Strachman , 304 F. Supp. 2d at 241-42. The Government counters this argument by po int ing out that, as thi rd parties rather than

owners of the restrained assets, the Ungars may not assert HLF’s rights. The Government asserts th at17

ancillary proceedings under the criminal fo rfeiture statute are the exclusive means by which thir d parties may assert their int erest in fo rfeitable property , and contends th at the Ungars may not assert th eir alleged interest in HLF’s forfeitable property prior to entry of an order of forfeiture. This contention is grounded in 21 U.S.C. § 853 which provides th at (1) “[n]o party claiming an int erest in property subject to fo rfeiture under this section may int ervene in a tri al or appeal of a criminal case invo lving the fo rfeiture,” or “commence an action at l aw or equity against the United States concerning the validit y of his alleged int erest in the property subsequent to the filing of an indict ment

or info rmation alleging that the property is subject to forfeiture under this section,” except as provided in § 853(n); and (2) aft er entry of an order of fo rfeiture, a thir d party may “petition the court fo r a hearing to adjudicate the validit y o f his alleged int erest in the property .” 21 U.S.C. §§ 853(k), 853(n)(2). The Ungar s are not parties to the instant criminal case; they have appealed but have not

com menced an action against the United States. Likewise, they have not intervened in the criminal

case against HLF. See Fed. R. Civ. P. 24(c) (“A person desiring to int ervene shall serve a mo tion to int ervene upon the parties as provided in Rule 5. The mo tion shall state the grounds therefor and shall be accompanied by a pleading setting fo rth the claim or defense fo r which int ervention is sought.”). Accordingly, their appeal is outside the scope of §§ 853(k) and 853(n)(2). While § 853(n)(2) permits a third party to petition the court after entry of a forfeiture order, § 853 does not require entry of a fo rfeiture order before thi rd parties in the Ungars’ procedural posture may challenge an ex parte, post-indictment restraining order th at specifies bank accounts subject to writs of execution issued by other federal district courts. Similarly, § 1610(f)(1)(A) does not purport to override the issuance of such a restraining order. This subsection of the TRIA provides as follows:9 Unit ed States Code, Ti tle 28. Judiciary and Judicial Procedure, Part IV. Jurisdiction and Venue, Chapter 97. Jurisdictional Immunities of Foreign States, states its purpose as follows: § 1602. Findings and declaration of purpose The Congress finds th at the determ inat io n by Unit ed States courts o f t he cl aims o f fo reign states to immunit y from the jurisdiction of such courts would serve the int erests of justice and would protect the rights of both fo reign states and litigants in United States courts. Under int ernational law, states are not immune from the jurisdiction of fo reign courts inso far as their com mercial activit ies are concerned, and their com mercial property may be levied upon fo r the sati sfaction of judgments rendered against them in connection wit h their com mercial activit ies. Claims of fo reign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter.
18 Notwith standing any other provision of law,

. . . any property with respect to which financial transactions are prohibite d or regul ated pursuant to section 5(b) of the Trading wit h the Enemy Act (50 U.S.C. App. 5(b )), section 620(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2370(a)), sections 202 and 203 of the International Em erge ncy E conom

ic Powers Act (50 U.S.C. 1701-1702), or any other procl amation, order, regulation, or license issued pursuant thereto, shall be subject to execution or attachment in aid of execution of any judgment relating to a claim fo r which a fo reign state (including any agency or instrumentality or such state) claiming such property is no t immune under section 1605(a)(7). 28 U.S.C. § 1610(f)(1)(A) (2000). The Ungars contend th at the “no twith standing” clause overrides all legal barriers to execution th at prevent them from obtai ning t hese HLF assets in satisfaction of their judgment against Hamas. The purpose of the Foreign Sovereign Im munit ies Act of 1976 (“FSIA”), 28 U.S.C. §§ 1330, 1 602-11, is to set fo rth principles by which a federal court decides a fo reign state’s claim th at i ts property is immune from jurisdiction. 9 28 U.S.C. § 1602 (“Cl aims o f fo reign states to immunity should henceforth be decided by courts of the Unit ed States and of the States in conformity wit h the principles set fo rth in this chapter.”). Subject to certain int ernational agreements invo lving the Unit ed States, a fo reign state’s property in the Unit ed States is immune from attachment arrest and execution19

except as provided in 28 U.S.C. §§ 1610 and 1611. 28 U.S.C. § 1609. The TRIA amended § 1610 of the FSIA, which is ti

tled “Exceptions to the immunity from attachment or execution” to make available assets th at might otherwise be immune from execution. The TRIA’s legislat ive hist ory clarifies th at the purpose of § 1610(f)(1)(A) i s “to stri p a terrori st state of it s immunit y fr om

exe cuti on or attachm

ent in aid of execution.” 148 Cong. Rec. S11528 (daily ed. Nov. 19, 2002) (statem ent of S en. Harkin); s ee also Hill v. Republic of Iraq , 2003 WL 21057173 at *2 (D. D.C. Mar. 11, 2003) (holding t hat the § 1610(f)(1)(A) notwithstanding clause “overrides any immunity from execution th at blo cked [terrori st party ] property might otherwise enjo y”). Thus, the purpose of § 1610(f)(1)(A) appears to be to provide a general exception to a foreign state’s immunity from execution and attachment. See TRIA, Pub. L. No. 107-297, Ti tle II, section 201(a), 116 Stat. 2322, 2337 (2002) (where the general nature of section 201(a) i s emphasized as follows: “In General. Notwith standing any other provision of law . . . .”) We conclude th at the “no twith standing” language relied on by the Ungars appears to target statutory immunit ies to execution. The criminal forfeiture statute does not immunize HLF bank accounts from writs of execution. The challenged restraining order freezes and preserves the accounts until the claims to them can be prioritized in ancillary proceedings. The TRIA does not address these circumstances. Because the issues at bar do not invo lve a fo reign state’s or terrori st party ’s FSIA immunit y from execution, we find no basis to conclude th at § 1610(f)(1)(A) preempts, tru mps, or otherwise interferes with the operation of 21 U.S.C. § 853 criminal forfeiture provisions. F. No Intervening Precedent has Changed the Fift h Circuit’s Holding t hat Federal Rule of Civil Procedure 65 applies to § 853(e)(1)(A) Restraining Order20

The Ungars assert th at the notice and hearing requirements of Federal Rule of Civil Procedure 65 apply to ex parte restraining orders and injunct io ns issued under 21 U.S.C. § 853(e)(1)(A). Arguing th at the restraining order was aimed entirely at the Ungars, not at the criminal defendants, the Ungars maint ain t hat they should have been provided prior notice and a hearing as required by Rule 65. They contend th at failure to com ply wit h Rule 65 notice and hearing requirements vio lat ed their Fift h Amendment due process rights and rendered the restraining order void. The Government asserts th at Federal Rule of Civil Procedure 65 notice must be given to the property owner, HLF, and th at this notice was given, vi a the indictment. The Government further asserts th at HLF does not have an automatic right to a hearing under the fo rfeiture statute. The Government points out that the Ungars cite no authority for the proposition that a thir d party wit h

an unperfected int erest in a criminal defendant ’s forfeitable property has a right under Rule 65 to notice and a hearing prior to the entry of a forfeiture restraining order. Moreover, the Government argues, the Ungars are not the only judgment creditors th at can seek to attach HLF’s blo cked assets. The Government also contends th at the Federal Rule of Civil Procedure 65 ten-day time limit fo r tem porary restraining orders does not app ly t o ex parte post-indictment forfeiture restraining orders. Section 853 provides a ten-day limit fo r ex parte pre-indictment orders and a ninet y- day limit fo r other pre-indictment orders, but provides no time limit fo r post-indictment restraining orders. Therefore, the Government argues, § 853 post-indictment restraining orders, l ike preliminary injunct io ns, have an indefinite duration. 1. Applicable Law Upon appl

ication of the United States, a district court may enter a restraining order or an injunct ion, or take any other action to preserve the availability of forfeitable property “[u]po n t he21

filing o f an indict ment or info rmation charging a vio lat io n . . . f or which criminal forfeiture may be ordered under this section and alleging th at the property wit h respect to which the order is sought would, in the event of conviction, be subject to fo rfei ture under thi s section.” 21 U.S.C. § 853(e)(1)(A). The requirements of Federal Rule of Civil Procedure 65 ap ply t o th e issuance of restraining orders and injunct io ns issued pursuant to 21 U.S.C. § 853(e)(1)(A). United States v. Thier , 801 F.2d 1463, 1468 (5th Cir. 1986); United States v. Melrose E. Subdivision , 357 F.3d 493, 505 n.12 (5th Cir. 2004) (“As a general mat ter, the Federal Rules presumptively apply except to the extent th at they actually conflict wit h a subsequent statute.”). Federal Rule of Civil Procedure 65 provides, in pertinent part, as follows: (a) Prel iminary Injunct io n. (1) Notice. No prel

iminary injunct io n shall be issued without notice to t he adverse party.

. . . . (b) Tem porary Restraining Order; Notice; Hearing; Duration. A temporary restraining or der may be granted without written or oral notice to the adverse party or that party ’s attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified com plaint th at immediat e and irreparable injury, loss, or damage will result to the applicant before the adverse party or th at party ’s attorney can be heard in opposition, and (2) the applicant’s attorney certifies to the court in writing the effo rts, if any, which have been made to give the notice and th e reasons supporting the claim that notice should not be required. Every temporary restraining order granted wit hout notice shall be indorsed with the date and hour of issuance; shall be filed fo rthwith in the clerk’s of fice and entered of record; shall define the injury and state why it is irreparable and why the order was granted wit hout notice; and shall expire by it s terms wit hin such time aft er entry , not to exceed 10 days, as the court fixes, unless within t he time so fixed the order, for good cause shown, is extended fo r a like period or unless the party against whom the order is directed consents th at it may be extended fo r a lo nger period. The reasons fo r the extension shall be entered of record. In case a tem porary restraining ord er i s22

granted wit hout notice, the mo tion fo r a preliminary injunct io n shall be set down fo r hearing at the earliest possible time and takes precedence of all mat ters except older mat ters of the same character; and when the mo tion com es on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunct io n and, if the party does not do so, the court shall dissolve the tem porary restraining order. A lt hough Federal Rule of Civil Procedure 65(b) allo ws the ex parte issuance of restraining orders under certain limit ed circumstances, it also provides th at an ex parte restraining order is effective fo r a maximum o f t en days unless the court extends it fo r one additional ten-day period fo r good cause shown, or unless the “party against whom the order is directed consents [to an extension].” Fed. R. Civ. P. 65(b); Thier , 801 F.2d at 1469; Phillips v. Chas. Schreiner Bank , 894 F.2d 127, 130 n.5 (5th Cir. 1990). An ex parte order th at purports to be of indefinit e duration is a preliminary injunction rather than a temporary restraining order. Phillips , 894 F.2d at 130 n5. The Federal Rule of Civil Procedure 65(a)(1) notice requirement “mean[s] th at where factual disputes are presented, the parties must be given a fair opportunity and a meaningfu l hearing to present their differing versions of th ose facts before a preliminary injunct io n may be granted.” Kaepa, Inc. v. Achilles Corp. , 76 F.3d 624, 628 (5th Cir. 1996) (footnote, cit ation, and int ernal quotation marks om it ted). The Federal Rule of Civil Procedure 65(a)(1) notice should com ply wit h Federal Rule of Civ il P rocedure 65(d), which requires five days’ notice before a hearing on a motion. H arris County, Tex. v. CarMax Auto Superstores Inc. , 177 F.3d 306, 326 (5th Cir. 1999) (citing Marshall Durbin Farms, Inc. v. Nat’l Farmers Org. , 446 F.2d 353, 358 (5th Cir.1971)). Because “[c]ompliance wit h Rule 65(a)(1) is mandatory,” a preliminary injunct io n granted wit hout adequate notice and a fair opportunity to oppose it should be vacated and remanded to the di strict court. Harris County, 177 F.3d at 326 (citing Parker v. Ryan , 960 F.2d 543, 544 (5th Ci r. 1992)). The23

language of Federal Rule of Civil Procedure 65(a)(1) requires notice to the “ adverse party .” In dealing wit h a preliminary injunct io n, the “adverse party” means the party adversely affected by the injunct io n, not the opponent in the underlying action. Parker v. Ryan , 960 F.2d 543, 545 (5th Cir. 1992). The Government contends th at Thier ’s application of Federal Rule of Civil Procedure 65 to § 853(e)(1)(A) ex parte, post indict ment restraining orders was called int o serious question by United States v. Monsanto , 491 U.S. 600 (1989), and asserts th at, in light of Monsanto , the Ungars are not entitled to a Federal Rule of Civil Procedure 65 automatic hearing. “It i s well-established that one panel of our court will not overturn another absent an int ervening precedent by our court sit ting en banc or a Supreme Court precedent.” FDIC v. Daw son , 4 F.3d 1303, 1307 (5th Cir.1993); see also United States v. Fowler , 216 F.3d 459, 460 (5th Cir.2000); United States v. Avants , 367 F.3d 433, 441 (5th Cir.2004). Therefore, if the Ungars are an “adverse party” fo r purposes of Federal Rule of Civil Procedure 65, then we are constrained by Thier and it s progeny to find th at (1) the Ungars were entitled to notice, (2) absence of this notice requires th at the restraining order be dissolved, and (3) the Ungars are entitled to notice and a hearing before the New York, South Carol ina, or Washington bank accounts are restrained indefinit ely –unless there is int ervening precedent by our court, en banc, or by the Supreme Court. 2. Thier and Monsanto in the United States Fifth Circuit Court of Appeals In Thier , 801 F.2d. at 1468, this court considered the absence of a specified duration fo r the post-indictment order in the language of § 853(e)(1)(A) and, inter alia, held the following: The statute does not on it s face or by necessary implicat io n bar minimum due process protections. The wording of § 853 does not expressly or impliedly negate the applicabilit y of Fed. R. Civ. P. 65. The requirements of Rule 65 apply to the issuance10 As stated in Thier , 801 F.2d at 1468-1469,

Congress has determ

ined th at the context of a post-indictment restrainin g order presents sufficient exigencies to sati sfy the fir st requi rement of Rule 65 that irreparable lo ss would occur before a hearing could take place. See S.Rep. No. 225, 98th Cong., 2d Sess. 203, reprint ed in 1984 U.S.Code Cong. & Ad.News 3182, 3386. Therefore the government need no t make any showing of potential irreparable loss other th an the return of the described fo rm of indict ment . Congress intended for the indictment itself to constitute sufficient notice of the government’s intent to seek fo rfeiture. Id

. 24 of all restraining orders and injunct io ns by the courts of the Unit ed States. Since th ose requirements were not excluded, they apply to restrainin g orders and injunctions issued pursuant to 21 U.S.C. § 853(e)(1)(A). The Government correctl

y notes th at the indict ment constituted notice to HLF sufficient fo r issuance of a tem porary restraining order, but under T hier ’s application of Federal Rule of Civil Procedure 65, 10 the duration of th at order could be no lo nger th an ten days (twenty day s, if HLF consented thereto). The district court specified th at this ex parte restraining order “shall remain in full fo rce and effect until further notice of this Court.” Because of its indefinite duration, under T hier , t his restraining order is a preliminary injunct io n issued in vio lat io n of Fede ral Rule of Civil Procedure 65(a)(1). Cf. Phillips , 894 F.2d at 130 n.5. Cit ing Melrose East Subdivision , 357 F.3d at 504, the Go vernment asserts that T hier was driven by the belief th at Federal Rule of Civil Procedure 65 embo dies “minimum due process protections” th at must be enforced in criminal fo rfeiture proceedings, but th at this theory was called int o serious question by Monsanto

. The Government asserts th at th is court should follow the approach adopted by the Tenth and Fourth C ir cuits that no automatic hearing is required under Federal Rule of Civil Procedure 65 in light of Monsanto , fo llo wing United States v. Jones , 160 F.3d 641, 645-47 (10th Cir. 1998).25

In Melrose East Subdivision , the issue at bar was, at a hearing challenging the issuance of a pretri al restraining order pursuant to a civil fo rfeiture statute, whether the Government must show p r obable cause inst ead of substantial likeliho od of success on the merit s. The court observed th at Thier fo und applicable to 21 U.S.C. § 853(e)(1)(A) the “substantial likeliho od of success” standard ty pically required fo r preliminary injunct io ns but Monsanto had concluded th at due process permitted the Government to restrain assets needed to pay counsel upon a showing of probable cause. Alt hough the civil fo rfeiture statute in Melrose East Subdivision was “t extually very similar” to § 853(e)(1)(A), there was no comment on whether Monsanto had changed Thier except as follows: Whether or not all of Thier remains goo d law in the context of 21 U.S.C. § 853(e)(1)(A), this new guidance from the Supreme Court convinc es us that in t he context of § 983(j)(1)(A) --a statute enacted aft er Monsanto

– Thier should not be carried over to the extent th at it would require the go vernment to show m ore than probable cause in order to restrain assets. Melrose East Subdivision , 357 F.3d at 504. Thier ’ s determ inat io n th at Federal Rule of Civil Procedure 65 applies to 21 U.S.C. § 853(e)(1)(A) restraining orders was not discussed. See Melrose East Subdivision , 357 F.3d at 505 n.12. But the court did state the following: This case therefore does not implicat e the question whether the district court may in it s discretion hold a pre-restraint hearing, or i ndeed whether it m ust hold a pre-restraint hearing as a mat ter of due process. There is authority fo r the proposition t hat due process does not requi re a pre-restraint hearing in the context of post-indictment restraining orders under 21 U.S.C. § 853(e)(1)(A), the criminal analogue of § 983(j)(1)(A). See United States v. Monsanto , 924 F.2d 1186, 1192-93 (2d Cir. 1991) (en banc), on remand from 491 U.S. 600, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989); United States v. Musson , 802 F.2d 384, 387 (10th C ir. 1986). But cf. United States v. James Daniel Good Real Prop. , 510 U.S. 43, 52-57, 62, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993) (holding th at due process requires a hearing before the government may seize real property pending the resol ution of a civil fo rfeiture action). Thus, the Government is not alo ne in it s assertion th at Federal Rule of Civil Procedure 65 notice and hearing requirements do not apply to § 853 post-indictment restraining orders.11 Cf. United States v. Gelb , 826 F.2d 1175, 1176 (2d Cir. 1987):

Alt hough a post-indictment restraining order based on RICO’s fo rfeiture provisions may issue wit h a minimum o f process, Congress appears to have provided no durational limit ation to it s reach short of the term inat ion of the rel ated criminal pr osecuti on . Com

pare 18 U.S.C. § 1963(d)(1)(B) and (d)(2). A post-indictment restraining order is thus very similar to a preliminary injunction. 26 In addition, at least one district court wit hin the Fift h Circuit has chosen to fo llo w the Tenth Circuit rather th an Thier

. Faced wit h a mo tion to dissolve a § 853 ex parte restraining order, it held th at a post-restraint , pre-conviction hearing is not required before denial of defe ndant’s m otion to dissolve “absent a prima facie showing, made through a properly supported motion, that [the defendant] needs the assets fo r reasonable and necessary legal and/or living expenses, and that the grand jury erred in determ ining the assets are eit her proceeds from or traceable to t he offenses charged in the Superseding Indictment.” United States v. Causey, 309 F. Supp. 2d 917, 924-27 (S.D. Tex. 2004) (following United States v. Jones , 160 F.3d 641, 647 (10th Cir. 1998) and cit ing United States v. Jamieson , 189 F. Supp. 2d 754, 757 (N.D. Ohio 2002)). In effect, this district court decided th at the Federal Rule of Civil Procedure 65 ten day limit fo r ex parte orders did not apply to the § 853(e)(1)(A) restraining order. 11 The Causey district court correctl y noted th at, “[b]ecause the district court held an extensive fo ur-day hearing on the issue of probable cause and because the Second Circuit had not addressed th e procedural due process issue, the [ M onsanto ] Court did not consider whether due proc ess requires a pre-restraint hearing.” Causey 309 F. Supp.2d at 925. Likewise, the Causey district court accurately observed that Melrose did not address the question whether the district court may in its discretion, or must as a mat ter of due process, hold a pre-restraint hearing. Id. at 926. Yet, there has been no en banc precedent from thi s court th at changes T heir ’s rul ing th at a § 853 ex parte, post12 See this court’s discussion of Crozier in Thier , 801 F.2d at 1467. 27 indict ment restraining order is subject to Federal Rule of Civil Procedure 65. Nevertheless, as we noted in Melrose , there is authority fo r the Government’s position th at Monsanto has c a st serious doubt upon Thier ’s holding that a hearing is required for such a restraining order. There is a circuit split on this issue. See United States v. Monsanto , 924 F.2d 1186, 1192-93 (2d Cir. 1991) (en banc), on remand from 491 U.S. 600 (1989) (finding no Rule 65 requirement fo r

a § 853 ex parte, post indict ment restraining order); accord United States v. Musson , 802 F.2d 384, 387 (10th Cir. 1986); accord United States v. Jones , 160 F.3d 641, 647 (10th Cir. 1998). In contrast to these Second and Tenth Circuit cases, shortl y aft er Monsanto was decided, the Ninth Circuit reaffirmed its decision in United States v. Crozier , 777 F.2d 1376 (9th Cir.1985), th at Federal Rule of Civil Procedure 65 applies to post-indictment pre-conviction restraining orders: 12 In the absence of valid procedural guidelines in the forfeiture provisions of the Act, we held th at Rul e 65 of the Federal Rules of Civil Procedure applies to require a district court to hold a prom pt hearing after a TRO is granted to determ ine whether a preliminary injunct io n should issue. [ Crozier , 777 F.2d] at 1384. This holding is not inco nsist ent wit h United States v. Monsanto , 491 U.S. 600, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989). There, the Supreme Court explicit ly refused to decide whether a hearing in connection with a restraining order pending tri al was required and what ty pe of hearing, if any, would satisfy the requirements of due process. Id . 109 S.Ct. at 2666 n. 10. The law of our circuit therefore remains th at in order fo r a restraining order under § 853 to be constitutional, the district court must hold a hearing under Rule 65 to determine whether probable cause exists to issue an injunction. United States v. Roth , 912 F.2d 1131, 1133 (9th Cir. 1990). Likewise, the law of the Fift h Circuit remains unchanged bec ause there has been no intervening en banc Fifth Circuit or Supreme Court precedent: the requirements of Federal Rule of Civil Procedure 65 apply to the issuance of restraining orders and injunct io ns issued pursuant to 2 1 U.S.C. § 853(e)(1)(A). T hier , 801 F.2d at 1468.28

Monsanto changed the standard of proof fo r the Federal Rule of Civil Procedure 65 probable cause hearing, but not this circuit’s holding that Rule 65 governs a § 853(e)(1)(A) restraining order. The inst ant § 853(e)(1)(A) order restrains indefinit ely the New York, South Carol ina, and Washington bank accounts th at are the sub ject of this appeal; therefore it is to be treated as a preliminary injunct io n. Phillips , 894 F.2d at 130 n5. The Ungars are adverse parties fo r Federal Rule of Civil Procedure 65 purposes, having been named in the Government’s applicatio n fo r the restraining order and having an int erest in so me o f t he bank accounts specified in the order, which int erest is (1) adverse to both parties to this criminal case, and (2) adversely affected by the restraining order. As an ex parte “preliminary injunct io n,” Federal Rule of Civil Procedure 65(a)(1) requires notice to adverse parties. The record reveals no com pliance wit h Fede ral Rule of Civil Procedure 65(a)(1) notice provision. “Compliance wit h Rule 65(a)(1) is mandatory,” and a preliminary injunct io n granted wit hout adequate notice and a fair opportunity to oppose it should be vacated and remanded to the district court. Harris County, 177 F.3d at 326 (citing Parker v. Ryan , 960 F.2d at 544). CONCLUSION For the fo regoing reasons, we DENY the Ungars’ mo tion fo r summary disposition and DENY the Ungars’ request that we direct the district court not to enter further orders th at restrain HLF’s int erest in these bank accounts. We VACATE the restraining order, and REMAND the mat ter to the district court with directions that any further proceedings be in accord with this opinion.