United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 16, 2012 Decided July 9, 2013

No. 12-5142

GANG LUAN, ET AL.,

APPELLANTS

v.

UNITED STATES OF AMERICA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-mc-00208)

Barry J. Pollack argued the cause for appellants. With him

on the briefs were Brian A. Hill and Mia P. Haessly.

Vijay Shanker, Attorney, U.S. Department of Justice, argued

the cause for appellee. With him on the brief was Lanny A.

Breuer, Assistant Attorney General. Kirby A. Heller and Linda

M. Samuel, Attorneys, entered appearances. 

Before: GARLAND, Chief Judge, HENDERSON, Circuit

Judge, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge GARLAND.
2

GARLAND, Chief Judge: In 2010, a Hong Kong magistrate

issued a warrant for the arrest of appellant Gang Luan on

charges of smuggling, evasion of customs duties, bribery,

conspiracy to defraud, and money laundering. Before the police

could apprehend him, Luan fled to the United States. 

Thereafter, a Hong Kong court issued a restraining order to

preserve Luan’s assets, and the government of Hong Kong asked

the United States Department of Justice for assistance in

restraining those assets that had been transferred to this country. 

Pursuant to 28 U.S.C. § 2467(d)(3), the Justice Department filed

an application for a restraining order in the United States District

Court for the District of Columbia, which granted the

application. Luan now appeals,1

 contending that the order fails

to comply with the requirements of section 2467(d)(3). 

Concluding that the order does comply, we affirm the judgment

of the district court.

I

Gang Luan was the sole owner and director of Offtech

International Ltd. and Bluewhale Offshore Engineering

Technology Co. Ltd., two companies purportedly involved in

oilfield and ocean engineering and services. Luan’s sister was

the financial director of Bluewhale. According to Hong Kong

authorities and the United States Department of Justice, Offtech

and Bluewhale netted over $186 million by smuggling vessels

and equipment into China, submitting false documents to

customs officers, making bribes to win favorable contracts, and

artificially inflating the prices of their goods through fraudulent

agreements. See Affirmation of Inspector Chow Wai Tong

Dennis ¶¶ 3-4; Application of the United States to Enforce and

Register Foreign Restraining Order (“DOJ Application”), at 4-5. 

Luan and his sister then allegedly laundered the proceeds to

1

The other appellants are entities that Luan owns or controls.
3

bank accounts in the United States and Mainland China. 

Smuggling, evasion of customs duties, bribery, conspiracy to

defraud, and money laundering are crimes under Hong Kong

law, and any proceeds stemming therefrom are subject to

forfeiture. See Chow Aff. ¶ 25; DOJ Application at 11-12.

In late 2010, Hong Kong authorities moved to arrest Luan

and his sister. By the time a magistrate issued an arrest warrant,

however, Luan had fled Hong Kong for the United States. 

Luan’s sister was arrested while attempting to travel to the

United States from Hong Kong, but she too absconded to the

United States after being released on bail. 

In March 2011, Hong Kong prosecutors applied to the Court

of First Instance of the High Court of Hong Kong for a

restraining order to prevent the dissipation of assets controlled

by Luan and his alleged co-conspirators. See In re Male Luan

Gang et al., [Mar. 15, 2011] Misc. Proceeding No. 409, at 2

(C.F.I.) (H.K.) (J.A. 58). The prosecutors supported their

application with an affirmation from a Hong Kong customs

inspector enumerating the allegations against Luan and the

others. See Chow Aff.; In re Male Luan Gang et al. [Mar. 15,

2011] Misc. Proceeding No. 409, at 11 (C.F.I.) (H.K.) (J.A. 67)

(citing affirmation). The affirmation stated that, at Luan’s

direction, Bluewhale submitted false documents to customs

officials regarding six vessels and a dredger in order to avoid

customs import tax and value-added tax. It further stated that,

to obtain the contracts under which Bluewhale rented the vessels

and dredger, Luan paid bribes to various persons. The Hong

Kong investigation revealed that Offtech and Bluewhale had no

actual business operations in Hong Kong, and that their

registered business addresses were occupied by accounting firms

that furthered the fraud. The affirmation also listed several bank

accounts into which Luan and his co-conspirators had deposited

the proceeds of their fraud. It alleged that Luan instructed a
4

subordinate to transfer $23.7 million from those accounts to the

United States after authorities ordered his assets restrained, in

return for which Luan paid the subordinate several hundred

thousand dollars in cash. The affirmation estimated that the

proceeds of the fraud were more than three times the defendants’

identifiable assets. See Chow Aff. ¶¶ 3-5, 7-15, 25-37.

The Court of First Instance granted the prosecutors’

application, barring Luan, his sister, and other alleged coconspirators from dealing with their property located within or

outside Hong Kong, including specified bank accounts in the

United States. See In re Male Luan Gang et al., [Mar. 15, 2011]

Misc. Proceeding No. 409, at 2-6 (C.F.I.) (H.K.) (J.A. 58-62). 

The order notified Luan and the others that they could “apply to

the Court at any time to vary or discharge this Order.” Id. at 10

(J.A. 66). Several months later, the court held a hearing to

determine whether the order should be continued. Neither Luan

nor his counsel attended, and the restraining order was continued

pending further order of the court. See In re Male Luan Gang

et al., [Aug. 15, 2011] Misc. Proceeding No. 409 (C.F.I.) (H.K.)

(J.A. 126); Gov’t Br. 24 n.4. 

Shortly after the Hong Kong court issued its restraining

order, the government of Hong Kong submitted a formal request

for assistance under the Agreement Between the Government of

the United States of America and the Government of Hong

Kong on Mutual Legal Assistance in Criminal Matters, U.S.-

H.K., Apr. 15, 1997, S. TREATY DOC. No. 105-6.2

 Hong Kong

asked the United States to restrain $23.7 million of criminal

2

The Agreement was entered into on the eve of the transfer of

sovereignty over Hong Kong to the People’s Republic of China, and

was signed with the understanding that it would continue in force after

the transfer. See U.S.-H.K. Mutual Legal Assistance Treaty, S.

TREATY DOC. No. 105-6, at III (Letter of Transmittal).
5

proceeds that it said Luan had transferred to specific bank

accounts and companies located in Texas. DOJ Application at

2-3, 5-6. The Justice Department certified that the Hong Kong

restraining order was “in the interest of justice to register and

enforce,” and it filed an ex parte application to enforce the order

pursuant to 28 U.S.C. § 2467(d)(3). DOJ Application at 13; see

id., Exhibit 1 (Assistant Attorney General Decision (Apr. 14,

2011)). Because the Hong Kong restraining order was “an in

personam order against the charged individuals rather than an in

rem order limited to only the specific assets then known to

[Hong Kong] authorities,” id. at 7, the Justice Department

sought to enforce the Hong Kong restraining order against the

$23.7 million of Luan’s American assets that were traceable to

the alleged criminal activities, id. at 6-7. Finding the

prerequisites for a restraining order satisfied, the district court

restrained all assets owned or controlled by Luan (and his Hong

Kong co-defendants) located in the United States, up to $23.7

million, until the conclusion of the Hong Kong proceedings. See

In re Enforcement of a Restraining Order by the High Court,

Misc. Case No. 11-208 (D.D.C. Apr. 19, 2011); see also In re

Enforcement of a Restraining Order by the High Court, Misc.

Case No. 11-208 (D.D.C. May 5, 2011) (adding two safe deposit

boxes to the order).

In October 2011, Luan filed a motion to dissolve the district

court’s order on the ground that it did not comply with the

requirements of 28 U.S.C. § 2467(d)(3) because the Hong Kong

government had filed neither a civil forfeiture complaint nor its

functional equivalent. The district court disagreed, concluding

that the Hong Kong restraining order proceedings and pending

criminal proceedings were sufficient to secure United States

enforcement under the statute. See In re Enforcement of a

Restraining Order by the High Court, Misc. Case No. 11-208,

at 3-4 (D.D.C. Apr. 4, 2012). Luan timely appealed. See 28

U.S.C. § 1292(a)(1). 
6

II

We begin by describing the statutory framework for issuing

restraining orders to preserve property subject to forfeiture under

foreign law. 

The central statute at issue is 28 U.S.C. § 2467(d)(3),

entitled “Preservation of property.” For ease of exposition, we

first set out its text in full:

(A) Restraining orders.--

(i) In general.--To preserve the availability of

property subject to civil or criminal forfeiture

under foreign law, the Government may apply for,

and the court may issue, a restraining order at any

time before or after the initiation of forfeiture

proceedings by a foreign nation.

(ii) Procedures.--

(I) In general.--A restraining order under this

subparagraph shall be issued in a manner

consistent with subparagraphs (A), (C), and

(E) of paragraph (1) and the procedural due

process protections for a restraining order

under section 983(j) of title 18.

(II) Application.--For purposes of applying

such section 983(j)--

(aa) references in such section 983(j) to

civil forfeiture or the filing of a

complaint shall be deemed to refer to the
7

applicable foreign criminal or forfeiture

proceedings; and

(bb) the reference in paragraph (1)(B)(i)

of such section 983(j) to the United

States shall be deemed to refer to the

foreign nation.

(B) Evidence.--The court, in issuing a restraining order

under subparagraph (A)--

(i) may rely on information set forth in an affidavit

describing the nature of the proceeding or

investigation underway in the foreign country, and

setting forth a reasonable basis to believe that the

property to be restrained will be named in a

judgment of forfeiture at the conclusion of such

proceeding; or

(ii) may register and enforce a restraining order

that has been issued by a court of competent

jurisdiction in the foreign country and certified by

the Attorney General pursuant to subsection

(b)(2).

(C) Limit on grounds for objection.--No person may

object to a restraining order under subparagraph (A) on

any ground that is the subject of parallel litigation

involving the same property that is pending in a foreign

court.

28 U.S.C. § 2467(d)(3).

Three years ago, this Circuit read a previous version of

section 2467(d)(3) to permit the issuance of restraining orders
8

“only after a foreign court has entered a forfeiture judgment.” 

In re Any and All Funds or Other Assets, in Brown Brothers

Harriman & Co. Account #8870792 in the Name of Tiger Eye

Investments Ltd., et al. (“Tiger Eye”), 613 F.3d 1122, 1124

(D.C. Cir. 2010) (second emphasis added). But Congress has

since amended the section, eliminating the requirement that

property be subject to “a foreign forfeiture or confiscation

judgment” prior to issuance of a restraining order. See

Preserving Foreign Criminal Assets for Forfeiture Act of 2010,

Pub. L. No. 111-342, 124 Stat. 3607. See generally 156 CONG.

REC. S8637-38 (daily ed. Dec. 8, 2010) (statement of Sen.

Whitehouse). As the text makes clear, the Government now

“may apply for, and the court may issue, a restraining order at

any time before or after the initiation of forfeiture proceedings

by a foreign nation.” 28 U.S.C. § 2467(d)(3)(A)(i).

 Pursuant to the current version of section 2467(d)(3), a

federal court may issue a restraining order “[t]o preserve the

availability of property subject to civil or criminal forfeiture

under foreign law.” 28 U.S.C. § 2467(d)(3)(A)(i). This

authorization applies when “the United States has a treaty or

other formal international agreement in effect providing for

mutual forfeiture assistance,” id. § 2467(a)(1), and when the

property to be restrained represents the suspected proceeds of a

“violation of foreign law that would constitute a violation or an

offense for which property could be forfeited under Federal law

if the offense were committed in the United States,” id.

§ 2467(a)(2)(A). There is no dispute that both requirements are

satisfied here.3

 In issuing such a restraining order, the court may

3

See supra note 2 (regarding mutual assistance agreement); In re

Enforcement of a Restraining Order by the High Court, Misc. Case

No. 11-208, at 2 (D.D.C. Apr. 19, 2011) (finding by district court that

“the conduct giving rise to forfeiture under the [Hong Kong] law

constitutes conduct that would give rise to forfeiture under [U.S. law]
9

rely on an affidavit “describing the nature of the proceeding or

investigation underway in the foreign country, and setting forth

a reasonable basis to believe that the property to be restrained

will be named in a judgment of forfeiture at the conclusion of

such proceeding.” Id. § 2467(d)(3)(B)(i). Alternatively, the

court “may register and enforce a restraining order that has been

issued by a court of competent jurisdiction in the foreign country

and certified by the Attorney General” as “in the interest of

justice.” Id. § 2467(d)(3)(B)(ii), (b)(2). In this case, the district

court registered and enforced the Hong Kong restraining order

based on the Attorney General’s certification. See In re

Enforcement of a Restraining Order by the High Court, Misc.

Case No. 11-208, at 2 (D.D.C. Apr. 19, 2011); DOJ Application,

Exhibit 1 (Assistant Attorney General Decision (Apr. 14,

2011)).

Section 2467(d)(3)(A) further requires that a “restraining

order under this subparagraph shall be issued in a manner

consistent with” two sets of procedural prerequisites. 28 U.S.C.

§ 2467(d)(3)(A)(ii)(I). 

First, the order must be “issued in a manner consistent with

subparagraphs (A), (C), and (E) of paragraph (1)” of

section 2467(d). Id. That paragraph directs entry of “such

orders as may be necessary to enforce the judgment on behalf of

a foreign nation unless the court finds that -- (A) the judgment

was rendered under a system that provides tribunals or

procedures incompatible with the requirements of due process

of law; . . . (C) the foreign court lacked jurisdiction over the

subject matter; . . . or (E) the judgment was obtained by fraud.” 

Id. § 2467(d)(1) (emphasis added). The district court made the

if committed in the United States”); DOJ Application at 11-13

(describing offenses giving rise to forfeiture under 18 U.S.C.

§ 981(a)(1)(A), (C) and 28 U.S.C. § 2514). 
10

appropriate contrary findings in this case. See In re

Enforcement of a Restraining Order by the High Court, Misc.

Case No. 11-208, at 2-3 (D.D.C. May 5, 2011); In re

Enforcement of a Restraining Order by the High Court, Misc.

Case No. 11-208, at 2-3 (D.D.C. Apr. 19, 2011). And Luan does

not dispute them on appeal.

Second, the restraining order must be “issued in a manner

consistent with . . . the procedural due process protections for a

restraining order under section 983(j) of title 18.” 28 U.S.C.

§ 2467(d)(3)(A)(ii)(I). The text adds that, for purposes of

applying section 983(j), “references in such section 983(j) to

civil forfeiture or the filing of a complaint shall be deemed to

refer to the applicable foreign criminal or forfeiture

proceedings.” Id. § 2467(d)(3)(A)(ii)(II)(aa).

Accordingly, our attention must now turn to 18 U.S.C.

§ 983(j). That section authorizes three different kinds of

restraining orders against property subject to civil forfeiture

under U.S. civil forfeiture statutes. First, a federal court may

issue a restraining order that lasts during the pendency of

forfeiture proceedings, “upon the filing of a civil forfeiture

complaint alleging that the property with respect to which the

order is sought is subject to civil forfeiture.” 18 U.S.C.

§ 983(j)(1)(A).4

 Second, a court may issue a 90-day restraining

order prior to the filing of a civil forfeiture complaint after

conducting an adversarial proceeding akin to a preliminary

injunction hearing. Id. § 983(j)(1)(B); see id. § 983(j)(2)

4

See Gov’t Br. 17 (stating that restraining orders issued under

section 983(j)(1)(A) last “during the pendency of forfeiture

proceedings”); Luan Reply Br. 4 (same).
11

(permitting extensions for good cause).5

 Third, a court may

issue a temporary restraining order of not more than 14 days

without notice or hearing if there is probable cause to believe

that the property is subject to forfeiture and that notice would

jeopardize its availability. Id. § 983(j)(3).6

In sum, a court may issue restraining orders of

progressively longer duration as the property’s owner is

accorded progressively greater procedural protections. Because

the restraining order against Luan’s property has lasted far

longer than 90 days, both parties agree that it remains valid only

if it was issued in a manner consistent with the procedural due

process protections of section 983(j)(1)(A), the section

authorizing restraining orders that last during the pendency of

forfeiture proceedings. See Gov’t Br. 32; Luan Br. 42-46.

III

Luan contends that the district court’s order violated section

2467(d)(3) because it was not issued in a manner consistent with

the procedural due process protections of section 983(j)(1)(A). 

Our review of the district court’s statutory construction is de

novo. See Tiger Eye, 613 F.3d at 1126. Our review of the

5

See also 18 U.S.C. § 983(j)(1)(B) (requiring the court, before

issuing a 90-day order, to determine that “there is a substantial

probability that the United States will prevail on the issue of

forfeiture,” that “failure to enter the order will result in” dissipation of

the property, and that “the need to preserve the availability of the

property . . . outweighs the hardship on any party against whom the

order is to be entered”).

6

See 18 U.S.C. § 983(j)(3) (requiring a hearing, if one is

requested, “at the earliest possible time and prior to the expiration of

the temporary order”).
12

court’s factual findings is for clear error. See United States v.

Murdock, 667 F.3d 1302, 1306 (D.C. Cir. 2012).

A

As noted above, section 983(j)(1)(A) provides that a court

may enter a restraining order that lasts during the pendency of

forfeiture proceedings, “upon the filing of a civil forfeiture

complaint alleging that the property with respect to which the

order is sought is subject to civil forfeiture.” 18 U.S.C.

§ 983(j)(1)(A) (emphasis added). In light of this wording, Luan

insists that section 983(j)(1)(A) “can only be invoked following

the filing of a civil forfeiture complaint.” Luan Br. 17; see id.

at 35. And because no civil forfeiture complaint against Luan’s

property was filed in Hong Kong, Luan maintains that the order

the United States district court entered was not “issued in a

manner consistent with . . . the procedural due process

protections” of section 983(j)(1)(A). 28 U.S.C.

§ 2467(d)(3)(A)(ii)(I). 

The flaw in this argument is that it ignores section

2467(d)(3)’s admonition that “references in such section 983(j)

to civil forfeiture or the filing of a complaint shall be deemed to

refer to the applicable foreign criminal or forfeiture

proceedings.” Id. § 2467(d)(3)(A)(ii)(II)(aa). It is thus clear

that the filing of a foreign “civil forfeiture” “complaint” is not

a prerequisite to issuance of a restraining order under

section 2467(d)(3). 

Indeed, were the filing of a civil forfeiture complaint

required, section 2467(d)(3) would be a statute of extremely

limited utility. The government represents, and Luan does not

dispute, that many foreign countries do not have civil forfeiture

laws or otherwise permit forfeiture apart from criminal

proceedings. Gov’t Br. 27; see Luan Reply Br. 14-15 & n.7. 
13

Luan’s own expert represents, and the government does not

dispute, that forfeiture in Hong Kong is generally available only

in criminal cases. Decl. of Donald Lewis ¶¶ 4-5; see Gov’t Br.

27. Hence, if the statute required the filing of a foreign civil

forfeiture complaint, it would be unavailable to assist Hong

Kong and many other governments preserve property during the

pendency of criminal proceedings, notwithstanding that both the

statute and the 2010 legislative history cited by both parties

make clear that this was the statutory purpose.7

Accordingly, the fact that the government of Hong Kong

did not file a civil forfeiture complaint against Luan’s property

does not bar the issuance of a restraining order against it. 

Instead, following the statutory admonition, we must determine

which (if any) Hong Kong proceedings constitute “the

applicable foreign criminal or forfeiture proceedings” necessary

7

See 28 U.S.C. § 2467(d)(3)(A)(i) (providing that the court may

issue a restraining order “[t]o preserve the availability of property

subject to . . . criminal forfeiture under foreign law” (emphasis

added)); id. § 2467(d)(3)(A)(ii)(II)(aa) (providing that references to

civil forfeiture in § 983(j) “shall be deemed to refer to the applicable

foreign criminal or forfeiture proceedings” (emphasis added)); 156

CONG. REC. S8638 (daily ed. Dec. 8, 2010) (statement by Sen.

Whitehouse that the 2010 amendments were necessary because, under

the previous version of the statute, the government was unable to

restrain money “that had been identified for forfeiture by foreign

governments in connection with criminal investigations and

prosecutions” (emphasis added)); 156 CONG. REC. H8540 (daily ed.

Dec. 16, 2010) (statement by Rep. Poe that “[w]e must ensure that

foreign governments can continue to rely on our assistance with their

criminal prosecutions” (emphasis added)); Gov’t Br. 23, 28 (citing

legislative history); see also Luan Br. 20-21 (relying on legislative

history). Senator Sheldon Whitehouse and Representative Ted Poe,

along with Representative Judy Chu, were co-sponsors of the 2010

amendments.
14

to satisfy section 2467(d)(3) and its cross-reference to section

983(j).

B

Section 2467(d)(3) does not itself explain how to determine

which proceedings constitute “the applicable foreign criminal or

forfeiture proceedings.” The Justice Department contends that

those proceedings occur as soon as a foreign government

“initiat[es] . . . criminal proceedings” against the owner of the

assets that the U.S. government seeks to restrain. Gov’t Br. 29. 

Under Hong Kong law, the Department says, the issuance of the

warrant for Luan’s arrest served that function. See id. at 32-33;

Organized and Serious Crimes Ordinance, (2007) Cap. 455, 4,

§ 2(15) (H.K.) (“Proceedings for an offense are instituted . . .

when a magistrate issues a warrant or summons . . . in respect of

the offence[.]”). The Justice Department does not spell out the

rationale for this construction. Apparently it reads section

2467(d)(3) as instructing courts to “replace[]” the words “civil

forfeiture” wherever they appear in section 983(j) with the

words “foreign criminal or forfeiture proceedings.” Gov’t Br.

25. On this reading, section 2467(d)(3) authorizes “a restraining

order of unspecified duration” upon “the filing of” -- that is, the

initiation of -- a “foreign criminal or forfeiture proceeding.” Id.

at 24. 

The problem with making the direct substitution the Justice

Department suggests is that section 2467(d)(3) does not merely

say that “the filing of a complaint shall be deemed to refer” to

“foreign criminal or forfeiture proceedings.” 28 U.S.C.

§ 2467(d)(3)(A)(ii)(II)(aa). Rather, it states that the filing of a

complaint shall be deemed to refer to “the applicable foreign

criminal or forfeiture proceedings.” Id. (emphasis added). This

is not to say that the issuance of a warrant is not the “applicable”
15

proceeding, but an argument based on substitution alone does

not resolve the question.

Another way to construe the relevant portion of section

2467(d)(3), although proposed by neither party, might begin by

noting that section 983(j) authorizes restraining orders of three

different durations. A court might then find the “applicable”

foreign criminal proceeding by identifying the foreign

proceeding that authorizes the kind of order entered in this case

-- namely, an order that lasts during the pendency of forfeiture

proceedings.8

 Hong Kong law does in fact define such a

proceeding. See Organized and Serious Crimes Ordinance,

(2003) Cap. 455, 20, § 14(1) (H.K.) (authorizing restraining

orders against defendants for whom “proceedings have been

instituted” and “have not . . . been concluded”). Indeed, there is

no doubt that there was such a proceeding in this case because

the Hong Kong High Court issued an order lasting for the

pendency of the proceedings against Luan, which the U.S.

district court then registered and enforced. See In re Male Luan

Gang et al., [Aug. 15, 2011] Misc. Proceeding No. 409, at 2

(C.F.I.) (H.K.) (J.A. 127) (extending restraining order “until a

further Order of the Court”). Hence, if all that is necessary is to

identify the kind of Hong Kong proceeding that authorizes a

restraining order lasting for the pendency of proceedings in that

jurisdiction, we need look no further.

A third possible construction, which Luan presses in the

event that we reject his contention that the filing of an actual

civil forfeiture complaint is required, is that the word

8

It is important to reiterate that the statutory authorization for

U.S. restraining orders applies only if the foreign nation is one “with

which the United States has a treaty or other formal international

agreement in effect providing for mutual forfeiture assistance.” 28

U.S.C. § 2467(a)(1).
16

“applicable” directs us to identify the foreign proceeding that is

the “functional equivalent” of the filing of a civil forfeiture

complaint. Luan Br. 36. Luan cites nothing to support the

contention that section 2467(d)(3) requires that a foreign

proceeding be the “functional equivalent” of the filing of an

American civil forfeiture complaint in order to be deemed

“applicable.” Nor does he flesh out what he means by

“functional equivalent.”9 There is, however, support for the

contention that the prerequisite for a restraining order that lasts

during the pendency of foreign forfeiture proceedings should be

procedural protections that are “analogous” or “similar” to those

afforded by the filing of a civil forfeiture complaint. See 156

CONG. REC. S8638 (daily ed. Dec. 8, 2010) (statement by Sen.

Whitehouse that the bill to amend section 2467 “includes due

process protections analogous to those used for restraining

orders in anticipation of domestic forfeiture judgments”

(emphasis added)); 156 CONG. REC. H8540 (daily ed. Dec. 16,

2010) (statement by Rep. Chu that the bill “includes due process

protections similar to those used for restraining orders in

anticipation of domestic forfeiture judgments” (emphasis

added)); see also Gov’t Br. 23 (citing this history). Perhaps the

best descriptor is simply the one employed by the statute itself: 

the prerequisite for such a restraining order should be procedural

9

In his reply brief and at oral argument, Luan’s counsel contended

that the only foreign criminal proceeding that could be the functional

equivalent of the filing of a civil forfeiture complaint would be the

filing of an “indictment or comparable charging document.” Luan

Reply Br. 3; see Oral Arg. Recording at 28:45 - 29:10. There is no

statutory support for this contention; section 2467(d)(3) does not use

the term “indictment,” but rather the phrase “applicable foreign

criminal or forfeiture proceedings.” 28 U.S.C.

§ 2467(d)(3)(A)(ii)(II)(aa). Moreover, as we explain below, Luan

received all of the procedural protections (and more) that would have

been afforded by the filing of a “civil forfeiture . . . complaint,” which

is the language the statute does use, id.
17

protections “consistent with” those afforded by the filing of a

civil forfeiture complaint. See 28 U.S.C. § 2467(d)(3)(A)(ii)(I)

(requiring that a “restraining order under this subparagraph shall

be issued in a manner consistent with . . . the procedural due

process protections for a restraining order under section 983(j)”

(emphasis added)).

We need not decide precisely which of these three

constructions of section 2467(d)(3) is correct. In this case, the

Hong Kong proceedings included an application for and

issuance of an arrest warrant, an application for and issuance of

a restraining order, and a subsequent adversarial hearing to

determine whether to continue that restraining order. For the

reasons discussed in the following subpart, we conclude that --

taken together -- those proceedings provided procedural due

process protections consistent with those that the filing of an

American civil forfeiture complaint would have afforded Luan. 

Accordingly, even under the most demanding plausible

interpretation of section 2467(d)(3), the Hong Kong restraining

order satisfied the prerequisites for enforcement.

C

In order to determine whether Luan received procedural due

process protections “consistent with” those afforded by the filing

of a civil forfeiture complaint, we begin by cataloguing the

procedural protections that a civil forfeiture complaint provides

in the United States.10 Rule G of the Supplemental Rules for

10By including this catalogue, we do not mean to suggest that a

“manner consistent with . . . the procedural due process protections for

a restraining order under section 983(j)” requires a foreign analogue

for every particular of the federal pleading rules that we discuss

below. Even if that degree of congruity were required, however,

nothing in the record suggests the proceedings against Luan were
18

Admiralty or Maritime Claims and Asset Forfeiture Actions

“governs a forfeiture action in rem arising from a federal

statute.” SUPP. R. G(1). That rule requires (inter alia) that

notice be provided to known potential claimants,id. G(4)(b), and

further requires that the complaint:

(a) be verified;

(b) state the grounds for subject-matter jurisdiction, in

rem jurisdiction over the defendant property, and

venue; 

(c) describe the property with reasonable particularity; 

(d) if the property is tangible, state its location when

any seizure occurred and -- if different -- its location

when the action is filed; 

(e) identify the statute under which the forfeiture action

is brought; and 

(f) state sufficiently detailed facts to support a

reasonable belief that the government will be able to

meet its burden of proof at trial. 

Id. G(2). Supplemental Rule E, which applies to “the extent that

[Rule G] does not address an issue,” id. G(1), provides that the

complaint “shall state the circumstances from which the claim

arises with such particularity that the defendant or claimant will

be able, without moving for a more definite statement, to

commence an investigation of the facts and to frame a

responsive pleading.” Id. E(2)(a). Section 983(j)(1)(A) itself

provides that, in order to serve as the basis for a restraining

deficient in any of those respects.
19

order, a civil forfeiture complaint must “alleg[e] that the

property with respect to which the order is sought is subject to

civil forfeiture.” 18 U.S.C. § 983(j)(1)(A). Finally, the filing of

a civil forfeiture complaint commences adversarial proceedings

of finite (although not necessarily brief) duration, during which

a person who asserts an interest in the property may contest the

forfeiture. SUPP. R. G(5).11

Luan does not dispute that the Hong Kong proceedings

collectively gave him many of the same procedural protections

that a U.S. civil forfeiture complaint would provide.12 But he

maintains that there were still other important protections that he

did not receive. 

First, Luan suggests that the Hong Kong proceedings failed

to describe the property to be forfeited with reasonable

particularity, as required by Supplemental Rule G(2)(C). That

is simply incorrect. In their application for a restraining order

against Luan, Hong Kong authorities enumerated $23.7 million

in suspected criminal proceeds that they sought to restrain. 

Chow Aff. ¶¶ 8-14. They further identified specific U.S. bank

accounts to which the funds had been sent. See id. ¶¶ 11-12. 

So, too, did the restraining order issued by the Hong Kong court. 

11See Gov’t Br. 24 (“The point of allowing a restraining order of

unspecified duration upon the filing of some proceeding . . . is that the

party affected by the restraining order has a forum in which to

challenge the restraint.”).

12Luan does not dispute: that he received notice of the restraining

order proceedings; that the Hong Kong inspector’s affirmation in

support of a restraining order was effectively verified; that the Hong

Kong pleadings stated the grounds for jurisdiction and venue in Hong

Kong; or that the pleadings identified the statute under which the

forfeiture action was brought. See SUPP. R. G(2)(a), (b), (c), (e); id.

G(4)(b).
20

See In re Male Luan Gang et al., [Mar. 15, 2011] Misc.

Proceeding No. 409, at 3-6 (C.F.I.) (H.K.) (J.A. 59-62). Under

Hong Kong law, those criminal proceeds were the assets that

would be subject to forfeiture upon Luan’s conviction. See

Organized and Serious Crimes Ordinance, (2003) Cap. 455, 12,

§ 8(6)-(7) (H.K.).13

Second, Luan maintains that the proceedings failed to allege

“sufficiently detailed” facts to support a reasonable belief that

his property is subject to forfeiture, as required by Supplemental

Rules E(2)(a) and G(2)(f). See United States v. Mondragon, 313

F.3d 862, 865 (4th Cir. 2002) (explaining pleading standard).14

This claim is also incorrect. The affirmation of the Hong Kong

customs inspector made numerous particularized allegations,

describing in detail the unlawful transactions in which Luan

engaged, the bank accounts into which he deposited the

proceeds, and the incriminating manner in which he transferred

$23.7 million from those bank accounts to the United States. 

See supra Part I; Chow Aff. ¶¶ 3-5; id. ¶¶ 6-12 (describing

financial transactions and listing specific bank accounts). The

order of the Hong Kong court continuing the restraining order

added further particulars. In re Male Luan Gang et al., [Mar.

13Thus, the Hong Kong application also satisfied section

983(j)(1)(A)’s requirement that the complaint “alleg[e] that the

property with respect to which the order is sought is subject to civil

forfeiture.” 18 U.S.C. § 983(j)(1)(A); see DOJ Application at 2-4

(noting that the $23.7 million restrained by the district court

constituted “suspected criminal proceeds” that would be subject to

forfeiture upon Luan’s conviction); Chow Aff. ¶ 37 (estimating that

the criminal proceeds were more than three times the total assets that

were restrained).

14See SUPP R. G, Advisory Committee Note, Subdivision (2)

(explaining that Supplemental Rule G(2)(f) was intended to codify the

interpretation of Rule E(2)(a) set out in Mondragon).
21

15, 2011] Misc. Proceeding No. 409, at 3-6 (C.F.I.) (H.K.) (J.A.

59-62). These allegations were sufficiently “particularized” to

satisfy Luan’s only objection regarding compliance with

Supplemental Rules E(2)(a) and G(2)(f).

Moreover, the Hong Kong proceedings, which culminated

in the issuance and continuation of the restraining order, offered

additional procedural protections in this respect that the mere

filing of a civil forfeiture complaint in the U.S. would not. No

judicial approval of any kind is required before the government

may file such a complaint in the United States. See Oral Arg.

Recording at 10:40 - 11:00 (acknowledgment by Luan’s

counsel). And while presumably no approval is required for a

customs inspector to file an affirmation in Hong Kong either,

there was more here: namely, the issuance of both an arrest

warrant and a restraining order. In order to secure the arrest

warrant, Hong Kong authorities were required to present

evidence to a magistrate, under oath, that Luan had committed

an indictable offense. See Magistrates Ordinance, (1997) Cap.

227, 8, 29-30, §§ 10, 72, 75 (H.K.). And in order to secure a

restraining order, the Hong Kong government had to show (and

the court had to find) that there was “reasonable cause to believe

that [the defendant] has benefited from that specified offence.” 

Organized and Serious Crimes Ordinance, (2003) Cap. 455, 20,

§ 14(2)(b) (H.K.). 

Third, Luan objects that the Hong Kong proceedings, unlike

the filing of a civil forfeiture complaint, were not “adversary

proceeding[s].” Oral Arg. Recording at 6:43-57. As Luan’s

counsel concedes, however, the filing of a civil forfeiture

complaint is not itself an adversary proceeding. Rather, it

“begins adversary proceedings” of “finite duration,” in the sense

that they end when the court resolves the complaint. Id. at

11:28-48.
22

But the same is true in Hong Kong. The proceedings

against Luan set in motion multiple adversarial proceedings in

which he will be able to contest the prospect of forfeiture. The

issuance of an arrest warrant began criminal proceedings under

Hong Kong law. See Organized and Serious Crimes Ordinance,

(2007) Cap. 455, 4, § 2(15)(a) (H.K.). As a consequence, Hong

Kong courts now must hold a preliminary inquiry, in which

Luan will be able to challenge the government’s evidence; as

well as a criminal trial, in which Luan will be entitled to the

presumption of innocence. See Magistrates Ordinance, (1997)

Cap. 227, 33, § 81 (H.K.) (requiring adversarial preliminary

inquiry); id. at 36, § 85 (requiring either discharge or committal

for trial after preliminary hearing); Bill of Rights Ordinance,

(1997) Cap. 383, 5, § 8 Art. 11(1) (H.K.) (establishing

presumption of innocence). 

All of these proceedings are finite. If they are not instituted

within a reasonable time, or if Luan is acquitted, the Court of

First Inquiry must discharge the restraining order against Luan. 

See Organized and Serious Crimes Ordinance, (2003) Cap. 455,

20-21, § 14(1), (4). Moreover, Hong Kong law requires the

court to regularly consider whether to extend or discharge an

extant restraining order. Id. at 20, § 14(1A)-(2); see In re Male

Luan Gang et al., [Aug. 15, 2011] Misc. Proceeding No. 409

(C.F.I.) (H.K.) (J.A. 127). And, of course, if the Hong Kong

restraining order is discharged, the U.S. restraining order must

be discharged as well. See 28 U.S.C. § 2467(d)(3)(A)(i)

(authorizing restraining orders to preserve the availability of

property subject to . . . forfeiture under foreign law” (emphasis

added)); DOJ Application at 8 (stating that U.S. restraining

orders are available under section 2467(d)(3) only “during the

pendency” of foreign forfeiture actions). That Luan has

delayed, or failed to take advantage of, these proceedings by

fleeing arrest does not diminish the procedural protections they

afford him.
23

Moreover, Luan has already been given the opportunity to

challenge his restraint in an adversarial hearing. As noted

above, the Hong Kong Court of First Instance notified Luan that

he could request a hearing in which to argue that the restraining

order against him should be discharged. See In re Male Luan

Gang et al., [Mar. 15, 2011] Misc. Proceeding No. 409, at 10

(C.F.I.) (H.K.) (J.A. 66). The court subsequently held such a

hearing, during which it heard argument from one of his alleged

co-conspirators before concluding that discharge was

unwarranted. See In re Male Luan Gang et al., [Aug. 15, 2011]

Misc. Proceeding No. 409, at 2 (C.F.I.) (H.K.) (J.A. 127). Luan

could have appeared at that proceeding and argued that the

evidence against him was insufficient. See Organized and

Serious Crimes Ordinance, (2003) Cap. 455, 20, § 14(2)(b)

(H.K.); Sec’y for Justice v. Wu Lihui & Ors., [2008] H.K.C.

1446 (C.A.) (H.K.) (decision by the Court of Appeal of the High

Court of Hong Kong discharging a restraining order because it

was “based entirely on speculation”). Again, his failure to take

advantage of that proceeding does not alter the protections it

afforded.

Finally, Luan observes that the Hong Kong court issued an

in personam order restraining him (and his co-defendants) from

dealing with assets that he owned or controlled. He argues that

an in personam order cannot supply procedural due process

protections consistent with section 983(j) because that section

authorizes only in rem orders restraining specific property. 

Luan Br. 40-42.15 As Luan notes, a civil forfeiture complaint

filed under Supplemental Rule G(2)(b) must state the grounds

for “in rem jurisdiction.” SUPP. R. G(2)(b). And because the

15In personam jurisdiction is jurisdiction over the defendant. In

rem jurisdiction is jurisdiction over the property. See United States v.

Bajakajian, 524 U.S. 321, 330-34 (1998); United States v. Fleet, 498

F.3d 1225, 1231 (11th Cir. 2007).
24

Hong Kong government did not seek, let alone state the grounds

for, in rem jurisdiction of Luan’s property, Luan contends that

“no document meeting the substantive requirements of a civil

forfeiture complaint was entered in the Hong Kong

proceedings.” Luan Br. 41-42.

Criminal forfeiture (at least in the United States) is in

personam. See Alexander v. United States, 509 U.S. 544, 558

(1993); United States v. One Assortment of 89 Firearms, 465

U.S. 354, 363 (1983) (“In contrast to the in personam nature of

criminal actions, actions in rem have traditionally been viewed

as civil proceedings . . . .”). Moreover, as noted above, many

countries do not have provisions for civil forfeiture at all. See

supra Part III.A. Accordingly, Luan’s insistence that the

forfeiture order must be in rem essentially restates his contention

-- which we have rejected above -- that section 2467(d)(3) can

only be invoked following the filing of a civil forfeiture

complaint. As we have explained, that argument ignores section

2467(d)(3)’s admonition that “references in such section 983(j)

to civil forfeiture or the filing of a complaint shall be deemed to

refer to the applicable foreign criminal or forfeiture

proceedings.” 28 U.S.C. § 2467(d)(3)(A)(ii)(II)(aa) (emphasis

added). Likewise, Luan’s contention that the legislative history

of section 2467(d)(3) “supports the conclusion that Congress

intended the statute to apply to civil in rem forfeiture,” Luan Br.

41 n.3, is unsupported by that history, which makes clear that

section 2467(d)(3) was intended to permit foreign governments

to preserve property during the pendency of criminal

proceedings, see supra note 7.

In a footnote, Luan contends that the “plain language” of

section 2647(d)(3) makes clear that the statute was intended to

permit only in rem restraints. Luan Br. 41 n.3. The language he

cites states that the court may enter a restraining order “[t]o

preserve the availability of property . . . .” Id. (quoting
25

§ 2647(d)(3)(A)(i)) (emphasis added by appellant). The

problem for Luan is that the U.S. statute governing many

criminal forfeitures contains exactly the same language, see 21

U.S.C. § 853(e)(1), and yet there is no doubt that the latter

authorizes in personam orders, see United States v. Price, 914

F.2d 1507, 1512 (D.C. Cir. 1990) (stating that 21 U.S.C. § 853

authorizes “in personam criminal forfeiture proceedings”).

Other than objecting that section 983(j) does not itself

authorize in rem orders, Luan makes no argument that an in

personam order is not consistent with the procedural due process

protections for restraining orders under that section. Because

that is what he must show to render a section 2467(d)(3) order

invalid, see 28 U.S.C. § 2467(d)(3)(A)(ii)(I), this claimed

deficiency in the Hong Kong proceedings -- like the others he

asserts -- does not warrant reversal of the district court’s order.

D

In sum, we conclude that the district court’s restraining

order was “issued in a manner consistent with . . . the procedural

due process protections” of section 983(j)(1)(A), because the

“applicable foreign criminal or forfeiture proceedings” in this

case afforded protections consistent with those afforded by the

filing of a civil forfeiture complaint in the United States. 28

U.S.C. § 2467(d)(3)(A)(ii)(I), (II)(aa). We need not decide

whether all of those proceedings were required, or whether

fewer or different proceedings would have sufficed. We decide

only that the proceedings that Luan was afforded were sufficient

to satisfy the mandate of section 2467(d)(3).
26

IV

For the foregoing reasons, the district court’s order denying

Luan’s motion to dissolve the restraining order is

Affirmed.