Unites States v. Pokerstars, et al

Filing 192

MEMORANDUM OF LAW in Support re: 191 MOTION to Dismiss.. Document filed by Rafael Furst. (Souede, Benjamin)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,

Case No. 1:11 Civ. 02564 (LBS)
Plaintiff,

v.

ECF CASE

POKERSTARS, et al.,

Filed Electronically
Defendants.

ALL RIGHT, TITLE AND INTEREST IN
THE ASSETS OF POKERSTARS, et al.,

Defendants-In-Rem.
DEFENDANT AND CLAIMANT RAFAEL FURST’S MEMORANDUM IN SUPPORT
OF HIS MOTION TO DISMISS COUNTS ONE AND FOUR, AND CLAIM FOR CIVIL
MONEY LAUNDERING PENALTIES, OF THE VERIFIED FIRST AMENDED
COMPLAINT
In support of his Motion to Dismiss Counts One and Four, and the claim for civil money
laundering penalties, of the Verified First Amended Complaint (“Complaint”) as pleaded against
him, Defendant and Claimant Rafael Furst (“Furst”) hereby respectfully adopts and incorporates
by reference, in its entirety, the Memorandum of Points and Authorities in Support of Defendant
and Claimant Howard Lederer’s Motion to Dismiss Verified First Amended Complaint (the
1

“Lederer Memorandum”). (Docket Entry #190.) Furst incorporates and asserts the arguments
contained in the Lederer Memorandum, including but not limited to its discussion of the
applicable pleading standards and the Government’s failure to adequately plead the allegedly
unlawful underlying activity. Indeed, the allegations against Mr. Furst are even more sparse than
those against Mr. Lederer, and do not make out the necessary elements of a claim for money

1

The sole exception to this adoption and incorporation is that, to the extent that any statement in the
Lederer Memorandum agrees that any claim in the Verified First Amended Complaint is legally
sufficient, Furst does not adopt or incorporate such statement.

1
677182.01

laundering penalties under any theory. Claims One and Four should therefore be dismissed, as
should the Complaint’s claim for civil money laundering penalties.
The statutory provision invoked by the Government, 18 U.S.C. § 1956(b), applies only to
a defendant who “conducts or attempts to conduct a transaction described in subsection (a)(1) or
(a)(3) [of 18 U.S.C. § 1956], or [18 U.S.C. § 1957], or a transportation, transmission, or transfer
described in subsection (a)(2) [of 18 U.S.C. § 1956].” The Complaint’s allegations do not
adequately set forth a violation of any of these statutory provisions.
As to 18 U.S.C. § 1956(a)(1), the Complaint does not allege that Mr. Furst “conduct[ed]
or attempt[ed] to conduct . . . a financial transaction which in fact involve[d] the proceeds of
specified unlawful activity,” while “knowing that the property involved in [that] financial
transaction represent[ed] the proceeds of some form of unlawful activity.” Nor does it allege that
any such transaction was conducted or attempted “with the intent to promote the carrying on of
specified unlawful activity; or . . . with intent to engage in conduct constituting a violation of
section 7201 or 7206 of the Internal Revenue Code of 1986,” 18 U.S.C. § 1956(a)(1)(A), or that
Mr. Furst “[knew] that the transaction [was] designed in whole or in part . . . to conceal or
disguise the nature, the location, the source, the ownership, or the control of the proceeds of
specified unlawful activity; or . . . to avoid a transaction reporting requirement under State or
Federal law,” id. § 1956(a)(1)(B).
As to 18 U.S.C. § 1956(a)(3), the Complaint does not allege that Mr. Furst had the “intent
. . . to promote the carrying on of specified unlawful activity; . . . to conceal or disguise the
nature, location, source, ownership, or control of property believed to be the proceeds of
specified unlawful activity; or . . . to avoid a transaction reporting requirement under State or
Federal law.” Nor does it allege that Mr. Furst “conduct[ed] or attempt[ed] to conduct a
financial transaction involving property represented to be the proceeds of specified unlawful
activity, or property used to conduct or facilitate specified unlawful activity.”
As to 18 U.S.C. § 1957, the Complaint does not allege that Mr. Furst “knowingly
engage[d] or attempt[ed] to engage in a monetary transaction in criminally derived property . . .

derived from specified unlawful activity.” 18 U.S.C. § 1957(a) (emphasis added).
Finally, as to 18 U.S.C. § 1956(a)(2), the Complaint does not allege that, assuming the
transnational element is adequately pleaded Mr. Furst had “the intent to promote the carrying on
of specified unlawful activity,” 18 U.S.C. § 1956(a)(2)(A), or “[knew] that the monetary
instrument or funds involved in the transportation, transmission, or transfer represent[ed] the
proceeds of some form of unlawful activity and [knew] that such transportation, transmission, or
transfer [was] designed in whole or in part . . . to conceal or disguise the nature, the location, the
source, the ownership, or the control of the proceeds of specified unlawful activity; or . . . to
avoid a transaction reporting requirement under State or Federal law,” id. § 1956(a)(2)(B).
Defendant and Claimant Furst therefore respectfully moves this Court to dismiss Counts
One and Four of the Complaint as pleaded against him.
DATED: July 9, 2012

Respectfully submitted,
s/ Benjamin N. Souede
BENJAMIN SOUEDE
DAVID ANGELI (admitted pro hac vice)
ANGELI LAW GROUP, LLC
121 SW Morrison St., Suite 400
Portland, OR 97232
[phone] | [phone] (facsimile)
Attorneys for Defendant Rafael Furst

To:

Jason H. Cowley
Michael D. Lockard
United States Attorneys Office
One Saint Andrew’s Plaza
New York, NY 10007
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]