United States v. facemaskcenter.com

• Court: District Court, District of Columbia
• Decided: April 22, 2021
• Docket: Civil Action No. 2020-2142
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, : : Plaintiff, : Civil Action No.: 20-2142 (RC) : v. : Re Document No.: 15 : FACEMASKCENTER.COM, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING PLAINTIFF’S MOTION FOR ENTRY OF DEFAULT JUDGMENT

I. INTRODUCTION

This action arises out of an investigation by Homeland Security Investigations, the

Internal Revenue Service, and the Federal Bureau of Investigation into potential fraud

surrounding the sale of personal protection equipment (“PPE”) during the COVID-19 pandemic.

Plaintiff United States of America (“the Government”) seeks the forfeiture of one website,

FaceMaskCenter.com, and four related Facebook pages (collectively, “Defendant Properties”)

for their alleged involvement in the unlawful sale of PPE and the subsequent use of those

proceeds to support and finance terrorism. No claimant to the assets has responded to the

complaint, and the Clerk of the Court entered default on February 9, 2021. The Government

now asks this Court to enter a default judgment against the Defendant Properties. For the

reasons set forth below, the Court grants this motion.

II. FACTUAL BACKGROUND

This case involves the property of an alleged facilitator for a Foreign Terrorist

Organization (“FTO”), Murat Cakar. Cakar has received money from individuals that later pled

guilty to providing financial support to the Islamic State of Iraq and the Levant (“ISIS”). See Compl. ¶¶ 12–14, ECF No. 3. Additionally, a confidential source has identified Cakar as an ISIS

facilitator responsible for managing select ISIS hacking operations. Id. ¶ 15. One such operation

was the creation and upkeep of the Defendant Properties. Id. ¶¶ 15, 27–33. The Government

alleges that the Defendant Properties are subject to forfeiture under 18 U.S.C. § 981(a)(1)(G)(i).

The Court will summarize the relevant law and briefly describe the alleged scheme.

A. Statutory Framework

Federal law makes “[a]ll assets, foreign or domestic[,] of any individual, entity, or

organization engaged in planning or perpetrating any . . . Federal crime of terrorism” subject to

forfeiture to the United States. 18 U.S.C. § 981(a)(1)(G)(i). Numerous offenses may qualify as

a “Federal crime of terrorism” so long as they are “calculated to influence or affect the conduct

of government by intimidation or coercion, or to retaliate against government conduct.” Id.

§ 2332b(g)(5). One such offense is “knowingly provid[ing] material support or resources to a

foreign terrorist organization.” See id. § 2339B(a)(1); see also id. § 2332b(g)(5)(B)(i). A

“terrorist organization” for the purposes of that offense is any organization designated as such

under section 219 of the Immigration and Nationality Act. Id. § 2339B(g)(6). 1

This statutory scheme “empowers the government to seek the forfeiture of property

outside the United States, which may have never touched the United States. The broad expanse

of this language is for forfeiture actions to reach all property of terrorist organizations.” United

States v. One Gold Ring with Carved Gemstone, No. 16-CV-2442, 2019 WL 5853493, at *1

(D.D.C. Nov. 7, 2019).

1 The Secretary of State has designated ISIS an FTO. Foreign Terrorist Organizations, U.S. Dep’t of State, https://www.state.gov/foreign-terrorist-organizations/ (last visited Apr. 22, 2021).

2 B. Relevant Facts and Procedural History

The Government outlines a scheme in which the Defendant Properties (owned and

operated by Cakar) used fraudulent advertising to sell PPE, proceeds of which likely benefitted

ISIS due to Cakar’s position as an ISIS facilitator.

Due to the COVID-19 pandemic, global supplies of PPE are limited. Compl. ¶ 9. The

U.S. Department of Health and Human Services designated certain PPE as “scarce materials,” so

the United States took steps to stockpile it. Id. ¶¶ 7, 11. N95 respirator masks and Dupont

Tyvek suits are examples of critical PPE for which there is a limited supply. Id. ¶¶ 9–11.

FaceMaskCenter.com (“the Website”) purports to sell a variety of U.S. Food and Drug

Administration (“FDA”) certified PPE, including N95 masks and Dupont Tyvek suits. Id. ¶ 17.

That and many other assertions the Website makes are false. The Website says it was launched

in 1996, but the domain was registered in 2020. Id. ¶¶ 18–19. It also states that it is “owned and

operated by sanitary experts,” but Cakar (as far as the Court knows) holds no credentials to that

effect. Id. ¶ 19. The N95 masks sold on the Website are manufactured by a Turkish supplier

and are not approved by the FDA. Id. ¶ 22. And despite a shortage of Dupont Tyveks suits that

has led other suppliers to restrict sales, the Website does not limit consumers’ orders. Id. ¶ 26.

The four Facebook pages (“the Facebook Pages”) are either registered by or linked to

Cakar. Id. ¶¶ 27–29, 33. Cakar registered a Facebook Page that is associated with the Website.

Id. ¶ 27. And another of the Facebook Pages is Cakar’s own Facebook profile, which he used to

create the remaining two Facebook Pages. Id. ¶ 33. The Facebook Pages post advertisements

for the Website and its sale of PPE. Id. ¶¶ 27, 32.

The Government filed a verified complaint on August 5, 2020, for forfeiture in rem

against the Defendant Properties, claiming the Website and Facebook Pages were used in the

3 support and financing of terrorism. See Compl. On August 12, 2020, this Court issued a

Warrant for Arrest In Rem, see ECF No. 4-2, and the Government acted on it the next day, Arrest

Warrant In Rem Return, ECF No. 9. The Government provided public notification of this

forfeiture online for at least thirty days beginning on November 4, 2020. See Decl. of

Publication, ECF No. 11. It also attempted direct service via email to Cakar, the sole potential

claimant of the Defendant Properties, on or about December 4, 2020. See Aff. Supp. Default ¶ 5,

ECF No. 12. The Government attempted to reach him at two separate email addresses. Id. No

one has filed a claim. Id.

After the Clerk of the Court entered a default as to the Defendant Properties, Default,

ECF No. 14, the Government filed this motion for default judgment seeking forfeiture under 18

U.S.C. § 981(a)(1)(G)(i). See Pl.’s Mem. Supp. Mot. Default J. (“Pl.’s Mot.”), ECF No. 15-1.

III. LEGAL STANDARD

There is a two-step process for default judgment. See Fed. R. Civ. P. 55; see also

Bricklayers & Trowel Trades Int’l Pension Fund v. KAFKA Constr., Inc., 273 F. Supp. 3d 177,

179 (D.D.C. 2017). First, the plaintiff must “request[] that the Clerk of the Court enter default

against a party who has ‘failed to plead or otherwise defend’” the action. Bricklayers, 273 F.

Supp. 3d at 179 (quoting Fed. R. Civ. P. 55(a)). The entry of default “establishes the defendant’s

liability for the well-pleaded allegations of the complaint.” United States v. Twenty-Four

Cryptocurrency Accts., 473 F. Supp. 3d 1, 4 (D.D.C. 2020). Second, “the party must move for

entry of default judgment and, upon the party’s request, allow the court ‘to enter or effectuate

judgment.’” United States v. $6,999,925.00 of Funds Associated with Velmur Mgmt. Pte. Ltd.,

368 F. Supp. 3d 10, 17 (D.D.C. 2019) (quoting Fed. R. Civ. P. 55(b)).

4 Default judgment is typically available “only when the adversary process has been halted

because of an essentially unresponsive party. In that instance, the diligent party must be

protected lest he be faced with interminable delay and continued uncertainty as to his rights.” Id.

(quoting Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 1980)); see also Gilmore v. Palestinian

Interim Self-Gov’t Auth., 843 F.3d 958, 965 (D.C. Cir. 2016). But a defendant’s failure to

respond or appear “do[es] not automatically entitle plaintiff to a default judgment.” Velmur, 368

F. Supp. 3d at 17 (alteration in original) (quoting Jackson v. Corr. Corp. of Am., 564 F. Supp. 2d

22, 26 (D.D.C. 2008)). Instead, the complaint must state a claim for relief in order for the

plaintiff to be entitled to default judgment. Id. Stated differently, “[d]efault establishes the

defaulting party’s liability for the well-pleaded allegations of the complaint” but not for

insufficiently pleaded ones. Id. (alteration in original) (quoting Boland v. Elite Terrazzo

Flooring, Inc., 763 F. Supp. 2d 64, 67 (D.D.C. 2011)).

IV. ANALYSIS

The Government asks this Court to authorize the forfeiture of the Defendant Properties.

Rule G of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture

Actions governs in rem civil forfeiture actions. See Fed. R. Civ. P. Supp. R. G. It contains

notice requirements and substantive pleading requirements. See Fed. R. Civ. P. Supp. R. G(2),

(4). Because the Government has properly notified all interested parties and sufficiently alleged

that the Defendant Properties are subject to forfeiture, its motion for default judgment is granted.

A. Notice

Under Supplemental Rule G, the government must (1) publish public notice of a

forfeiture and (2) provide direct notice to potential claimants of the property to be forfeited. Fed.

R. Civ. P. Supp. R. G(4)(a), (b). One option for public notice is publication on an official

5 government forfeiture website for at least thirty consecutive days. Fed. R. Civ. P. Supp. R.

G(4)(a)(iii)–(iv). The publication should “describe the property with reasonable particularity,”

“state the times . . . to file a claim and to answer,” and “name the government attorney to be

served with the claim and answer.” Fed. R. Civ. P. Supp. R. G(4)(a)(ii). In addition to public

notice, the government is required to “send notice of the action and a copy of the complaint to

any person who reasonably appears to be a potential claimant.” Fed. R. Civ. P. Supp. R.

G(4)(b)(i). The notice “must be sent by means reasonably calculated to reach the potential

claimant.” Fed. R. Civ. P. Supp. R. G(4)(b)(iii)(A). But the rule requires only “that the

government attempt to provide actual notice; it does not require that the government demonstrate

that it was successful in providing actual notice.” United States v. $1,071,251.44 of Funds

Associated with Mingzheng Int’l Trading Ltd., 324 F. Supp. 3d 38, 47 (D.D.C. 2018) (quoting

Mesa Valderrama v. United States, 417 F.3d 1189, 1197 (11th Cir. 2005)).

Here, the Government has complied with Supplemental Rule G’s notice requirement. It

publicized the forfeiture on its official forfeiture website for thirty consecutive days starting

November 4, 2020. Decl. of Publication; Aff. Supp. Default ¶ 6. The publication provided the

URL address for all the Defendant Properties, provided a date by which interested parties were

required to file a claim, and identified the attorney to be served with a claim. See Decl. of

Publication. No claims were filed in response to the publication by the deadline. Aff. Supp.

Default ¶ 5; see also Fed. R. Civ. P. Supp. R. G(5)(a)(ii)(B) (requiring any claim to be filed “no

later than 30 days after final publication of . . . legal notice under Rule G(4)(a)”). Accordingly,

the Government has satisfied its obligation to provide public notice.

The Government has also complied with Supplemental Rule G’s direct notice

requirement. It sent direct notice by email to Cakar, the sole potential claimant at two different

6 email addresses. Aff. Supp. Default ¶ 5. Email is an appropriate means of providing notice

when “the case involves international defendants whose locations are hard to pin down and the

nature of the crimes necessarily entails some degree of cyber-proficiency on the part of the

Defendant Properties’ owners.” Twenty-Four Cryptocurrency Accounts, 473 F. Supp. 3d at 6.

The Government’s publication on its forfeiture website and emails to potential claimants thus

satisfy Supplemental Rule G’s notice requirements. See United States v. $56,634 in U.S.

Currency on Deposit in Banesco Int’l, Pan., 79 F. Supp. 3d 112, 114 (D.D.C. 2015) (holding that

the Government provided sufficient notice when it posted public notice of the forfeiture online

and attempted, but failed, to obtain contact information for the owners of the funds at issue).

B. Adequacy of the Complaint

Along with its notice requirements, “Supplemental Rule G sets the specifications of a

complaint in an in rem forfeiture action.” Mingzheng, 324 F. Supp. 3d at 45. The complaint

must (1) “be verified,” (2) state the grounds for jurisdiction and venue, (3) “describe the property

with reasonable particularity,” (4) “identify the statute under which the forfeiture action is

brought,” and (5) “state sufficiently detailed facts to support a reasonable belief that the

government will be able to meet its burden of proof at trial.” Fed. R. Civ. P. Supp. R. G(2).

Courts consider those requirements to establish a “higher standard of pleading” than that

imposed by Federal Rule of Civil Procedure 8. United States v. All Assets Held at Bank Julius

Baer & Co., Ltd., 571 F. Supp. 2d 1, 16 (D.D.C. 2008). Nevertheless, Rule 8 “may help to

clarify when a civil forfeiture complaint” states a claim. United States v. $22,173.00 in U.S.

Currency, 716 F. Supp. 2d 245, 249 (S.D.N.Y. 2010).

The first four requirements for a forfeiture complaint are largely formal and the

Government meets them here. The complaint is verified; it identifies the basis for jurisdiction

7 and venue; it describes the properties at issue through their URLs, images, and descriptions; and

it identifies the provision under which forfeiture is sought, 18 U.S.C. § 981(a)(1)(G)(i). See

Compl. ¶¶ 2–4, 16–33, 37.

The fifth requirement is more substantive; it requires the Government to establish the

legal basis for its claims. See Mingzheng, 324 F. Supp. 3d at 51. Here, the Government claims

as its legal basis 18 U.S.C. § 981(a)(1)(G)(i), which subjects to forfeiture “[a]ll assets, foreign or

domestic, of any individual, entity, or organization engaged in planning or perpetrating any . . .

Federal crime of terrorism . . . and all assets, foreign or domestic, affording any person a source

of influence over any such entity or organization.” It claims that the Defendant Properties are

forfeitable because their owner, Cakar, was an ISIS facilitator. Compl. ¶¶ 5, 12–33. Because

Cakar “knowingly provide[d] material support or resources to a foreign terrorist organization,”

18 U.S.C. § 2339B(a)(1), and that is a “Federal crime of terrorism,” id. § 2332b(g)(5), the

Government says the Defendant Properties fall neatly within the forfeiture statute, 18 U.S.C.

§ 981(a)(1)(G)(i). To secure forfeiture of the Defendant Properties, the Government need only

“allege[] sufficient facts to support a reasonable belief that [it] would be able to show at trial by a

preponderance of the evidence that” its theory is correct. Mingzheng, 324 F. Supp. 3d at 51. The

standard is “not particularly onerous,” id., and the Government satisfies it here.

The Government first alleges that Cakar is a facilitator for ISIS, an FTO. Compl. ¶¶ 5,

12–15. It says that an individual who pled guilty to providing financial support to ISIS sent

$100,000 to one of Cakar’s aliases. Id. ¶¶ 12–14. It also points to a confidential informant who

told authorities that Cakar was responsible for managing certain hacking operations for ISIS. Id.

¶ 15. These allegations suggest that the Government could show at trial that Cakar provided

material support to ISIS.

8 The Government then alleges that Cakar owned and operated the Defendant Properties.

Id. ¶¶ 27–29, 33. It asserts that Cakar registered or created each of the Facebook Pages,

including the official Facebook Page for the Website. Id. According to the Government, the

Website fraudulently purports to sell PPE. It specifies multiple inconsistencies in the Website’s

advertisements (discussed above) to support its allegation of fraud. Id. ¶¶ 16–26. Posts on the

Facebook Pages promoted the Website. Id. ¶¶ 27, 32. Ultimately, the Government suggests that

revenue generated through this fraudulent scheme supported ISIS’s terrorist activities. Id. ¶ 1.

In any case, the Government has shown that it could likely demonstrate at trial that the

Defendant Properties belonged to Cakar, who provided material support to an FTO.

Because the Government has put forth allegations indicating that the Defendant

Properties are those of an individual perpetrating a “Federal crime of terrorism,” the Defendant

Properties are subject to forfeiture. See 18 U.S.C. § 981(a)(1)(G)(i).

V. CONCLUSION

For the foregoing reasons, Plaintiff’s motion for default judgment (ECF No. 15) is

GRANTED. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.

Dated: April 22, 2021 RUDOLPH CONTRERAS United States District Judge