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"

LEV L. DASSIN Acting United States Attorney for the Southern District of New York By: BARBARA A. WARD SHARON E. FRASE Assistant United States Attorneys One St. Andrew's Plaza New York, New York 10007 Telephone: (212) 637-1048/2329 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA

GOVERNMENT'S EX PARTE APPLICATION FOR POST­ INDICTMENT RESTRAINING ORDER PURSUANT TO 21 U.S.c. § 853Ce)(2)

- v. ­ BERNARD L. MADOFF,

f

I

I I

Defendant.

I I I

09 Cr. 213 (DC)

I

I I I

I

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The United States of America respectfully moves the Court pursuant to Title 21, United States Code, Section 853(e), for a Post-Indictment Restraining Order restraining BERNARD L. MADOFF, the defendant (the "defendant"), and others acting in concert with him, from engaging in the transfer, sale, assignment, pledge, hypothecation, encumbrance, dissipation or other movement of certain assets which are subject to forfeiture pursuant to 18 U.S.c. §§ 981(a)(l)(C) and 28 U.S.C. § 2461(c) and 18 U.S.C. § 982: All right, title and interest of BERNARD L. MADOFF, the defendant, in any and all property and interests in property held in the name of, or for the benefit of, BERNARD MADOFF and/or Ruth Madoff, including but not limited to the property listed in Exhibit A hereto, and all property traceable to such property, (hereinafter referred to as the "Subject Property").

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The Subject Property is subject to forfeiture upon conviction of the defendant for

violation of federal law, as set forth more fully herein. 2.

Pursuant to 21 U.S.C. § 853(e)(l), this Court is authorized to enter a restraining

order or injunction, require the execution of a satisfactory performance bond, or take any other action to preserve the availability of property subject to forfeiture. As set forth below, restraint of the Subject Property pursuant to 21 U.S.C. § 853(e) is necessary to protect the ability of the United States to exercise its right of forfeiture and to preserve the availability of property subject to forfeiture, in order to maximize recovery for victims of the offenses charged in the Information. The Subject Property should also be restrained to make clear that the Property is subject to criminal forfeiture in the proceeding before Your Honor, that it is not part of the estate in the involuntary petition just filed against MADOFF in bankruptcy court, and that any claims to the Property are to be made before Your Honor in accordance with the provisions of Section 853.

BACKGROUND The Criminal Case 3.

On December 11, 2008, United States Magistrate Judge Douglas F. Eaton issued a

warrant for the defendant's arrest based on a Criminal Complaint charging the defendant with securities fraud. (See Affidavit of Special Agent Steven N. Garfinkel ("Garfinkel Aff."), which is submitted herewith in support of the Government's Application). 4.

On March 10,2009, the United States Attorney for the Southern District of New

York filed Information 09 Cr. 213 (DC) (the "Information") (attached hereto as Exhibit B) charging BERNARD L. MADOFF, the defendant, in eleven felony counts, including securities

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fraud, in violation of 15 U.S.c. §§ 78j(b) and 78ff, and 17 C.F.R. § 240.lOb-5 (Count One); investment adviser fraud, in violation of 15 U.S.C. §§ 80b-6 and 80b-17 (Count Two); mail fraud, in violation of 18 U.S.C. § 1341 (Count Three); wire fraud, in violation of 18 U.S.C. § 1343 (Count Four); money laundering in violation of 18 U.S.c. § 1956(a)(2)(A) (Count Five);

money laundering, in violation of 18 U.S.C. § 1956 (a)(l )(B)(i) and (t) (Count Six); money laundering, in violation of 18 U.S.C. § 1957 (Count Seven); false statements, in violation of 18 U.S.c. § 1001 (a) (Count Eight); perjury, in violation of 18 U.S.C. § 1621 (Count Nine); false filings with the SEC, in violation of 15 U.S.C. §§ 78q(e) and 78ff, and 17 C.F.R. §§ 17a-5, 240.17a-13 and 210.2-01 (Count Ten), and theft from an employee benefit plan, in violation of 18 U.S.c. § 664 (Count Eleven). 5.

The Information also contains two criminal forfeiture allegations. The first

Forfeiture Allegation charges forfeiture pursuant to 18 U.S.C. § 981 (a)(l )(C) and 28 U.S.C. § 2461 (c) seeking forfeiture of all property, real and personal, that constitutes or is derived from

proceeds traceable to the offenses constituting "specified unlawful activity" as defined in 18 U.S.C. § 1956(c)(7), as alleged in Counts One, Three, Four, and Eleven of the Information, and substitute assets. The second Forfeiture Allegation in the Information seeks forfeiture pursuant to 18 U.S.C. § 982 of all property, real and personal, involved in the money laundering offenses in violation of 18 U.S.C. §§ 1956 and 1957 charged in Counts Five through Seven of the Information, and substitute assets. 6.

On March 12,2009, the defendant pleaded guilty to the eleven-count Information

without a plea agreement.

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The SEC Enforcement Action 7.

On December 11, 2008, the Securities and Exchange Commission ("SEC") filed a

civil complaint against MADOFF and Bernard L. Madoff Investment Securities LLC ("BLMIS") in United States District Court for the Southern District of New York. SEC v. Madoff, 08 Civ. 10791 (LLS) (the "SEC Action"). In a December 12,2008 Order to Show Cause, Temporary Restraining Order and Order Freezing Assets and Granting Other Relief ("TRO") Judge Stanton granted the SEC's request to temporarily enjoin "the withdrawal, transfer, pledge, encumbrance, assignment, dissipation, concealment or other disposal of any assets, funds or other property of, held by, or under the direct or indirect control of' Madoff or BLMIS (the "SEC Freeze"). The Freeze was extended pursuant to the December 18, 2008 Order on Consent Imposing Preliminary Injunction, Freezing Assets and Granting Order Relief Against Defendants ("Preliminary Injunction"); and the February 9, 2009 Partial Judgment on Consent Imposing Permanent Injunction and Continuing Other Relief ("Permanent Injunction"). Judge Stanton also enjoined Madoff or BLMIS, "their partners, agents, employees, attorneys, or other professionals, anyone acting in concert with them or on their behalf, and any third party ... from filing a bankruptcy proceeding against Defendants without filing a motion on at least three (3) days' notice to the Plaintiff, and approval of this Court after a hearing" (the "Bankruptcy Stay"). 8.

In the Preliminary Injunction, Judge Stanton also granted the application of the

Securities Investor Protection Corporation ("SIPC") to appoint Irving H. Picard, Esq. ("SIPC Trustee") as trustee for the liquidation ofBLMIS, pursuant to the Securities Investor Protection Act of 1970, 15 U.S.C. §§ 78aaa et seq. ("SIPA"), and to appoint Baker & Hostetler LLP as

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counsel for the SIPC Trustee. I The SIPC Trustee is liquidating BLMIS pursuant to SIPA in SIPC v. Bernard L. MadoffInvestment Securities LLC, No. 08-1789 (Bankr. S.D.N.Y.) (the "SIPA Action"). 9.

On March 2,2009, Judge Stanton issued an order granting the Government's

application, submitted on consent of the SEC, Madoff, SIPC, the SIPC Trustee and Ruth Madoff, for an order finding that actions taken under the federal forfeiture laws by the Office of the U.S. Attorney for the Southern District of New York (the "Office"), the Federal Bureau of Investigation ("FBI"), the U.S. Marshals Service ("USMS"), their employees and agents shall not constitute a violation of the SEC Freeze. The Order also directed that actions by MADOFF, Ruth Madoff, and their counsel shall be relieved from the SEC Freeze to the extent needed to cooperate with the Office regarding the restraint, seizure, and disposition of forfeitable property in accordance with federal law. Forfeiture Actions Against MadoffProperty 10.

On or about March 16,2009, the Government filed a Notice ofIntent to Seek

Forfeiture of certain property as a result of the offenses charged in Counts One, Three through Seven, and Eleven of the Information, as alleged in the Forfeiture Allegations of the Information. On or about March 17,2009, the Government filed a Second Notice listing additional property. Much of the property identified in the First and Second Notices of Forfeiture ("Forfeiture Notices") is included in Exhibit A to this application. The Government still intends to seek forfeiture of the property listed in the Forfeiture Notices even if that property is not included in

1

Subsections 78eee(a)(3) and (b)(2) of SIPA confer jurisdiction over BLMIS and its

property.

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Exhibit A hereto (with the exception of MADOFF's interest in Bacar L.P., as the Government has since detennined that MADOFF no longer has an interest in this entity). 11.

On or about April 1, 2009, the Government made application for a post-

indictment warrant of seizure pursuant to 21 U.S.C. § 853(f) authorizing the USMS, its agent or designee to seize the defendant's home in Palm Beach, Florida, at 410 North Lake Way, Palm Beach, Florida, 33480. Based on the showing of probable cause to believe that the property would, in the event of conviction, be subject to forfeiture and that a restraining or other order under 21 U.S.C. § 853(e) would not be sufficient to assure the availability of the property for forfeiture, the Court issued an Order of Seizure for the property. On April 1, 2009, the USMS took custody of the property. 12.

On or about April 1, 2009, the USMS also executed warrants of seizure for three

motor vessels and a boat trailer owned by the defendant and held in his own name or the name of his wife, Ruth Madoff. The Disposition of Madoff Property After Entry of a Final Order of Forfeiture 13.

Property forfeited in the above-captioned case will be distributed pro rata to

victims of the offenses charged in the Information in accordance with applicable Department of Justice policies and procedures. (See Letter from Richard Weber, Chief, Asset Forfeiture and Money Laundering Section, U.S. Department of Justice, to Lev L. Dassin, Acting United States Attorney for the Southern District of New York, dated April 8,2009, attached hereto as Exhibit C).

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Third-Party Claims Against MadoffProperty 14.

On or about March 30, 2009, a lawsuit was filed in Connecticut state court by the

Retirement Program for Employees of the Town of Fairfield, Connecticut and others ("Fairfield Plaintiffs") against MADOFF, Ruth Madoff, and others in connection with the Fairfield Plaintiffs' alleged investments with funds which invested with BLMIS. On filing the complaint, the Fairfield Plaintiffs obtained an ex parte temporary restraining order which directs the defendants, including MADOFF, Ruth Madoff and others, not to transfer or dissipate any of their assets "other than in the ordinary course." 15.

On April 1,2009, a group of individuals and entities who identified themselves as

"customers who are creditors ofBLMIS and Madoffindividually" (the "Creditors") filed a motion in the SEC Action, requesting that Judge Stanton grant them partial relief from the Bankruptcy Stay. The Creditors sought this relief to commence involuntary bankruptcy proceedings against MADOFF pursuant to 11 U.S.C. § 303(b) of the Bankruptcy Code. The SEC, the SIPC Trustee, and the Government submitted responses in opposition to the Creditors' application. As the SEC maintained, because MADOFF's personal assets are subject to criminal forfeiture by the Government, that property is excluded from the bankruptcy estate. The Government concurred in the SEC's position. On April 10, 2009, Judge Stanton granted the Creditors' application. The Opinion is attached hereto as Exhibit D. 16.

On April 13, 2009, the Creditors filed an Involuntary Petition pursuant to 11

U.S.c. § 303(b) in the United States Bankruptcy Court for the Southern District of New York. In

re Bernard L. Madoff, No. 09-1 1893-brl (S.D.N.Y. Bankr.).

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STATUTORY BASES FOR CRIMINAL FORFEITURE 17.

Pursuant to 18 U.S.c. § 981 (a)(1 )(C), "[any property, real or personal, which

constitutes or is derived from proceeds traceable to ... any offense constituting 'specified unlawful activity' (as defined in [18 U.S.C. § 1956(c)(7)]), or a conspiracy to commit such offense," is subject to forfeiture to the United States. This provision, standing alone, is a civil forfeiture provision. However, where federal law provides for civil forfeiture but there is no parallel criminal forfeiture provision, criminal forfeiture is mandated nonetheless, pursuant to 28 U.S.C. § 2461. 2 18.

"Specified unlawful activity" is defined in 18 U.S.c. § 1956(c)(7), and the term

includes any offense listed under 18 U.S.C. § 1961(1). Section 1961(1) lists, among other offenses, violation of 18 U.S.c. § 1341 (mail fraud), 18 U.S.C. § 1343 (wire fraud), 18 U.S.c.

§ 664 (theft from an employee benefit plan), and "fraud in the sale of securities."

Title 28, United States Code, Section 2461(c) provides: If a person is charged in a criminal case with a violation of an Act of Congress for which the civil or criminal forfeiture of property is authorized, the Government may include notice of the forfeiture in the indictment or information pursuant to the Federal Rules of Criminal Procedure. If the defendant is convicted of the offense giving rise to the forfeiture, the court shall order the forfeiture of the property as part of the sentence in the criminal case pursuant to the Federal Rules of Criminal Procedure and section 3554 of title 18, United States Code. The procedures in section 413 of the Controlled Substances Act (21 U.S.C. 853) apply to all stages of a criminal forfeiture proceeding, except that subsection (d) of such section applies only in cases in which the defendant is convicted of a violation of such Act.

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Title 18, United States Code, Section 982(a)(l) provides, in pertinent part, that: [t]he court, in imposing sentence on a person convicted of an offense in violation of section 5313(a), 5316, or 5324 of title 31, or of section 1956, 1957, or 1960 of [Title 18], shall order that the person forfeit to the United States any property, real or personal, involved in such offense, or any property traceable to such property.

20.

18 U.S.C. § 1956(a)(l), commonly known as the money laundering statute,

imposes a criminal penalty upon any person who, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity­ (A)

(i) with the intent to promote the carrying on of specified unlawful activity; or (ii) with intent to engage in conduct constituting a violation of section 7201 or 7206 of the Internal Revenue Code of 1986; or

(B)

knowing that the transaction is designed in whole or in part­ (i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or (ii) to avoid a transaction reporting requirement under State or Federal Law.

21.

Section 1956(a) further imposes a criminal penalty upon any person who:

(2) ... transports, transmits, or transfers, or attempts to transport, transmit, or transfer a monetary instrument or funds from a place in the United States to or through a place outside the United States or to a place in the United States from or through a place outside the United States-­ (A) with the intent to promote the carrying on of specified unlawful activity; or (B) knowing that the monetary instrument or funds involved in the transportation, transmission, or transfer represent the proceeds of some form of unlawful activity 9

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and knowing that such transportation, transmission, or transfer is designed in whole or in part­ (i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity; or (ii) to avoid a transaction reporting requirement under State or Federal law. 22.

Section 1956(f) provides that:

(f) There is extraterritorial jurisdiction over the conduct prohibited by this section if­ (1) the conduct is by a United States citizen or, in the case of a non-United States citizen, the conduct occurs in part in the United States; and (2) the transaction or series of related transactions involves funds or monetary instruments of a value exceeding $10,000. 23.

Section 1957 of Title 18, United States Code, provides, in pertinent part, that

"[w]hoever ... knowingly engages or attempts to engage in a monetary transaction [in the United States] in criminally derived property that is of a value greater than $10,000 and is derived from specified unlawful activity" shall be guilty of a crime. A "monetary transaction" includes "the deposit, withdrawal, transfer, or exchange, in or affecting interstate or foreign commerce, of funds or a monetary instrument ... by, through, or to a financial institution ..." 18 U.S.C. § 1957(f)(1). STATUTORY BASES FOR RESTRAINING ORDER 24.

The procedures applicable to criminal forfeitures of the proceeds of offenses

constituting specified unlawful activity pursuant to 18 U.S.c. § 981 (a)(1)(C) and 21 U.S.c. § 2461(c) are the procedures governing narcotics forfeitures, which are set out in 21 U.S.C. § 853

(other than § 853(d)). See 28 U.S.C. § 2461(c). 10

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The same procedures apply to criminal forfeitures of property involved in money

laundering activity pursuant to 18 U.S.c. § 982. See 18 U.S.C. § 982(b)(1). 26.

To protect the ability of the United States to exercise its right of forfeiture, 21

U.S.C. § 853(e) empowers district courts to enter restraining orders and injunctions to preserve the availability of property subject to forfeiture. Under Section 853(e)(1 )(A), a restraining order may be obtained upon the filing of an indictment charging a violation for which criminal forfeiture may be ordered and alleging that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture. 3 27.

Pursuant to 21 U.S.c. § 853(f), where there is probable cause to believe that the

property to be seized would, in the event of conviction, be subject to forfeiture, and a restraining order under 21 U.S.C. § 853(e) may not be sufficient to assure the availability of the property for forfeiture, the Court "shall issue a warrant authorizing the seizure of such property.,,4

3

Title 21, United States Code, Section 853(e)(1)(A) provides: Upon application of the United States, the court may enter a restraining order or injunction, require the execution of a satisfactory performance bond, or take any other action to preserve the availability of property described in subsection (a) of this section for forfeiture under this section -­ (A) upon the filing of an indictment or information charging a violation of this subchapter or subchapter II of this chapter for which criminal forfeiture may be ordered under this section and alleging that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this section[.]

4 Title 21, United States Code, Section 853(f) provides that the Government may request the issuance of a seizure warrant in the same manner as provided for a search warrant:

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Title 21, United States Code, Section 853(i) authorizes the Attorney General to

"grant petitions for mitigation or remission of forfeiture, restore forfeited property to victims of a violation of this subchapter, or take any other action to protect the rights of innocent persons which is in the interest ofjustice." 29.

Under 21 U.S.c. § 853(1), the district court has jurisdiction to enter restraining

orders under Section 853 "without regard to the location of any property which may be subject to forfeiture under this section or which has been ordered forfeited under this section." 30.

The procedures governing criminal forfeitures set forth in Section 853 ensure an

orderly adjudication of third party interests and protect the district court's exclusive jurisdiction. See United States v. Holy Land Foundation, 493 F.3d 469,477 (5th Cir. 2007) (en banc) ("The

criminal forfeiture statute is designed to balance the Government's interest in efficient and orderly prosecution with the rights of defendants and third parties who claim an interest in forfeitable property."). "It is well settled that third parties may not intervene during criminal forfeiture proceedings to assert their interests in the property being forfeited." DSJ Associates LLC v. United States, 496 F.3d 175, 183 (2d Cir. 2007) (discussing statutory ban on intervention

in criminal forfeiture provision contained in 21 U.S.C. § 853(k)5; Holy Land Foundation, 493

If the court determines that there is probable cause to believe that the property to be seized would, in the event of conviction, be subject to forfeiture and that an order under [21 U.S.C. § 853(e)] may not be sufficient to assure the availability of the property for forfeiture, the court shall issue a warrant authorizing the seizure of such property.

Title 21, United States Code, Section 853(k) provides that:

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F.3d at 477 (same). Third parties are further barred from contesting the forfeiture in any other forum. See Pacheco v. Serendensky, 393 F.3d 348,353-56 (2d Cir. 2004) (third party cannot file action in another court to circumvent forfeiture procedure; § 853(k) bars foreclosure on property subject to criminal forfeiture); Roberts v. United States, 141 F.3d 1468, 1470 (11 th Cir. 1998) (same).6 31.

Courts, including the Second Circuit, have uniformly held that creditors (even

ones who are victims), trustees, plan administrators, and the like have no ability to challenge any aspect of forfeiture proceedings, except in the limited context of ancillary proceedings pursuant to Section 853(n)(6). See, e.g., United States v. Cambio Exacto, S.A., 116 F.3d 522 (2d Cir. 1999) (person to whom a money transmitter owes money lacks standing as a general creditor to contest forfeiture of money transmitter's account); United States v. Lazarenko, 476 F.3d 642, 648-51 (9 th Cir. 2007) (liquidators appointed by High Court of Antigua in bankruptcy-like proceeding had no standing to contest criminal forfeiture); In re American Basketball League,

Except as provided in subsection n of this section [i. e., through the ancillary proceedings described above], no party claiming an interest in property subject to forfeiture under this section may ­ (1) intervene in a trial or appeal of a criminal case involving the forfeiture of such property under this section; or (2) commence an action at law or equity against the United States concerning the validity of his alleged interest in the property subsequent to the filing of an indictment or information alleging that the property is subject to forfeiture under this section. 6 Under the criminal forfeiture statute, a third party may petition for a hearing to adjudicate its alleged interest in property to be forfeited in a so-called "ancillary proceeding," held after the court enters its preliminary order of forfeiture. See 21 U.S.C. § 853(n). Section 853(n) provides the exclusive means" available to a third party claiming forfeited assets. DSI Associates, 496 F.3d at 183. 13

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Inc., 317 B.R. 121,129 (Bankr. N.D. Cal. 2004) (holding that plan administrator's avoidance action was barred, because section 853(k) "imposes an absolute bar on all suits claiming an interest in forfeitable property unless the action is brought within the confines of an ancillary proceeding."); see also Holy Land Foundation, 493 F.3d at 478. THE SUBJECT PROPERTY 32.

Probable cause to believe the Subject Property would, in the event of conviction,

be subject to forfeiture as property purchased and/or maintained, directly and indirectly, with the proceeds of offenses constituting specified unlawful activity - that is, mail fraud, wire fraud, theft from an employee benefit plan and fraud in the sale of securities, and as property involved in money laundering transactions, and property traceable to such property, is established by the facts set forth in the attached affidavit of Special Agent Steven Garfinkel of the Federal Bureau of Investigation (the "Garfinkel Affidavit"). THE GOVERNMENT'S APPLICATION 33.

Restraint of the Subject Property pursuant to 21 U.S.C. § 853(e) is necessary to

protect the ability of the United States to exercise its right of forfeiture and to preserve the availability of property subject to forfeiture, in order to maximize recovery for victims of the offenses charged in the Information. In this regard, the undersigned are aware of cases where there was no federal restraining order or other process filed against property subject to federal forfeiture and third parties obtained state court ex parte orders of pre-judgment attachment against the same property, thereby impeding the Government's efforts to restrain and/or seize the property for forfeiture and eventual restoration to defrauded investors on a pro rata basis.

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The Subject Property should also be restrained to make clear that the Property is

subject to criminal forfeiture in the proceeding before Your Honor, that it is not part of the estate in the involuntary petition just filed against MADOFF in bankruptcy court, and that any claims to the Property are to be made before Your Honor in accordance with the provisions of Section 853. CONCLUSION 35.

For the foregoing reasons, the Government respectfully requests that the Court

issue a Post-Indictment Restraining Order pursuant to 21 U.S.C. § 853(e)(I)(A) because there is probable cause to believe that the Subject Property would, in the event of conviction, be subject to forfeiture. 36.

Due to the sensitive nature of this Application and the material contained in the

accompanying affidavit of Special Agent Garfinkel, the Government respectfully requests that (i) the Garfinkel Affidavit, which contains non-public investigative details, be filed under seal until further order of the Court; and (ii) the Application and the Post-Indictment Restraining Order be filed and served to the extent and after the Court has signed the Restraining Order. Dated: New York, New York Aprill7,2009

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EXHIBIT A

1.

All shares of capital stock held in the name of Bernard L. Madoff and/or Ruth Madoff in 133 East 64th Street Corporation, a cooperative housing corporation, and the proprietary lease for Apartment llA/12 in the building located at 133 East 64th Street, New York, New York, 10021, together with its appurtenances, improvements and fixtures and all insured and readily salable personal property contained therein, including, but not limited to, one Steinway piano valued at approximately $39,000, and one set of silverware valued at approximately $65,000.

2.

All that lot or parcel of land, together with its buildings, appurtenances, improvements, fixtures, attachments and easements known as 216 Old Montauk Highway, Montauk, New York, 11954, and all insured and readily salable personal property contained therein.

3.

All that lot or parcel of land, together with its buildings, appurtenances, improvements, fixtures, attachments and easements known as Chateau des Pins Villa 2, 279 Chemin de la Garoupe, Cap d' Antibes, France, 06600, and all insured and readily salable personal property contained therein.

4.

One Leopard 23M Sport Yacht known as Bull, Hull No. 27, HIN IT ARNA 2327 K 202, approximately 23 meters long, 5.35 meters wide and 1.5 meters draft, and registered in the name of Yacht Bull Corp., George Town, Grand Cayman, Cayman Islands.

5.

Any and all interest held in the name of Yacht Bull Corp., George Town, Grand Cayman, Cayman Islands, in Mooring Number 25, Port Gallice, Pointe du Crouton, Boulevard Baudoin, 06160, Juan-les-Pins, Cap d' Antibes, France.

6.

One 1999 Mercedes Benz CLK Class, vehicle identification number WDBLK65G9XT012l37, Florida registration number K556WB.

7.

One 2004 Volkswagen Touareg, vehicle identification number WVGEM77L34D077975, New York registration number CYC6394.

8.

One 2001 Mercedes Benz E Class, vehicle identification number WDBJH82J71X0435l7, New York registration number BAR8009.

April 17, 2009

Exhibit A

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Any and all ownership interest held in the name of Ruth Madoffandlor Bernard Madoff in the following entities, and/or their subsidiaries, affiliates and joint ventures: a. b. c. d. e. f. g.

10.

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Sterling Equities; Sterling American Property III LP; Sterling American Property IV LP; Sterling American Property V LP; Sterling Acquisitions LLC; Sterling/Carl Marks Capital; and Realty Associates MadoffII.

Any and all ownership interest held in the name of Ruth Madoffandlor Bernard Madoff in the following entities, and/or their subsidiaries, affiliates and joint ventures: a. b. c. d.

4th and Forty LLC; Laguardia Corporate Center Association LLC; W.D.I. LLC; and DWD Associates LLC.

11.

Any and all ownership interest held in the name of Ruth Madoff and/or Bernard Madoff in Hoboken Radiology LLC, its subsidiaries, affiliates and joint ventures.

12.

Any and all ownership interest held by Bernard L. Madoffin Pl Clarke's on the Hudson LLC and The Clarke's Group LLC, their its subsidiaries, affiliates and joint ventures

13.

Any and all ownership interest held in the name of Ruth Madoffandlor Bernard Madoff in Delta Ventures (Israel) andlor Delta Fund 1 LP, their subsidiaries, affiliates and joint ventures

14.

Any and all ownership interest held in the name of Ruth Madoff and/or Bernard Madoff in Viager II LLC, its subsidiaries, affiliates and joint ventures

15.

Any and all securities, funds and other property in Account No. 126-01070 in the name of Ruth Madoff at COHMAD Securities Corp., 885 Third Avenue, New York, New York, 10022, includillg but not limited to, municipal bonds valued at approximately $45,000,000, and all property traceable thereto.

16.

All funds on deposit in any and all accounts at Wachovia Bank, N.A., including but not limited to Account No. 1010146337325 in the name of Ruth Madoff, and any accounts to which said funds have been transferred, and all funds traceable thereto.

April 17, 2009

Exhibit A, page ii

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17.

Any and all interest in COHMAD Securities Corporation, 885 Third Avenue, New York, New York, 10022, held in the name of Bernard Madoff, and all property traceable thereto

18.

Any and all promissory notes executed by Andrew Madoff and/or Mark Madoff, as borrowers, in favor of Bernard L. Madoff and/or Ruth Madoff, as lender(s) and/or assignee(s), including but not limited to the following:

April 17,2009

a.

A September 21, 2008 unsecured promissory note for $250,000, executed by Andrew Madoff in favor of Bernard L. Madoff, due August 31, 2012;

b.

An October 6, 2008 unsecured promissory note for $4,300,000, executed by Andrew Madoff in favor of Bernard L. Madoff, due September 30, 2012;

c.

A December 31, 2005 unsecured promissory note for $5,000,000 (Restatement of Loan Agreement dated December 31, 2001, which in tum memorializes and modifies unsecured Loan Agreement dated December 28, 1998, for $5,000,000), executed by Mark Madoffin favor of Bernard L. Madoff, due December 31, 2010;

d.

A December 31, 2005 unsecured promissory note for $5,000,000 (Restatement of Loan Agreement dated December 31, 2001, which in turn memorializes and modifies unsecured Loan Agreement dated December 28, 1998, for $5,000,000), executed by Andrew Madoff in favor of Bernard L. Madoff, due December 31, 2010;

e.

A June 17,2005 unsecured promissory note for $6,000,000, executed by Mark Madoff in favor of Ruth Madoff, due May 31, 2010;

f.

A March 1,2004, unsecured promissory note for $3,200,000, executed by Mark Madoffin favor of Ruth Madoff, due February 29,2008;

g.

A November 25, 2003 unsecured promissory note for $6,800,000 executed by Andrew Madoffin favor of Ruth Madoff, due November 30, 2007.

Exhibit A, page iii

Case Case 1:09-cr-00213-DC 1:09-cr-00213-DC

Document Document 38 72

Filed Filed 03/10/2009 04/20/2009

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Page Page 119ofof2550

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA

09CRIM 213 INFORMATION

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09 Cr. BERNARD L. MADOFF, Defendant.

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COUNT ONE (Securities Fraud)

The United States Attorney ChargeS~~~" Relevant Persons and Entities

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At all times relevant to this Information, Bernard

L. Madoff Investment Securities LLC, and its predecessor, Bernard L. Madoff Investment Securities (collectively and separately,

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