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New York Law Journal  

New York Law Journal

"Tug of War"
Bessaha v Bessaha
March 24, 2004

MINEOLA — Five years ago, Ali Bessaha murdered his estranged wife in her Hicksville home because, according to prosecutors, he wanted control of $1.5 million in marital assets. Today, ownership of those assets, which include four apartment buildings in Queens, remains unresolved, with the couple's children in the unusual position of competing against the federal government for the property.

Filing a lawsuit last week in Nassau County Supreme Court, Nora Bessaha, 31, is seeking $15 million in compensatory damages and $5 million in punitive damages against her father for the death of her mother, Ourida Bessaha. Mr. Bessaha has been in the Nassau County jail since his conviction in 2002 for second-degree murder of his wife, 54 at the time. He received 25 years to life.

Nora Bessaha, the plaintiff in the wrongful death action, is also the administratrix of her mother's estate. She and her brother, Alex Bessaha, 33, also want title to the buildings in Sunnyside, previously owned by both their parents. Their attorney, Charles M. Mirotznik, anticipates a default win against their father, who now has title to the properties. He said last week that he will seek ownership of those assets as damages, and he estimates that the buildings, now owned solely by Mr. Bessaha, are worth about $3 million.

But his client will have to face the U.S. Attorney's Office for the Eastern District of New York, which alleges in a civil forfeiture action filed last November that the apartment buildings were used by Mr. Bessaha to launder money before his wife's murder. The federal action marks the third time that prosecutors have tried to wrest the buildings from Mr. Bessaha for money laundering. Two previous cases against him resulted in mistrials.

The situation presents an uncommon clash for control of property sought by those who arguably are victims of a crime and the federal government. Forfeiture attorney David B. Smith, author of "Prosecution and Defense of Forfeiture Cases," published by Matthew Bender, said that scant case law related to forfeiture actions involving victims of violent crimes makes it uncertain what the government's policy is in such situations. But he said that the government likely will argue that its claim comes ahead of the children's.

Prosecutors with the Eastern District declined to comment on the case, citing pending litigation. But a source within the office who is close to the case said that the government "wants to do the right thing here." The source said, "The kids are the victims," adding that the son was the one who discovered his mother beaten to death by his father.

RECEIVER APPOINTED

The first proceeding by federal prosecutors to obtain possession of the apartment buildings was under way in the Eastern District when Mr. Bessaha was arrested for the murder. It ended in a mistrial in May 2001, when a juror read about the murder case in a local newspaper. The second trial, which was moved to Manhattan federal court to avoid juror bias, began on Sept. 10, 2001. It was disrupted by the terrorist attacks the next day and later declared a mistrial. Both of those cases were criminal forfeiture actions and preceded Mr. Bessaha's murder conviction in 2002.

The case filed in November is a civil forfeiture action with a lower burden of proof for the government. It alleges that Mr. Bessaha and his brother collected and kept rent from the tenants in their Sunnyside buildings, despite the fact that a receiver had been appointed in the couple's divorce action, pending at the time of Mrs. Bessaha's murder, to oversee the properties. According to prosecutors, Mr. Bessaha advised the tenants not to pay the receiver and took some of the money himself, putting it in foreign bank accounts. The appointment of the receiver, who happened to be Mr. Mirotznik, followed a temporary restraining order that prohibited Mr. Bessaha from transferring any assets, except those for living expense.

In January, U.S. District Judge Leonard D. Wexler issued a warrant allowing federal prosecutors to seize Mr. Bessaha's funds and granting them a lien over the buildings pending the outcome of the forfeiture action.

SIGNIFICANT HURDLES

Nora Bessaha's wrongful death lawsuit alleges that she and her brother lost maternal love, care, advice and guidance because of their mother's murder. The lawsuit also makes claims for money spent on funeral services, estate taxes and administration expenses. For those claims, Ms. Bessaha is asking $5 million. Further, she is seeking $5 million for her mother's "great pain and anguish before her death" and $5 million for her own severe emotional distress. And for "maliciously" killing Mrs. Bessaha, the lawsuit seeks another $5 million from their father.

Mr. Mirotznik said he is preparing a verified claim to the properties, which he will file in the federal civil forfeiture action. He said the wrongful death lawsuit establishes the children's entitlement as potential creditors to the properties. But the Bessaha plaintiffs have significant hurdles in establishing any right to the property, said Mr. Smith, the forfeiture expert. He pointed to a March 2002 decision from the U.S. Court of Appeals for the First Circuit. In U.S. v. One-sixth share of James J. Bulger, 326 F3d 36, the court affirmed a decision from the U.S. District Court for the District of Massachusetts pertaining to victims' claims to forfeited property. The lower court had ruled that the families of two women allegedly murdered by South Boston mob leader James "Whitey" Bulger were not entitled to his share of a $14.3 million lottery jackpot seized by federal authorities. The court also held that his brother was not entitled to the winnings.

In its decision, the three-judge appellate panel said the claimants had no "requisite interest in the property to assert a claim." The panel also wrote that the claims presented something less than the exceptional circumstances necessary to disturb the long-standing forfeiture judgment. In addition, the panel suggested that the claimants pursue their claims with the U.S. Attorney General, who has authority over petitions for forfeited property. Such actions are called remission proceedings.

Mr. Smith explained that such a course is probable in the Bessaha matter. He said it is unlikely that federal prosecutors will settle. Instead, he said, they may suggest that Nora Bessaha initiate a remission action with the federal government if she receives a judgment in the wrongful death action.

In the meantime, Mr. Mirotznik is hoping for a settlement. "Why shouldn't the children be the recipients of the property?" he asked. "The loss they suffered is unquantifiable emotionally."

By Leigh Jones