MEMORANDUM & ORDER Tim Leissner pleaded guilty in 2018 to one count of conspiracy to violate the Foreign Corrupt Practices Act (“FCPA”) in violation of 18 U.S.C. §371 and one count of conspiracy to commit money laundering in violation of 18 U.S.C. §1956(h). (Am. Prelim. Order of Forfeiture (“Am. Forfeiture Order”) 1, Docket Entry No. 1.) Leissner consented to the entry of a $43.7 million money judgment against him, and the government seeks forfeiture of shares of stock in Celsius Holdings, Inc. (“Celsius”). (Id. at 1-2.) Petitioner Kimora Lee Simmons-Leissner (“Lee”) filed a petition pursuant to 21 U.S.C. §853(n) asserting a claim to the forfeited shares (the “Lee Petition”). (Verified Pet. of Kimora Lee Simmons-Leissner (“Lee Pet.”), Docket Entry No. 3-1.) On August 19, 2024, another Petitioner, Russell Simmons,1 moved to dismiss Lee’s Petition pursuant to Rule 32.2(c)(1)(A) of the Federal Rules of Criminal Procedure.2 For the reasons discussed below, the Court grants Simmons’ motion to dismiss Lee’s claim. I. Background a. Factual background On August 28, 2018, Leissner pleaded guilty to one count of conspiracy to violate the FCPA, in violation of 18 U.S.C. §371, and one count of conspiracy to commit money laundering, in violation of 18 U.S.C. §1956(h), arising out of bond transactions that took place during 2012 and 2013.3 (Information 7, United States v. Leissner, No. 18-CR-439, Docket Entry No. 16.) Simmons formed Nu Horizons Investment Group, LLC (“Nu Horizons”) in 2011 and became its sole member and manager. (Lee Petition 5.) On January 1, 2016, Simmons and Leissner executed the Nu Horizons Operating Agreement, which sets forth the ownership structure of the LLC, and states that Leissner and Simmons were managers of Nu Horizons and Lee was a member of Nu Horizons’ investment board.4 (Id.; see also Nu Horizons Operating Agmt. 7, 10, annexed to Lee Pet. as Ex. 7, Docket Entry No. 3-8.)5 On January 3, 2017, Nu Horizons purchased $1,300,000 worth of shares from Celsius, consisting of 433,333.33 shares at $3.00 per share. (Lee Pet. 10; Celsius Subscription Agmt., annexed to Lee Pet. as Ex. 2, Docket Entry No. 3-3.) In connection with this purchase, on January 26, 2017, Lee wired $1,000,000 of the total $1,300,000 to Celsius directly from a personal bank account (the “BofA Account”). (Lee Pet. 11; Wire Instructions and Confirmation, annexed to Lee Pet. as Ex. 3, Docket Entry No. 3-4.) Lee states that the BofA Account was opened solely in her name, no one else had access to or signing authority for the Account, and the Account was only ever funded with her own personal funds. (Lee Pet.
6-9.) Lee states that “[a]lthough [she] purchased the Celsius shares with her separate funds, those shares were placed in Nu Horizons as an investment vehicle…. [B]ased on Leissner’s promise that Lee would get the benefit of Nu Horizons’ previously acquired shares of Celsius…, which would be blended with Lee’s contribution.” (Id. 12.) Lee alleges that she engaged in this investment with the understanding that blending the contributions would give her the benefit of a “blended average share price” of $1.12 per share as opposed to the $3.00 per share for which she purchased the shares on January 26, 2017. (Id.
