Free Order - District Court of Arizona - Arizona

MINUTES OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America v. Lear Jet THE HONORABLE JOHN W. SEDWICK PROCEEDINGS: ORDER FROM CHAMBERS 2:04-cv-0363 JWS August 24, 2006

At docket 173, the court stayed this case with respect to claimant Alberto AbedSchekaiban ("Abed") until August 21, 2006.1 The court's decision was based on Abed's showing that he was the subject of a related criminal investigation and that continuing these proceedings would burden his right against self-incrimination in the criminal case. The court intimated that it would entertain a motion to lift the stay prior to August 21, 2006, if, for example, the United States of America granted Abed "immunity from criminal prosecution related to the subject matter of these proceedings." Doc. 173, p. 8. Otherwise, the court directed the parties to file separate status reports on August 21, 2006, discussing whether the court should lift or continue the stay. Evidently, immunity did not pan out, because the parties filed status reports at docket numbers 179 and 180 on August 21, 2006. At docket 179, the United States urges the court to lift the stay, citing an affidavit by Assistant United States Attorney James T. Lacey. He declares he is "not aware of any further criminal investigation [of Abed growing out of the subject matter of these proceedings and does not] anticipate, based on the facts known to [him] at present, any further investigation of [Abed]." Doc. 179, ex. A, p. 1. At docket 180, Abed urges the court to continue the stay on the ground that "[u]ncertainty exists about the status of a criminal investigation by the [United States]." Doc. 180, p. 2. The court agrees with Abed that it should continue the stay. The court stayed these proceedings to prevent the United States from discovering information in this action that would burden Abed's right against self-incrimination in a related criminal case. Lacey's affidavit indicates that might happen if the court were to lift the stay and allow discovery to proceed. Lacey declares that "based on the facts known to [him] at
Abed's counsel has spelled Abed's last name alternatively as Schekaiban and Schebaikan. Compare doc. 153 with doc. 180. The court also has used both spellings. Compare doc. 174 with doc. 178. Henceforth, the court will use the former spelling until told differently by Abed's counsel.
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present," there will not be any further investigation of Abed. This suggests that if the United States were to discover in this case facts tending to incriminate Abed, it might press on with a criminal investigation of him. Avoiding that scenario is precisely why the court entered the stay in the first place. For the reasons set out above, the stay entered at docket 173 is CONTINUED until December 1, 2006. Although the stay will be continued, the court is mindful of the predicament the parties face. The relevant statute requires a stay if, among other things, Abed "is the subject of a related criminal investigation or case."2 It has been established that Abed was the subject of a related criminal investigation, but it is not clear that he still is or if he is not whether that fact alone would warrant lifting the stay. The statute's purpose is to eliminate these proceedings as a source of facts relevant to a criminal investigation of Abed. That purpose seemingly would be defeated if the court lifted the stay on the United States's assurances that it no longer is investigating Abed and then it revived its investigation of him on facts discovered here. And while the cleanest resolution is for the United States to make its investigation of Abed a moot point by offering immunity to him, the court hesitates to conclude that immunity is the only solution allowable under the statute yet remains unsure that a less drastic remedy would be acceptable. Given this problem's complexity, the United States may move to lift the stay before December 1, 2006. The United States is encouraged to propose a way to lift the stay that accommodates the concerns discussed above to the maximum extent possible. If the United States does not move to lift the stay before December 1, 2006, on that date, the court directs the United States and Abed to file separate status reports discussing whether the court again should continue the stay or lift it. If the court does not hear from the parties on that date, it will lift the stay immediately.

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18 U.S.C. § 981(g)(2)(A) (emphasis added).

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