Free Motion to Withdraw - District Court of Arizona - Arizona

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Gerald H. Goldstein TX Bar No. 08101000 Cynthia E. Orr TX Bar No. 15313350 Goldstein, Goldstein & Hilley 310 S. St. Mary's St., 29 th Floor San Antonio, Texas 78205 210-226-1463

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, versus 1. Lear Jet, Model 31A, Serial Number 31A-244, U.S. Registration No.N224LJ, Defendant. § § § § § § § §

CIV-04-363-PHX-JWS MOTION TO WITHDRAW CLAIMANTS' MOTION FOR LEAVE TO FILE INTERVENING DOCUMENTS, DOCKET # 156

NOW COMES, CLAIMANTS ALBERTO ABED-SCHEBAIKAN, Calezar, Ltd., and Uptongrove, Ltd., and Move the Court to allow the withdrawal their Motion for Leave to File Intervening Documents in Support of Motion for Rehearing docket #156, filed Feb. 28, 2006. I. Moving to Withdraw Motion for Leave to File, Docket # 156. A. Documents Are Not Necessary In Light of Existing Evidence

Claimants originally moved for leave to file these documents to provide additional information in support of their assertion that Claimant Abed is under criminal investigation

21 by the United States Government. While this fact has been amply demonstrated by other 22 23 24 25 26 27 28 evidence filed by Plaintiff's counsel, including Mr. Villaverde's own assertions as contained in a certified translation of the "Agreement to Secure Airships," the additional documents appeared to provide further support. Exhibit C of Plaintiff's Notice of Filing, Evidence of Service of In Rem Process in Mexico, docket #67, states in pertinent part: "The Central Authority of the United States of America requests the 1

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assistance of the Central Authority of the United States of Mexico by virtue of the Agreement of Mutual Judicial Cooperation between Mexico and the United States, signed in Mexico City on December 9, 1987 (the "Agreement"). The U.S. Attorney for the District of Arizona is carrying out a criminal investigation on Jaime Eduardo Ross Castillo, Alberto Abed Shekaiban, Maria Eugenia Oropesa Tellez and Myriam Serdio Carranza for violating the criminal laws of the United States by fraudulent transfer of approximately $13,000,000.00 in U.S. currency from bank accounts in the branch of Scotiabank Inverlat ("Inverlat") in Mexico City to accounts in a Swiss bank." See Plaintiff's Notice of Filing, Evidence of Service of In Rem Process in Mexico, Exhibit C at 4 [emphasis added]. Mr. Villaverde's position seems to remain consistent with the above statement in the translation of his more recent affidavit, attached as Exhibit 2 to Plaintiff's Response in Opposition to Claimant's Motion Re: Conflict of Interest: "As far as can be determined it seems [Corrales] is trying to divert the attention of the authorities carrying out the investigations in both countries." Id. at 3 [emphasis added]. Additionally, these documents are not necessary to a resolution of the substantive issues in this case. Plaintiff admits an absence of evidence as to the essential element of Abed's knowledge as to the allegedly illicit source of the funds obtained by Jamie Ross. See Affidavit of James T. Lacy, Assistant United States Attorney, attached to Plaintiff's Supplemental Response in Opposition to Motion to Stay, docket # 146. Furthermore, Plaintiff lacks evidence that the funds Ross purloined were actually used to purchase the Defendant Lear Jet. This is apparent because the Romero wire transfer from BNP Paribas is not documented as tied to three wired payments to Lear Jet from Casa del Cambio

21 Majapara on June 25, 27, and 29. Given the lack of evidence in Plaintiff's case, it must be 22 23 24 25 26 27 28 2 conducting a continuing investigation of Mr. Abed. It is inevitable and necessary. B. Performance of Due Diligence Has Not Verified the Origins or Authenticity of the Documents In Issue. Upon receiving Plaintiff's assertions that the documents attached to docket #156 were alleged to be false, Claimant's counsel engaged in due diligence which produced Mr.

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Miguel Angel Corrales' affidavits filed at docket #159 and 161. Mr. Corrales has affirmed that he is willing to come to the U.S. and testify to the statements he has made surrounding these documents. Mr. Corrales has been interviewed by undersigned counsel and can be reached at 011-52-55-1822-7330. Claimant's counsel also requested information from the PGR and made a Freedom of Information Act request of the U.S. Embassy through the State Department; neither of these requests have proven fruitful. See Exhibit 1. Because the documents are unnecessary to show that Claimant Abed is under investigation by the United States; because Counsel has been unable to verify the authenticity of the documents; and because Claimants and their counsel take Plaintiff's counsel at his word concerning his belief that the documents are not genuine; Claimants

11 now seek to withdraw their Motion for Leave to File Intervening Documents in Support of 12 13 14 15 16 17 18 19 20 face of allegations of possible misconduct. Likewise, Counsel's actions in advising 21 Claimants to secure independent representation until the resolution of these issues were 22 23 24 25 26 27 28 3 calculated to protect them, provide a means for them to determine whether a conflict exists, and­again­avoid the appearance of impropriety. These ethically prudent actions should not now be construed in such a manner as to drive an artificial wedge between Claimants and their long-standing counsel of choice. Motion for Rehearing, at docket #156. II. Counsel's Letter Offering to Cooperate Is Neither a Waiver of Privilege nor an Admission of a Conflict. Counsel's letter to the FBI, expressing a willingness to cooperate with potential investigations into the authenticity of the alleged forged documents, is in no way an admission of wrongdoing, an acknowledgment of a conflict of interest, or a waiver of the attorney-client privilege. The letter was borne of a professional motivation to maintain the highest standards of ethical conduct and avoid even the appearance of impropriety in the

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A.

There Was No Waiver of Attorney Client-Privilege

Any allusion that Counsel's offer to cooperate "appears to be a waiver of the attorney-client privilege based on the crime fraud exception," is simply incorrect. First, the attorney-client privilege is one that belongs solely to the client and cannot be waived by any action of an attorney. See Hunt v. Blackburn, 128 U.S. 464, 470 (1888). Counsel did not­and could not­waive the clients' privilege of counsel, and the letter cannot be seriously read to communicate any waiver by Claimant Abed. Second, the crime-fraud exception to the attorney-client privilege applies only where a lawyer's advice is sought to further a crime or fraud. See United States v. Zolin, 491 U.S. 554, 563 (1989). Nothing about the undersigned's letter begins to imply that any communication between Claimants and

11 Counsel was sought or given in furtherance of a crime or fraud. 12 13 14 15 16 17 18 19 20 21 22 lawyers of Goldstein, Goldstein & Hilley are not witnesses to the execution of the 23 documents, and they cannot testify as to the documents' authenticity. They have no 24 25 26 27 28 personal knowledge of their generation, and could not be called as a witness to these matters. No conflict, therefore, exists. The only known persons who are able to testify with regard to these documents have been identified as Miguel Angel Corrales and Ivann 4 government bears the burden of proving that the attorney-client privilege does not apply because of the crime-fraud exception." United States v. Martian, 278 F.3d 988, 1001 (9 th Cir. 2002). It is not enough for the government to have a "sneaking suspicion the client was engaging in or intending to engage in a crime or fraud when it consulted the attorney." In re Grand Jury Proceedings, 87 F.3d 377, 381 (9 th Cir. 1996). Any suggestion that Claimants' attorney-client privilege was waived is unfounded. B. No Conflict Is Shown Between Claimants and Their Counsel. Plaintiff's counsel correctly relates that an attorney should avoid being a witness in an action or related matter while representing parties within the action. However, the Moreover, "the

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Villaverde Garcia. Both men have issued sworn statements relating their knowledge of the documents, and both have expressed a willingness to travel to the United States to testify as to the facts within their respective statements should this prove necessary. Plaintiff declines to overtly move for the disqualification of Claimants' counsel, insisting instead that Claimants' counsel are under some unspecified obligation to file a "notice" of "notification of the obvious conflict." Plaintiff's counsel seems to urge the

7 Court to determine sua sponte that a conflict exists between Claimant Abed and his counsel 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 contentions. Accordingly, Claimants pray this Honorable Court allow the withdrawal of 23 their Motion for Leave to File Intervening Documents in Support of Motion for Rehearing, 24 25 26 27 28 5 docket #156. of choice, thereby avoiding the burdens of production and proof that accompany a motion for disqualification. To this end, Plaintiff suggests that filing a waiver of conflict by Mr. Abed with the Court is "essential to any determination that the Sixth Amendment right of independent representation is protected." While Mr. Abed asserts his Sixth Amendment right to representation by the counsel of his choice in this proceeding, because no conflict exists, a waiver of conflict is unnecessary. Mr. Abed is fully informed of the circumstances and has the benefit of separate counsel to protect his right to independent representation. III. Conclusion Claimants and their counsel sincerely wish to proceed towards a resolution of the Motion to Reconsider their Motion to Stay and other substantive issues in the present case. After the performance of due diligence in investigation, Claimants are unable to affirmatively verify the origins and authenticity of the documents in issue. Moreover, the documents to are superfluous in light of other evidence in support of Claimants'

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Respectfully submitted, CRAIG A. STOKES Bar No. 19267700 SANTOS & STOKES, L.L.P. 3330 Oakwell Ct., Ste. 225 San Antonio, Texas 78218 210-804-0011 210-822-2595 facsimile GERALD H. GOLDSTEIN Bar No. 08101000 CYNTHIA EVA HUJAR ORR Bar No. 15313350 GOLDSTEIN, GOLDSTEIN & HILLEY 310 S. St. Mary's St. 29 th Floor Tower Life Bldg. San Antonio, Texas 78205 210-226-1463 210-226-8367 facsimile BY: ________/s/____________________ Cynthia E. Orr

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on May 24, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Reid Pixler Assistant United States Attorney 2 Renaissance Sq. 40 N. Central, Ste. 1200 Phoenix, Arizona 85004-4408 [email protected] Allen B. Bickart 6508 N. 10 th Place Phoenix, Arizona 85014 [email protected] Douglas F. Behm Jennings Strouss & Salmon P.L.C. Collier Cntr. 201 E. Washington St., Ste. 1100 Phoenix, AZ 85004-2385 [email protected] Lawson Pedigo Miller, Keffer & Pedigo 8401 N. Central Expressway, Ste. 630 Dallas, Texas 75225 [email protected] Walter B. Nash III P.O. Box 2310 Tucson, AZ 85702 [email protected] Natman Schaye Chandler & Udall, L.L.P. 33 N. Stone Ave., Ste. 2100 Tucson, AZ 85701 7

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[email protected]

and via U.S. Mail, first class, to the following who are not registered participants of the CM/ECF: Jennifer Collins Mark Hopson Sidley, Austin, Brown & Wood 1501 "K" Street, N.W. Washington, D.C. 20005 Geoffrey Young Ruden McClosky 150 2 nd Ave., Suite 1700 St. Petersburg, FL 33701 Marc S. Nurik, Esq. Ruden, McClosky, Smith, Schuster & Russell, P.A. 200 East Broward Blvd., Ste. 1500 P.O. Box 1900 Ft. Lauderdale, FL 33302 and Leonard J. McDonald, Jr. Tiffany & Bosco, P.A. 2525 E. Camelback Rd. Phoenix, AZ 86015-4237.

__________/s/____________________ Cynthia E. Orr

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