Free Response in Opposition to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona Reid C. Pixler Assistant U.S. Attorney Arizona State Bar No. 12850 Two Renaissance Square 40 North Central, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA,

9 Plaintiff, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. Defendants. FACTUAL BACKGROUND On November 11. 2005, the Abed claimants filed a motion seeking to stay this v. Lear Jet, Model 31A, Serial Number 31A224, U.S. Registration # N224LJ; CIV-04-363-PHX-JWS RESPONSE IN OPPOSITION TO CLAIMANT'S MOTION RE: CONFLICT OF INTEREST

civil forfeiture action on the basis that providing discovery to plaintiff was an a violation of the Fifth Amendment rights of claimant corporations and Abed, the person who claims beneficial ownership of the corporations or companies which alleged ownership interests in the aircraft identified in the original complaint. Claimants sought an indefinite stay until such time as the related criminal case was concluded. (dkt #132). 2. Plaintiff responded on November 23, 2005, that Abed was not a target of any

criminal investigation and that corporations do not have Fifth Amendment Rights. (dkt #141). 3. The Court denied claimants motion on January 24, 2006, holding that as a

foreign born individual not seeking to be a citizen of the United States and residing outside of the United States, Abed had no Fifth Amendment rights, pursuant to the holding of United States v. Bin Laden, 132 F. Supp 2d 168 (S.D.N.Y.) (dkt #152).

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4.

On February 2, 2006, the Abed claimants moved for reconsideration, seeking to

establish that Abed was somehow included in the scope of United States v. Bin Laden, (dkt #153). 5. 6. 7. The Court directed plaintiff to respond. (dkt #154). Plaintiff filed its response on February 22, 2006. (dkt #155). Thereafter, the Abed claimants began filing a series of motions seeking to

supplement the previous pleadings the essential purpose of which is to prove from non official sources that the United States has targeted Abed and representations to the contrary are false. doc #156, 159. 8. The United States produced an affidavit from Lisa Burnett which established

the reasons for her conclusion that the two exhibits offered by the Abed claimants are forgeries and false. (dkt #157). 9. The Abed claimants responded by essentially calling Lisa Burnet a liar and

producing an additional affidavit from Abed's Mexican attorney, Miguel Angel Corrales Aranda , claiming that he obtained copies from two named attorneys. However, at no time was the entire official letter from the PGR, Mexican equivalent of the Department of Justice, ever produced. The signature page was copied in such a manner that the signature could note be seen. The only identity for the alleged source of the letter was the subsequent statement of Miguel Angel Corrales Aranda, the person who claimed without support to have obtained these records. (dkt #159). 10. On or about April 17, 2006, claimants filed a Motion To Determine The

Existence of a Conflict. This motion had less to do with the existence of a conflict and more to do about arguing whether the documents submitted by claimants were forgeries. In essence, the motion is based upon false statements which lack support in the record and which misrepresent the evidence provided by plaintiff. Claimants failed to address the two undisputable facts before the Court: (1) The exhibit which purports to be an official communication from Lisa Cacheris Burnett, which was supplied by Miguel Angel Corrales Aranda, an attorney for Abed in Mexico, is a forgery; (2) When confronted with this fact,

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Cynthia E. Orr wrote a letter to the FBI in Phoenix, Arizona, dated March 9, 2006, a copy of which is attached to an additional pleading found at doc # 159, and offered to cooperate in the investigation regarding the filing of false documents in this action. The attorney and her firm are now obligated to cooperate and potentially give evidence regarding an investigation which she reported to the FBI, while she and the firm seek to continue to represent the same interest which generated the fake documents. An attorney should seek to avoid being a witness in an action or related matter and continue to represent parties within the action. 11. As a result of the filing of the original false exhibits by the Abed claimants,

plaintiff, through Gabriel Gonzalez, ICE Attache in Mexico City, asked for assistance to determine the authenticity of the PGR communication and whether the PGR had received the letter which displayed the Department of Home. A copy of the original fake DHS/DOJ OIA letter; suspect PGR letter and the subsequent statement of Miguel Angel Corrales Aranda were provided with the cover letter from Attache Gonzalez. A copy of the translated request is attached as Exhibit #1 and the original Spanish request is attached to this pleading as Exhibit #1A. 12. Attache Gonzalez received a document dated April 26, 2006, which was signed

by Ivann Villaverde García. A copy of the translated response is attached as Exhibit #2 and the original Spanish response is attached as Exhibit #2A. This correspondence establishes that both the DHS/DOJ OIA letter and the suspect PGR letter are forgeries and the sworn statement of Miguel Angel Corrales Aranda is also false. The specifics are as follows: A. Villaverde Garcia reviewed the official PGR file in his possession and captioned "PGR/SIEDO/UEIOFM/015/2004" in depth and found copies of neither the DHS/DOJ OIA letter nor the allegedly responsive PGR letter, and therefore the PGR is unaware of the source of the correspondence. B. Villaverde Garcia affirmed that the PGR letter, "... was not issued by and of the public servants assigned to this Special unit," because the form of the document did not comply with the essential elements required in the Federal Civil Code, which required that such documents display stamps, signatures and external signs required

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at law. The specific missing requirements are set out at the top of the second page in paragraphs numbered a through g. C. Villaverde Garcia also noted that the fake PGR was alleged by the Abed claimants to have been issued on February 24, 2006, and executed by Jose Luis Marmolejo Garcia. On that date, Marmolejo Garcia was not involved with file "PGR/SIEDO/UEIOFM/015/2004" and therefore could not have had access to the file. The change in office structure had been in place since September 6, 2005. therefore, any alleged communication since that date related to the named file in the name of Marmolejo Garica is not legitimate or legal. E. With regard to the DHS/DOJ OIA letter in the name of Lisa Burnett, the PGR checked with the Mexican Office of International Legal Services, a part of the PGR which should have received such communications, and learned that no record could be found of the receipt of such a letter. There is no indication that this letter had ever been received or authenticated, as required by law, by a Mexican official. Lack of such authentication is an indication that the letter is not legitimate. F. Villaverde Garcia denied that he gave any documents from the PGR file to Miguel Angel Corrales. G. Villaverde Garcia is assigned to and involved with the investigation captioned as "PGR/SIEDO/UEIOFM/015/2004" which includes the name of Abed as its targets. He states regarding the allegations contained in the sworn statement of Angel Corrales that "... Mr. Miguel Angel Corrales does not appear as defendant, victim or counsel for the defense. Therefore, in the records of this criminal investigation it was totally unknown that he was the private defense counsel for Mr. Alberto Abed Schekaiban whom he is surely trying to favor by presenting false documents and false and slanderous statements." H. In an uncommon response to such a request, Villaverde Garcia offers to appear and testify about this statement to the extent that the documents are not a part of the official file in Mexico.

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13.

Attache Gonzalez received a document dated April 28, 2006, which was signed

by Agustin Gonzalez Guerrero. A copy of the translated response is attached as Exhibit #3 and the original Spanish response is attached as Exhibit #3A. This letter is essentially a transmittal letter for the document prepared by Ivann Villaverde García. The letter also expresses support for the testimony in Arizona of Ivann Villaverde García and Jose Luis Marmolejo Garcia, but indicates that such travel must by approved by the Assistant Attorney for Legal and International Affairs. 14. Plaintiff also received a Second Declaration of Lisa Cacheris Burnett, a copy of

which is attached hereto as Exhibit 4. This affidavit was created to address the specious arguments presented by counsel for the Abed claimants which purports to establish that the documents submitted in support of the motion for reconsideration are legitimate and not forgeries. This declaration establishes: A. The DHS/DOJ OIA letter (attached as Exhibit A to her declaration) is not a document created in any language by the Department of Justice, Office of International affairs, and is not a translation of an original communication from the office of Lisa Cacheris Burnett. B. The signature on the letter is forged. C. Lisa Cacheris Burnett did not sign the translation and the signature on the translation is forged. D. The allegedly responsive document sent by the PGR to Lisa Cacheris Burnett (attached as Exhibit B to her declaration) is a also a fake. She has never before seen this PGR letter, it is contrary to established mutual legal assistance treat practice to communicate through Embassies, and it would have been highly unusual for Mexico to have communicated to her through the Embassy. E. The two exhibits to the declaration of Lisa Cacheris Burnett are false. 15. Based upon the two declarations of Lisa Cacheris Burnett and the statement

from Ivann Villaverde García there can be no question that the documents filed by counsel for the Abed claimants in the pleading at doc #156 are false and have been manufactured for

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the sole purpose of misleading this Honorable Court. The specificity provided by representatives of both governments regarding the obvious defects which exist with respect to these exhibits leads to the inescapable conclusion that subsequent affidavits submitted by the Mexican counsel for claimants are also false. Despite the invitation to produce the entire allegedly legitimate communication from the PGR, the Abed claimants rely upon this assertion without the supporting document which would display a legitimate signature which could be verified. 16. Once these documents are found to be fakes and forgeries and the supporting

affidavits from Miguel Angel Corrales are found lacking in any credibility whatever, then the action of counsel filing false, forged, and obviously defective documents; insisting that the documents are not fake, absent any legitimate evidence to the contrary; and then offering to cooperate and give testimony to the FBI about the fake documents, is an issue which creates at least the appearance of a conflict of interest, which should be addressed by the Court, if requested by Counsel for the Abed claimants. ARGUMENT I. THERE IS NO EVIDENCE IN THE RECORD WHICH DEMONSTRATES THAT ANY OF THE MATERIAL PROVIDED BY CLAIMANTS TO SUPPORT THEIR MOTIONS IS LEGITIMATE. It is simply specious to assert that there is no evidence in the record to support the government's claim that the exhibits relied upon by the Abed claimants are manufactured and false. The statement of Lisa Cacheris Burnett can neither be spun nor ignored. It is a part of the record and counsel cannot explain it away. To the extent that counsel attempted to spin the explicit assertions in the first Declaration of Lisa Cacheris Burnett, those assertions have been fully and completely addressed in the Second Declaration of Lisa Cacheris Burnett filed herewith. Further, the record is now supported by the declaration of Ivann Villaverde García which conclusively establishes that the PGR is not the source of the documents which were presented by Miguel Angel Corrales, the private defense counsel for Mr. Alberto Abed Schekaiban. In short, there is uncontroverted evidence that these exhibits are false, lacking in any credibility, and have been manufactured simply to support the motion filed by counsel

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for the Abed claimants to avoid the order which requires them to respond to the discovery. Stated in another manner, there is no evidence tendered which establishes any legitimate explanation for the source of the records nor which tend to contradict the evidence tendered to the Court by the government. II. THE CONFLICT EXISTS DUE TO THE ACTIONS OF COUNSEL FOR THE ABED CLAIMANTS. This issue is created by the action of counsel for claimants and the issue of whether a conflict exists is obvious, supported in the record, and exists independent of the fact that plaintiff commented upon the conflict, apparently unaddressed by counsel for claimants. Once it has been established that the exhibits are forgeries and contain false information related to requests for the Court to take official action, then counsel has a problem which must be addressed. In this situation, Cynthia Orr elected to write to the FBI and fully cooperate regarding any potential investigation which may be undertaken concerning the source of the forged documents which have been provided by a Mexican attorney serving her client. This at least appears to be a waiver of the attorney/client privileged based upon the crime fraud exception, and conflicts with the interest of the client with respect to the merits of this civil forfeiture action. At the very least, the action of writing to the FBI seeking to cooperate regarding its investigation creates a clear appearance of a conflict of interest related to the source and use of the false exhibits. Counsel has only compounded the problem by continuing to seek to take advantage of and relying upon the false documents, while appearing to cooperate in the investigation regarding the source of the exhibits. This conflict is apparent, is supported by competent evidence in the record and should be addressed by counsel for the Abed claimants by a document which demonstrates that Abed and his owned and controlled companies have been advised of the conflict and waives any objection to the conflict. This is essential to any determination that the Sixth Amendment right of independent representation of these interest is protected. If not addressed by counsel for the Abed claimants, then the Court may well wish to address the issue to insure that the issue is not raised in the future. 7 Filed 05/17/2006

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III. THE HARM CAUSED TO THE ABED CLAIMANTS IS THE RESULT OF THE INTENTIONAL ACTION OF COUNSEL FOR ABED AND NOT THE RESULT OF ANY PLEADING. The United States has not moved to disqualify counsel for Abed, and nothing in any pleading can be so interpreted. This is a civil forfeiture action and is substantially different than criminal actions. However, it is apparent that there is substantial and uncontroverted evidence in the record which underscores the inconsistent position taken by counsel, i.e. offering to cooperate in an investigation regarding counterfeit or forged documents provided by a Mexican attorney employed by the same client seeking to stay this civil forfeiture matter; relying upon those same exhibits; and continuing to represent the client without notice that the client had been notified of the obvious conflict. It is apparent that counsel for the Abed claimants would not have engaged in any such action absent the reference to the conflict by counsel for plaintiff. The purpose now is to shift responsibility of ethical conduct to plaintiff, essentially by alleging that it was unnecessary for counsel for the Abed claimants to behave ethically until the government comented upon the obvious conflict created by wilful conduct of Cynthia Orr. Frankly, the government welcomes the review of the record and conduct of counsel, but not according to the shifted burdens proposed by Cynthia Orr. None of the proposals reflect the appropriate inquiry by the Court and no consequences such as those outlined are appropriate. The burden should be clearly placed upon counsel for the Abed claimants to indicate how they propose to resolve the apparent conflict in an ethical manner to insure that the Sixth Amendment rights to the services of an independent attorney can be provided in this matter. Specifically, how can Cynthia Orr avoid being a witness in this action regarding the source and circumstances of the submission of counterfeit and forged exhibits, while attempting to continue to represent her client. IV. THE SIXTH AMENDMENT DOES NOT APPLY TO COUNSEL RETAINED IN A ONLY CIVIL FORFEITURE MATTER. Counsel for the Abed claimants has demonstrated a practice of simply asserting information, facts or legal arguments, which simply are not supportable either in the record 8 Filed 05/17/2006

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or upon case citation. Please consider the following passage from claimants' motion at page 2 lines 4 through 7. Civil forfeiture proceedings are quasi-criminal in nature. See U.S. v. Zucher, 161 U.S. 475, 479 (1896): U.S. v. Ursery, 518 U.S. 267, 303 (1996). The Sixth Amendment entitles Movants to their choice of counsel in pre-trial proceedings in the civil forfeiture action. It is true that civil forfeiture actions are quasi-criminal in nature. However, neither of these cases stand for the proposition that a civil forfeiture action implicates the Sixth Amendment to the same extent that a criminal case does. Counsel cites no case law for this legal preposition, and the undersigned is aware of no case law which equates the right to counsel in a criminal case with the right to counsel in a civil forfeiture case. For example, the holdings of the Supreme Court require the appointment of a criminal defense attorney to represent an indigent criminal defendant. This Constitutional right is not extended to claimants in a civil forfeiture hearing. The limitation of the Sixth Amendment provision to criminal defendants is no surprise to counsel for the Abed claimants. It is clearly addressed in one of the cases cited by counsel in the motion to determine whether a conflict exists. The Sixth Amendment to the Constitution guarantees that "[i]n all criminal prosecution, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 667, 66 L.Ed.2d 564 (1981), we observed that this right was designed to assure fairness in the adversary criminal process. Realizing that an unaided laymen may have little skill in arguing the law or in coping with an intricate procedural system, Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932); United States v. Ash, 413 U.S. 300, 307, 93 S.Ct. 2568, 2572-73, 37 L.Ed.2d 619 (1973), we have held that the Sixth Amendment secures the right to the assistance of counsel, by appointment if necessary, in a trial for any serious crime. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). We have further recognized that the purpose of providing assistance of counsel "is simply to ensure that criminal defendants receive a fair trial, " Strickland, v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984), and that in evaluating Sixth Amendment claims, "the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such." United States v. Cronic, 466 U.S. 648, 657, n. 21, 104 S.Ct. 2039, 2046 n. 21, 80 L.Ed.2d 657 (1984) Thus, while the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers. See Morris v. Slappy, 461 U.S. 1, 13-14, 103 S.Ct. 1610, 1617-1618, 75 L.Ed.2d 61(1983); Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). 9 Filed 05/17/2006

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Wheat v. United States, 486 U.S. 153, 158-59, 108 S.Ct. 1692, 1696-97 (1988). A waiver of a conflict of interest can be considered by the Court, but there is no flat rule which could apply to all such matters. Each situation must be considered by the Court upon its own merits. Petitioner insists that the provision of waivers by all affected defendants cures any problems created by the multiple representation. But no such flat rule can be deduced from the Sixth Amendment presumption in favor of counsel of choice. Federal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them. Id. at 486 U.S. 153, 160, 108 S.Ct. 1692, 1697-98 (1988). There is nothing in the comments made by counsel for the government which in any manner can be fairly considered to seek to disqualify Cynthia Orr and her firm from continued representation provided full disclosure has been made and an intelligent and knowing waiver of the conflict is provided to the Court by the represented parties. In short, it is prudent for the Court to determine whether claimants have been advised of the obvious and real conflict generated by the actions of Cynthia Orr and agree to waive the conflict. In the process it will be possible for the Court to determine whether such a waiver is appropriate, given the nature of the conflict. It is most assuredly not wise to continue this matter only to learn that no disclosure has been made and claimants seek a retrial on the basis of the Sixth Amendment due to failure of counsel to disclose the existence of a conflict. Thus, where a court justifiably finds an actual conflict of interest, there can be no doubt that it may decline a proffer of waiver, and insist that defendants be separately represented. As the Court of Appeals for the Third Circuit stated in United States v. Dolan, 570 F.2d 1177, 1184 (1978): "[W]hen a trial court finds an actual conflict of interest which impairs the ability of a criminal defendant's chosen counsel to conform with the ABA Code of Professional Responsibility, the court should not be required to tolerate an inadequate representation of a defendant. Such representation not only constitutes a breach of professional ethics and invites disrespect for the integrity of the court, but it is also detrimental to the independent interest of the trial judge to be free from future attacks over the adequacy of the waiver or the fairness of the proceedings in his won court and the subtle problems implicating the defendant's comprehension of the waiver." Id. at 486 U.S. 153, 162, 108 S.Ct. 1692, 1698-99 (1988).

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V. SUMMARY The continued effort by counsel for Abed to avoid dealing with the discovery issues is demonstrated in the filing of the pleadings relating to the production of false documents and exhibits from Mexico. These exhibits were not related to the motion for reconsideration and could not impact upon the nature of the Order entered by this Honorable Court. Rather, they continue to be an effort to prevent discovery from being pursued. While it very well may be appropriate to consider whether the conduct of counsel described in this matter has resulted in a conflict and whether claimants may waive that conflict, it cannot become the primary issue addressed in this action. All of these matters relate to efforts by counsel for the Abed claimants to delay, stall, and prevent discovery from being pursued. To the extent that the resolution of the outstanding discovery in the form of responses to interrogatories, requests for admission and production of documents has been delayed for months while the baseless motions have been filed, claimants can continue to refuse to participate in the discovery. Similarly, while the Court addresses these issues, Abed can refuse to appear for his deposition. Respectfully submitted this 17 th day of May, 2006. PAUL K. CHARLTON United States Attorney District of Arizona S/ Reid C. Pixler REID C. PIXLER Assistant U.S. Attorney

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CERTIFICATE OF SERVICE

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Leonard J M cDonald, Jr Tiffany & Bosco PA Camelback Esplanade II 2525 E Camelback Rd 3rd Floor Phoenix, AZ 85016 9I hereby certify that on May 1, 2006, I served the attached document by U.S. mail, who are not registered participants of the CM/ECF System: Marc S. Nurik Ruden McClosky Smith Schuster & Russell, PA PO Box 1900 Ft Lauderdale, FL 33302 Cynthia Eva Hujar Orr Goldstein Goldstein & Hilley 2900 Tower Life Bldg 310 S St Mary's St, Ste 2900 San Antonio, TX 78205 [email protected] K Lawson Pedigo Miller Keffer & Pedigo 8401 N Central Expressway , Ste 630 Dallas, TX 75225 [email protected] I.I hereby certify that on M ay 17, 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: Allen B Bickart Law Office of Allen B Bickart PO Box 44005 Phoenix, AZ 85064 [email protected] Douglas F Behm Jennings Strouss & Salmon PLC Collier Ctr 201 E W ashington St, Ste 1100 Phoenix, AZ 85004-2385 [email protected]

S/

Reid C. Pixler

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