Free Motion for Miscellaneous Relief - 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 DETERMINE THE EXISTENCE OF A CONFLICT OF INTEREST

NOW COMES Goldstein, Goldstein and Hilley ("GG&H") and respectfully moves the Court to order Plaintiff to affirmatively state the basis for any alleged conflict of interest between GG&H and "Movants" (Alberto Abed, Uptongrove, Ltd. and Calezar, Ltd.), order Plaintiff to provide evidence of such conflict, and then determine whether or not a conflict of interest exists. In support of this motion, GG&H would show the Court as follows: I. UNSUPPORTED ALLEGATION OF A CONFLICT OF INTEREST GG&H files this motion because Plaintiff's Counsel has asserted that: "Indeed the investigation into the service of these documents and the offer by Cynthia E. Orr to cooperate with an FBI investigation has created a conflict of interest for Claimant Abed's Counsel." Page 4, Docket #157. "Further investigation into the source of these documents and the knowledge of the nature of the documents by those who have presented them to the Court 1

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is required and will be conducted for potential federal criminal violations." Page 5, Docket # 160. II. THE UNSUPPORTED ALLEGATION OF A CONFLICT OF INTEREST CAUSES IMMEDIATE HARM TO MOVANTS 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. However, Plaintiff's counsel, by making the recent unsupported allegation of a conflict of

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 actually saying only that Movants have not proven the Government is investigating Abed. below. Additionally, the Plaintiff's pleadings appear to be carefully worded so as to imply that the Government does not have Alberto Abed under criminal investigation, when it is bereft of factual or evidentiary support and made in a manner which may be interpreted as strategically depriving GG&H of the ability to address the inadequately supported and carefully worded allegations. The careful wording is more fully discussed in Section III, of Plaintiff's allegations, Movants have been forced to this unnecessary additional expense and have experienced a needless diminution of focus by their long standing counsel of choice in the forfeiture proceeding. Longstanding counsel, GG&H, must now deal with allegations interest, has manufactured a division of interest between Movants and their chosen counsel. To assure this Court of the integrity of representation in these proceedings, GG&H has caused Movants to engage an independent lawyer to consult with them. As a consequence

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What is most striking about this position is that, even though these facts are uniquely within the Plaintiff's ability to know, the Plaintiff has not denied that Abed is under criminal investigation. It only takes the position that it currently has no information of wrongdoing on Abed's part, while also suggesting in its discussion of a conflict that bribery, fraud, forgery and investigation of a federal criminal violation are contemplated with regard to the service of the documents attached to docket number 156. Thus, the additional harm created by the Plaintiff's posture above is to allow it to allege criminal misconduct for purposes of manufacturing a conflict and also to continue to assert that Movant's have not proven that they are under investigation for purposes of seeking a stay of the forfeiture. The proper procedure when a conflict is raised is to resolve the matter prior to proceeding with the litigation in accordance with the Arizona Rules of Professional Conduct, which have been adopted as the ethical standards of this Court. See also Wheat v. U.S., 486 U.S. 153, 160, 108 S.Ct. 1692, 1697 (1988); Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Plaintiff has raised the issue of a conflict, but has not filed a Motion to Disqualify Movants' counsel. Plaintiff's conclusory and alternating allegations serve to create and manufacture a conflict of interest. The conflict has been alleged. Movants and GG& H are forced to respond to such serious language. Counsel may not defend themselves against allegations of criminal conduct and also defend their client on the same allegations unless such allegations are unfounded. Allowing an unfounded allegation levied against counsel to sever the attorney-client relationship would 3

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present an unacceptable danger to a client's Sixth Amendment right to the attorneys of his choosing. This danger was recognized by the United States Supreme Court in Wheat v. U.S., where the Court specifically warned the lower courts to be wary of attempts by government counsel to manufacture disruptive conflicts. "Petitioner of course rightly points out that the Government may seek to `manufacture' a conflict in order to prevent a defendant from having a particularly able defense counsel at his side; but trial courts are undoubtedly aware of this possibility, and must take it into consideration along with all the other factors which inform this sort of a decision." Wheat v. U.S., 486 U.S. 153, 163, 108 S.Ct. 1692, 1699 (1988). As discussed in Section III, infra, there has been no direct or affirmative assertion that a crime has been committed by anyone with respect to the two documents which were filed with the Court as attachments to Docket #156 . For these reasons, and so that the instant litigation may proceed to a just resolution, Movants ask this Court to put the Plaintiff to its obligation to make specific allegations, offer proof thereof, and allow this Honorable Court to determine whether a conflict does indeed exist. This Court has wide latitude in determining conflicts, and its decision will be reviewed for abuse of discretion. U.S. v. Kenney, 911 F.2d 315, 320 (9 th Cir. 1990). Also, no interlocutory appeal rights are realized upon the Court's determination. The Supreme Court discussed the nature of an "actual conflict" in Mickens v. Taylor, 535 U.S. 162, 172, n. 5, 122 S.Ct. 1237, 1244, n. 5 (2002), where it stated: "We have used `actual conflict of interest' elsewhere to mean what was required to be shown in Sullivan. See U.S. v. Cronic, 466 U.S. 648, 662, n.31, 4

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104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)(`[w]e have presumed prejudice when counsel labors under an actual conflict of interest ... See Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1986)'). And we have used `conflict of interest' to mean a division of loyalties that affected counsel's performance." Because Plaintiff should not be permitted to levy an unfounded allegation resulting in the summary removal of Movant's long standing counsel of choice, the burden is on Plaintiff's counsel to provide this Court with a basis for its allegations as well as the supporting proof. Especially where, as here, disqualification of counsel would worki a substantial hardship on Movants, there must be at least a reasonable possibility that some specifically identifiable impropriety occurred. See Optyl Eyewear Fashion Int'l Corp. v. Style Cos., 760 F.2d 1045, 1049 (9 th Cir. 1985). III. THE GOVERNMENT PRESENTS NO EVIDENCE TO SUPPORT THE ALLEGATION THAT THE DOCUMENTS ARE NOT GENUINE Contrary to its assertions and conclusions that the documents in question are forgeries or false, the Government has presented no substantive evidence to show that they are not indeed what they purport to be. While the Plaintiff asserts that the documents were not sent or received by Ms. Burnett personally, the Plaintiff does not represent that it has made a searching inquiry of the United States Government and its agencies and agents and determined that no request for Abed's apprehension and interview was made of the PGR by the U.S. Government. Such information is uniquely within the sole control of the Plaintiff. Bare accusations and conjecture aside, the Government's proof consists solely of the Declaration of Lisa Cacheris Burnett and the factual assertions therein. Movants will here

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address each of these assertions respectively. 1. Ms. Burnett states she does not draft mutual legal assistance requests in Spanish. The document in question is obviously a translation of some other document, and the fact that Ms. Burnett or persons in her office did not perform the translation does not

6 7 8 9 10 11 12 13 14 15 designed to be readable by Spanish-language speakers ­ Ms. Burnett's assertions do not 16 17 18 19 20 21 22 23 24 25 26 27 28 6 denies that this document is a translation of some original communication from her office; she merely states that she has never seen this document before and it does not seem to be the type of task normally performed by her office. 4. Ms. Burnett never reviewed or approved the document. Again, if this translation was not generated by Ms. Burnett's office, it stands to reason she would not have seen it before. It is important to note that Ms. Burnett never affirmatively undermine the genuineness of the document. They merely support the inference that this is not an original product of her office, not that the document is the product of fraud or forgery. 3. The signature, heading, and stationary did not originate from Ms. Burnett's office. Given that the document is a translation in whole ­ a recreation of another document, The quality of the translation has no bearing on whether this document in fact represents a translation of the original communication. undermine the substance of the communication or show the translation as false. 2. The translation contains numerous errors.

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Counsel for the Government also accuses Movants and their counsel of misconduct in submitting the PGR's response to Ms. Burnett's letter, and Ms. Burnett states that she never received this response. However, a United States Embassy time stamp can be seen at the top-left corner of the document. This stamp would show that the United States Government did receive the letter in response, whether it indeed forwarded it to Ms. Burnett or not. Ms. Burnett's failure to receive a communication that was in fact received by the Government in no way supports the inference that the document is not genuine, and seems to suggest a possible failure in federal interagency communications more than any other proposition. In fact, Plaintiff, aside from the conclusory accusation of fraud, never avers that the PGR's response is not genuine. The remainder of the Plaintiff's pleadings regarding this particular matter consists of hypothetical and alternatively suggested scenarios for events, a conclusory and wholly unsupported accusation of "bribery and corruption," 1 and the employment of tenuous logic forcing hypothetical facts to line up to an end that threatens investigation and prosecution. When these are set aside, it is apparent the Government lacks any actual substantive evidence of forgery, fraud or criminal conduct. In any event, having raised the conflict, it is Plaintiff's burden to come forth, file a motion seeking the disqualification of GG&H and provide evidence of improper conduct by GG&H which would justify disqualification of Movants'

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Page 3 of Response in Opposition to Additional Motion for Leave to File Intervening

Documents, Docket #160. 7

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counsel. This is part of the relief that GG&H and Movants seek. PRAYER The allegations of conflict made by Plaintiff's Counsel, although vague and unfounded, have unfortunately placed Movants and their counsel of choice in a procedurally

6 7 8 9 10 11 12 13 1. Articulate each specific circumstance of and alleged misconduct which Plaintiff 14 15 16 17 18 19 20 of interest for the purposes of this cause. 21 22 23 24 25 26 27 28 GERALD H. GOLDSTEIN Bar No. 08101000 CYNTHIA EVA HUJAR ORR Bar No. 15313350 GOLDSTEIN, GOLDSTEIN & HILLEY 310 S. St. Mary's St. 8 Respectfully submitted, 3. If Plaintiff should fail to meet the reasonable demands of the Court's order, Movants and GG&H pray this Court strike any allegation of misconduct or conflict contends gives rise to Plaintiff's accusations of a conflict of interest, and, 2. Bring sufficient evidence in support thereof, and, accusations of misconduct and conflict, the burden is on the Plaintiff to join the issue. Accordingly, Movants pray this Honorable Court order Plaintiff to: difficult position and have financially burdened the Movants. Movants and Counsel cannot proceed toward the resolution of the important issues before this Court until a determination is made as to whether a conflict exists or not. Because Plaintiff's Counsel levied the

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29 th Floor Tower Life Bldg. San Antonio, Texas 78205 210-226-1463 210-226-8367 facsimile BY: _________/s/______________________ CYNTHIA EVA HUJAR ORR

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 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: 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]

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 _______/s/_____________________________ Cynthia Eva Hujar Orr 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. 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 [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

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