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, Plaintiff, v. Lear Jet, Model 31A, Serial Number 31A224, U.S. Registration # N224LJ; Defendants. PRELIMINARY STATEMENT There appear to be two pleadings with exactly the same caption (doc 156), purportedly CIV-04-363-PHX-JWS
RESPONSE IN OPPOSITION TO MOTION FOR LEAVE TO FILE INTERVENING DOCUMENTS

16 supported by attached exhibits. Plaintiff has reason to believe that the documents presented in 17 support of claimants' motion are not genuine. This response in opposition to the motion by 18 claimants is supported by the DECLARATION OF LISA CACHERIS BURNETT and attached 19 Exhibits A & B, which she considered in making the declaration filed herewith. The alleged 20 correspondence is between two governmental units neither of which discloses any copies were 21 provided to counsel for claimants. 22 As a result of reviewing the documents filed with the defendant's motion, the undersigned 23 had occasion to communicate with Lisa Cacheris Burnett, the alleged writer of the letter. Lisa 24 Cacheris Burnett has indicated she did not author the letter and the other documents appear to 25 be forgeries as well. Her affidavit regarding specific observations is attached to this pleading 26 and is hereby incorporated by this reference. Given the concern that someone has created a 27 document bearing the name of Lisa Cacheris Burnett, and done with the intent that the Court rely 28 upon the documents as official and valid, it is important that the court be notified immediately.

Case 2:04-cv-00363-JWS

Document 157

Filed 03/08/2006

Page 1 of 6

1 Furthermore, as an officer of the Court, the undersigned is obligated to report this possible fraud 2 upon the Court and to indicate that an investigation must undertaken by the FBI regarding the 3 creation of the documents and the person or persons responsible. 4 5 FACTUAL ALLEGATIONS The Abed Claimants seek to file additional exhibits in support of the Motion to Stay the

6 case. Plaintiff relies upon the attached affidavit of Lisa Cacheris Burnett, which indicates that 7 these exhibits are not genuine. 8 The undersigned makes this offer of proof that the only investigation involved regarding the

9 aircraft identified in this case is one directed by Immigration and Customs Enforcement (ICE) 10 previously referred to as "Customs." No investigator from the U.S. Secret Service is involved 11 in this case, as is alleged in exhibit tendered to the Court. (See letter dated February 6, 2006 and 12 translation marked as Exhibit A to the Burnett Declaration.) 13 This exhibit purports to be written on the stationery of the Department of Homeland

14 Security, but also lists a return address the Department of Justice, Criminal Division, Office of 15 International Affairs as the office which is supposed to have generated the letter. The letter 16 purports to be executed by Lisa Burnett, Deputy Director of OIA. Lisa Burnett indicates that the 17 signature is not hers, but appears to be an attempt to copy her signature. Burnett also noted that 18 the letter appears on stationery other than that used by the Department of Justice. (Burnett Dec. 19 ¶3, 4, & 6) Further, official communications from OIA to Mexico are drafted in English and 20 the original document is executed by the representative of the government, not a translated 21 version. Official written communications are not conducted in Spanish. (Burnett Dec. ¶5) 22 According to Burnett, she is involved in communications with foreign countries pursuant

23 to the authority of Mutual Legal Assistance Treaty requests or MLATs. Although the form of 24 the Exhibit A is consistent with an MLAT, it appears to request the detention of an individual. 25 Such a request is not done in an MLAT form but is only done through an extradition request. 26 (Burnett Dec. ¶7) 27 Claimants have also filed what is purported to be a response from the Mexican PGR

28 (roughly equivalent to the DOJ) to the correspondence from Lisa Burnett, dated February 24,
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1 2006. This letter was never received by Lisa Burnett at OIA and is copied in such a manner that 2 the author and file cannot be identified, making it impossible to inquire of the PGR regarding 3 the content, purpose, or validity of the document. (Burnett Dec. ¶8.) Based upon these objective 4 facts and inspection of the two exhibits, Lisa Burnett has determined that both documents are 5 false. (Burnett Dec. ¶9) 6 7 8 9 10 The Order which denied the Stay Motion was not based upon the existence of a criminal 1. ARGUMENT Is the filing of the Motion For Leave to file additional documents by claimants relevant to any issue before this Court?

11 investigation. That fact is essentially irrelevant, certainly at this point in time. As was addressed 12 in the briefs, the existence of a criminal investigation does not create a right where none existed. 13 Corporations do not have a Fifth Amendment privilege. The Court summarily denied the request 14 to stay this case on the basis that claimants, including Abed, had no Fifth Amendment right 15 which could be infringed. All claimants other than Abed are corporations. The Courts' ruling 16 regarding Abed was limited to the fact that, because he was not a citizen of the United States and 17 resides outside of the United States, he has no such right. Counsel for Abed asked the Court to 18 reconsider, and the Court directed plaintiff to file a Response. The Court did not provide 19 claimants with an opportunity to file a Reply. The issue was very narrowly defined by the Court 20 and was fully and completely briefed when plaintiff filed the required Response. The tendered 21 documents contribute nothing to the consideration of the sole issue presented to the Court, i.e., 22 the impact of foreign citizenship and residence upon the obligation to engage in discovery. The 23 motion to file additional exhibits could be denied on this basis alone. 24 25 26 27 2. Does the Motion by the Abed Claimants establish any foundation for legitimacy, accuracy, or credibility regarding the tendered exhibits upon which this Court should rely for any reason?

Counsel for Abed filed four documents for which claimants can provide no foundation. In

28 short, counsel can provide no reasonable explanation for how they would have come into
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1 possession of allegedly official communications between governmental authorities regarding the 2 alleged request for the arrest of Abed. Indeed, the investigation into the source of these 3 documents could create a conflict of interest for Claimant Abed's counsel. 4 As indicated previously, there is reason to believe that these exhibits tendered by the Abed

5 Claimants are not genuine. Moreover, it would be impossible to obtain additional information 6 from Mexico within the short time period required for responding to the motion by claimants. 7 The letter has been copied in such a manner that the author cannot be identified. Further, there 8 is no other identification or file number by which the original of the letter can be located. 9 (Burnett Dec. ¶8) However, it is significant that the person to whom the letter is directed, Lisa 10 Burnett, has never received the original of this letter. (Burnett Dec. ¶8) Lisa Burnett also denies 11 writing the original letter, which contains obvious errors, flaws, and is not professionally written 12 in either English or Spanish. (See Exhibit A) 13 Plaintiff has presented evidence that both of the exhibits tendered by claimants appear to be

14 forgeries. Based upon this information, the Court should strike the exhibits tendered by the 15 Claimants. In the alternative, the Court should conduct a hearing at which the Claimants would 16 be required authenticate and provide foundation for the exhibits that have been tendered to the 17 court. 18 19 20 SUMMARY Claimants have failed to provide any basis other than mere speculation to support the request

21 for a stay. Because the records sought to be produced are corporate records involved in the 22 movement of funds to acquire the defendant aircraft, there is no Fifth Amendment privilege 23 available to claimants, and therefore no basis to stay this action. Claimants have taken advantage 24 of a liberal discovery policy and reciprocal promises of production by receiving substantial 25 discovery from plaintiff, but refuse to produce any current, relevant, or material evidence in 26 return. 27 The Plaintiff has provided the Court with evidence suggesting that the exhibits which the

28 Claimant has provided to the Court are forged. As such, there has been an attempt to perpetrate
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1 a fraud upon this Court.

Further investigation into the source of these documents and the

2 knowledge of the nature of the documents by those who have presented them to the Court is 3 required and will be conducted for potential federal criminal violations. In addition, the Court 4 may wish to conduct an inquiry of its own into these documents. 5 The Plaintiff would respectfully request that the Court deny the Claimants' pending motions

6 and order that discovery be produced by Claimant Abed. Alternatively, in the event that the 7 Court is not inclined to deny the motions summarily, the Plaintiff would request that the Court 8 set the matter for an evidentiary hearing at which the Claimant would be required to authenticate 9 and lay a foundation for the documents that it has asked the Court to rely upon.. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Respectfully submitted this 8th day of March, 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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K Lawson Pedigo Miller Keffer & Pedigo 8401 N Central Expressway , Ste 630 Dallas, TX 75225 [email protected] Douglas F Behm Jennings Strouss & Salmon PLC Collier Ctr 201 E Washington St, Ste 1100 Phoenix, AZ 85004-2385 [email protected] 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] Allen B Bickart Law Office of Allen B Bickart PO Box 44005 Phoenix, AZ 85064 [email protected]

CERTIFICATE OF SERVICE
I.I hereby certify that on March 8, 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:

9I hereby certify that on March 8, 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 Leonard J McDonald, Jr Tiffany & Bosco PA Camelback Esplanade II 2525 E Camelback Rd 3rd Floor Phoenix, AZ 85016

S/

Victoria Tiffany

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