Free Motion for Reconsideration - 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 FOR REHEARING OF MOTION FOR STAY, MOTION TO QUASH DEPOSITION NOTICE, AND MOTION FOR PROTECTIVE ORDER AGAINST REQUEST FOR ADMISSIONS AND INTERROGATORIES SERVED ON ABED

NOW COMES, CLAIMANT, ALBERTO ABED-SCHEKAIBAN ("Abed") and respectfully requests that this Honorable Court reconsider its Order from Chambers issued on January 23, 2006, docket number 152, and in support thereof will show this Court: 1. Claimant Abed is prepared to answer discovery, but is concerned with waiving his Fifth Amendment privilege. INTRODUCTION 2. This Court's Order reflects, at page 3, uncertainty whether the Fifth Amendment applies to Abed because there are indications he is an alien outside United States territory. Abed notes the point raised by the Court and has two observations. First that Fifth Amendment self-incrimination protection would be applicable even if Abed had no ties, nexus or presence in the United States. Second, assuming that such connections are required, Abed does have sufficient interest and links to the United States to invoke a Fifth Amendment right against self incrimination.

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ALIENS REGARDLESS OF LOCATION OR CONNECTION WITH THE UNITED STATES POSSESS A FIFTH AMENDMENT PROTECTION AGAINST SELF INCRIMINATION 3. The authorities which this Honorable Court cites apply to aliens seeking due process, the right to be heard, regarding their exclusion from the United States. Such persons have neither a property nor a liberty interest in the United States. See Zadrydas v. Davis, 533 U.S. 678, 693 (2001) [resident aliens who had been ordered removed and who are detained were treated "as if stopped at the border," noting in contrast that aliens who are present even temporarily are protected by the Due Process Clause]; Johnson v. Eisentrager, 339 U.S. 765, 776 (1950) [German Nationals confined by the U.S. Military in China are residents in the enemy country and do not have access to our courts]. These authorities also cite United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990), a case involving a search of a Mexican residence by U.S. authorities, noting that the "people" are a class of persons who are part of a national community or who have developed sufficient connections with this country to be part of that community. United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990), also defines "the people" for purposes of the First, Second, Fourth, Ninth, and Tenth Amendments. The case specifically contrasts "the people" with the words "person" and "accused" used in the Fifth and Sixth Amendment. The case concluded that the Fourth Amendment was not intended to govern the actions of U.S. agents against aliens outside the United States. 4. Abed contends that there is a distinction between due process rights of aliens who are either outside the United States or who have not entered the United States, and rights against self-incrimination of these persons. The latter rights do fully apply despite the aliens location outside the United States. 5. In Verdugo the Court was dealing with the Fourth Amendment. Verdugo

implicitly, United Sates v. Verdugo-Urquidez, 494 U.S. at 278 [Kennedy concurring], and

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at least two Courts explicitly find, U.S. v. Bin Laden, 132 F. Supp.2d 168, 183 (S.D. N.Y. 2001); Bear Sterns Co. Inc., v. Wyler, 182 F .Supp.2d. 679, 681 fn.2 (N.D. Ill. 2001) [dicta], that when the United States Government compels the statements of a non resident alien in a foreign country concerning a criminal investigation, his statements are protected by the Fifth Amendment Privilege.1 5. In United States v. Bin Laden, 132 F. Supp.2d 168, 181 (S.D. N.Y. 2001), a nonresident alien who was interviewed abroad by U.S. law enforcement was held to enjoy a Fifth Amendment privilege against self incrimination with respect to those statements: "The predicate issue is as follows: Is the Government correct that a criminal defendant on trial in the United States does not enjoy the privilege against self incrimination because he is a non-resident alien whose only connections to the United States are his alleged violations of U.S. law and his subsequent U.S. prosecution? We regard this narrow reading of the Constitution as being at odds with the text of the Fifth Amendment, overarching notions of fundamental fairness, relevant case law, and the policy goals supporting the privilege against self-incrimination." United States v. Bin Laden, 132 F. Supp. 2d 161,181 (S.D.N.Y. 2001) [contrasting "the people" in the First, Second, Fourth, Ninth, and Tenth Amendments with "no person" contained in the Fifth Amendment] [footnote omitted]. The Court explained that the rights contained in the Fifth Amendment are realized when the United States offers the statements in the U.S. to prove a crime. Therefore, the Fifth Amendment applied with equal vigor to all persons facing criminal prosecution by the U.S. Government without regard to their citizenship or connection with the United States community. The Bin Laden court made an implicit distinction between due process rights
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Since Wyler was not a criminal or civil forfeiture case, it did not involve statements compelled by the Government. The Court, therefore, distinguished Mr. Wyler's situation on this basis. 3

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of persons located outside the United States and the same persons' rights against selfincrimination, because the violation of the right against self-incrimination occurs when the case is brought before a United States tribunal. 6. Forfeiture proceedings are quasi-criminal in nature. See U.S. v. Zucher, 161 U.S. 475,479, 16 S. Ct. 641,40 L. Fd. 777 (1896);2 U.S. v. Ursery, 518 U.S. 267,303, 116 S.Ct. 2135, 2154, 135 L. Ed.2d 549. (1996) [citing other cases].3 These statutes provide for the forfeiture of property based upon the property owner's guilt of a criminal offense. Here, the United States seeks to compel Abed to make statements that are incriminating. Abed enjoys a Fifth Amendment Privilege in light of the fact that the Government is making criminal accusations against him, regardless of where he may be found. His statement in a deposition, answers to interrogatories, or production of documents would be used in the forfeiture case 4 in the United States by the Government to attempt to prove that a crime was committed. ABED HAS SUFFICIENT CONTACTS WITH AND INTEREST WITHIN THE UNITED STATES THAT GIVE RISE TO A RIGHT AGAINST SELFINCRIMINATION 7. This Court also specifically noted that "until" Alberto Abed addresses his

"citizenship, residency, and location" the Court cannot determine whether the Fifth Amendment applies to him. 8. In Johnson v. Eisentrager, 339 U.S. 765, 776, 770 (1950), the Supreme Court "[S]uits for penalties and forfeitures incurred by the commission of offenses against the law are within the reason of criminal proceedings for all the purposes of the Fourth Amendment of the Constitution, and of that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself..." "We reafirmed Boyd twice during the span of time between our decisions in Various Items and 89 Firearms. In One 1958 Plymouth Sedan v. Pennsylvania, 350 U.S. 643, 85 S.Ct. 1246, 14 L. Ed. 2d 170 (1965), the Court unanimously repeated Boyd's conclusion that a forfeiture proceeding is quasi- criminal in character and `[i] ts object, like a criminal proceedings, is to penalize for the commission of an offense against the law'."
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As well as the ongoing criminal investigation. 4

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stated in dicta, that an alien's right in the United States increased as he increases his identity with our Society. In fact, the Court stated that it had little occasion to inquire whether "litigants" before it are aliens or citizens. Johnson v. Eisentrager, 339 U.S. 765, 776, 770, 771 (1950). While this portion of the Court's opinion discusses the civil and property rights for litigant immigrants or transients, it stated that these persons are nearly equivalent to citizens. Thus, litigants before courts in the United States are near the equivalent of U.S. Citizens. Further, as the Court is well aware, a civil litigant who refuses to respond to discovery, including, but not limited to submitting himself to deposition by the opposing party, is subject to sanctions, including a default judgment. 9. In Dave v. Ashcroft 363 F.3d 649, 653 (7thCir. 2004) the Seventh Circuit distinguished the right of aliens to contest their ouster with "claimants" who have a liberty or property interest in the outcome of a proceeding. Abed has a undisputed interest in the Lear 31A which is in the custody of United States Customs and which Lear Jet is the subject of this litigation. He therefore, enjoys a property interest in the outcome of these proceedings and is a litigant before this Court, near the equivalent of a citizen 5 . 10. In addition, Abed possesses a United States visa that expires on October 29, 2010, see Exhibit A attached hereto. He is a resident of Mexico and of the United States where he owns a condominium. He also routinely travels to the United States and is currently present in this country. See Customs entry form dated February 2, 2006, at Exhibit A. 11. As this Court is aware and alluded to in its order, Abed was further present in Arizona in a meeting with the Attorney for the Plaintiff on October 27, 2004.

In fact, absent a Protective Order or other stipulation of counsel, were Abed not currently present in the United States, he would be forced to make a legal entry into the United States under the United States visa he holds and would then enjoy a Fifth Amendment Privilege in order to fully comply with the deposition notice served upon his counsel. Under Federal Rule of Civil Procedure 37, Abed indeed would be subject to sanction, up to and including the striking of his pleadings if he refused to submit to deposition. He can lose his right to his property if he fails to proceed with discovery 5

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12. Therefore, Abed is a resident,6 and a foreign citizen who is currently and routinely present in the United States. It matters not whether his presence is temporary or even transitory Matthew v. Diaz, 426 U.S. 67, 77, 96 S. Ct. 1883, 4 8 L. Fd. 2d 478 (1976). He is a "person" for purposes of the Fifth Amendment. He is not "an alien who has no previous significant voluntary connection with the United States." Verdugo-Urquidez 494 U.S. at 271. To the contrary, Abed has significant voluntary attachments to the United States 494 U.S. 274-75, 110 S. Ct. at 1066. Abed has further voluntary attached himself to the United States because he has not invoked the special protection available under Supplemental Admiralty Rule C(8), which permits limited answers in admiralty and forfeiture cases. Despite having the option of making an appearance solely to defend his interest in the res, his answer appears for all purposes. He also enjoys the protection of the Fifth Amendment because he has both a significant voluntary connection to the United States and because he has a property interest in the outcome of these proceedings. PRAYER 13. Therefore, Claimant, Alberto Abed respectfully prays that this Honorable Court grant his Motion to Reconsider the Order from Chamber issued January 23, 2006, docket number 152, and grant his Motion to Stay Civil Forfeiture Proceedings, Motion to Quash Deposition Notice, and Motion for Protective Order Against Request for Admissions and Interrogatories served on Abed.

Abed is not a "resident alien" for purposes of immigration law. He is a resident of the United States in the sense that his ownership and occupation of a condominium in the United States makes him a resident of the State where it is located for purposes of personal jurisdiction. 6

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 2, 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] 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. 7

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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 Respectfully submitted, 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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