Free Order on Motion to Stay - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

) ) Plaintiff, ) ) vs. ) ) LEAR JET, Model 31A, Serial Number ) 31A-224, U.S. Registration Number ) N224LJ, ) ) Defendant. ) )

UNITED STATES OF AMERICA,

CIV 04-363 PHX JWS ORDER FROM CHAMBERS [Re: Motions at dockets 132, 136, 137, 145, 149, and 150]

I. MOTIONS PRESENTED At docket 132, claimants Alberto Abed Schebaikan ("Abed"), Calezar, Ltd., and Uptongrove, Ltd., move to stay the civil forfeiture proceedings against defendant Lear Jet. At docket 141, the United States of America ("USA") opposes the motion at docket 132. At docket 143, claimants have filed a reply in support of their motion at docket 132. The USA has requested oral argument on the motion at docket 132, but it would not assist the court and, therefore, the USA's request is denied. At dockets 136 and 137, claimants have filed identical motions to quash a deposition notice and for a protective order against requests for admissions and interrogatories served on Abed. At docket 140, the USA opposes the motions at

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dockets 136 and 137. At docket 142, claimants have filed a reply in support of their motions at dockets 136 and 137. The USA has requested oral argument on the motions at dockets 136 and 137, but it would not assist the court and, therefore, the USA's request is denied. At docket 145, the USA moves for leave to supplement its response to the motions at dockets 132, 136, and 137. Claimants have not filed an opposition to that motion. At docket 149, claimants move for leave to supplement their reply to the USA's response to their motions at dockets 132, 136, and 137. The USA has not filed an opposition to that motion. The paper filed at docket 150 is being tracked as another motion by claimants but is, in fact, a proposed order accompanying the motion at docket 149. II. DISCUSSION A. Motion at Docket 132 Courts must stay civil forfeiture proceedings with respect to a claimant in those proceedings when "(A) the claimant is the subject of a related criminal investigation or case; (B) the claimant has standing to assert a claim in the civil forfeiture proceeding; and (C) continuation of the forfeiture proceeding will burden the right of the claimant against self-incrimination in the related investigation or case."1 A stay is not warranted here because claimants have not shown that condition (C) applies to them. For condition (C) to apply, claimants must show they have a right against selfincrimination. The only source of that right of which the court is aware is the Fifth

1

18 U.S.C. § 981(g)(2)(A)-(C).

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Amendment. That amendment does not apply to Calezar, Ltd., and Uptongrove, Ltd., because they are artificial entities.2 It may not apply to Abed because there are indications he is an alien outside United States territory.3 He has not addressed his citizenship, residency, and location and, until he does so, the court cannot determine whether the Fifth Amendment applies to him. And, because the court cannot make that determination, Abed is not entitled to a stay. B. Motions at Dockets 136 and 137 The identical motions at dockets 136 and 137 seek to quash discovery proceedings on the grounds that a motion to stay is pending and counsel have not met as required under Federal Rule of Civil Procedure 26(d). The first ground fails because the motion to stay will be denied and therefore will no longer be pending. As for the second ground, the parties debate whether they were required to meet before engaging in discovery, given this case's placement on an "expedited track." That debate need not be resolved, however, because the parties did meet for purposes of Rule 26(d). At a meeting on October 27, 2004, they discussed the process by which they would exchange information4 and, according to claimants, the possibility of settlement.5 That is the kind of discussion required by Rule 26(d) through its reference to Rule 26(f).

2

Braswell v. United States, 487 U.S. 99, 102 (1988).

Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (citing United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990); Johnson v. Eisentrager, 339 U.S. 763 (1950)).
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3

Doc. 146, p. 2, doc. 149, p. 9. Doc. 149, p. 9.

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III. CONCLUSION For the reasons set out above, the motion at docket 132 is DENIED, and the identical motions at dockets 136 and 137 are DENIED. Also, the motions to file supplemental briefing at dockets 145 and 149 are GRANTED. Lastly, the clerk of court is directed to stop tracking the paper filed at docket 150 as a motion. DATED at Anchorage, Alaska, this 23rd day of January, 2006.

/s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE

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