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

1 AFFIDAVIT
2 I, James T. Lacey, being duly sworn, depose and say:
3 1. I am an Assistant United States Attorney for the District of Arizona and have
4 been for over twenty-two years. I have been conducting a criminal investigation of Jaime
5 Ross-Castillo and other persons who were involved in defrauding Mexican banks of
6 millions of dollars and thereafter using the illegal proceeds to purchase a Lear Jet Aircraft,
7 Model 31A, Serial Number 31 A—244, U.S. Registration No. N224LJ, within the District of
g Arizona, as well as other aircraft which were purchased in other Districts within the United
9 States. A joint investigation of these financial transactions conducted by federal authorities
10 ofthe United States and the Republic of Mexico traced the funds through various corporate
1 1 accounts and financial transactions into purchases of aircraft titled or registered in the name
12 of corporations owned or controlled by Alberto Abed-Schekaiban.
13 2. Counsel for Alberto Abed—Schekaiban, Cynthia Orr, has contacted
14 undersigned govemment counsel on several occasions to determine the status of the
15 investigation. Counsel has tendered financial evidence to the criminal investigators which
16 does not resolve the issues related to the source, ownership, and control over the funds
17 utilized in the purchase ofthe suspect aircraft. Criminal investigators have advised that they
18 already possessed this evidence as part of the investigation.
19 3. Cynthia Orr most recently contacted the undersigned govemment counsel
20 on or about November 28, 2005, to inquire as to the status of the criminal! grand jury
21 investigation and whether it continued to be focused upon Mr. Abed. Ms. Orr was
22 advised that the United States has not indicted Mr. Abed. Ms. Orr was likewise advised
23 that the investigation was continuing.
2 4 4. To date the United States cannot show that Mr. Abed knew the illegal
25 source of the money that Mr. Ross-Castillo obtained with other co-conspirators,
26 laundered through international financial transactions involving accounts of corporations
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1 owned and/or controlled by Abed, and which was subsequently utilized in the purchase
2 of specific suspect aircraft.
3 5. Unless and until the government can demonstrate that Mr. Abed had
4 knowledge that the fiinds invested in the aircraft by Mr. Ross-Castillo were illegally
5 obtained, Mr. Abed cannot and will not be charged with any criminal misconduct as it
6 relates to the investigation which has targeted Jaime Ross-Castillo.
7 6. The undersigned government counsel has had an occasion to review a
8 pleading apparently prepared and executed by Cynthia E. Orr, filed on November 28, 2005,
9 in which she included a passage which implies that the undersigned government counsel
10 stated that, "... Alberto Abcd-Schekaiban has not yet been indicted.” The clear implication
11 that this passage is intended to invoke is the government expects to indict him. As I noted
12 herein, the government does not possess any evidence to suggest that Mr. Abed engaged in
13 any criminal misconduct. He will not be charged with any criminal violations where there
14 is no evidence to demonstrate his mens rea. It appears Ms. Orr is attempting to stay the
15 related civil forfeiture case, handled by Reid C. Pixler, by suggesting to the Court that Mr.
16 Abed will be indicted. Mr. Pixler has engaged in a great deal of work with investigators
17 operating in Mexico, including the interview of J aime Ross Castillo, which did not implicate
18 Mr. Abed in either the bank fraud or the subsequent money laundering activity. While Mr.
19 Pixler shares with me the evidence obtained as the result of his work and the work ofthe
20 agents assigned to his case, he does not have any authority with regard to the above
21 described criminal investigation and can make no representations about it.
22 7. Based upon my career as a criminal litigator I can state that I am aware that
23 corporations do not have any Fifth Amendment right against self incrimination, particularly
24 with regard to financial records generated in the course of business. I am therefore certain
25 that 18 U.S.C. §981(g)(2)(C), a statute, does not create a constitutional right regarding self
26 incrimination for corporations. I understand that the evidence sought by Mr. Pixler in the
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1 civil forfeiture case relates to the production of evidence regarding the sources funds,
2 alleged by counsel in the Answer of Alberto Abed-Schekaiban and his corporations, to have
3 been used to purchase the suspect aircraft. The source of such funds or the fact that there
4 is no evidence to support these allegations is relevant to the civil forfeiture action, but will
5 not address the knowledge of Abed or his corporations concerning the criminal source of
6 the funds applied to this transaction by Jaime Ross Castillo. I therefore cannot imagine how
7 the production of the evidence sought in the forfeiture case would tend to incriminate any
3 person with regard to the pending criminal case described herein involving the laundered
9 proceeds of the bank fraud by Jaime Ross Castillo and his co—conspirators.
10 I declare under penalty of peijury, and the authority of 28 U.S.C. § 1746, that the
11 foregoing is true and correct. Executed this 15* day of December, 2005, in Tucson, Arizona
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es T. Lace g
14 ssistant United States tto ey
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