Free Reply to Response to Motion - 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 REPLY TO PLAINTIFF'S RESPONSE IN OPPOSITION TO MOTION TO STAY OF CIVIL PROCEEDINGS

NOW COMES, ALBERTO ABED-SCHEBAIKAN, Calezar, Ltd., and Uptongrove, Ltd., [hereinafter, "Claimants"], and file this Reply to Plaintiff's Response in Opposition to Motion to Stay of Civil Proceedings, and in support would show the Court as follows: INDICTMENT REMAINS A POSSIBILITY 1. Mr. James Lacey, the Assistant United States Attorney conducting the criminal investigation in this case, advised counsel on November 28, 2005, that Mr. Alberto AbedSchebaikan has not yet been indicted. However, he would not give any indication whether Mr. Abed would be indicted in the near future. On the previous occasion when counsel

21 contacted Mr. Lacey to inquire about the pendency of criminal charges against Mr. Abed, Mr. 22 23 24 25 26 27 28 Lacey advised that he must check with Mr. Pixler and get back with counsel. Moreover, despite the glaring opportunity to do so in Plaintiff's Opposition, Mr. Reid Pixler has not withdrawn or contradicted his key admission that "The U.S. Attorney for the District of Arizona is carrying out a criminal investigation on Jaime Eduardo Ross Castillo, Alberto Abed Schekaiban ... violating the criminal laws of the United States." Exhibit C, page 1 of 1

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Notice of Filing Evidence of Service of In Rem Process in Mexico, docket no. 67. Plaintiff has declared to the Mexican government that it is conducting a criminal investigation of Abed, it has still not informed the Court that this is no longer the case. PLAINTIFF'S RESPONSE IGNORES THE CIVIL ASSET FORFEITURE REFORM ACT 2. The Plaintiff cites a series of cases regarding assertion of Fifth Amendment privilege and insists that Mr. Abed must submit to depositions and then, and only then, assert his right against self-incrimination. Not one of these cases addresses the Civil Asset Forfeiture Reform Act ("CAFRA"). In fact, all pre-date CAFRA and for that reason alone they are inapplicable. Indeed, the Fifth Circuit's decision in U.S. v. Little Al, 712 F.3d 133, 136 (5 th Cir. 1983) can best be cited as a reason why Congress passed CAFRA. The court in Little Al expressly states that a parallel criminal proceeding (a much higher standard than "related" proceeding) was not sufficient reason to issue a stay even if a party was forced to choose between losing the court case or self-incrimination. U.S. v. Little Al, 712 F.3d 133, 136 (5 th Cir. 1983). One of the cases cited involved private civil suits between private litigants. See North River Insurance Co., Inc. v. Stefanou, 831 F.2d 484 (4 th Cir. 1987). Another case involved administrative proceedings for forfeiture of a pilot's license. See Roach v. National Transportation Safety Board, 804 F.2d 1147 (10 th Cir. 1986). The two remaining cases deal with assertion of the right against self-incrimination, but in no way deal with the assertion of a statutory request for a stay in a civil forfeiture proceeding while a

21 related criminal investigation was pending. See Braswell v. U.S., 487 U.S. 99, 108 S.Ct. 22 23 24 25 26 27 28 2284, 101 L.Ed.2d 98 (1988); Garner v. U.S., 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976). In short, Plaintiff's cases pre-date CAFRA and the case of Little Al deals with circumstances which CAFRA was designed to address. CAFRA merely requires proof of a related criminal investigation and Plaintiff's attachment to its own pleadings supply the element. 2

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PLAINTIFF DEMANDS THAT ABED PROVIDE DISCOVERY AND APPEARS TO SEEK JUDICIAL REPEAL OF CAFRA 3. Remarkably, Plaintiff boldly states that Claimant must somehow renounce his right against self-incrimination under CAFRA because the solicited testimony "is directed to proving the thrust of the allegations contained in the Answer." CAFRA does not require that a claimant be questioned allegation by allegation through the Complaint and Answer and show that a particular question necessarily would lead to self-incrimination. Again, to proceed as the Plaintiff suggests would be a judicial repeal of CAFRA. CONCLUSION 4. Plaintiff again has passed on the opportunity to deny or change the statement which it made in attachments to prior filings in this case, Movant Abed is the subject of a pending parallel criminal investigation in the District. Plaintiff so stated to the Government of Mexico while seeking Mexican judicial assistance to seize two of the three defendant aircraft in Mexico. Plaintiff's legal authority cited to oppose the motion, in most cases, does not apply to forfeiture and in all cases pre-date CAFRA. Plaintiff cites no authority in CAFRA nor cases based upon it by which Abed or any other subject of a pending criminal related investigation must answer discovery. The Motion to Stay Civil Proceedings should be granted. 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 3

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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 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 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on November 28 th , 2005, 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

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Ft. Lauderdale, FL 33302 and Leonard J. McDonald, Jr. Tiffany & Bosco, P.A. 2525 E. Camelback Rd. Phoenix, AZ 86015-4237. __/s/_______________________________ Cynthia E. Orr

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