Free Objection - 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.
OBJECTION TO FILING OF EXHIBITS

CIV-04-363-PHX-JWS

1. Lear Jet, Model 31A, Serial Number 31A-224, U.S. Registration # N224LJ; 2. Agusta Helicopter, Model A109E, Serial Number 11116, Mexican Registration # XA-TSR; 3. Cessna Caravan, Model 208B, Serial Number 208B-0941, Mexican Registration # XA-TUF. Defendants.

AND MOTION TO STRIKE EXTRANEOUS PLEADINGS

The plaintiff, United States of America, by and through its attorney, Reid C. Pixler,

19 Assistant United States Attorney, respectfully moves this Honorable Court to Strike the 20 pleadings or exhibits filed with the Court by counsel for claimants and described as 21 1. Exhibit No. 1 a draft or proposed supplemental response attached as an Exhibit to the 22 Motion for Leave to File Response to plaintiff's Reply, filed on October 3, 2005 at doc #115. 23 2. Notice of Filing of Exhibits to Proposed Response to the Government's Reply in Support 24 of His Motion to Reconsider Re: Order from Chambers Anchorage, Alaska July 26, 2005, filed 25 with the Court on or about October 7, 2005 at doc #119, and 26 3. Notice of Filing Official Translation of Exhibit Three to Proposed Response to the 27 Government's Reply in Support of His Motion to Reconsider Re: Order from Chambers 28

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1 Anchorage, Alaska July 26, 2005, filed on October 13, 2005 at doc #120. and all other similarly 2 captioned pleadings which may be subsequently filed for the reasons stated herein. 3 4 ARGUMENT Plaintiff has previously objected to the practice of counsel for claimants simply ignoring the

5 rules of the Court and the Federal Rules of Civil Procedure by filing numerous extraneous 6 pleadings. Counsel for claimant has routinely engaged in such subterfuge during the course of 7 this litigation, filing additional pleadings without approval from the Court: See Supplement to 8 Renewed Motion to Dismiss, filed on April 14, 2005, doc # 66; Response to Plaintiff's Notice 9 of Filing Evidence of Service of in Rem Process in Mexico, filed on May 19, 2005, doc 10 # 84; Supplement to Reply to Plaintiff's Response, dated May 23, 2005, doc # 89; and 11 Supplement to Response to Plaintiff's Reply, filed June 20, 2005, doc # 92. Not one of these 12 pleadings is authorized under the Rules and claimant never sought approval from the Court for 13 the filing of supplemental pleadings. 14 Local Rule 7.2 sets out the pleadings which may be filed: (b) Memorandum by Moving

15 Party; (c) Responsive Memorandum; (d) Reply Memorandum. The local rules make no 16 provision for the filing of Supplemental pleadings. Federal Rules of Civil Procedure 15(d) 17 requires Court approval before such pleadings are filed and only when the pleading sets, ".... 18 forth transactions or occurrences or events which have happened since the date of the pleading 19 sought to be supplemented." Based upon the repeated violations of these rules, on or about June 20 24, 2005, plaintiff moved to Strike these pleadings. The Court has granted the motion and 21 stricken these unauthorized pleadings. The only pleadings not stricken by that order were those 22 which the Court considered in entering subsequent orders after the date of plaintiff's motion, but 23 apparently before considering the Motion To Strike. That is, plaintiff's motion to strike was 24 timely filed prior to the entry of the Order, but apparently was not considered by the Court prior 25 to the issuance of an order which relied upon the improper pleadings. See order of August 22, 26 2005 at doc #100. 27 28
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1

Plaintiff filed a motion to reconsider the Order of July 26, 2005, entered by this Court

2 related to defendants #2 and #3. Pursuant to the Local Rule 7.2(g), no responsive pleading may 3 be filed by any party without approval by the Court. The Court directed claimants to file a 4 response and plaintiff to file a reply, each of which was done. 5 True to past form, counsel for claimants moved to file another response to make further

6 arguments in opposition to the reply filed by plaintiff, attaching a proposed form or "draft" of 7 the pleading to the motion. By attaching the pleading to the motion, counsel again essentially 8 ignores the requirement to have the approval of the Court prior to the filing of the pleading. 9 Filing a proposed form of the pleading and supplementing the pleading with additional exhibits 10 is a calculated effort to intentionally place plaintiff in a position of disadvantage. If the pleading 11 is not responded to and is substantially incorrect or misrepresented, as has frequently been the 12 case in this action, then the failure to object imposes a substantial risk of irreparable harm to the 13 government and a substantial benefit to claimants. There is essentially no consequence for 14 claimants continued practice of submitting pleadings without authorization, particularly if it can 15 be done in such a manner that plaintiff can make no effective response. Rather than continue 16 filing pleadings and exhibits by the pound, counsel would be better served to join in the request 17 to conduct oral arguments. On October 6, 2005, Plaintiff filed a response in opposition to 18 claimants' motion to be allowed to file further pleadings. See Response at doc # 117. 19 In an even more outrageous flaunting of the rules and the previous orders of the Court, again

20 without approval, but on the mere fact that approval has been sought, counsel for claimant has 21 filed exhibits to the proposed response, which has yet to be authorized by the Court. Exhibits 22 were filed on October 7, 2005, at Docket #119 and again on October 13, 2005, at Docket #120. 23 Again, these documents relate to the voluntary actions of claimants in Mexico seeking repeated 24 review by Constitutional Courts in Mexico. This amparo process merely reviews the process 25 imposed by Mexico in the enforcement and service of the arrest warrants issued by this Court. 26 But for the intentional acts of claimants in Mexico to prevent or delay the actions taken by the 27 PGR, there would be no question that the in rem process has been served and that this Court has 28
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1 jurisdiction to consider this matter. That is, absent the petitions of claimants, there would be no 2 constitutional review of the process, and hence no ability for counsel for claimants to suggest 3 any failure in the service of the in rem warrants. However, once again counsel for claimants has 4 attempted to file complex international exhibits with the Court to which plaintiff may not ever 5 be allowed to reply. Plaintiff objects to the procedure utilized by claimants. In the context of 6 the handling of this case and the prior order striking pleadings found not to comply with the 7 rules, this most recent action is particularly egregious and should not be tolerated. 8 The following summaries of relevant excerpts/admissions appearing at the page indicated

9 of the opinion issued on September 22, 2005, by the Three Judge Panel of the 27th Circuit (the 10 first translation in the recent pleadings filed by Abed), confirm the nature of the process and that 11 it is but a temporary process pending a full hearing. The appellants in the amparo appeal are 12 claimants Hartslope Holdings and Casafin. 13 Page 6: The panel found that on July 4, 2005, SEIDO "took possession of the

14 aforementioned aircraft" in connection with an intent to sell the aircraft. This establishes the 15 truth of the representations by the PGR regarding their intention to serve the in rem process of 16 this Court in Mexico and take the aircraft into custody. The amparo (or "provisional suspension" 17 as it is formally referred to) was overruled or denied because it would be adverse to the public 18 order to grant such relief. That is, the relief requested was ruled "not admissible." 19 Page 10: The panel indicated that the outcome of the prior ruling was to allow the aircraft

20 to be delivered to the SAE. 21 Page 12: ". . . applied to the concrete case in which such aircraft remain in the

22 possession of the [SAE]" until there is a final judgment in the amparo proceedings. The general 23 purpose of an amparo is to maintain the status quo while the constitutional review is conducted. 24 In this context, the opinion amounts to yet another admission that PGR/SAE possess the aircraft 25 and may even keep the aircraft unless and until the government's actions to secure and/or take 26 possession of the aircraft can be successfully attacked. To date, it has not been successfully 27 attacked! However, even if the aircraft are ordered released pending further review, it is an 28
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1 absolute falsehood to suggest that Mexico is not actively serving the warrants. Any temporary 2 interruption due to procedural review simply can never destroy the in rem jurisdiction of the 3 Court, and allegations to the contrary are specious. 4 Page 14: It has become clear that the amparo actions by SIASA have not been effective.

5 Enter claimants Hartslope and Casafin, taking actions to challenge the PGR's seizure of the 6 aircraft. Numerous amparos are possible if all claimants work in concert. The mere number of 7 amparos indicates the difficulty claimants are having convincing Mexican courts to attempt to 8 bar the enforcement of the international treaty. 9 Pages 17, 18: It appears that this panel does forbid the sale of the aircraft because this

10 is not allowed until the investigation is complete. However, what ­ in addition to the conviction 11 of Ross - is needed to complete the investigation? The Mexican investigation is related to the 12 commission of the initial fraud upon Inverlat Bank. The Arizona civil forfeiture action is related 13 to the money laundering activity used to make the funds available for the purchase or partial 14 purchase of the three defendant aircraft which are the subject of this forfeiture action. Claimants 15 are very clearly attempting to mislead two courts with regard to what is at issue. They will have 16 far greater success in Mexico because that process is summary and designed to maintain the 17 status quo until a full hearing can take place. Such hearings drag on for years. Clearly the 18 allegation in the Arizona civil forfeiture action is that the defendant aircraft were purchased with 19 "criminally derived proceeds." The MLAT proceeding will provide the basis for the PGR to 20 complete the investigation and deliver the aircraft to plaintiff. However, there must either be a 21 final order directing the aircraft are forfeited and delivered to plaintiff, or an interlocutory order 22 from this Court which assures the Mexican Amparo Courts that the claimants will have 23 substantive due process and a right to be heard regarding the issues contained in this complaint. 24 The distinction is that these claimants are claiming to own property which they know includes 25 the funds used to purchase the aircraft which are the laundered proceeds of the fraud on the 26 Mexican bank. That is an entirely different issue than what is alleged by claimants in the amparo 27 proceeding. It is irrelevant to that Court that the claimants and aircraft were not involved in the 28
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1 basic fraud on Romero and Inverlat Bank. That has not been alleged nor is it relevant to the 2 issue of whether the aircraft are properly served with the in rem process which allege that the 3 aircraft have been purchased in part with the laundered proceeds of the fraud. To the extend 4 that counsel for Abed continues to mislead the courts regarding this artificial distinction of 5 whether the aircraft are directly involved in the fraud or merely purchased with the laundered 6 proceeds of the fraud, the allegations of international criminal conduct alleged in this action will 7 never be heard. 8 Page 22: The APPELLANTS ­ Hartslope and Casafin ­ admit that the district judge

9 denied their claims for "provisional suspension." 10 Page23: The public interests are not being harmed as "their return is not being

11 requested." 12 There is nothing in the language of these amparos which prevents the exercise of the in

13 rem jurisdiction of a U.S. Court through the PGR's service of the arrest warrants in rem. This 14 action is based on the cooperation of the PGR in serving the warrants, a fact SA Miles' affidavit 15 establishes. His statements have not been disputed much less disproved. The most that can be 16 truthfully stated regarding the amparo process is that it can be endless, particularly where a 17 number of claimants can continually make false claims to multiple courts in the effort to gain 18 a temporary reprieve. However, the pendency of multiple amparo actions is irrelevant to this 19 issue as to whether the in rem process has not been served. The amparo process is simply an 20 effort to prevent this Court from hearing the merits of this action, imposed by claimants who 21 have no defense to the allegations of the complaint. 22 23 24 CONCLUSION Plaintiff objects to the continued abuse of the rules by counsel for Abed. It is apparent

25 than none of the objected to pleadings are required for the consideration of the Court as to 26 whether the Court will consider additional pleadings on issues essentially unrelated to the 27 Motion for Reconsideration. These pleadings only serve as a vehicle for counsel to restate faulty 28
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1 reasoning without obtaining the prior approval of the Court. Counsel has declined to follow the 2 Federal Rules of Civil Procedure, the Local Rules of the District Court, and has insisted upon 3 filing duplicitous pleadings which add nothing to the resolution of the issues addressed. The 4 procedure is merely used to re-urge matters already before the Court. 5 Wherefore, the government respectfully moves this Honorable Court for an Order striking

6 the following pleadings filed by counsel for claimant: 7 1. 8 9 2. 10 11 12 3. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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A draft or proposed supplemental response attached as an Exhibit to the Motion for Leave to File Response to plaintiff's Reply, filed on October 3, 2005 at doc #115. Notice of Filing of Exhibits to Proposed Response to the Government's Reply in Support of His Motion to Reconsider Re: Order from Chambers Anchorage, Alaska July 26, 2005, filed with the Court on or about October 7, 2005 at doc #119, Notice of Filing Official Translation of Exhibit Three to Proposed Response to the Government's Reply in Support of His Motion to Reconsider Re: Order from Chambers Anchorage, Alaska July 26, 2005, filed on October 13, 2005 at doc #120, and all other similar pleadings which may be subsequently filed. Respectfully submitted this _____ day of October, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/Reid C. Pixler REID C. PIXLER Assistant U.S. Attorney

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CERTIFICATE OF SERVICE
I hereby certify that on October 17, 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: Allen B Bickart Law Office of Allen B Bickart PO Box 44005 Phoenix, AZ 85064 [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] K Lawson Pedigo Miller Keffer & Pedigo 8401 N Central Expressway , Ste 630 Dallas, TX 75225 [email protected]

I hereby certify that on October 17, 2005, 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 Mark A Platt Fulbright & Jaworski LLP 2200 Ross Ave , Ste 2800 Dallas, TX 75201

S/

Victoria Tiffany

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