Free Motion to Expedite - 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, CIV-04-363-PHX-JWS Plaintiff, MOTION Vs. 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. NOW COMES plaintiff, the United States of America, by and through its attorneys, PAUL EXPEDITED CONSIDERATION REQUESTED SEEKING APPROVAL FOR INTERLOCUTORY SALE OF DEFENDANTS 2 & 3 BY THE GOVERNMENT OF MEXICO

19 K. CHARLTON, United States Attorney for the District of Arizona, and REID C. PIXLER, 20 and moves this Court to approve the interlocutory sale of the defendants number two and three 21 described as follows: 22 2. Agusta Helicopter, Model A109E, Serial Number 11116, Mexican Registration # XA-TSR, together with all of its documentation, Log Books, equipment, tools, fixtures, 23 and contents; 24 3. Cessna Caravan, Model 208B, Serial Number 208B-0941, Mexican Registration # XATUF, together with all of its documentation, Log Books, equipment, tools, fixtures, and 25 contents. 26 27 28

Case 2:04-cv-00363-JWS

Document 101

Filed 08/29/2005

Page 1 of 7

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Procedural History Plaintiff commenced this civil action on February 19, 2004, to forfeit the defendant

3 aircraft for violation of federal law, as set out in the complaint. Plaintiff served notice upon 4 all persons and entities believed to have an interest in the defendant property by and all 5 interested parties have entered an appearance and filed an Answer or equivalent pleading. 6 Personal Service was completed on interested parties in Mexico through a request pursuant to 7 the Mutual Legal Assistance Treaty (MLAT)with the Republic of Mexico, as noted in the 8 formal response filed with the Court on April 19, 2005. In addition notice of the action was 9 published on July 15, 22, and 29, 2004, Arizona Business Gazette. There are no persons with 10 an interest in the defendant aircraft known to plaintiff who have not been served and who 11 have not filed either an answer, a motion, or a stipulation. All parties known to the United 12 States who may have an interest in the defendant aircraft will receive a copy of this motion, 13 as noted on the certificate of service. 14 Defendants number 2 and 3 have been served in rem process in the Republic of Mexico,

15 pursuant to the Mutual Legal Assistance Treaty request (MLAT or Treaty request). An 16 extensive review of the efforts undertaken by Mexico is set out in the MOTION TO 17 RECONSIDER RE: ORDER FROM CHAMBERS DATED AT ANCHORAGE, ALASKA 18 JULY 26, 2005, and will not be duplicated here. As noted in that factual summary, on or 19 about February 7, 2005, (See Exhibit F to the Motion To Reconsider) Mexico changed its 20 course of action and took defendants 2 and 3 into custody. The aircraft were placed into the 21 possession, custody, and control of a governmental unit referred to as S.A.E., which is a unit 22 of Hacienda, the Mexican equivalent of I.R.S. 23 After an evaluation of the expenses associated with the maintenance of the aircraft,

24 S.A.E. has determined that the most appropriate disposition of the aircraft is to sell both of 25 the aircraft and not continue to incur expenses. Toward that end on August 11, 2005, Adrián 26 Fajardo Castellanos from S.A.E. wrote to José Luis Marmolejo García of the PGR requesting 27 that the PGR advise the authorities of the United States of the desire to sell the defendant 28 aircraft. This letter, attached hereto as Exhibit G along with an unofficial translation, hereby
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1 incorporated by this reference, clearly indicates that the Mexican government is interested in 2 knowing what the position of the United States of America would be with regard to the sale 3 of the aircraft. This inquiry is in response to the MLAT request by plaintiff seeking the 4 enforcement of in rem jurisdiction through the warrants of arrest in rem issued by the Court. 5 It is apparent that Mexico, pursuant to the treaty, is attempting to comply with the requests of 6 plaintiff and the orders of this Court. 7 Pursuant to this request from S.A.E. to inquire of the United States regarding the sale of

8 the aircraft, José Luis Marmolejo García of the PGR wrote to Edward Abud, a supervisor for 9 Immigration and Customs Enforcement in Mexico City, requesting the statement of a 10 position with respect to the authorities of the United States with regard to the proposal of the 11 S.A.E. to sell the aircraft. This letter, attached hereto as Exhibit H along with an unofficial 12 translation, hereby incorporated by this reference, again clearly indicates that the Mexican 13 government is interested in knowing what the position of the United States of America would 14 be with regard to the sale of the aircraft. 15 As noted in the motion for the interlocutory sale of the defendant number 1, the Lear Jet,

16 which was recently ordered by the Court, plaintiff prefers that the aircraft not be stored or 17 maintained in an inoperative state. Rather, the preference is to either allow the aircraft to be 18 operated pursuant to a substitute custodian agreement or to be liquidated. In this case, where 19 the aircraft has been brought into the custody of the Mexican government, plaintiff strongly 20 recommends that the defendant aircraft be ordered to be liquidated as soon as possible in a 21 market which exposes the aircraft to the largest number of purchasers in an effort to obtain 22 the greatest price possible. 23 Claimant BCI has no interest in these aircraft and therefore is not expected to have an

24 opinion. Claimant Inverlat Bank is expected to favor the effort to sell the aircraft, provided 25 that the aircraft can be liquidated in a commercially reasonable manner. The interest of 26 Jaime Ross Castillo has already been forfeited to plaintiff, subject only to the claims of 27 victims including Romero and Inverlat Bank, and to the further order of this Court. 28
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The claimants associated with Abed have alleged to the Court that in rem process

2 regarding these two aircraft has not been served upon the res in Mexico. Plaintiff has moved 3 to reconsider the order striking the claims associated with defendants 2 & 3. The Court 4 recently granted counsel for Abed an extension of time to September 12, 2005, to address the 5 issue raised in plaintiff's motion for reconsideration. Exhibits G & H clearly indicate again 6 that Mexico believes it has a Treaty obligation to this Court regarding the interlocutory 7 disposition of the defendant aircraft. If counsel for Abed is correct, then no further Order 8 from this Court would alter the state of affairs in Mexico. Therefore, claimants associated 9 with Abed should not oppose plaintiff's request to approve the Mexican effort to sell the 10 aircraft. If claimants associated with Abed oppose the sale of the aircraft under the proposal 11 outlined in Exhibits G & H, then they must address the sales efforts in Mexico. Stated 12 another way, if claimants associated with Abed maintain that this Court has no in rem 13 jurisdiction over the two aircraft under seizure in Mexico, then they have no basis to oppose 14 this motion seeking approval for the interlocutory sale of the aircraft in Mexico. Logically, 15 the only way such an objection could be presented is if claimants acknowledged that 16 approval of such a sale by this Court is a significant exercise of in rem jurisdiction which 17 would impact the decision of Mexico regarding the disposition of the aircraft. 18 19 20 21 22 When certain conditions are present, the court has authority under three statutory Argument The Defendant Property Should Be Sold In An Interlocutory Sale To Preserve Its Value Pending A Decision on the Forfeiture Claim

23 provisions to order an interlocutory sale of property that is subject to civil forfeiture prior to a 24 final adjudication on the Government's forfeiture claim. Plaintiff has set out the various 25 issues related to the continued maintenance of an aircraft in custody. For the reasons stated 26 in the motion for the interlocutory sale of the Lear Jet, approved by the Court, plaintiff 27 greatly favors the sale of such aircraft. If defendants 2 and 3 were in the United States, they 28 would have been subject to the same motion to dispose of the aircraft.
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In the ordinary exercise of discretion, plaintiff would simply agree to the proposal

2 regarding the sale of the aircraft by the Mexican authorities as being an appropriate 3 interlocutory action of its Treaty partner. However, in the present context where the Court is 4 reconsidering whether in rem jurisdiction has been established over these defendant aircraft, 5 it appears far more appropriate to request this Court to approve the sales decision of the 6 Mexican authorities on an expedited basis. Plaintiff would not risk a finding that it defeated 7 the in rem jurisdiction of the Court by agreeing to the sale of the res without notice to and 8 approval of this Court. The only caveat requested by plaintiff is that the aircraft be liquidated 9 in a commercially reasonably manner in an international market which is large enough to 10 attract well qualified purchasers capable of paying a substantial price to insure that the 11 defendant aircraft are liquidated for fair market value. One such international sales effort is 12 conducted on a regular basis by the United States Marshals Service. 13 Because the Mexico would like to limit its exposure and the expense incurred by

14 maintaining these defendant aircraft, pursuant to the MLAT request, plaintiff respectfully 15 requests that the Court consider this motion on an expedited basis. Because the issue of in 16 rem jurisdiction is presently scheduled for a responsive pleading directly related to the status 17 of the two defendant aircraft in Mexico, plaintiff requests this Honorable Court to enter the 18 proposed order which requires all parties to respond to plaintiff's motion to approve the 19 proposed sale of the aircraft no later than September 12, 2005. 20 21 22 23 24 25 26 27 28
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1 2 3 Conclusion For the reasons stated above, the United States respectfully requests that the court enter

4 an order indicating that it has no opposition to the sale of the defendant aircraft as long as the 5 aircraft are sold in a commercially reasonable manner in an international market where the 6 property is likely to be sold for fair market value. Plaintiff also requests that this motion be 7 considered on an expedited basis and that any response be received no later than September 8 12, 2005. 9 10 11 12 13 14 15
CERTIFICATE OF SERVICE

Respectfully submitted this 29th day of August, 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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Douglas F Behm Jennings Strouss & Salmon PLC Collier Ctr 201 E Washington St, Ste 1100 Phoenix, AZ 85004-2385 [email protected] Allen B Bickart Law Office of Allen B Bickart PO Box 44005 Phoenix, AZ 85064 [email protected] I.I hereby certify that on August 29, 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:

25 9I hereby certify that on August 8, 2005, I served the attached document by U.S. mail, who are not registered
participants of the CM/ECF System:

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Marc S. Nurik Ruden McClosky Smith Schuster & Russell, PA PO Box 1900 Ft Lauderdale, FL 33302

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Gerald H Goldstein, Cynthia Eva Hujar Orr Goldstein Goldstein & Hilley 2900 Tower Life Bldg 310 S St Mary's St, Ste 2900 San Antonio, TX 78205 Leonard J McDonald, Jr Tiffany & Bosco PA Camelback Esplanade II 2525 E Camelback Rd 3rd Floor Phoenix, AZ 85016 K Lawson Pedigo Miller Keffer & Pedigo 8401 N Central Expressway , Ste 630 Dallas, TX 75225 Mark A Platt Fulbright & Jaworski LLP 2200 Ross Ave , Ste 2800 Dallas, TX 75201

S/

Victoria Tiffany

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