Free Statement - District Court of Arizona - Arizona

" __·— ~·—‘ ~— ~\._‘ _ if U.S. Departnt of Justice
I
l. United States Attorney .
'•` `“•··»=‘" 5 . . .
*~\,\\__ ___ $· District of Arizona
l Two Renaissance Square Main: (602) 514- 7500
40 North CeniraIAvenue, Suite 1200 Main FAX· (602) 514-7693
Phoenix, Arizona 85004-4408 FAA? (602) 514-7537
March 18, 2004 _
Richard B. Jones · i
_ 273 South Scott Avenue
Tucson, Arizona 85701
VIA FAX: 520 884-9687 ·
Re: US. v., 493,850.00 in US. Currency
` CIV-03-2345-PHX-VAM
» I Dear Mr. Jones:
\ Thank you for your letter of March 17, 2004, which I received on the 17th. I did have copies ofthe
. administrative claim forms filed with DEA. An untrained eye can clearly distinguish the signature of Roy
Bruno on the DPS receipt from a very different signature on the claim form sent to DEA in the
administrative forfeiture action. These signatures are not the same. Camacho did not sign the DPS form,
but we are searching for other samples of his handwriting for comparison purposes. The execution of the
Statement·of Interest is not a mere formality. I expect that both claimants properly execute the form iinder
I penalty of perjury. I suspect that at least one of these signatures is not thateof your client. I would
respectfully request your assistance in obtaining a valid and accurate signature under oath. Further, the
admiralty case law in forfeiture cases makes it clear that the claim form filed in a forfeiture action, now _
called a statement of interest, must be signed under penalty of perjury by the claimant not the attomey.
Where the principal is without the country, or resides at an great distance from the court, the
_ _ V admission of a claim and test~aftidavit by his agent, is the common course ofthe admiralty ....
If indeed, the principal might always withdraw himself from the view of the court, and
shelter his pretensions behind the affidavit of an imiocent or ignorant agent, there would be `
no end to the impositions practised upon the court. The court expects, in proper cases,
something more than the mere formal test-affidavit of an agent, who may swear truly, and
yet, from his want of knowledge, be the dupe of cunning and &aud.
. The Schooner Adeline, 13 U.S. (9 Cranch) 244, 286-87 (1815). More recent cases have also required the
claimant to personally execute the claim form tiled in the judicial proceeding.
Because there is a substantial danger of false claims in forfeiture proceedings, more was
required than the conclusory, hearsay, on-information—and-belief statement of Mercado’s
lawyer. Aftidavits such as this by an attorney would be given no weight in summary
i . judgment proceedings. Claims in in rem forfeiture proceedings usually involve substantial
sums of money and lend themselves readily to the filing of false claims. Where, as here, the
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Letter to Rick Jones
March 3, 2004
Page 2
claimant is available to verify his own claim, he should not be permitted to rely upon
a hearsay and conclusory verification by his lawyer. ° _
Mercado v. US. Customs Service, 873 F.2d 641, 645 (2"d Cir. 1989). The point is the claimant must
subj ect himself to the risk of perj ury before the Court. The documents you have provided are in the
administrative action, not the judicial. However, the claim forms establish the fact that you have
access to both claimants and they can easily sign the proper form. I won a similar case in the Ninth
Circuit on this issue, but the case was not selected for publication. I am more than willing to file the
I motion, if you refuse to correct the defect.
The point of this communication is to make clear to you that I expect that the discovery will
be responded in an appropriate manner. As I stated in my letter, a blanket assertion of the Fifth
Amendment Privilege is not acceptable. United States v. Rubio-Topete, 999 F.2d 1334, 1338
(9‘“ Cir. 1993). The general rule is that the Fifth Amendment does not allow a witness to
refuse to take the witness stand. Instead, he must assert his privilege "in response to specific
i questions propounded by the investigation body." United States v. Pierce, 561 F.2d 735, 741
` ( (9‘h Cir. 1977) (Pierce), cert. denied, 435 U.S. 923 (1978). "Thus ablanket refusal to answer
any question is unacceptable? Id. To make it very clear, I expect that you will prepare a response
} to the discovery which asserts the Fifth Amendment privilege to appropriate questions, and answer
` A the question which can be answered without the risk of self incrimination. That is the proper way .
to respond to discovery. I think I was clear in my previous expression of how I expected you to
proceed. I am not willing, nor do I believe that it would be appropriate under the law ofthe Circuit
to consent to the filing of a pleading with the District Court which asserts a blanket claim regarding —
all of the discovery. V ·
Your response that you will seek a protective order is simply absurd. For your reference, the
preceding paragraph is from my letter of March 9, 2004. I clearly do not seek to compel privileged
information. Rather, I obj ect to the fact that no response to the discovery is given at all. Your clients
may clearly assert their Fifth Amendment privilege to appropriate questions, but I will not and cannot
‘ accept blanket assertions of the privilege. It must be specifically asserted to the appropriate
questions. Further, your clients will not be bound by any assurances you give in correspondence that
‘ they will not seek to continue this litigation when your motion to suppress is denied. The evidence
sought in the discovery provided to you is relevant and I must file my motion if you continue to
refuse to complete the discovery responses. From the tone of your letter I understand your position
will not change, you will not complete the responses to the discovery by asserting the privilege to
the appropriate questions, and you are not willing to alter your position in any respect. I therefor
deem all of the Requests For Admissions as admitted pursuant to the Federal Rules. of Civil
, . Procedure.
\ Case 2:03-cv-02345—VAI\/I Document 58-6 l Filed 08/24/2005 Page 2 of 3 ,

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Letter to Rick Jones .
March 3, 2004
Page 3
This letter is intended to comply with the local rule requiring counsel to attempt to resolve
the discovery issues prior to filing a motion to compel. Based upon the assertions in your letter of
March l6, 2004, I am certain that you have rejected the compromise proposals I have presented and
I therefore have no altemative but to file a motion to compel discovery, even to obtain the assertion
_ A of the Fifth Amendment privilege in an appropriate form. That position is unfortunate.
Sincerely yours,
A PAUL K. CHARLTON `
p United States Attorney
Di? f 201%
< N
V ei C. ixler _
‘ I Assistant United States Attorney
{ cc: Chris Jacobsen I
I
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