Free Statement - District Court of Arizona - Arizona

l ,·—·: `‘*— ~ x., 9 I i 1 U.S. Departmtri if Justice . I
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Q, United States Attorney
°"¤~.(\__;___;;! District of Arizona
Two Renaissance Square Main: (602) 514-7500
` 40 North Centralzivenue, Suite 1200 Main FAX (602) 514-7693
Phoenix, Arizona 85004-4408 FAM (602) 514-7537
l March 3, 2004
Richard B. Jones
273 South Scott Avenue
— Tucson, Arizona 85701
VLA FAX: 520 884-9687
Re: US. v., 493,850.00 in US. Currency
` CIV-03-2345-PHX-HRH ` ·
Dear Mr. Jones:
Iam in receipt of your correspondence dated February 18, 2004., I was not in the office from
l February 24 to March l. I note that February 18 was the date by which you had agreed to provide discovery
when you asked for an extension of time to respond to the discovery. As”you will recall, at the time of our
conversation I specifically asked whether you intended to respond to the discovery rather than file a motion.
You assured me that you needed additional time to collect the discovery materials which would be necessary
to properly respond to my discovery and you were not seeking delay for any other reason. Your assertion
in the first sentence of the first paragraph, indicating that your clients are accepting your advice to invoke
1 their 5‘h Amendment privilege, makes is clear that your representations to me were false. It is clear to me
that you did not intend to ever respond to the discovery requests. ,
- Your reliance on United States v. Cretacci, is misplaced. That case involved the mere filing of a
( claim form in an administrative forfeiture proceeding. Your clients have already executed and filed with
DEA the claim form in the administrative forfeiture action. The case was also essentially rendered
meaningless for your purposes by United States v. Scrivner, as you noted in your letter. I have worked with
you in the past and I know that you are aware your clients cannot simply assert a blanket 5* Amendment _
privilege to all of the discovery, but must respond to each of the questions.
As you are also aware, a person may assert the S"` Amendment even in a civil forfeiture case.
However, the government is entitled to draw adverse inference as the result of the assertion of such a
privilege. The Fifth Amendment does not prevent a court from drawing a negative inference
against a party to a civil action who refuses to testify in response to probative evidence offered
I against him. Baxter v. Palmigiano, 425 U.S. 308, 318-19, 96 S.Ct. 1551, 1557-58, 47 L.Ed. 2d 810
(1976). That is, you may never use the 5;]* Amendment as both a sword and a shield. I presume that you
_ intended to avoid the consequences of the adverse presumptions by simply ignoring the discovery request.
This course of action I cannot allow.
, Case 2:03-cv-02345—VAI\/I Document 58-4 Filed 08/24/2005 Page 1 of 2

Letter to Rick I ones _
March 3, 2004
Page 2
A claimant has the burden to show standing. A claimant may not avoid his burden simply ‘
by asserting the Fifth Amendment. The burden of establishing standing in a forfeiture
proceeding is on the claimant. United States v. $122,043 in United States Currency, 792
F.2d 1470, 1473 (9th Cir. 1986). Claimant must allege and prove a valid property interest in
the forfeited property. Baker v. United States, 722 F.2d 517 (9th Cir. 1983). United States v.
Rylander, 460 U.S. 752, l_O S. Ct. 1548, 75 L.Ed. 2d 521 (1983).
I do not know the purpose of your letter other than to indicate that you will not be providing
any response to my discovery request. Such a course of action is unacceptable and I do not agree
to your proposal. I have given you plenty of time to prepare appropriate responses. Failure to
provide the proper response by March 8, 2004, will require me to tile a Motion To Compel. I also
do not agree that we will address your issues first and then deal with the consequences of the sth
, Amendment assertion. We will deal with them at the same time and the Court can resolve both
issues much more quickly if they are litigated at the same time. I will tile a motion for summary
judgment as soon as the discovery material is provided. Iwould like some explanation how one half
million dollars came to be inthe truck. The only conclusion I can come to is the funds are proceeds
of drug trafficking being transported in furtherance of the criminal enterprise. The assertion of the
1 5‘“ Amendment appears to confirm that determination. This letter is intended to comply with the
local rule requiring counsel to attempt to resolve the discovery issues prior to tiling a motion to
compel. Based upon the assertions in your letter I am certain that it will take no time to prepare the ·
n discovery in the form you proposed.
r . ·
I Sincerely yours, _
- PAUL K. CHARLTON
United States Attorney
l A Arizona
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l ° /
l . eid C. Pixler
i V Assistant United States Attorney
, cc: Chris Jacobsen ‘
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Case 2:03-cv-02345-VAM

Document 58-4

Filed 08/24/2005

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Case 2:03-cv-02345-VAM

Document 58-4

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