Free Statement - District Court of Arizona - Arizona

‘ ' -=. I` V. · I Certified Specialist
. Criminal Law
B . I Arizona Board of Legal Specialization
Attorney at Law [email protected]
February 18, -2004
Reid Pixler . _ I
Assistant United States Attorney I
40 N. Central, Suite 1200 i ·
Phoenix, AZ 85004-4408
q . Re: CV03-2345 PHX HRH ‘
Dear Reid:
I Having reviewed the government’s discovery requests with my respective clients
they have accepted my advice to invoke their 5* Amendment privilege, and as such, will ·
I not be responding to those requests. Similarly, as to the Requests for Admissions we are
y neither admitting nor denying the requests. We are invoking our privilege. Let me
explain our position.
I A forfeiture claimant often faces a "Hobson’s choice" involving the pursuit of one I
constitutional right at the expense of another. United States v. Cretacci, 62 F.3d 307, 311
(9"` Cir. 1995). To resolve this common problem Cretacci seemed to apply the Supreme
Court’s "use-immunity" solution, decided in United States v. Simmons, 390 U.S. 377
(1968). Yet Cretacci ’s expansion of Simmons use—immunity was deemed to be dicta in
United States v. Scrivner , 189 F.3d 825, 828 (9‘h Cir. 1999) ,and therefore, not
V controlling. `
As such, the state of the law now facing my clients is that in order to iiilly pursue V
their rights involving Due Process, Unjust Taking, and Excessive Fines, they must _
relinquish their 5“‘ Amendment privilege, or vice versa. Of course, every effort should be
made to devise a method to accommodate the interests of bom parties in a civil lawsuit.
United States v. Certain Real Property, 55 F.3d 78 (2"d Cir. 1995). Yet without the
- availability of implied use-immunity the only solution lies with the govemment. For in a
) civil forfeiture case the plaintiff is the government itself, the same entity in control of any
l parallel criminal investigation, and the same entity — indeed the only entity - empowered
to grant any form of immunity. Id.; SEC v. Graystone Nash, Inc., 25 F.3d 187 (3’d Cir. I I
I 1994). i
In other words, absent a formal grant of immunity, the requested information
remains privileged. And there is no right to the discovery of privileged matters, ,
· F ed.R. Civ.P 26(b). " · `
l I 273 South Scott —Avenue
q . Tucson, Arizona 85701
1 . I · 20 884-12 4
q ( Case 2:03-cv—02345-VAIVI Document 58-3 Filed 08/24/2005 T€Ii’°`%le;i§qi ?;2O§ 884_96g7
` Y

The claimants, who may later face some adverse consequences as to the merits of I
‘ the civil forfeiture due to this 5"' Amendment invocation, as a result of the coextensive _
inability to present affirmative evidence, still possess their 4"‘ Amendment rights. Since ·
this case involved a warrantless search the government bears the burden of proving its
‘ lawfulness.
So we will be going forward with a motion to suppress, and if unsuccessful, we .
will then deal with the consequences, if any, resulting from our invocation of the
. , privilege. " A
Please give me a call if there are any questions. _ _
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