Opposition to Motion to Stay

NOW COMES, Claimant Jane Doe, by and through her attorneys Meub Associates, Inc. and hereby files this memorandum in opposition to the Government’s Motion to Stay. Claimant is seeking limited discovery in this case which will not endanger the Government’s criminal investigation.

The United States filed a Motion to Stay discovery under 18 U.S.C. § 981(g)(1). Section 981(g)(1) states: “[u]pon the motion of the United States, the court shall stay the civil forfeiture proceeding if the court determines that civil discovery will adversely affect the ability of the Government to conduct a related criminal investigation or the prosecution of a related criminal case.” The Government alleges that discovery in this case will have an impact on a related criminal investigation. However, the Government has not given good cause for why discovery should be stayed in this case, and therefore its request must be denied. “Mere conclusory allegations of potential abuse or simply the opportunity by the claimant to improperly exploit civil discovery ... will not avail on a motion for a stay.” U.S. v. All Funds on Deposit in any Account at Certain Financial Institutions Held in the Names of Certain Individuals, 767 F.Supp. 36, 42 (E.D.N.Y. 1991). (quoting United States v. Leasehold Interests in 118 Avenue D, 754 F.Supp. 282 (E.D.N.Y. 1990)).

Claimant concedes that this civil forfeiture case and the criminal case arise out of the same alleged illegal activities. The two cases are based on the following allegations: (1) several million dollars were transferred and/or withdrawn from The Center’s client escrow accounts; (2) these transfers/withdrawals were improper and illegal; (3) some or all of this money was paid to Jane Doe; and (4) John Doe (and others) directed the improper transfers/withdrawals.

Claimant Jane Doe is currently seeking limited discovery of evidence related to the first three aspects of this case. (See Claimant Jane Doe’s First Set of Interrogatories and Requests to Produce to the United States, attached.) Jane Doe’s discovery request contains: (1) two interrogatories seeking to clarify the scope of the illegal activity alleged in the Government’s forfeiture complaint; (2) requests to produce seeking financial information from The Centers, The Center’s bank accounts, and Jane Doe’s bank accounts. Claimant is not currently seeking any discovery on the culpability of the various actors, nor affidavits or written statements of witnesses.

Claimant does not dispute that much of the evidence in this civil action will also be relevant in the criminal action. However, the Government has not shown that production of this limited evidence “will adversely affect the ability of the Government to conduct [the] related criminal investigation.” 18 U.S.C. § 981(g)(1).

The Government must specify the criminal activity which forms the basis of the civil forfeiture action. Currently there are many allegations of improper activity which span several years.[1] It is not clear, however, whether the Government is asserting that all of the alleged improper activity constitutes “a transaction or attempted transaction in violation of 18 USC §§ 1956 and 1957.” The Government must disclose what specific activity is the basis for the civil forfeiture complaint so that Claimant Jane Doe can pursue her claim.

In addition, the Government alleges that money was stolen or improperly transferred from client escrow accounts. Claimant has no access to any of the evidence in support of this claim. Claimant cannot ascertain the basis of this allegation without access to the Law Center’s financial documents, including bank statements and internal financial documents.

Lastly, the Government claims that money stolen from the Law Centers was paid to Jane Doe. Carol has the right to see the bank statements that the Government has collected in support of this allegation.

Claimant Jane Doe respectfully requests that the Motion to Stay be denied, at least with respect to Claimant’s First Set of Interrogatories and Requests to Produce, and the Government be ordered to respond to Claimant’s discovery request.

Respectfully submitted by:

Meub Associates, Inc.

________________________

Erin Gallivan, Esq.

Attorney for Claimant Jane Doe

[1] For example, allegations of wrongdoing in Agent Rachek’s affidavit go back to at least June 1999. (See Rachek Affidavit ¶ 43 – 63.)