United States of America v. $2,164,341.00 in US Currency

Filing 32

ORDER re 26 Emergency MOTION for Protective Order Regarding Deposition Scheduled for October 23, 2012 filed by Leonardo Cornejo-Reynoso. Claimant shall appear for his deposition on 10/24/2012. Signed by Judge David G Campbell on 10/23/2012. (NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America
Plaintiff,

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ORDER

v.

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No. CV-12-00105-PHX-DGC

$2,164,341.00 in US Currency

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Defendant.

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Claimant Leonardo Cornejo-Reynoso has filed an emergency motion for a

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protective order regarding his deposition scheduled for October 23, 2012. Doc. 26.

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Plaintiff United States of America has filed a response. Doc. 27. The Court held a

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telephone hearing with the parties on October 19, 2012, and later that day informed them

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that it would deny the motion. Doc. 29. This order will set forth the Court’s reasons.

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Claimant claims an interest in $2,164,341 in United States currency seized from

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him on April 21, 2011. The currency was found in a rental truck driven by claimant and

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was packaged in bundles, bound by rubber bands, and wrapped in plastic wrap containing

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axle grease. Plaintiff’s detailed complaint seeking forfeiture of the money was filed on

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January 17, 2012. Doc. 1. Plaintiff’s answer claiming an interest in the money was filed

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on February 8, 2012. Doc. 7.

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Plaintiff served a notice of claimant’s deposition on February 14, 2012. Doc. 9.

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The attorneys initially agreed that the deposition would occur on March 15, 2012. When

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claimant had difficulty obtaining a visa to enter the United States, the deposition was

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rescheduled to April 4, 2012. Doc. 18. Although Plaintiff arranged for claimant, who

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lives in Mexico is not a U.S. citizen, to be paroled into the United States for purposes of

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the deposition, claimant asserted that the parole documentation was received too late and

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he could not appear for the deposition. The parties agreed to reschedule the deposition

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for May 4, 2012. Id.

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Subsequent efforts to secure parole documents on a schedule that would work for

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the parties were largely unsuccessful, and the parties ultimately agreed to seek an

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extension of the discovery schedule in this case, which the Court approved. Doc. 16.

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Counsel for Plaintiff was able to obtain parole documents for the month of August, 2012,

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and the parties agreed the deposition would occur on August 30, 2012. When claimant

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took the position that he needed assurances that he would not be arrested upon entering

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the United States (presumably for criminal charges related to seizure of the currency) and

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Plaintiff stated that no such assurances could be given, the parties were unable to agree

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that the deposition would go forward. Plaintiff filed an emergency motion to compel the

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deposition and claimant filed an emergency motion for a protective order. Docs. 18, 19.

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The Court held a telephone conference with the parties on August 27, 2012. As a

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result of that conference, the Court declined to require Plaintiff to depose claimant by

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videoconference in Mexico as requested by claimant’s counsel. The Court also held that

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claimant, having invoked the jurisdiction of the Court to assert his claim, could not refuse

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to appear in this District for his deposition. Because the date of the deposition was

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imminent and claimant’s counsel sought additional time for claimant to consider

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carefully whether he would enter this country to give the deposition, the Court put in

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place a schedule for the parties to complete the deposition. Doc. 22. The Court’s order

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required claimant, by September 19, 2012, to advise Plaintiff whether claimant was able

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to obtain a visa to enter the United States and, if so, how soon he could enter the country

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for purposes of a deposition. Doc. 22 at 2. If claimant was not able to obtain a visa, the

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Court’s order stated that Plaintiff should make arrangements for claimant to be paroled

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into the country to complete his deposition no later than November 30, 2012. Id. The

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Court required Plaintiff to give claimant at least ten days’ notice concerning the
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deposition and the travel arrangements made in connection with the parole and

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deposition. The Court ordered that claimant “shall appear for his deposition in this

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District on or before November 30, 2012.” Id.

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Claimant did not comply with the Court’s order. He did not notify Plaintiff by

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September 19, 2012 whether he could obtain a visa to enter the country. Plaintiff’s

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counsel nonetheless took steps to obtain parole documents and schedule the deposition.

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On September 11, 2012, Plaintiff’s counsel wrote to claimant’s counsel and proposed that

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the deposition occur on September 17-21, October 9-12, October 15-17, October 22-26,

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or October 29-November 2. Doc. 27-1 at 2. Claimant’s counsel did not respond.

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Plaintiff’s counsel wrote again on October 1, 2012, asking for a response to the proposed

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days. Doc. 27-1 at 5. Counsel for claimant responded in an email accusing counsel for

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Plaintiff of sending a “threatening” letter “without meeting and conferring with me.”

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Doc. 27-1 at 7. This email was sent despite the fact that claimant’s counsel had not

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responded for more than 20 days to Plaintiff’s proposed deposition dates. Finally, on

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October 5, 2012, claimant’s counsel wrote a letter stating that claimant recently had

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discovered that a criminal case was pending against him in Coconino County Superior

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Court, apparently arising out of the events that lead to seizure of the currency at issue in

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this case. Doc. 26-1 at 1. Claimant’s counsel requested that the deposition occur in the

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second half of November. Id.

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Plaintiff’s counsel is not available in the second half of November for personal

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reasons, and the Court will not require that Plaintiff conduct the deposition at that time.

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Plaintiff has been seeking to schedule the deposition of claimant since February. Doc. 9.

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On three different occasions Plaintiff has undergone the difficult process of obtaining

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parole documents for claimant to enter the United States for his deposition. Claimant has

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not been equally accommodating. Claimant declined to come to the United States earlier

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this year on the grounds that he did not receive the parole documents in time to make

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arrangements. He declined to appear for his deposition in August without an assurance

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that he would not be arrested on criminal charges if he entered the country. Claimant did
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not comply with the Court’s order to provide needed information by September 19, 2012,

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and claimant now contends that he should not be required to enter the country before late

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November because of the criminal case pending against him.

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The Court concludes that Plaintiff has engaged in an extended, good faith, and

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difficult process to schedule and complete claimant’s deposition. The Court will not

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require that the deposition be postponed further. To accommodate claimant’s counsel’s

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arbitration scheduled for October 23, 2012, Plaintiff offered during the telephone

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conference on October 19, 2012 to conduct the deposition on October 24, 2012. The

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Court will require that claimant appear for his deposition on that date.

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IT IS ORDERED:

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1.

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Claimant’s emergency motion for protective order regarding deposition

scheduled for October 23, 2012 (Doc. 26) is denied.

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2.

Claimant shall appear for his deposition on October 24, 2012.

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Dated this 23rd day of October, 2012.

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