IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Case No. 12-cv-01905 (RWR)
)
SUM OF $70,990,605, ET AL., )
)
Defendants in rem. )
_________________________________________ )
UNITED STATES’ OPPOSITION TO CLAIMANTS’ MOTION TO COMPEL
RESPONSES TO CLAIMANTS’ FIRST REQUEST FOR PRODUCTION OF
DOCUMENTS, MOTION FOR EXPEDITED REVIEW, AND OTHER RELIEF
Comes now the Plaintiff, United States of America, by and through its undersigned
counsel, and respectfully urges this Court to deny the Claimants’ Motion to Compel, Motion for
Expedited Review, and Other Relief (ECF No. 74). As set forth below, the United States has
sought a stay of this civil forfeiture action pursuant to 18 U.S.C. § 981(g) because civil discovery
would, at this time, adversely affect the ability of the United States to conduct a related criminal
investigation. Further, the Claimants, in both their document request and their Motion to
Compel, expressly limit their discovery request to documents “related solely to the pending
jurisdictional issues contained in the Claimants’ Motion to Dismiss.” (ECF No. 59-1, page 21).
However, as described below, the Claimants’ have not moved to dismiss for lack of jurisdiction,
and the discovery requests are not appropriate in connection with this Court’s consideration of
their pending Motion to Dismiss (ECF No. 28). Accordingly, this Court should enter the
attached order denying the Claimants’ Motion.
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I. ARGUMENT
As set forth below, before the Claimants propounded discovery to the United States, the
United States sought a stay of this civil forfeiture action pursuant to 18 U.S.C. § 981(g)(1),
which states that the Court shall stay a civil forfeiture proceeding if it “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.” 18 U.S.C. § 981(g)(1). Nevertheless,
the Claimants moved this Court to compel the United States to produce discovery responsive to
21 different document requests. This Court should deny the Claimants’ motion because, as set
forth in the pending Motion for a Stay (ECF No. 56), civil discovery will adversely affect the
ability of the Government to conduct a related criminal investigation.
Moreover, the Claimants’ first discovery request is expressly limited to documents
“related solely to the pending jurisdictional issues contained in the Claimants’ Motion to
Dismiss.” (ECF No. 59-1, page 21). Accordingly, the Claimants’ motion to compel also must
fail because the discovery the Claimants seek is neither warranted in connection with any
purported jurisdictional issues, nor necessary for this Court’s consideration of the Claimants’ act
of state doctrine and international comity arguments.
Information sought by the Claimants is also protected from disclosure by the attorney-
client, investigatory files, informant’s, deliberative process and state secrets privileges, and the
attorney work-product doctrine. The United States expects to fully participate in the discovery
process, including addressing these individual privileges and how they apply to each discovery
request, once civil discovery has properly commenced.
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a. Factual Background
This is a civil action in rem for the forfeiture of defendant assets worth approximately
$61.3 million pursuant to 18 U.S.C. §§ 981(a)(1)(C), 981(k) and 984. The United States initiated
this action by filing a civil forfeiture complaint on November 20, 2012, that has now been
amended twice. On August 27, 2013, Hikmatullah Shadman, Najibullah (also known as Yaser
Elham) and Rohullah (collectively identified as the “Claimants”) filed a Claim (ECF No. 24) to
certain of the defendant assets identified in the Second Amended Verified Complaint for Forfeiture
(the “Complaint”).1
The Claimants filed a Motion to Dismiss the Complaint on September 16, 2013, (ECF
No. 28). The United States submitted its opposition to this motion on October 25, 2013, and the
Claimants submitted their reply brief on November 1, 2013. On November 8, 2013, the United
States sought a stay of this civil forfeiture action pursuant to 18 U.S.C. § 981(g)(1), which states
that the Court shall stay a civil forfeiture proceeding if it “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.” 18 U.S.C. § 981(g)(1). This Motion remains pending
(ECF No. 56). Because the Claimants’ Motion to Dismiss was fully briefed and is a motion
appropriately adjudicated on the pleadings, the United States did not request a stay of
adjudication of the Claimants’ Motion to Dismiss.
1 In their Motion to Compel, the Claimants continue to insist, erroneously, that Hikmat Shadman Logistics Services
Company, Hekmat Shadman General Trading, LLC, Faizy Elham Brothers, Ltd., and Everest Faizy Logistics
Services have filed a claim to challenge this forfeiture action. Title18, United States Code, Section 983(a)(4)(A),
and Supplemental Rule G requires that “a would-be claimant” file a “claim that (1) ‘identif[ies] the specific property
claimed,’ (2) ‘identif[ies] the claimant and state[s] the claimant’s interest in the property,’ and (3) is ‘signed by the
claimant under penalty of perjury.’” Supp. R. G(5)(a)(i)(A)(C). A review of the Claim (ECF No. 24) reveals that
Hikmat Shadman Logistics Services Company, Hekmat Shadman General Trading, LLC, Faizy Elham Brothers,
Ltd., and Everest Faizy Logistics Services have not met these requirements. First, the Claim unequivocally identifies
the “Claimants” as Hikmatullah Shadman, Najibullah (also known as Yaser Elham), and Rohullah. (ECF No. 24,
page 5). Second, the Claim neither identifies which property each of these companies’ claim, nor the interest that
each of the companies has in the defendant assets.
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Four days later, on November 12, 2013, the Claimants propounded their first discovery
request, containing 22 different requests for production, to the United States. It seeks discovery
“related solely to the pending jurisdictional issues contained in the Claimants’ Motion to
Dismiss.” (ECF No. 59-1, page 21). On November 26, 2013, the United States conferred with
the Claimants to seek their consent to postpone the United States’ response to the Claimants’
first discovery request in light of the pending Motion for a Stay. The Claimants opposed this
request. Later, when the Claimants conferred with the United States with regard to their Motion
to Compel, counsel for the United States reiterated that it is the United States’ position that civil
discovery is not appropriate at this time for the reasons set forth in pending motion for a stay.2
Nevertheless, on December 16, 2013, the United States provided a preliminary response
to the Claimants’ first discovery request. Specifically, in addition to raising the objections
discussed herein, the United States provided the Claimants with a copy of the Jingle Truck
contract, which was sought in Request No. 3. The United States has since received addendums to
the contract from the North Atlantic Treaty Organization (NATO) Support Agency (NSPA), and
does not object to providing them to the Claimants contemporaneous with the filing of this
opposition memorandum. The Claimants have also received all of the documents responsive to
Request Nos. 4, 5, and 7 in which the Claimants seek the documents previously presented to this
Court, and to Magistrate Judge Alan Kay, in support of the seizure of the defendant assets. In
addition, in response to Request No. 13, in which the Claimants seek documents demonstrating
that the United States funded the Jingle Truck contract, the United States provided the Claimants
with two interview reports which explain in detail the payment process under the Jingle Truck
contract, including how U.S. funds are obligated. Finally, in the United States’ response to the
Claimants’ discovery request, the United States informed the Claimants that there are no
2 Nor has this Court scheduled a discovery conference, or issued a scheduling order.
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documents known to the Plaintiff responsive to Request No. 22. In Request No. 22, the
Claimants seek written statements of Hikmatullah Shadman.3
The United States sought to accommodate the Claimants by providing this information
and these documents even though, as discussed below, the United States has requested a stay of
this action to prevent interference with a criminal investigation pursuant to 18 U.S.C. §
981(g)(1), certain of the Claimants’ requests are properly subject to objections, and this Court
has yet to issue a discovery order.
b. Legal Standards
As set forth in Rule 26 of the Federal Rules of Civil Procedure, parties may obtain
discovery of any non-privileged matters related to a party’s claim or defense. Fed. R. Civ. P.
26(b)(2011). However, “discovery, like all matters of procedure, has ultimate and necessary
boundaries.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351-352 (1978). Discovery
must appear to be reasonably calculated to lead to the discovery of admissible evidence. Fed. R.
Civ. P. 26(b)(1) (2011). Moreover, a party may only obtain discovery as to a matter that is
“relevant to the claim or defense of any party.” Pleasants v. Allbaugh, 208 F.R.D. 7, 9 (D.D.C.
2002) citing Krieger v. Fadely, 199 F.R.D. 10, 13 (D.D.C. 2001)(holding that the nature of the
claims asserted defines relevancy). Further, Courts must limit discovery that is unreasonably
cumulative or duplicative, obtained from another source that is more convenient, less
burdensome, or less expensive, or discovery requests which cause the imposition of a burden that
outweighs the discovery’s likely benefit. Fed. R.Civ.P. 26(b)(1)(C).
3 The United States also asked the Claimants to consent to production of copies of the 5,421 Transportation
Movement Requests sought in Request No. 12 on a rolling basis. The United States recently received copies of
certain of these Transportation Movement Requests from officials in Afghanistan and does not object to providing
them to the Claimants contemporaneous with the filing of this opposition memorandum.
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A request for documents under Rule 34 of the Federal Rules of Civil Procedure, such as
the Claimants’ request, must “describe with reasonable particularity each item or category of
items to be inspected.” Fed.R.Civ.P. 34(b)(1)(A). “[I]n drafting document requests, it is the party
seeking discovery [who] bears the burden of fashioning the requests appropriately.” Kline v.
Berry, 287 F. R.D. 75 (D.D.C. 2012) citing Washington v. Thurgood Marshall Acad., 232 F.R.D.
6, 10 (D.D.C.2005). In connection with a motion to compel, it is also the party seeking
discovery who “has the burden of proving that the opposing party’s answers were incomplete.”
Equal Rights Center v. Post Properties, Inc., 246 F.R.D. 29, 32 (D.D.C. 2007).
c. The Court Should Deny the Claimants’ Motion to Compel and Grant the United
States’ Motion for a Stay Because Civil Discovery will Adversely Affect the Ability
of the Government to Conduct a Related Criminal Investigation
Before the Claimants propounded discovery to the United States, the United States
sought a stay of this civil forfeiture action pursuant to 18 U.S.C. § 981(g)(1), which states that
the Court shall stay a civil forfeiture proceeding if it “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.” 18 U.S.C. § 981(g)(1). The United States objects
generally to the Claimants’ entire first discovery request, and specifically to Requests Nos. 1, 2,
6, 8, 9, 11, 14, 15, 16, 17, 18, 19, 20 and 21, on the grounds that disclosure of the requested
documents would interfere with the related criminal investigation.
For example, Request No. 9 seeks “Any and all documents that the Government purports
to support or show that Hikmatullah Shadman ‘conspired to obtain payments from the United
States for the transportation of military supplies in Afghanistan through the fraudulent use of
wires . . .’ and ‘made bribe payments’ and ‘fraudulently inflated prices,’ as alleged in the
Government’s Second Amended Complaint.” (ECF No. 74, page 40). In Request No. 21, they
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also seek “Any and all written statements of all confidential sources” referenced in the
Complaint (ECF No. 74, page 49). As set forth in the United States’ Motion for a Stay, (ECF No
56), to permit such discovery to proceed would, at this time, result in precisely the kind of
prejudice to the United States’ investigation that 18 U.S.C. § 9181(g)(1) is designed to prevent.
Further, such broad civil discovery is generally not appropriate while a motion to dismiss
is pending. See, e.g., Wada v. United States Secret Serv., 25 F. Supp. 2d 1, 11 (D.D.C. 2007)
(finding discovery premature when “this Court has not held an initial scheduling conference
because of the pending motions to dismiss.”); see also United States v. All Assets Held at Bank
Julius Baer & Co., Ltd., 276 F.R.D. 396 (D.D.C. 2011) (staying discovery until the adjudication
of any dispositive motion).
d. This Court Should Deny the Claimants’ Motion to Compel Because the
Discovery Requests are Not Appropriate in Connection With This Court’s
Consideration of the Claimants’ Motion to Dismiss
Claimants’ first discovery request is expressly limited to documents “related solely to the
pending jurisdictional issues contained in the Claimants’ Motion to Dismiss,” which Claimants
later describe as “threshold issues” involving “subject matter jurisdiction” and “failure to state a
claim.” (ECF No. 59-1, page 21, ECF No. 74, page 11). However, the Claimants erroneously
argue that broad discovery on “subject matter jurisdiction” and “failure to state a claim” has
“been routinely allowed by the courts.” (ECF No. 74, page 10). As discussed below, the
standard governing discovery in connection with a motion to dismiss for failure to state a claim
upon which relief can be granted pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) is
different than the standard governing discovery in connection with a motion to dismiss for lack
of subject matter jurisdiction pursuant to Rule 12(b)(1). In neither case has broad civil discovery
been routinely allowed by this Court, nor would it be appropriate in this matter.
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i. In Requests Nos. 1-19 and 21, the Claimants Do Not Seek Any
Discovery Appropriate for a Rule (12)(b)(6) Motion for Failure to
State a Claim Upon Which Relief Can be Granted
In The Wilderness Society v. United States Department of the Interior, this Court
considered the parameters of discovery in connection with a motion to dismiss, and outlined the
different standards governing challenges to a complaint brought under Rule 12(b)(6) versus Rule
12(b)(1). 2005 WL 3276256 (D.D.C. Sept. 12, 2005). This Court found that, in consideration of
a motion brought under Rule 12(b)(6) for failure to state a claim upon which relief can be
granted, “The court is limited to considering facts alleged in the complaint, any documents
attached to or incorporated in the complaint, matters of which the court may take judicial notice,
and matters of public record…Factual allegations in briefs of memoranda of law may not be
considered when deciding a Rule 12(b)(6) motion, particularly when the facts they contain
contradict those alleged in the complaint.” Id. (internal citations omitted). This is because the
Court must “take all of the factual allegations in the Complaint as true,” and “draw all inferences in
favor of the nonmoving party” when considering a motion to dismiss. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); City of Harper Woods Emps. Ret. Sys. v. Oliver, 589 F.3d 1292, 1298 (D.C. Cir.
2009); United States v. $79,321, 522 F. Supp. 2d 64, 68 (D.D.C. 2007) (“plaintiff’s factual
allegations must be presumed true and should be liberally construed in his or her favor”).
There are no documents attached to or incorporated into the Complaint and thus, this
Court should deny the Claimants’ motion to compel all discovery in connection with the
Claimants’ Rule 12(b)(6) motion. Consistent with this analysis, in their discovery requests, the
Claimants do not identify “documents attached to or incorporated into the complaint, matters of
which the court make take judicial notice, [or] matters of the public record,” and in their motion
to compel they state only that it is “self evident” that Request Nos. 1-19 and 21 seek documents
that are “expressly referenced and relied upon” in the Complaint (ECF No. 74, page 15).
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For example, in Request No. 1, the Claimants seek documents related to the Detainee
Review Board Hearing because it “goes to whether the Government failed to state a
claim…since it is based on insufficient facts.” (ECF No. 74, page 34). However, the Complaint
contains no reference to Mr. Shadman’s detention by the U.S. military, or the Detainee Review
Board. Because the records from the Detainee Review Board are neither relevant to the
allegations in the Complaint, nor the Motion to Dismiss, this Court should deny the Claimants’
motion to compel discovery responsive to Request No. 1 in connection with this and any future
discovery request.
Similarly, in Request No. 6, the Claimants seek communications between the
Government and the Afghanistan Government because they are “expressly referenced in the
Complaint,” specifically in paragraphs 14 and 16. (ECF No. 74, pages 38). Paragraphs 14 and
16 of the Complaint do not attach or incorporate any documents into the Complaint (ECF No. 15,
¶¶ 14, 16). In Request No. 8, the Claimants seek “any and all documents” showing that two of
the original defendant bank accounts at Afghanistan International Bank contain Mr. Shadman’s
criminal proceeds without identifying a single document attached to or incorporated in the
Complaint that would justify such a request (ECF No. 74, page 40).
The Claimants appear to contend that any document referenced in the Complaint is
necessarily incorporated into the Complaint and must be considered on a motion to dismiss.
However, in adjudicating a motion to dismiss, a court must assume facts in the Plaintiff’s favor
and draw all reasonable inferences in favor the United States. Iqbal, 556 U.S. at 678. Under the
Claimants’ misunderstanding of the law this Court would have to weigh evidence even though
“when there are well-pleaded factual allegations,” as here, “a court should assume their
veracity.” Id. Accordingly, because this Court’s adjudication of facts is inappropriate at this
time, and the Claimants fail to identify a single document attached to or incorporated in the
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Complaint in their discovery requests, their motion to compel responses to Requests No. 1-19
and 21 must fail. 4
ii. The Claimants’ Motion Must be Denied Because the Claimants’
Motion to Dismiss Does Not Challenge this Court’s Subject Matter
Jurisdiction
In consideration of a motion to dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), this Court has found that limited jurisdictional discovery is appropriate if a plaintiff
“shows a nonconclusory basis for asserting jurisdiction, and a likelihood that additional
supplemental facts will make jurisdiction proper.” Intelsat Global Sales and Marketing Ltd., v.
Community of Yugoslav Posts Telegraphs and Telephones, 534 F. Supp. 2d 32 (D.D.C. 2008);
see also The Wilderness Society v. U.S. Dept. of Interior, 2005 WL 3276256 *5 (D.D.C.2005).
The Claimants argue that each and every one of their requests for production is related to matters
of subject matter jurisdiction (ECF No. 74, pages 14-16). However, despite their repeated
assertions to the contrary (ECF No 74, page 8), in their Motion to Dismiss (ECF No. 28), the
Claimants do not ask this Court to dismiss the Complaint for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1). Instead, the Claimants focus their opposition to the Complaint on the
applicability of the act of state doctrine, and principles of international comity (ECF No 28,
pages 36-43). Neither the act of state doctrine, nor international comity are the proper subjects
of a Rule 12(b)(1) motion. Thus, the United States properly raised a general objection to each
and every one of the Claimants’ requests, including Request No. 20 (communication between the
U.S. Government and Government of Afghanistan), on the grounds that they do not relate solely
to the pending jurisdictional issues contained in the Claimants’ motion to dismiss. The United
4 Further, although the United States does not object to expedited review of the Claimants’ Motion to Compel, for
the reasons set forth herein, no additional relief sought by the Claimants is warranted.
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States also properly objected specifically to Requests Nos. 1, 2, 6, 8, 9, 11, 12, 14, 15, 16, 17, 18,
19, and 21 on these grounds (ECF No. 74, pages 18, 19, 33-51).
The act of state doctrine is a merits issue, and not a jurisdictional defense. Helmerich &
Payne Intern. Drilling Co. v. Bolivarian Republic of Venezuela, --- F.Supp.2d ----, 2013 WL
5290126 (D.D.C. 2013). The D.C. Circuit “has repeatedly recognized the act of state doctrine as
a merits defense requiring prior resolution of jurisdictional questions.” Id. (internal citations
omitted). See also, Marra v. Papandreou, 216 F.3d 1119, 1122 (D.C. Cir. 2000) (reaffirming In
re Papandreou 's holding that while standing, personal jurisdiction, and forum non conveniens
are jurisdictional issues, the act of state doctrine is not); and In re Papandreou, 139 F.3d at 247,
256 (D.C. Cir. 1998) (“[W]e note that the Supreme Court has authoritatively classified the act of
state doctrine as a substantive rule of law) (superseded on other grounds).
Similarly, international comity is a doctrine of deference, the purpose of which is to
“foster international cooperation and encourage reciprocal recognition of U.S. judgments in
foreign courts,” and not to strip a U.S. court of it authority to hear a claim. U.S. v. One
Gulfstream G-V Jet Aircraft, 941 F. Supp. 2d 1 (D.D.C. 2013). See also, In re Arbitration
Between Intern. Bechtel Co., Ltd. and Department of Civil Aviation and Government of Dubai,
300 F.Supp.2d 112 (D.D.C.,2004) (distinguishing between jurisdictional questions and
international comity.); Herero People's Reparations Corp. v. Deutsche Bank AG, 2003 WL
26119014 (D.D.C. 2003) (finding that “international comity arguments do not validly challenge
the Court's jurisdiction over the subject matter of Plaintiffs' claims” pursuant to Rule 12(b)(1)).
This analysis is consistent with the legal authority offered by the Claimants in support of
the propriety of discovery on matters of subject matter jurisdiction. (ECF No. 74, pages 10 and
11). None of the cases cited by the Claimants stand for the proposition that discovery is
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available in connection with the act of state doctrine or international comity. See, e.g., Intelsat
Global Sales and Marketing, Ltd. v. Community of Yugoslav Posts Telegraphs and Telephones, 534
F. Supp. 2d 32 (D.D.C. 2008) and Doe v. Bin Laden, 580 F. Supp. 2d 93 (D.D.C. 2008) (ordering
discovery on the applicability of the Foreign Sovereign Immunities Act); In re Lorazepam &
Clorazepate Antitrust Litig., 900 F. Supp. 2d 8 (D.D.C. 2012) and In re Tobacco/Governmental
Health Care Costs Litig., 100 F. Supp. 2d 31 (D.D.C. 2000) (ordering discovery related to diversity
jurisdiction); and Boschetto v. Hansing, 539 F.3d 1011 (9th Cir. 2008) (discussing discovery as it
relates to personal jurisdiction).
Further, the United States has not shown a “nonconclusory basis for asserting its
jurisdiction” as required before a Court should consider supplemental information in connection
with a Rule 12(b)(1) challenge. Intelsat Global Sales and Marketing Ltd, 534 F. Supp. 2d at 34
(D.D.C. 2008). As alleged in the Complaint, this Court has subject matter jurisdiction pursuant
to 28 U.S.C. §§ 1345 and 1355(a), and 18 U.S.C. §§ 981(a)(1)(C) and 984 (ECF No. 15, ¶ 7).
In addition, as also alleged in the Complaint, the wire transfers necessary to establish this Court’s
jurisdiction over the alleged wire fraud conspiracy occurred each time the United States Defense
Finance and Account Services, located in Rome, New York, through the North Atlantic Treaty
Organization’s Maintenance and Supply Agency, processed and disbursed payments to TOIFOR
Global Life Support Services (now known as “Xeless”), which in-turn made payments totaling
$77 million to Hikmat Shadman Logistics Services Company (ECF No. 15, ¶¶ 31-33, 46, 47).
Accordingly, the Claimants’ motion to compel responses to Request Nos. 1, 2, 6, 8, 9, 11, 12, 14,
15, 16, 17, 18, 19, and 21 must fail.
e. The Discovery Sought by the Claimants Is Unnecessary for This Court’s
Consideration of the Claimants’ Act of State Doctrine and International Comity
Arguments
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This Court addressed the act of state doctrine and international comity arguments raised
by the Claimants in its November 25, 2013, Order denying the Claimants’ request for
preliminary injunctive relief. In doing so, this Court identified a lack of legal support for the
Claimants’ position that the act of state doctrine and international comity present a barrier to this
forfeiture action. Specifically, this Court found that the Claimants provided no legal support for
their argument that (1) “exoneration in a foreign action or a military proceeding is determinative
of whether a civil forfeiture of defendant assets is appropriate;” or (2) that a “foreign court’s
assertion of exclusive jurisdiction is a proper exercise of its sovereign power, and that it strips a
United States district court of jurisdiction to hear a case that is properly within its jurisdiction”
(ECF No. 61, pages 20, 23, n. 6). The Claimants specifically identify act of state doctrine and
international comity arguments in support of discovery Request Nos. 2 (documents pertaining to
the hearing conducted by the Afghan tribunal), 6 (communication between the Justice
Department and the government of Afghanistan), 12 (the Transportation Movement Requests)
and 20 (communication between the U.S. Government and the government of Afghanistan).
However, nothing that could be produced in response to these requests would upset this Court’s
findings, as the Claimants’ arguments fail as a matter of law, and not as a matter of fact.5
For example, the Claimants argue in support of Request No. 2 that discovery on matters
“related to the investigations and hearings conducted by the Afghanistan Government” is
appropriate to address “issues of comity and act of state.” (ECF No. 74, pages 34, 35). Yet, even
if the United States had and could produce documents demonstrating that the Afghan tribunal
exonerated Mr. Shadman of the conduct alleged in the Complaint – which it did not – this Court
correctly identified that, “the Afghanistan Executive Order would not need to be declared
5 As discussed above, the United States is can provide the Claimants with additional documents responsive to
Request No. 12.
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invalid” in this U.S. proceeding “because the Afghan authorities determined that “Mr. Shadman
[was] not guilty under Afghan law, not whether the defendant assets are subject to forfeiture
under United States law” and “a determination of guilt or innocence is not dispositive of whether
the defendant assets should be civilly forfeited” (ECF No. 61, page 22) (internal citations
omitted). Because the act of state doctrine only “applies when the relief sought or the defense
interposed would require a court in the United States to declare invalid the official act of a
foreign sovereign performed within its boundaries,” civil discovery is not necessary to ascertain
that the doctrine does not apply in this case. (ECF No. 61, page 21 citing United States v. One
Gulfstream G-V Jet Aircraft, Civil Action No. 11-1874 (RC), 2013 WL 1701831, at *6 (D.D.C.
April 19, 2013)).
Similarly, in both Request Nos. 6 and 20, the Claimants seek “communications” between
the United States and Afghanistan, because “such communication will yield evidence of the
Afghanistan government’s position and communication to the U.S. Government regarding
exclusive Afghanistan jurisdiction.” (ECF No. 74, pages 38 and 49). Even if Afghanistan
officials did communicate to U.S. officials that Afghanistan purportedly had exclusive
jurisdiction over the conduct alleged in the Complaint – which they did not – this would not
demonstrate that a “foreign court’s assertion of exclusive jurisdiction is a proper exercise of its
sovereign power, and that it strips a United States district court of jurisdiction to hear a case that
is properly within its jurisdiction” (ECF No. 61, pages 20, 23, n. 6). Accordingly, the Claimants’
motion to compel discovery in response to Request Nos. 2, 6, 12 and 20 must fail.
f. The Discovery the Claimants Seek is Protected from Disclosure
Information sought by the Claimants in Request Nos. 1, 2, 6, 8, 9, 17, 18, 19, 20, and 21
is protected from disclosure by the attorney-client, investigatory files, informant’s, deliberative
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process and state secrets privileges, and the attorney work-product doctrine.6 In this opposition
brief, the United States does not address these individual privileges and how they apply to each
discovery request. Doing so is premature because the Claimants have failed to establish how any
of their discovery requests are relevant and “related solely to the pending jurisdictional issues
contained in the Claimants’ Motion to Dismiss.” (ECF No. 59-1, page 21). The United States
expects to fully participate in the discovery process, including providing Claimants with a
privilege log, once civil discovery has commenced. If this Court denies the pending Motion for a
Stay and issues an order to compel discovery on any of the Claimants’ requests, the United
States seeks leave to submit briefing on these individual privileges and how they apply to each
discovery request, as appropriate.
g. The Claimants Seek Discovery Not in the Plaintiff’s Possession
The Claimants would also have the United States produce documents not in the
Plaintiff’s possession. A party cannot produce what is not in its possession, custody or control.
Pederson v. Preston 250 FRD 61, 69, (D.D.C. 2009); see also 8A Charles A. Wright, Arthur R.
Miller, & Richard L. Marcus, Federal Practice and Procedure § 2210 (2d ed. 1994) (“[A] party
cannot be required to permit inspection of documents or things that it does not have and does not
control.”).
In Request Nos. 1 (records of the Detainee Review Board), 2 (documents pertaining to
the hearing conducted by the Afghan tribunal), 10 (contract documents between Hikmat
6 For example, the informant’s privilege (also known as the “informer’s privilege) protects the identities of certain
confidential informants whose statements are sought in Request No. 21. The Claimants argue erroneously that the
privilege does not apply when disclosure “is relevant to the defense of the accused” (ECF No. 74, page 50).
However, in civil cases, such as this forfeiture action, “the informer’s privilege is arguably stronger, because the
constitutional guarantees assured to criminal defendants are inapplicable.” In re Search of 1638 E. 2d St. Tulsa,
Okla., 993 F. 2d 773, 774-775 (10th Cir. 1993). Moreover, as set forth in the pending Motion for a Stay (ECF No.
56), disclosure of information related to the identity of confidential informants at this time would have a significant
adverse effect on the criminal investigation.
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Shadman Logistics Services Company and TOIFOR), 11 (price lists and bids submitted by
Hikmat Shadman Logistics Services Company when seeking Transportation Movement
Requests), 13 (related to the funding of the Jingle Truck contract), 14 (invoices submitted by
Hikmatullah Shadman to TOIFOR), 15 (invoices submitted by TOIFOR to NAMSA), and 16 (all
documents related to U.S. payments to NAMSA and NAMSA to TOIFOR), the Claimants seek
information that is presently outside the control or custody of the Plaintiff, and therefore cannot
be produced to the Claimants at this time. The Claimants assert that “[m]any of the responsive
documents to the Claimants’ requests had been previously in the …possession of the Claimants
prior to the Government’s wrongful confiscation and indefinite retention of the Claimants’
business records and property.” (ECF No. 74, page 6). However, as this Court identified in its
November 5, 2013, Order, the only property seized by the Plaintiff in “this in rem action or under
any warrants associated with this in rem action” is the defendant assets. (ECF No. 50, page 9).
As the United States has repeatedly informed both the Claimants and this Court, inquiries
regarding any other assets formerly in possession of the Claimants should be directed to the
Counterinsurgency Task Force. Neither SIGAR nor AFMLS has the authority to control these
items. The Counterinsurgency Task Force has, however, represented to both SIGAR and counsel
for the Claimants that Mr. Shadman may take possession of the property currently in the Task
Force’s possession. The Claimants should seek these items not through discovery, but by
retrieving them from the Counterinsurgency Task Force.
II. CONCLUSION
For the foregoing reasons, the United States respectfully requests that this Court enter the
attached order denying the Claimants’ Motion to Compel, Motion for Expedited Review, and
Other Relief.
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Respectfully submitted,
JAIKUMAR RAMASWAMY, CHIEF
ASSET FORFEITURE AND
MONEY LAUNDERING SECTION
/s/ Elizabeth A. Aloi___________
DANIEL H. CLAMAN
Assistant Deputy Chief
ELIZABETH A. ALOI
Trial Attorney
Asset Forfeiture and Money
Laundering Section
Criminal Division
United States Department of Justice
1400 New York Avenue, N.W., Suite 10100
Washington, D.C. 20530
Telephone: (202) 514-1263
Attorneys for Plaintiff
UNITED STATES OF AMERICA
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