lets hope it continues Ward’s Motion to Stay - 1 Albert A. Zakarian, Esquire 16765 FisHawk Blvd. # 360 Lithia, FL 33547 813-571-2546 (Fax) 866-259-1933
zakarian@tampabay.rr.com Attorney for Robert Ward UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION DISH NETWORK LLC, a Colorado Limited Liability Company, ECHOSTAR TECHNOLOGIES LLC, a Texas Limited Liability Company, and NAGRASTAR LLC, a Colorado Limited Liability Company, Plaintiffs, vs. ROBERT WARD, Defendant Case No.: No. 8:08-cv-00590-JSM-TBM WARD’S MOTION TO STAY CIVIL PROCEEDINGS REQUEST FOR JURY TRIAL Defendant ROBERT WARD (“WARD”), through the undersigned, submits this Motion to Stay Civil Proceedings (“Motion”) pending the outcome of the parallel criminal proceeding taking place in the United States District Court, Southern District of California in which WARD was indicted for violations of Title 17 of the United States Code involving the theft of the satellite television signals of Plaintiffs, DISH NETWORK, LLC, ECHOSTAR TECHNOLOGIES, LLC and NAGRASTAR LLC (collectively “DISH”). The same parties and facts underlying this civil proceeding. Counsel contacted DISH counsel under Local Rule 3.01(g) to resolve this motion and DISH declined. Case 8:08-cv-00590-JSM-TBM Document 63 Filed 10/26/2009 Page 1 of 7 Ward’s Motion to Stay - 2 RELEVANT PROCEDURAL HISTORY AND FACTS The Pleadings and the Indictment On March 28, 2008, the DISH Plaintiffs filed a Complaint against WARD alleging that he was engaged in the piracy of DISH satellite television signals. Complaint (Doc. 1). The Complaint was amended on May 27, 2008 with little change to the essential pleadings and claims. Amended Complaint (Doc. 19). The Amended Complaint names the DISH Plaintiffs as the victims of Defendant WARD’S alleged unlawful actions. Amended Complaint, ¶¶ 8-11 (Doc. 19). The Amended Complaint alleges that WARD violated Titles 17, 28 and 47 of the U.S. Code, by his personal unlawful theft of DISH’S satellite television signals as well as his assistance of others in such pursuits, including a company in southern California called Viewtech. Amended Complaint, ¶¶ 12, 34-60 (Doc. 19). On July 9, 2009, WARD and two others were indicted in the parallel criminal proceeding entitled United States of America v. Jung Kwak, Phillip Allison and Robert Ward, Case No.: 09-CR-2646-JLS in the United States District Court for the Southern District of California. (“U.S. v. Ward”). (See Indictment, July 9, 2009, (Doc.1 ) attached as Exhibit 1). A copy of the Indictment was transferred to the Middle District under the case number 8:09-MJ-1327MAP. (See Clerk’s Minutes, Doc. 4 of U.S. v. Ward attached as Exhibit 2). Ward was arrested and arraigned on July 13, 2009 based upon the allegations in the indictment. (See Exhibit 2). The Indictment names DISH as the victim of WARD’S alleged illegal actions. (Exhibit 1, ¶¶ 3-6). The Indictment alleges that WARD violated Title 17 of the U.S. Code by engaging in acts that would further the theft of DISH’S satellite television programming. (Exhibit 1, ¶¶ 4-7). The Indictment names Viewtech as the southern California company with which WARD was acting in furtherance of these illegal acts. (Exhibit 1, ¶¶ 1-7). Case 8:08-cv-00590-JSM-TBM Document 63 Filed 10/26/2009 Page 2 of 7 Ward’s Motion to Stay - 3 Discovery after the Arraignment WARD was arraigned on July 13, 2009 and on July 14, 2009, WARD responded to Dish Network’s Third Set of Interrogatories. (WARD’S Response to Third Set of Interrogatories, July 14, 2009, attached as Exhibit 3). WARD was forced to invoke the Fifth Amendment in response to the interrogatory in order not to jeopardize his criminal defense with an answer that would serve as evidence against him or tend to incriminate him in U.S. v. Ward. (See Exhibit 3). On August 6, 2009, WARD was deposed for more than 6 hours. WARD invoked his Fifth Amendment right against self-incrimination at least 400 times according to Plaintiffs (Motion (Doc. 59), p. 6) in order not to jeopardize his criminal defense with answers that would serve as evidence against him or tend to incriminate him in U.S. v. Ward. WARD was prevented from giving testimony in his own defense because of the choice between possible incrimination and defense of this civil proceeding. His defense in this civil proceeding was compromised. DISH’S Motion for Summary Judgment On September 24, 2009, DISH filed its Motion for Summary Judgment (“Motion”) (Doc. 59). In the opening statement in DISH’S Motion, Plaintiffs allege generally that WARD committed acts in violation of Titles 17 and 47 of the U.S. Code by engaging in illegal acts designed to support theft of its satellite television signals. (Motion (Doc. 59), pp. 1-2). Plaintiffs note that they have a cornucopia of evidence against WARD involving internet related material linked to WARD. (Motion (Doc. 59), pp. 1-2). This evidence supposedly includes the use of Internet monikers and e-mail addresses. (Id.). Plaintiffs state that: “Any doubt that Ward is using “Thedssguy” and “Veracity” is removed by the adverse inferences arising from his refusal to answer questions at deposition about the monikers on the basis that a truthful response would incriminate him.” (Motion (Doc. 59), p. 2). Case 8:08-cv-00590-JSM-TBM Document 63 Filed 10/26/2009 Page 3 of 7 Ward’s Motion to Stay - 4 Plaintiffs then stated the Indictment involves allegations not at issue in this case. (Motion (Doc. 59), p. 2). Nothing is further from the truth. DISH is well aware, having cooperated in the investigation leading up to the Indictment, that the same parties, evidence and illegal acts are at issue in both cases and are inextricably interwoven such that WARD could not possibly defend this civil case without jeopardizing his rights and defense in the criminal case. In fact, this office is aware that many of the documents and evidence supporting the Indictment has been produced by Plaintiffs in this case. In support of Summary Judgment, Plaintiffs also point to WARD’S alleged distribution of piracy technology and software as well as internet postings about DISH and its signals and the evidence they possess thereon. Once again, Plaintiffs point to the compelling nature of this evidence because: “Ward, here again, refused to answer any questions at deposition regarding the internet posts or the software files on the basis that doing so would incriminate him.” (Motion (Doc. 59), p. 3). If the point wasn’t clear, Plaintiffs devout pages 3 through the top of page 6 of the Motion explaining to the Court just how devastating WARD’S invocation of his Fifth Amendment privilege is to his successful defense of the Motion and why “DISH Network’s following statement of undisputed facts must go largely uncontested.” (Motion (Doc. 59), pp. 3-6). Plaintiffs make it clear that they believe that WARD’S invocation of his Fifth Amendment privilege compels an adverse judgment against him. Throughout the rest of DISH’S Motion, Plaintiffs continue to refer to WARD’S invocation of his Fifth Amendment privilege in support of compelling an adverse judgment against WARD. For the purposes of this motion only, WARD agrees with DISH that he will surely suffer an automatic loss with an adverse judgment against him as a result of the position he finds Case 8:08-cv-00590-JSM-TBM Document 63 Filed 10/26/2009 Page 4 of 7 Ward’s Motion to Stay - 5 himself in because of the parallel criminal proceeding in U.S. v. Ward and his invocations of his Fifth Amendment rights throughout discovery following his criminal arraignment on July 13, 2009. THE LAW ON STAYS The law on stays established by the Eleventh Circuit in U.S. v. Lot 5, et. al., 23 F.3d 359, 363-365 (11th Cir. 1994) is more fully set forth in the accompanying Memorandum of Law. Applying the law to the facts, a stay is warranted until the conclusion of U.S. v. Ward. Special Circumstances and the Interests of Justice There are special circumstances justifying a stay. WARD is required to defend this civil case in Florida while trying to defend the criminal case in the Southern District of California. The expense of defending both as well as the time consuming nature of having to appear in both jurisdictions presents a burdensome challenge to WARD. He already has had to appear in the Southern District of California twice since his arraignment while getting back to the Middle District to appear at his deposition on August 6, 2009. It also appears that DISH was and is using the civil case to feed some information to the prosecution in the criminal case thereby further jeopardizing WARD’S ability to defend himself in the U.S. v. Ward. On July 13, 2009 during WARD’S arraignment in the identity hearing, FBI Special Agent Brian Wilson testified that he received information from DISH that formed the basis of some or all of the government’s criminal investigation and used that same information and his own investigation to establish the identity of WARD. (See Exhibit 2). Compare American Gen. Life Insur. Co. v. Jones, 2008 WL 4949847 (S.D. Ala. 2008) at * 4 (no argument concerning feeding the criminal proceeding). Case 8:08-cv-00590-JSM-TBM Document 63 Filed 10/26/2009 Page 5 of 7 Ward’s Motion to Stay - 6 A stay would promote judicial economy. Since the arraignment, which occurred during discovery and before any depositions, WARD was prevented from properly responding to discovery other than to invoke his Fifth Amendment right not to incriminate himself. Discovery has been effectively thwarted both by DISH and WARD. Moreover, a criminal conclusion in the U.S. v. Ward case, may be conclusive as to some or all of the civil claims in this case. Both cases involve violations of Title 17 and DISH satellite signals; both involve DISH as the victim and WARD and Viewtech as the main protagonists of the illegal acts; both cases involve many of the same witnesses identified by DISH in support of their case. Further, a stay would not prejudice DISH or Ward. DISH has already sued Viewtech and WARD and others that appear in both cases. The FBI shut down Viewtech and WARD with the cooperation of DISH. DISH has done significant investigation and compiled thousands of documents as referenced in their extensive Motion for Summary Judgment and attached declarations. DISH has eliminated the piracy threat from the parties involved. DISH will suffer no prejudice during the stay. The stay would benefit WARD by allowing a concentrated defense and conclusion of the criminal matter without further jeopardizing his defense of this case. The Fifth Amendment Concerns and Automatic Adverse Judgment Unlike Jones in American General and the movant in Lot 5 and other cases, WARD has actually had to invoke his Fifth Amendment rights in discovery and hundreds of times during his deposition. DISH has gone to great lengths in its Motion for Summary Judgment to explain why these invocations should result in an automatic summary judgment when taken with the other evidence they’ve compiled. DISH has explained why the Plaintiffs are entitled to adverse inferences resulting in an automatic adverse judgment against WARD. Instead of calling into question the inferences and the material factual issues in this case, WARD has had to use the Fifth Amendment to protect his rights in the U.S. v. Ward case. With a pending criminal matter, Case 8:08-cv-00590-JSM-TBM Document 63 Filed 10/26/2009 Page 6 of 7 Ward’s Motion to Stay - 7 WARD cannot effectively defend himself either in the Motion response or any upcoming trial. In the absence of the criminal proceeding WARD was prepared to defend himself in ongoing discovery and most importantly his deposition. WARD is his only and best witness which he cannot now use to defend himself as proven by his deposition answers as noted many times by DISH. CONCLUSION AND PRAYER FOR RELIEF This Court should issue a stay of these proceedings pending the outcome of U.S. v. Ward. Dated: October 26, 2009. /s/ Albert A. Zakarian Albert A. Zakarian, Esquire 16765 FishHawk Blvd. # 360 Lithia, FL 33547 813-571-2546 (Fax) 866-259-1933
zakarian@tampabay.rr.com Attorney for Ward CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 26, 2009, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send a notice of electronic filing to the following: Timothy M. Frank, Esquire. I further certify that I sent by mail the foregoing document and the notice of electronic filing to the following non-CM/ECF participant: N/A. /s/ Albert A. Zakarian_____ Albert A. Zakarian, Esquire Case 8:08-cv-00590-JSM-TBM Document 63 Filed 10/26/2009 Page 7 of 7
()
![Beer: [July 19th, 2009] - Private](http://www.abadss.com/forum/images/beer_01.gif)
![The World: [September 1st, 2009] - Private](http://www.abadss.com/forum/images/earth.gif)
DO NOT PM ME TO E-MAIL FILES I WILL NOT !!
Linear Mode
