UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Appeal No. 07-10295-II

ALAN L. GOLDBERG
as Chapter 7 Trustee for the Estate of Stephan J. Lawrence

Appellant,

vs.

STEPHAN JAY LAWRENCE

Appellee.

APPEAL AND CROSS-APPEAL FROM AN ORDER

OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA

Case No. 05-20485-CV-GOLD

APPELLEE BRIEF

Stephan J. Lawrence, pro se

19500 Turnberry Way # 23A
Aventura, FL 33180
Lawrence v. Goldberg, Case No. 07-10295-11.

CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE
STATEMENT

1. Avron, Paul A., counsel for Alan L. Goldberg, Cross-Appellee.

2. Berger Singerman, P.A., counsel for Alan L. Goldberg, Cross-Appellee.
3. Cohen, Mark, counsel for Bear Stearns & Co., Inc., active creditor.

4. Cristol, Hon. A. Jay, U.S. Bankruptcy Court, Southern District of Florida.

5. Fierberg, James H., counsel for Alan L. Goldberg, Cross-Appellee.
6. Gold, Alan, S., U.S. District Court, Southern District of Florida.
7. Goldberg, Alan L., Bankruptcy Trustee, Cross-Appellee.
8. Lawrence, Stephan Jay, Cross-Appellant (Pro se).
9. Office of the U.S. Trustee.
10. Singerman, Paul Steven, counsel for Alan L. Goldberg, Cross-Appellee.
11. Turnoff, William C, U.S. District Court, Southern District of Florida
(Magistrate Judge).
12. There is no creditors' committee.

C-1 of 1
 STATEMENT REGARDING ORAL ARGUMENT

Appellee does not require oral argument. Rather, premised upon the issues raised

herein, Appellee believes that this Honorable Court is in a position to make appropriate

legal conclusions premised upon the factual background.

i
 TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ............................................... i

TABLE OF CONTENTS .......................................................................................... ii
TABLE OF AUTHORITIES ..................................................................................... vi
STATEMENT OF SUBJECT MATTER AND ..................................................... xii
APPELLATE JURISDICTION .............................................................................. xii
STATEMENT OF ISSUES .......................................................................................1
STATEMENT OF THE CASE ..................................................................................3
STATEMENT OF FACTS ........................................................................................4
SUMMARY OF ARGUMENT ...............................................................................25
ARGUMENT ...........................................................................................................31
I. LAWRENCE'S CONSTITUTIONAL AND STATUTORY RIGHTS
WERE VIOLATED BY IMPRISONING HIM FOR OVER SIX YEARS,
OSTENSIBLY FOR CIVIL CONTEMPT, AND HIS RIGHTS
CONTINUE TO BE VIOLATED ......................................................................31
A. Lawrence's rights were violated through a sealed record, hearings,
and orders where undisclosed ex parte sworn and unsworn
testimonial hearsay was presented against him, and the Trustee
electronically eavesdropped on his attorney-client (and other) phone
communications .......................................................................................33
B. The ex parte turnover and contempt bankruptcy hearings and
unlawful eavesdropping on Lawrence's attorney-client (and other)
phone communications and use thereof violated Lawrence's rights .......44
C. The intrusion into Lawrence's attorney-client relationship through
the taping of his attorney-client phone calls during trial, invalidated all
further orders ...........................................................................................50
D. The district court proceedings did not afford due process to
Lawrence when he was restricted from presenting his claims and
confronting the witnesses used against him ............................................53
II. THE 25 MILLION DOLLAR FINE, BASED ON A RULE 37(b)
DISCOVERY SANCTION AND RESULTING CONTEMPT, WAS A
CRIMINAL SANCTION WHEN THERE WAS NO ABILITY TO PAY,
IT WAS NOT A COMPENSATORY FINE, AND THERE WAS NO
INDICATION WHO THE FINE WAS PAYABLE TO ....................................53

ii
III. ESTATE ASSETS WERE NOT INVOLVED UNDER THE
BANKRUPTCY CODE SINCE NO AVOIDANCE ACTION WAS EVER
UNDERTAKEN AND UNDER Caplin v. Marine Midland Grace Trust
Co., 406 U.S. 416 (1972) SINCE AN IN PARI DELICTO RELATIONSHIP
WAS ALLEGED ................................................................................................55
A. Recovery of a pre-bankruptcy transfer requires an avoidance action
under the Bankruptcy Code and cannot be accomplished through an
objection to discharge under 11 U.S.C. § 727 .........................................55
B. 11 U.S.C. § 550 is the only means by which liability for transfers is
established if an avoidance action occurs it and does not assign
liability to a transferor debtor ..................................................................58
C. The Trustee now admits that he has no money or enforceable
judgment against Lawrence .....................................................................58
D. The District Court Ruled That the Alleged Debt Used to Incarcerate
Lawrence Was Unlawful and That ―Our Constitution Prohibits
Imprisonment For Unlawful Debt‖ .........................................................59
IV. LAWRENCE'S RIGHTS OF ACCESS TO THE COURT, DUE
PROCESS, AND SIXTH AMENDMENT RIGHTS WERE VIOLATED
WHEN HE WAS EXCLUDED (PRO SE) FROM HEARINGS,
CONTEMPT PROCEEDINGS, ARE CONTINUING, AND THE
BANKRUTPCY COURT RULED IT WILL RESTRICT LAWRENCE‘S
RIGHTS ..............................................................................................................60
V. FURTHER SANCTIONS ARE BEING UNLAWFULLY
IMPLEMENTED AGAINST LAWRENCE WHEN THE CONTEMPT
WAS IDENTIFIED AS PUNITIVE, AND UPON NO NOTICE TO
LAWRENCE ......................................................................................................62
A. No Notice.................................................................................................62
B. Further Bankruptcy Court Contempt Proceedings Will Be
Conducted Without Due Process and Counsel For Lawrence ................63
VI. EVEN IF LAWRENCE‘S IMPRISONMENT WAS INITIALLY
LAWFUL, HE WAS KEPT IN PRISON FAR LONGER THEN THE LAW
ALLOWS UNDER 28 U.S.C. § 1826 AND IN VIOLATION OF HIS
RIGHT TO DUE PROCESS ..............................................................................64
A. The Trustee‘s contention that there is no outside due process and
statutory limit to the incarceration of a contemnor in federal court is
contrary to law .........................................................................................64

iii
VII. LAWRENCE‘S SIXTH AMENDMENT RIGHT TO COUNSEL WAS
VIOLATED WHERE UNDISPUTED FACTS SHOW ATTORNEY
CONFLICT EXISTED THAT ADVERSELY AFFECTED ATTORNEY
PERFORMANCE ...............................................................................................70
VIII. THE ASSIGNMENT OF AN APPEAL OF A BANKRUPTCY
COURT CONTEMPT SANCTION TO A MAGISTRATE, WITHOUT
CONSENT, VACATED THE CONTEMPT SANCTION AB INITIO
UNDER 28 U.S.C. § 636 AND Gomez v. United States, 490 U.S. 858
(1989) 72
IX. APPELLANT WAIVED ANY ARGUMENT THAT THE DISTRICT
COURT COMMITTED REVERSIBLE ERROR IN THIS APPEAL ............74
X. LAWRENCE‘S RIGHTS AGAINST SELF-INCRIMINATION AND
DUE PROCESS WERE VIOLATED BY CONCEALMENT OF THE
BASIS FOR INVOCATION OF HIS PRIVILEGE.........................................76
XI. THE INCORRECT STANDARD WAS USED TO JUDGE THE
CONTEMPT SANCTION WHEN LAWRENCE‘S CLAIMS THAT
RELATED TO ―IMPOSSIBILITY‖ WERE IGNORED ON THE BASIS
THAT HIS ONLY PERMITTED DEFENSE WAS TO ARGUE THAT
THE COERCIVE EFFECT OF INCARCERATION HAD ENDED ................79
A. The Magistrate, after holding an evidentiary hearing, made a factual
finding that he could not determine if Lawrence had the current
ability to comply with turnover, thereby invalidating the civil
contempt sanction ....................................................................................80
B. Both the bankruptcy and district courts found that coercion had lost
whatever effectiveness is may have previously had................................82
XII. A REVIEW OF THE SEALED RECORD WAS REQUIRED ON DUE
PROCESS GROUNDS AND UNDER Maggio v. Zeitz, 333 U.S. 56, 76
(1948) ..................................................................................................................83
XIII. WHETHER LAWRENCE WAS IMPRISONED FOR DEBT IN
VIOLATION OF THE FLORIDA CONSTITUTION AND 28 U.S.C. §
2007(a) ................................................................................................................86
XIV. RES JUDICATA, WAS IMPROPERLY USED WHEN THE
BANKRUPTCY COURT HAD NO JURISDICTION TO AWARD A
MONEY JUDGMENT UNDER 11 USC § 727 AND LAWRENCE WAS
DENIED DUE PROCESS AND OTHER RIGHTS ..........................................87
CONCLUSION ........................................................................................................88

iv
CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 32(a)(7) ..............................89
CERTIFICATE OF SERVICE ................................................................................89

v
 TABLE OF AUTHORITIES

Cases
Alderman v. U.S, ,
394 U.S. 165 (1969).......................................................................... 28, 49, 50
Anderson v. City of Bessemer City,
470 U.S. 564 (1985).")............................................................................ 34, 84
Arizona v. Shelton,
535 U.S. 654 (2002).......................................................................... 36, 40, 71
Avondale Shipyards, Inc. v. Insured Lloyd's,
786 F.2d 1265, 1270-71 & n.8 (5th Cir. 1986) .............................................34
BankAtlantic v. Blythe Eastman Paine Webber, Inc.,
12 F.3d 1045, 1050 (11th Cir. 1994) .............................................................41
Bartnicki v. Vopper,
532 U.S. 514, 524 (2001) ..............................................................................49
Black v. U.S.,
385 U.S. 26 (1966).........................................................................................51
Boddie v. Connecticut
401 U.S. 371 (1971).......................................................................... 21, 29, 60
CFTC v. Wellington Precious Metals, Inc.,
950 F.2d 1525, 1528-29 (11th Cir. 1992) ......................................... 79, 80, 86
Chadwick v. Janecka
312 F.2d 597 (3rd Cir. 2002) ................................................................. passim
Cohen v. Beneficial Industrial Loan Corp.,
337 U.S. 541 (1949)..................................................................................... viii
Combs v. Ryan‘s Coal Company, Inc.,
785 F.2d 970 (11th Cir. 1986).........................................................................87
Commodity Futures Trading Comm'n v. Armstrong,
284 F.3d 404 (2d Cir. 2002) ..........................................................................86
Consolidated Edison Company of New York v. United States,
247 F.3d 1378 (Fed. Cir. 2001) .....................................................................60
Continental Technical Servs., Inc. v. Rockwell Int'l Corp.,
927 F.2d 1198, 1199 (11th Cir. 1991) ...........................................................74
Conway v. Chemical Leaman Tank Lines, Inc.-,
644 F.2d 1059, 1062 (5th Cir. 1981) .............................................................34
Cotton States Mut. Lns. Co. v. Anderson,
749 F.2d 663, 666 (11th Cir. 1984) ........................................................ 34, 85
Crawford v. Washington,
541 U.S. 36(2004)............................................................................. 36, 39, 46
Faretta v. California, 422 U.S. 806 (1975) ................................................ 15, 17, 61

vi
Finn v. Gunter,
722 F.2d 711, 713 (11th Cir. 1984) ...............................................................62
Flanigan's Enterprises, Inc. of Georgia v. Fulton County, Georgia,
242 F.3d 976, 987 n.16 (11th Cir. 2001) ................................................ 30, 74
Gelbard v. U.S.
408 U.S. 41, 42 n.1 (1972) ............................................................................68
Gideon v. Wainwright,
372 U.S. 335 (1963)............................................................................... passim
Granfinanciera, S.A. v. Nordberg,
492 U.S. 33, 44-49 (1989) ...................................................................... 60, 87
Gray v. U.S.,
834 F.2d 967 (11th Cir. 1987) ................................................................. 41, 71
Holmes v. South Carolina,
S.Ct. Case No. 04-1327 (dec'd 5/1/06) ..........................................................36
Howard v. U.S.,
374 F.3d 1068 (11th Cir. 2004) ........................................................ 36, 40, 71
In re Chase & Sanborn Corp.,
872 F.2d 397 (11th Cir. 1989) .......................................................................54
In re Coggin,
30 F.3d 1443, 1452-54 (11th Cir. 1994) ........................................................58
In re Davis,
899 F.2d 1136, 1138-39 (11thCir. 1990) .......................................................47
In re Grand Jury Proceedings (Braun),
600 F.2d 420 (3rd Cir. 1979) ............................................................ 64, 65, 67
In re Grand Jury Proceedings (Joseph Howald),
877 F .2d 849, 850 (11th Cir. 1989) ..............................................................67
In re Icarus Holdings, LLC,
391 F.3d 1315, 1319 n.4 (11th Cir. 2004) .....................................................56
In re Lawrence,
227 B.R. 907 (Bankr. S.D. Fl 1998) ............................................... 3, 7, 37, 39
In re Lawrence,
251 B.R. 630 (S.D. Fl 2000) .................................................................. passim
In re Lawrence,
279 F.3d 1294 (11th Cir. 2002) .................................................... 4, 16, 26, 79
In re Novak,
932 F.2d 1397 (11th Cir. 1991) ............................................................. viii, 88
In re Piper Aircraft Corp.,
244 F.3d 1289, 1296 (11th Cir. 2001) ...........................................................34
International Union v. Bagwell,
512 U.S. 821 (1994)............................................................................... passim

vii
Jones v. U.S.,
224 F.3d 1251, 1253-54 (11th Cir. 2000) ......................................................49
Judd v. Haley,
250 F.3d 1308, 1314-15 (11th Cir. 2001) ......................................................45
Krys v. Lufthansa German Airlines,
119 F.3d 1515, 1523 (11th Cir. 1997) ...........................................................84
Lassiter v. Dept. of Soc. Servs.,
452 U.S. 18 (1981)............................................................................ 36, 40, 71
Lawrence v. Bankruptcy Court
153 Fed Appx. 552 (11th Cir. 2005) ................................................. 21, 29, 60
Maine v. Moulton,
474U.S. 159 (1985)................................................................................. 44, 52
Matter of Hipp, Inc.,
895 F.2d 1503, 1519-20 (5th Cir. 1990). .......................................................73
Matter of Younger,
986 F.2d 1376 (11th Cir. 1993) .............................................................. 65, 66
McCrone v. United States,
307 U. S. 61 (1939)................................................................................. 68, 69
McKaskle v. Wiggins
465 U.S. 168, 177 n.8 (1984) .............................................................................82
Mempa v. Rhay,
389 U.S. 128 (1969)................................................................................ 40, 61
Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 313 (1950) ..............................................................................33
Neder v. U.S.,
527 U.S. 1 (1999)...........................................................................................35
Nelson v. Adams.
529 U.S. 460 (2000).......................................................................................33
O'Brien v. U.S.,
386 U.S. 345 (1967).......................................................................................51
O'Halloran v. First Nat. Bank of Florida,
350 F.3d 1197, 1202-03 (11th Cir. 2003) ......................................................56
Ohio v. Roberts,
448 U.S. 56 (1980).........................................................................................39
Pegg v. U.S.,
253 F.3d 1274, 1277 (11th Cir. 2001) .................................................... 70, 71
Peretz v. U.S.,
501 U.S. 923 (1991).......................................................................................74
Pierce v. Vision Investments, Inc.,
779 F.2d 302, 306-310 (5th Cir. 1986) ..........................................................87

viii
Pillsbury Corp., v. Conboy,
459 U.S. 248 (1983).......................................................................................41
re Ozark Restaurant Equip. Co, Inc.,
816 F.2d 1222 (8th Cir. 1987). ......................................................................55
Ridgway v. Baker,
720 F.2d 1409, 1413 (5th Cir. 1983) ................................................ 36, 40, 70
Roe v. Flores-Ortega,
528 U.S. 470, 483-86 (2000) .........................................................................42
Rosen v. Cascade International, Inc.,
21 F.3d 1520 (11th Cir. 1994).........................................................................87
Satterwhite v. Texas,
86 U.S. 249, 256-57 (1988) ................................................................... passim
See E.F. Hutton & Co., Inc. v. Hadley,
901 F.2d 979, 984-85 (11th Cir. 1990) ................................................... 55, 56
Shearson Lehman Hutton, Inc. v. Wagoner,
944 F.2d 114, 118 (2nd Cir. 1991) ................................................................56
Shillitani v. United States,
384 U. S. 364, 370, n. 6 (1966) .............................................................. 68, 69
Solomon v. Liberty County Com'rs,
166 F.3d 1135, 1140 (11th Cir. 1999) ...........................................................84
Thomas v. Wentworth,
136 F.3d 756 (11th Cir. 1998) .......................................................................73
Trustmark Lns. Co. v. ESLU, Inc.,
299 F.3d 1265, 1267 (11th Cir. 2002) ............................................... 33, 62, 63
Twigg v. Sears Roebuck,
153 F.3d 1222 (11th Cir. 1998) .....................................................................32
U.S v. Ojeda Rios,
495 U.S. 257 (1990).......................................................................................49
U.S v. Terazdo-Madruga,
897 F.2d 1099, 1117 (11th Cir. 1990) ...........................................................51
U.S. v. Argomaniz,
925 F.2d 1349, 1355-56 (11th Cir. 1991) ......................................................76
U.S. v. Bell,
776 F.2d (65, 972-73 (11th Cir. 1985) ..........................................................51
U.S. v. Cronic,
466 U.S. 648 (1984)............................................................................... passim
U.S. v. Garcia,
517F.2d 272 (5th Cir. 1975) ................................................................... 70, 71
U.S. v. Gecas,
50 F.3d 1549, 1556 (11th Cir. 1995) .............................................................85

ix
U.S. v. Giordano,
416 U.S. 505, 521 (1974) ..............................................................................49
U.S. v. Greig,
967 F.2d1018, 1021 (5th Cir. 1992) ....................................................... 70, 71
U.S. v. Harnage,
976 F.2d 633, 636 (11th Cir. 1992) ...............................................................71
U.S. v. Hubbell,
530 U.S. 27 (2000).........................................................................................76
U.S. v. Meeks,
642 F.2d 733, 735 (5th Cir. 1981) .................................................................76
U.S. v. Morrison,
449 U.S. 361 (1981).......................................................................................51
U.S. v. Ruiz-Rodriguez,
277 F.3d 1281, 1293 n.17 (11th Cir. 2002) ...................................................73
U.S. v. Rylander.
460 U.S. 752 (1983).......................................................................... 76, 77, 81
U.S. v. Van Horn,
789 F.2d 1492, 1503-04 (11th Cir. 1986) ......................................................48
U.S. v. Yates,
391 F.3d 1182 (11th Cir.2004) ......................................................................41
United Kingdom v. U.S.,
238 F.3d 1312, 1322-23 (11th Cir. 2001) ......................................................47
United States v. Gonzalez-Lopez,
126 S.Ct. 2557 (2006) .......................................................................................82
Waller v. Georgia,
467 U.S. 39 (1984).................................................................................. 29, 45
Weatherford v. Bursey,
429 U.S. 545 (1977)............................................................................... passim
Wheeler v. City of Pleasant Grove,
746 F.2d 1437, 1440 (11th Cir. 1984) ...........................................................84
Williams v. California 1st Bank,
859 F.2d 664, 666-67 (9th Cir. 1988) ............................................................56
Statutes
11 U.S.C. § 521 ........................................................................................................57
11 U.S.C. § 541(a)(3) ........................................................................................ 55, 57
11 U.S.C. § 541(a)(l)................................................................................................55
11 U.S.C. § 548(e) ...................................................................................................58
11 U.S.C. § 550(a)(1) ...............................................................................................58
11 U.S.C. § 704(1) ...................................................................................................55
11 U.S.C. § 727 ............................................................................................. 3, 5, 8, 55
x
11 U.S.C. §727(a)(6) ................................................................................................41
18 U.S.C. §§ 151 et seq............................................................................................13
18 U.S.C. § 1512 ......................................................................................................37
18 U.S.C. § 2510(7) .................................................................................................47
18 U.S.C. § 2510(8) .................................................................................................48
18 U.S.C. § 2510(9) .................................................................................................47
18 U.S.C. § 2511(1) .................................................................................................48
18 U.S.C. § 2511(1)(e) .............................................................................................48
18 U.S.C. § 2511(2)(c) .............................................................................................48
18 U.S.C. § 2516 ......................................................................................................48
18 U.S.C. § 2517(1) .................................................................................................47
18 U.S.C. § 2517(5) .................................................................................................48
18 U.S.C. § 2518 ............................................................................................... 48, 49
18 U.S.C. § 2518(8)(a) .............................................................................................49
28 U.S.C. § 158(a) ...................................................................................................72
28 U.S.C. § 158(d) ............................................................................................. xi, xii
28 U.S.C. § 451 ........................................................................................................47
28 U.S.C. § 1291 ................................................................................................ xi, xii
28 U.S.C. § 1292(a)(1) ............................................................................................. xi
28 U.S.C. § 1334(b) .................................................................................................47
28 U.S.C. § 2075 ......................................................................................................57
Fla.Stat. § 934 ..........................................................................................................50
Rules
F.R.E. 404 ................................................................................................................38
F.R.E. 804(b)(1) ...................................................................................................7, 39
Fed.R.Bankr.P. 7069 ................................................................................................87
Fed.R.Bankr.P. 9033 ................................................................................... 24, 72, 75
Fed.R.Civ.P. 26(b)(l)................................................................................................47
Fed.R.Civ.P. 26(c)....................................................................................................47
Fed.R.Civ.P. 45(b)(1)...............................................................................................47
Fed.R.Civ.P. 45(c)(3) ...............................................................................................47
Fed.R.Civ.P. 60(b) ............................................................................................ 16, 30
Fed.R.Civ.P, 69 ..................................................................................... 30, 31, 57, 87
Constitutional Provisions
First Amendment.............................................................................................. passim
Fourth Amendment .......................................................................................... passim
Fifth Amendment ............................................................................................. passim
Sixth Amendment ............................................................................................ passim

xi
 STATEMENT OF SUBJECT MATTER AND
APPELLATE JURISDICTION

This Court has jurisdiction under 28 U.S.C. §§ 158(d) *, 1291, 1292(a)(1). This

includes appealability under the "collateral order doctrine," Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541 (1949) and for the reasons more fully set forth in

response to this Court‘s jurisdictional questions and to the Appellant‘s motion to

dismiss.

The finality of each claim presented herein has been recognized as individually

appealable since they impact irretrievable rights.

The test of the claims that challenge predicate orders in a civil contempt context

is properly labeled ―invalidity.‖ In distinguishing between available defenses to civil

and criminal contempts, this Court states: "Invalidity of the underlying order is a

defense to a civil contempt citation. See United Mine Workers, 330 U.S. at 294[,]" In re

Novak, 932 F.2d 1397 (11th Cir. 1991) at 1401 n.6. This distinction means that the

restrictive "collateral bar rule" does not apply in civil contempt, and under the more

lenient civil contempt defense standard of "invalidity," exceptions to the collateral bar

rule apply a fortiori.

* "Precedents defining finality under 28 U.S.C. § 1291, which grants to the court of
appeals jurisdiction over final decisions of the district courts, are similarly applicable to
section 158(d)." In re F.D.R. Hickory House, Inc., 60 F.3d 724, 725 n.2 (11th Cir. 1995).

xii
 STATEMENT OF ISSUES

I. WHETHER LAWRENCE'S CONSTITUTIONAL AND STATUTORY

RIGHTS WERE VIOLATED BY IMPRISONING HIM FOR OVER SIX
YEARS, OSTENSIBLY FOR CIVIL CONTEMPT, AND THOSE RIGHTS
CONTINUE TO BE VIOLATED WHEN:

a) After his appeal to this Court in 2001, he obtained access to an extensive sealed
bankruptcy record that was undisclosed to him, his attorneys, and all reviewing
courts which showed that: (i) beginning in May 1998 many undisclosed hearings
were held without Lawrence or his attorneys‘ knowledge; (ii) where sealed,
unconfronted, materially prejudicial testimonial hearsay witnesses and evidence
were presented against Lawrence; and (iii) the Trustee had secretly referred
Lawrence (who has no immunity) for prosecution in late 2000 and stated that
compliance with turnover would support that referral
b) The Trustee (and Bear Stearns & Co.) conducted extensive eavesdropping on
Lawrence's attorney-client (and other) phone calls throughout his appeal to this
Court in 2001, used and disclosed the tapes‘ purported contents (including at the
undisclosed hearings)—without sealing or playing thereof, without disclosure to
Lawrence, his attorneys, and all reviewing courts; and where the Government
had informed the Trustee that the eavesdropping violated Title III (18 U.S.C. §§
2510 et seq.)

c) The bankruptcy court is continuing the contempt proceedings and has imposed
additional sanctions on Lawrence, including depriving him of his rights to travel,
due process, and to counsel
II. WHETHER A 25 MILLION DOLLAR FINE WAS A CRIMINAL SANCTION
WHEN THERE WAS NO ABILITY TO PAY CONSIDERED, OR POSSIBLE;
NO COMPENSATORY ASPECT TO THE FINE; AND NO INDICATION
WHO THE FINE WAS PAYABLE TO

III. WHETHER ESTATE ASSETS WERE INVOLVED, UNDER Caplin v. Marine

Midland Grace Trust Co., 406 U.S. 416 (1972) AND THE BANKRUPTCY
CODE, WHEN IT IS UNDISPUTED THAT:
a) pre-bankruptcy transfer occurred and an alleged in pari delicto transferor/
transferee relationship was the basis for Lawrence's liability for that transfer,
using 11 U.S.C. §727, which section provides only for a denial of discharge

-1-
 b) No avoidance action under 11 U.S.C. § 541 (a), or transferee action under 11
U.S.C. § 550 were undertaken by the Trustee

c) The Trustee admitted that he has no money judgment against Lawrence

d) The District Court ruled the alleged debt used to incarcerate Lawrence was
unlawful and that ―our constitution prohibits imprisonment for unlawful debt‖

IV. WHETHER LAWRENCE'S RIGHTS OF ACCESS TO THE COURT, DUE

PROCESS, AND SIXTH AMENDMENT RIGHTS WERE VIOLATED BY
EXCLUDING HIM (PRO SE) FROM HEARINGS, CONTEMPT
PROCEEDINGS ARE CONTINUING, AND THE COURT RULED IT WILL
RESTRICT LAWRENCE‘S RIGHTS.

V. WHETHER FURTHER SANCTIONS CAN BE IMPLEMENTED AGAINST

LAWRENCE WHERE THE CONTEMPT HAS BEEN IDENTIFIED AS
PUNITIVE, AND UPON NO NOTICE TO LAWRENCE.

VI. WHETHER EVEN IF LAWRENCE‘S IMPRISONMENT WAS INITIALLY

LAWFUL, HE WAS KEPT IN PRISON FAR LONGER THEN THE LAW
ALLOWS UNDER 28 U.S.C. § 1826, AND IN VIOLATION OF HIS RIGHT
TO DUE PROCESS

VII. WHETHER LAWRENCE‘S SIXTH AMENDMENT RIGHT TO COUNSEL

WAS VIOLATED WHERE UNDISPUTED FACTS SHOW ATTORNEY
CONFLICT EXISTED THAT ADVERSELY AFFECTED ATTORNEY
PERFORMANCE

VIII. WHETHER ASSIGNMENT OF AN APPEAL OF A BANKRUPTCY

COURT CONTEMPT SANCTION TO A MAGISTRATE, WITHOUT
CONSENT, VACATED THE CONTEMPT SANCTION AB INITIO UNDER
28 U.S.C. § 636 AND Gomez v. United States, 490 U.S. 858 (1989).

IX. WHETHER APPELLANT WAIVED ANY ARGUMENT THAT THE

DISTRICT COURT COMMITTED REVERSIBLE ERROR

X. WHETHER LAWRENCE‘S RIGHTS AGAINST SELF-INCRIMINATION

AND DUE PROCESS WERE VIOLATED BY CONCEALMENT OF THE
BASIS FOR INVOCATION OF HIS PRIVILEGE

-2-
XI. WHETHER THE CORRECT STANDARD WAS USED TO JUDGE THE
CONTEMPT SANCTION WHEN LAWRENCE WAS LIMITED TO
ARGUING THE COERCIVE EFFECT OF INCARCERATION HAD ENDED
TO THE EXCLUSION OF AN ―IMPOSSIBLITY‖ DEFENSE

XII. WHETHER A REVIEW OF THE SEALED RECORD WAS NECESSARY

ON DUE PROCESS GROUNDS AND UNDER Maggio v. Zeitz, 333 U.S. 56
(1948)

XIII. WHETHER LAWRENCE WAS IMPRISONED FOR DEBT IN

VIOLATION OF FLORIDA CONSTITUTION ARTICLE I SECTION 11
AND 28 U.S.C. § 2007(a)

XIV. WHETHER RES JUDICATA, WAS INCORRECTLY APPLIED WHEN

THE BANKRUPTCY COURT HAD NO JURISDICTION TO AWARD A
MONEY JUDGMENT UNDER 11 USC § 727 AND LAWRENCE WAS
DENIED DUE PROCESS AND OTHER RIGHTS

STATEMENT OF THE CASE

Appellee/Lawrence was incarcerated for over 6 years by the bankruptcy court

for civil contempt based on a series of interrelated proceedings, hearings, and orders,

beginning in 1998, which were: (1) a discharge proceeding (under 11 U.S.C. § 727) in

which a Fed.R.Civ.P. 37(b) 1998 default order was issued by the bankruptcy court in

September 1998 as a discovery sanction based on Lawrence‘s testimony at a Rule 37(b)

hearing, In re Lawrence, 227 B.R. 907 (Bankr. S.D. Fl 1998); (2) subsequent turnover

and contempt orders (based on the "res judicata" effect of a finding in the discharge

default order that funds transferred pre-bankruptcy to a non-domestic trust were estate

property) were issued by the bankruptcy court, and aff‘d, In re Lawrence, 251 B.R. 630
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(S.D. Fl 2000), aff‘d In re Lawrence, 279 F.3d 1294 (11th Cir. 2002).

Subsequent to the original appeals, on further remand from this Court (03-10398-11),

Lawrence sought (and belatedly obtained) access to sealed bankruptcy court records and

challenged prior proceedings on constitutional and jurisdictional grounds. Those claims,

originally advanced by Lawrence‘s prior attorneys and then pro se, comprised the appeal to

the district court, and now to this Court.

STATEMENT OF FACTS

A. Preliminary Statement

The following facts are supported by the unreviewed sealed bankruptcy record

(in part undocketed), closed hearing transcripts, and new admissions by the Trustee.

All relevant proceedings in the bankruptcy case had ex parte sealed matters consisting

of: motions, hearsay evidence, sworn and unsworn hearsay testimony.

Most hearings were not transcribed. The docketed and undocketed sealed court record

began on May 5, 1998 and was only first disclosed to Lawrence in late 2004.

The sealed matters included the obtaining of Lawrence's attorney-client

communications by the Trustee (R-160-12), and the use and disclosure thereof.1 2

1
By the time of oral argument to this Court (in late May 2001) the Trustee‘s attorneys had
obtained access to tapes of Lawrence‘s attorney-client communications interceptions with Mr.
Neiwirth, his appellate attorney, which communications spanned every aspect of this case.
The Trustee‘s attorneys did not disclose to this Court, or the district court the foregoing

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 B. The Discharge Proceeding and Resulting Default Order

In June 1997, Lawrence filed for bankruptcy. In April 1998, the Trustee filed an

objection to discharge, under 11 U.S.C. § 727. He alleged that Lawrence was

concealing assets. The objection centered on an overseas trust Lawrence settled in

3
1991.

In May 1998, Trustee's attorney James H. Fierberg filed his own ex parte sworn

affidavit and related court papers (R-119-67, R-119-69 to 76), under seal in the

bankruptcy court. By that court's order (R-119-68), those documents were not

docketed. A hearing on those matters was held on May 7, 1998, also not reflected on the

docket. Lawrence, his attorneys, and all reviewing courts never knew of the filings or
4
the hearing, and no known transcript exists.

The sworn Fierberg affidavit (R-119-73 to 75), relied completely on multiple

hearsay (including respecting Lawrence's purported statements) and falsely alleged

there were seven alleged witnesses to support his accusation that Lawrence (and

unnamed others—one later identified Lawrence‘s attorney, Robert Stok) had

throughout multiple appeals

2
It was also disclosed that intercepted communications were passed on to the major creditor, Bear Stearns &
Co., Inc., a multi-billion dollar multinational corporation, for their own unrestricted use. Id. at 6.
3
The Trust was settled with funds that were not the product of fraud but instead the product of a
long career in the securities industry. The Trust's beneficiaries were primarily non U.S. citizens
and/or U.S. residents, and charities.
4
The Trustee has never disclosed how many closed hearings were held. At least thirteen have so
far been identified, for which transcripts of four have been obtained by Lawrence.

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committed and intended to further commit the crimes of witness tampering and

obstruction of justice.

The Fierberg affidavit attested that "the Debtor, Stephan Jay Lawrence has been

engaged in a systematic pattern of corrupt persuasion, intimidation and threat.... in

furtherance of his witness tampering." Attorney Fierberg successfully sought to have

his papers and his affidavit placed ―under seal to prevent Stephan Jay Lawrence and/or

his agents from further compromising the official process of this Court." (R-119-71)

(emphasis added).

The Fierberg affidavit, with its import of prospective criminal actions by

Lawrence and Stok, was submitted to the bankruptcy court just before the crucial July

1998 Fed.R.Civ.P. 37(b) hearing, which hearing was a court supervised deposition of

Lawrence where the only witness permitted was Lawrence.

Attorney Fierberg played a major role in representing the Trustee throughout all

proceedings in this case, including all appeals,. He never disclosed his role as
5 6
Lawrence‘s principal sworn accuser.

Lawrence was provided no opportunity throughout the discharge (and later)

proceeding(s) to confront Mr. Fierberg's secret sworn "testimonial" hearsay statements

5
Subsequent to the May 7, 1998 hearing there is no other record of Mr. Riley, the alleged private
investigator whose ―investigation‖ the papers were filed in support of retaining. This includes no
record of P.I, Riley being paid by the estate -- leading to the conclusion that Bear Stearns paid him.
6
The Fierberg court papers were first placed on the bankruptcy docket at some time after mid
September 2004 as CP‘s 1426 to 1429.

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and allegations. Indeed, Lawrence and his attorneys never knew of attorney Fierberg‘s

prominent witness status, sworn testimony, and role as Lawrence‘s accuser in this case.

The discharge proceeding effectively consisted of the July 1998 Rule37(b)

discharge hearing. In re Lawrence, 227 B.R. 907 (S.D. Fl 1998). At that hearing,

Lawrence's credibility was ruled to be the sole determinative factor, and thereby he was

not permitted to introduce witnesses or supporting deposition testimony. Id. at 910 &

n.4 ("the Debtor, who was the sole witness"; "The Court denied the Debtor's request to

call this witness as the only relevant inquiry at the hearing was the Debtor's personal

knowledge[.]"; "the Debtor-chose not to testify truthfully.").

During the Rule 37(b) hearing, Lawrence unsuccessfully tried to introduce

deposition testimony of his accountant, Hilton Sokol (who succeeded to the accounting

business of Mr. Martin Bach—an alleged witness-tampering victim), under FRE

804(b)(1). The Trustee successfully blocked that testimony even though it was from

prior debtor/creditor litigation with Bear Stearns concerning its claim to the Trust's

assets (trans. July 21-23 1998 hearing [Bankr. CP‘s 332-34] at 349-350, 342-353). The

Trustee knew that Mr. Bach was to be a principal witness for Lawrence in the discharge

proceeding.

The Trustee never produced any known evidence or testimony to support

attorney Fierberg's sworn testimonial hearsay affidavit.

No proffers by Lawrence were permitted at the Rule 37(b) hearing. Id. at 300,

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352-353. Mr. Stok objected to the court's restrictions, which objections were noted by the

court. Id. at 58, 130, 257, 348, 504.

Lawrence was not provided notice that personal liability was being sought against him

as a result of the discharge proceeding. 11 U.S.C. § 727 does not provide for such relief.

The bankruptcy court, in its Sept. 1998 discharge default order, made a finding that the

trust assets were estate property and found Lawrence to be not credible. 227 B.R. at 918.

1. The Defaulted Discharge Appeal—Based on Attorney error

Mr. Stok, on Lawrence's instruction, appealed the discharge order. That appeal was

defaulted when Mr. Stok failed to file a notice of record [Bankr. CP 1416]. Stok then

withdrew as Lawrence's counsel.

Lawrence's then retained Ronald G. Neiwirth to reinstate the defaulted appeal (appeal

no. 99-2674). On July 3, 1999, Mr. Neiwirth, in agreement with the Trustee, filed an

AGREED MOTION TO DISMISS APPEAL WITH PREJUDICE (R-162-21) [Bankr. CP

1416], seeking to dismiss the reinstatement appeal. That motion was not served on Lawrence.

On July 14, 1999, the Trustee filed his turnover motion [Bankr. CP 642] based on the

discharge order. The turnover order was issued on Aug. 26, 1999, followed by the contempt

order on Sept. 9, 1999.

Later, on Sept. 13, 1999, this Court dismissed Lawrence's reinstatement appeal

with prejudice [CP 1417]. Mr. Neiwirth never attempted to withdraw his motion to

dismiss that crucial appeal, nor did he inform Lawrence that the dismissal motion could

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be withdrawn and the appeal prosecuted.

Mr. Neiwirth also represented Lawrence in the appeals to the district court, and

to this Court, of the turnover and contempt orders. He later admitted that Bear Stearns

& Co. was a client of his law firm "at all relevant times." (Bankr CP's 1239, 1259).

C. The Turnover, Contempt and Ex Parte Proceedings, Title III Orders and
Attorney-client Communications Eavesdropping

The bankruptcy court's turnover and contempt orders were based entirely on the

discharge order and bankruptcy record (including the then unknown sealed, and
7 8
undocketed Fierberg court papers, supra). The district court upheld the bankruptcy

court decisions, In re Lawrence, 251 B.R. 630 (S.D. Fl 2000. This Court then affirmed

that "the bankruptcy court properly took notice of and considered the evidence placed

into the record in the underlying bankruptcy litigation." Lawrence, 279 F.3d at 1298.

The district court rejected Lawrence's objection that the Trustee had presented

no evidence at the Aug. 26, 1999 turnover hearing but instead relied completely on the

bankruptcy record: "[Lawrence's] argument, however, fails to acknowledge that the

7
The then public bankruptcy court record contained virtually no evidence directly germane to the
issues of the Trust and/or hidden assets, a fact later admitted to by the Trustee.
8
The Trustee never pursued an avoidance action respecting the Trust, never sought recovery
under 11 U.S.C. § 550 (setting liability for an avoided transfer), never obtained a money judgment
against Lawrence (or any other party), never provided Lawrence with notice that he (the Trustee)
was seeking personal liability against Lawrence in the discharge proceeding. The only relief
available, under 11 U.S.C. § 727, is a denial of discharge.

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bankruptcy court properly took notice of the court file to make its findings [at the Aug.

26, 1999 hearing]." Lawrence, 251 B.R. at 648-649.

In Jan. 2000, during Lawrence's appeal of the turnover and contempt orders to

the district court, the Trustee submitted a sealed application to hire another private

investigator, Juval Aviv (Interfor, Inc.), also without disclosure to Lawrence. The

application and order called for P.I. Aviv to make periodic reports directly to the

bankruptcy court on his investigation (Bankr. CP's 801 at 2, 802 at 2 (R-23-32).

The underlying theme in the Trustee's ex parte allegations and testimonial

hearsay evidence that he presented against Lawrence was that because he (the Trustee)

was making an ex parte showing that Lawrence was taking further steps to conceal

assets he needed ongoing secrecy to thwart Lawrence‘s efforts.

9
In September 2000, P.I. Aviv executed an affidavit (R-22). At the June 17,

2004 bankruptcy hearing, the court first disclosed to Lawrence that the Aviv affidavit

had been previously submitted to that court under seal (June 17, 2004 trans. at p.69 [CP

1405]). The sworn Aviv affidavit (with its exhibits) is still sealed and remains

undocketed. The affidavit falsely stated that Lawrence was conducting "international

trading," had secret bank accounts (including a false allegation of British bank accounts

containing $10,000,000) and secret brokerage accounts, among other spurious

9
Lawrence independently obtained a copy of the Aviv affidavit years later, but without its
exhibits, JA1, that the Trustee still refuses to provide to Lawrence.

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allegations. P.I. Aviv swore that the sources of his information were unnamed
10
confidential informants.

In late 2000, the Trustee secretly referred Lawrence (who has no immunity) to

the US Attorney‘s Office (―USAO‖) for prosecution respecting the Trust and the

turnover and contempt orders (R-130-46, Bankr. CP 1074-ExhibitA). That referral was

concealed from Lawrence, the district court, and this Court.

1. The Eavesdropping on Lawrence’s Attorney-client Communications

On Nov. 7, 2000, just after the original appeal to this Court began, the Trustee

filed a motion under seal in the bankruptcy court for an order to have the FDC Miami

(where Lawrence was incarcerated on September 15, 2000) provide him with its prison

security law enforcement tapes of Lawrence's phone calls, and to intercept future

Lawrence phone calls to "enforce the terms" of the district court‘s July 31, 2000 order

affirming the bankruptcy court's turnover and contempt orders (CP 1060 at pp.2-3 ¶4

[R-23 to 32]).

On Nov. 16, 2000, the first (of four known) undocketed ex parte hearings were
11 12
held. The hearing was attended by the Trustee, the USAO and the Federal Bureau

10
The sealed record shows that further undisclosed alleged ―experts‖ become associated with the
Trustee, requiring further ex parte reports to the bankruptcy court, and that further hearings
occurred (E.g., R-23 to 32).
11
On Sept. 26, 2005 Lawrence first learned of the hearings. When the district court ordered the
bankruptcy record unsealed in Aug. 2004 [CP 1424] the hearings were not disclosed to Lawrence
or made public.
12
When the Trustee learned that Lawrence had obtained the closed hearing transcripts, he filed

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of Prisons (―FBOP‖) to hear argument on the Trustee's Title III requests. At the specific

request of the parties, all four of the ex parte hearings were kept off of the docket

because of the stated fear that "hearing[s] like this ... might become public[.]" Nov. 16,

2000 trans, at p.37 ln.19 to p.39 ln.4.

During the November 16 hearing, the Government objected to providing the

tapes to the Trustee on the basis that Title III prohibits that production:

MR. DEAGUIAR: [FBOP counsel]: Compliance with the Trustee's request

would violate ... Title 3 of the omnibus Crime Control and Safe Streets Act of
1968 found at 18 USC Section 2510 through 2522[.]

Id. at p.7 lns.6-11.

MR. DEAGUIAR: The Government . . . does not have the authority to disclose
these records outside the Bureau of Prisons because the Bureau of Prisons has
authority pursuant to an exception to Title 3, which is basically the statute
governing wire taps, and Title 3 excludes the interception of phone
conversations through electronic means when said conversations are intercepted
by law enforcement officials in the ordinary course of their duties.
Under this very narrow exception the Bureau of Prisons records all inmate
telephone conversations and the Bureau does not feel that it's authorized to
release these to a third party[.]

Id. at p.18 ln.18 to p.19. ln.7.

The Government questioned the authority of a bankruptcy judge to issue Title III

orders. Id. at p.30 lns. 12-17.

After the Government refused to provide its law enforcement tapes to the

three successive "corrections" to his appellee brief in mandamus Appeal No. 04-15131, after this
Court had issued its final September 19, 2005 order. He admitted (after previous denials) that
Lawrence's phone tapes had been used in the ex parte hearings.

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Trustee, on December 4, 2000 he filed another motion (R-130-42) to compel

production of the tapes. In that motion the Trustee, again, stated that the tapes were

needed to enforce the discharge, turnover, and contempt orders. Id.

Importantly, the Trustee directly tied his need for the law enforcement tapes to

his prior referral of Lawrence to the USAO for prosecution for bankruptcy crimes:

"[the tapes] will support a criminal prosecution for bankruptcy fraud, see 18 U.S.C. §§

151 et seq." Id. at 46.

The next day, on December 5, 2000, another undocketed hearing was held, with

the same parties in attendance. The Government, again, objected on Title III grounds to

the release of its law enforcement tapes and the future intercepting of Lawrence's phone

calls for the Trustee (trans. December 5, 2000 hearing at pp. 7-8, 17, 23). The

Government also stated that the use of its law enforcement "prison tapes" is restricted to

criminal cases (Id. p.15 lns.5-25, p.22 ln.25 to p.23 ln.18).

The issue of the attorney-client taping was raised at the hearing: "THE COURT:
13
what's his attorney informed?" Id. at pp.13, 22

The bankruptcy court raised the issue of its own jurisdiction to issue Title III

orders. Id. at p.20.

The bankruptcy court ordered the Government to provide the Trustee with

13
Lawrence's appellate attorney, Mr. Ronald Neiwirth, in a Sept. 21, 2005 letter to Lawrence,
stated that he did not know that tapes of his phone calls with Lawrence were provided to the
Trustee and did not consent to any such eavesdropping (R-101-4).

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unrestricted access to all of Lawrence's past phone tapes, and to intercept all future

calls, unrestricted and with no exception for attorney-client communications. Id., at 28.

On Dec. 28, 2000, a third off-docket ex parte hearing was held with the same

parties. At hearing, Mr. Fierberg sought an extension of the first tape order and he gave

his personal hearsay (unsworn) testimony of the purported contents of phone tapes he

had received from the FDC Miami (December 28, 2000 trans. at p.5 ln.23 to p.8 ln.17).

P.I. Aviv appeared telephonically, unsworn; to report on his investigative use of the

tapes he had reviewed. He reported that using "our information," a "Mareva

[prejudgment] injunction" was issued in England, freezing Lawrence's assets; and that

he had received the ―records of the [bank] accounts" referenced in his sealed affidavit.

He also stated: "We are on the eve of freezing his bank accounts[.]" (December 28,

2000 trans. at 13); "I delivered on this one and I'm very pleased of it. Thank you." Id. at

p.17 lns.7-13.

No tapes were played at the hearings, no tape transcripts were provided, the

tapes were never sealed, the purported tapes' contents were not introduced under oath,

and neither Lawrence nor any other party to his conversations were noticed that the

purported tapes' contents were to be used in court. Mr. Aviv's unsworn hearsay

testimony, including on documents he claimed he had in his possession, was not

supported by any evidence whatsoever. None of the allegedly inculpatory bank account

statements were introduced as evidence, and no other European court papers or

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documents were ever placed on the record or produced to Lawrence—despite his
14 15
ongoing discovery motions, including under Brady.

On Jan. 17, 2001, a forty (40) day "extension" order, of the original tape order

was issued (R-23 to 32, Bankr. CP 1093) On Feb. 1, 2001, a perfunctory off-docket ex

parte hearing was held and a further three (3) month "extension" order was issued

(Bankr. CP 1107).

On May 2, 2001, upon the Trustee's sealed motion, another "extension" order

was issued for two (2) more months (Bankr. CP 1107).

At no time were the USAO, FBOP, or any court notified that Bear Stearns was
16
being provided unrestricted access to the law enforcement tapes.

In July, 2000, Lawrence‘s attorney Alan Reed, who was representing him in the

bankruptcy court proceedings, died (Bankr. CP 974). For a substantial period of time

Lawrence had no representation in the bankruptcy court (Bankr. CP 974). No Faretta

14
P.I. Aviv, in mid 2001, was fired or resigned as ostensibly the Trustee's P.I. and Bear Stearns
replaced him with John Featherly who apparently repeated P.I. Aviv's investigation from scratch,
but with full access to the law enforcement tapes and European documents (R- 21-3 (Featherly
retention proposal directed to Bear Stearns), sealed Bankr. CP 1127).
15
The Trustee successfully argued in his sealed wiretap requests that: "it is highly- unlikely that
the Debtor will voluntarily comply with [the] Turn Over Order," so the tapes—instead of
compliance—would support Lawrence's referral for criminal prosecution for bankruptcy fraud.
See Bankr. CP 1060 at 3, (R-130-46) CP 1074-Exhibit A at 2 (R- 23 to 32).
16
It was not until April 20, 2006, that the Trustee first admitted (after repeated denials) that the
contents of the law enforcement tapes were provided to Bear Stearns.(see fn ). This provided Bear
Stearns with the ability to monitor the performance of Lawrence's appellate attorney, Mr. Neiwirth
(and his law firm), who later disclosed that his law firm represented Bear Stearns at ―all relevant
times‖ (Bankr. CP's 1239, 1259), and to obtain other useful privileged information concerning its
pending Florida state court litigation with Lawrence and his family.

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hearing was ever held.

D. The Remanded Bankruptcy Court Proceedings

After this Court's January 2002 order, In re Lawrence, 279 F.3d 1294 (11th Cir.

2002), Lawrence‘s new attorney filed his Motion in the Interest of Justice ("MIJ") in the

district court and Lawrence invoked his Fifth Amendment right against

self-incrimination. Those matters were remanded to the bankruptcy court (Appeal No.

03-10398) with no adjudication on the merits. At that time, Lawrence was still unaware

of the sealed matters, including the Title III matters.

Lawrence, through the MIJ and related motions sought to vacate the turnover

and contempt orders. His claims were First, Fourth, Fifth, Sixth Amendment, and

jurisdictional claims, claims under 28 U.S.C. § 1826, and under Fed.R.Civ.P. 60(b).

Lawrence sought full disclosure of the sealed record and asserted that its very existence

was grounds to vacate the contempt ab initio (CP 1227). His request for access to the

sealed record was denied by the bankruptcy court (CP 1262).

On June 19, 2003, hearing was held in the bankruptcy court on some of

Lawrence‘s claims, including his self-incrimination privilege claim (CP 1227 at 4-5).

Lawrence‘s attorney asked if Lawrence had been referred for prosecution. Although the

Trustee, had already referred Lawrence to the USAO for prosecution in late 2000

(R-130-46, Bankr. CP 1074-ExhibitA), he stated the opposite at hearing, and

challenged Lawrence to prove otherwise:

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 MR. AVRON: I am unaware of any prosecution ' or investigation, and I would
invite opposing counsel to produce even one piece of paper showing a pending
criminal investigation ... until I've seen such a paper or such papers are produced
to this Court, I think it's just a misrepresentation of fact ... it just hasn't
happened to our knowledge. We certainly have never seen it.
June 19, 2003 trans. (CP 1231) at p.36 lns.14-23.

At the critical October 8, 2003 discovery hearing, which was to include inquiry

in Mr. Neiwirth‘s conflict concerning his law firm‘s representation of Bear Stearns,

Lawrence‘s then counsel, Robert Malove, withdrew over a fee matter at the hearing‘s

onset. Lawrence proceeded pro se at that critical hearing, but he objected to his hands

being kept shackled throughout that hearing, thereby making it impossible for him to

refer to his legal papers and properly represent himself (trans. October 8, 2003 bankr.

hearing at pp. 5-6). No Faretta inquiry was made at that hearing, or thereafter.

On November 4, 2003, another bankruptcy hearing was conducted without

Lawrence, pro se, despite Lawrence‘s unavailing attempts to be transported to that

hearing. At the hearing Lawrence was instructed by the bankruptcy court to sign papers

for the Trustee, as a precondition to release from prison. Lawrence filed an objection to

his exclusion from that hearing, at which new conditions for his release were set by the

bankruptcy court (trans. November 4, 2003 bankr. hearing at 8; bankr. CP 1286), and he

had to order that hearing transcript to find out the new conditions required of him for

his release from prison.

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 E. The District Court Mandamus Proceedings, Mandamus Appeal, and
Bankruptcy Proceedings

In early 2004, when no rulings were issued on his claims, Lawrence filed a

petition for writ of mandamus (Case No. 04-20573-CIV-GOLD) in the district court.

That court granted Lawrence partial relief and ordered the bankruptcy court to rule on

his outstanding claims, which was done in a series of bankruptcy orders issued in

June-July 2004, after a bankruptcy hearing on June 17, 2004. Lawrence‘s claims all

were denied, including his request to unseal the sealed bankruptcy record.

On July 6, 2004, Lawrence timely filed a Notice of Appeal (CP 1369). That

notice of appeal included all bankruptcy court orders, and resulted in direct appeal

05-20485-CIV-GOLD (this case).

At the June 17, 2004 bankruptcy hearing (trans. CP 1405), Lawrence called as
17
witnesses: the Trustee and his attorneys, and (unsuccessfully) P.I. Aviv. The court

did not permit Lawrence to question witnesses about the sealed record (which he still

did not have access to). Id. at pp. 16-17, 42-65.

When the court requested a proffer from Lawrence, respecting the sealed record,

Lawrence proffered: "the sealed proceedings had to do with my contempt and the

underlying orders, the enforcement of those orders." Id. at p.42 lns. 12-14.

When attorney Paul Avron disputed that proffer; the bankruptcy court presented

17
The Trustee claimed that he did not know Mr. Aviv's whereabouts, June 17, 2004 trans at p.68
lns. 10-12.

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that proffer to Mr. Avron as a question, under oath; Mr. Avron testified: "I think the

answer is no." Id. at p.44 ln.5 and questioning on the subject was cut off. Lawrence also

unsuccessfully attempted to question attorney James Fierberg, who was a major

witness against Lawrence, supra. The bankruptcy court limited Lawrence to questions

on if "the coercive effect of his incarceration ended," and excluded all questions

relevant to his claims—even though the hearing had been ostensibly held to hear

Lawrence's claims in his long pending motions:

MR. LAWRENCE: ... I'd like to question [bankruptcy trustee Goldberg] about
his report, about his conduct in this case.

THE COURT: Well, his report deals not with the coercive effect of your
incarceration, so that's immaterial and inappropriate for you to ask him those
questions at this time[.]

MR. LAWRENCE: Your Honor, that simply deprives me of a defense.

THE COURT: We are not here on a defense, Mr. Lawrence. Those matters
were adjudicated, appealed, and affirmed long ago[.]

MR. LAWRENCE: Again, I'd just like to make sure the record is clear I‘m
objecting to that[.]

THE COURT: Okay, those objections are noted.

Id. at pp.60-61.

When Lawrence asked Mr. Avron, under oath, if he received information from any of

Lawrence's attorneys he answered "no." Id. at pp.51-52. Thereby, the taping and use of

Lawrence‘s attorney-client communications remained undisclosed.

Trustee's attorney, Michael Budwick, was then asked under oath if he knew that

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Lawrence did not have any hidden assets; his response was: "I could not testify to that

effect because I do not know one way or the other whether or not he has hidden bank

or stock accounts." Id.. at p.55 ln.19 to p.57 ln.3.

For years, the bankruptcy court adopted the Trustee‘s position and proceeded on the

basis that the only defense Lawrence was entitled to raise was for him to prove that the

coercive effect of incarceration had ended. Thereby, the ex parte matters and communications

interceptions were ruled to be irrelevant to the only issue Lawrence could argue. That position

was repeatedly advanced by the Trustee as a means to successfully block consideration of

Lawrence‘s claims of ―impossibility.‖

The Trustee, in his appellant brief, now claims that proving the coercive effect of

incarceration has ended is not the correct standards to use. This is after the district court

ruled a coercive effect to incarceration had ended.

At recent hearing on January 16, 2007 the bankruptcy court also stated that

incarceration no longer had a coercive effect:

THE COURT: ….What are you going to do if he doesn't comply, put him back
in jail?

MR. SINGERMAN: Your Honor –

THE COURT: It doesn't have any coercive effect.

Trans. January 16, 2007 bankr. hearing at p.20 lns. 20-24

In mid August, 2004, after the bankruptcy court had issued its orders, the mandamus

court granted Lawrence further relief and ordered the bankruptcy court to unseal the sealed

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record, over the prior vehement objections by the Trustee (bankr. CP 1424). The mandamus

court also ruled that Lawrence should pursue his claims in the pending direct appeal and not

in a mandamus petition. 18

Lawrence then filed a limited appeal of the district court's mandamus order to

this Court (Appeal No. 04-15131), in large part based on the ambiguous language in a

filing restriction placed on Lawrence in the mandamus case.19 In the appeal, Lawrence

informed this Court that he was following the district court's instructions and pursuing

his claims in his direct bankruptcy appeal (the instant case).

Under those facts, on September 19, 2005 this Court ruled, Lawrence v.

Bankruptcy Court 153 Fed Appx. 552 (11th Cir. 2005), that Lawrence's rights were not

violated by a limited filing restriction, for docket management purposes, as long as the

restrictions did not infringe on his right of access to the court, citing Boddie v.

Connecticut 401 U.S. 371 (1971) Id.. This Court confirmed that a direct appeal route

was appropriate for Lawrence's claims and declined to rule on the merits of those

claims. Thereby, Lawrence's right of access to the court was protected because he had a
20
direct appeal.

Prior to this Court‘s September 19, 2005 decision, the district court, in

18
Because mandamus relief was being sought, for which different standards applied, the scope of
issues presented in the mandamus proceeding was limited.
19
The Trustee did not appeal the district court‘s reversal of the bankruptcy sealing orders.
20
Subsequently, Lawrence's bankruptcy appeal proceeded, including the docketing of motions,
and a separate appeal, on a limited issue, proceeded ( 05-20637-CV-SEITZ).

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Lawrence‘s direct bankruptcy appeal (this case) had incorrectly proceeded on the basis

that Lawrence‘s claims would be decided by this Court in the pending mandamus

appeal 04-15131 (R-29-6 states: ―Appellant appealed the June 28, 2004 [bankruptcy]

Order to the district court in Case No . 04-20573-CIV-GOLD [the mandamus case]. I

find that the issues which Appellant sought to appeal in the June 3, 2004 [bankruptcy]

Order are currently on appeal to the Eleventh Circuit in Case No 04-20573-CIV-

GOLD and this case is merely duplicative.‖). This situation was remedied through the

later district court proceedings, the appeal of which is now here before this Court.

F. The Further Bankruptcy Court Proceedings

1. Crime Fraud Exception Proceedings in the Bankruptcy Court

During further proceedings in the bankruptcy court, a crime-fraud exception

order was issued against Robert Stok, Lawrence‘s attorney during the critical discharge

proceeding. There was no new evidence offered in support of that ruling which was

based on prior court orders.

The crime fraud exception ruling was relevant to Lawrence‘s claims of attorney

conflict, infra, and particularly his self-incrimination claims:

THE COURT: ... [I]t is the opinion of this Court that the decisions that have
been rendered through the 11th Circuit in connection with this matter, in fact,
which are the foundation of the unfortunate incarceration ... have confirmed that
Mr. Lawrence is guilty of concealment of bankruptcy assets [and] records [and
this is] a case of bankruptcy fraud under 18 United States Code Section 157....
you may go into any matter that came up that dealt with the participation of Mr.
Stok with Mr. Lawrence in connection with the creation of the trust, the
concealment of the assets, the transfer of the assets.... anything that ... was done

-22-
 in conjunction with Mr. Stok is within ... the crime fraud exception and subject
to inquiry.

Oct. 4, 2004 trans, at p.80 ln.16 to p.81 ln.17.

2. The Further Exclusion of Lawrence, pro se, from critical proceedings

where his attorney-client files were turned over to the Trustee, over
Lawrence’s objections

An ongoing pattern of excluding Lawrence from critical proceedings continued. On

June 21, 2005, at hearing held without Lawrence (pro se) even though he had requested

transport to that critical hearing and objected to his exclusion therefrom (bankr. CP‘s 1586,

1597), his attorney-client privileged files were turned over to the control of the Trustee. The

files were from the law firm of Storch &Brenner ("S&B"), which firm represented Lawrence

in the late 1980's. That firm was never the subject of a crime-fraud exception order.

In 1998, the S&B files had been found by the bankruptcy court to be privileged, which

order was never appealed by the Trustee (CP's 236, 246, 249, 338, 1589). Lawrence objected

to the turnover of his privileged files (CP1589). He also sought to have the bankruptcy court

vacate his contempt, based on the use of his incarceration to again exclude him (pro se) from

the June 21, 2005 "critical stage" hearing, and the turnover of his attorney-client privileged

files to the Trustee (CP 1597). 21 22. Lawrence‘s motions were denied (CP 1608). When

Lawrence filed a timely notice of appeal (CP 1610), his appeal was terminated (CP 1621) on

21
The Trustee later acknowledged the files were not inculpatory.
22
The Trustee sought to have Lawrence then take possession of the files, which he refused to do
on the grounds that a chain of custody would then include him if the files had been tampered with.

-23-
the basis that the "prison mail box" rule did not apply (under that rule the notice was timely),

even though Lawrence had mailed his notice of appeal the same day he received the appealed

order, as documented at the FDC Miami (CP 1619).

When Lawrence sought to use local rules to reinstate his appeal (CP 1623, 1630,

1633), neither the motion to reinstate the appeal, or an amended notice of appeal to further

appeal the termination of his appeal (CP 1624) were processed by the bankruptcy court or the

district court, even though this Court had ruled that the previous crime fraud order, issued

against attorney Robert Stok, was a final order and appealable (05-14744).

3. The District Court Review Proceedings

Lawrence filed his original notices of appeal in July 2004 (CP 1369), and after

an unexplained delay, that appeal (this case) commenced in February 2005. Moreover,

although Lawrence did not know it at the time (he was in prison), the sealed record,

which he designated for appeal (CP‘s 1361, 1444), was never transmitted despite the

order of the mandamus court to unseal that record (CP 1424).

A briefing schedule was never set by the district court in this case, and there was

no consideration of the Fed.R.Bankr.P. 9033 objections Lawrence filed respecting the

bankruptcy court orders on his challenges to the contempt sanction.

The district court proceedings were conducted in a manner where, effectively,

the only issue under consideration was whether the coercive effect of incarceration

ended.

-24-
 4. The continuing contempt proceedings in the bankruptcy court

Even though the district court ended imprisonment, and the accumulation of the

$10,000/day fine (now over 25 million dollars) the bankruptcy court is still proceeding

with the contempt proceedings. In January that court imposed what has been labeled as

―post-release obligations,‖ which are really comprised of orders for Lawrence to not

leave the state of Florida, and to testify to the very same information the Trustee was

surreptitiously seeking from him through interception of his phone communications,,

his compliance with turnover, and repeating court orders to Lawrence for him to

provide the Trustee with information on his alleged hidden assets.

Lawrence, again, raised the same defenses to these repeating matters that form

the subject matter of this appeal.

At hearing on January 16, 2007, the bankruptcy court ruled that it would not

recognize any defenses Lawrence may raise in the ongoing contempt proceedings,

because he remains in violation of court order:

THE COURT: Because you are in violation of orders of this Court, this Court
rules that you are not entitled to relief from this Court or assistance while you
remain in violation of Court orders. You cannot thumb your nose at the Court
and disobey its orders…. when you bring it back, this Court will then consider
purging your contempt and offering other benefits that might be available to
litigants before a Court, but under these circumstances the Court just does not
believe you are entitled.

Trans. January 16, 2007 bankr. hearing at p.19 ln.24 to p.20 ln.16.

SUMMARY OF ARGUMENT

-25-
 The formerly sealed bankruptcy record prima facie shows that critical

information was kept from Lawrence, his attorneys, and reviewing courts until late

2004, long after his initial appeal to this Court, In re Lawrence, 279 F.3d 1294 (11th Cir.

2002).

That record shows many closed, unreviewed hearings were held without the

knowledge of Lawrence and his attorneys (at least thirteen are now known of, i.e., over

75 per cent of all hearings). Those hearings began on May 7, 1998, at the onset of the

crucial bankruptcy discharge proceedings from which the discharge default order was

issued which order formed the essential foundation for the later turnover and contempt

orders, and the $25 million dollar fine, all under appeal.

At the hearings, and as filings submitted under seal, extensive sworn and

unsworn testimonial hearsay evidence and witnesses was used against Lawrence.

Those actions were never disclosed to Lawrence, his attorneys, and all reviewing courts

(including while appeals were pending).

A principal ex parte witness against Lawrence was later discovered to be

opposing attorney James Fierberg, who on May 5, 1998 submitted his sworn affidavit

to the trial court. His affidavit was extremely prejudicial to Lawrence in the discharge

and all subsequent proceedings. He accused Lawrence (and others, including

Lawrence‘s attorney), through his testimonial multiple hearsay, of the crimes of past

and prospective witness-tampering and obstruction of justice concerning witnesses

-26-
who Mr. Fierberg stated were crucial to the Trustee‘s case against Lawrence. Thereby,

despite attorney Fierberg‘s prominence and presence in all proceedings, Lawrence was

deprived of his rights to confront him and his accusations. Indeed, Lawrence never

knew what the Fierberg hearsay accusations were. This made it impossible, even

inadvertently, for him to defend himself in the discharge and all later proceedings,

respecting matters the Trustee himself claimed were crucial to his case against

Lawrence.

Lawrence was also, thereby, deprived of the ability to make rational appellate

decisions on matters and filings already submitted under seal to the trial court.

The prima facie violations of Lawrence‘s rights, as a result of the foregoing, can

be categorized as per se constitutional violations. U.S. v. Cronic, 466 U.S. 648 (1984).

From the time of the Fierberg matters on, extensive additional hearsay

testimonial evidence and witnesses were presented against Lawrence in closed

hearings and/or was filed under seal (some critical filings were kept off-the-docket).

That testimonial hearsay/evidence was materially relevant to all proceedings since

relevancy and importance of that information to the ongoing proceedings was

successfully cited by the Trustee as the basis for sealing.

As shown in the Statement of Facts and infra, violations of Lawrence‘s rights

were and remain repeating in nature, and continue even today, in the further contempt

proceedings now being conducted in the bankruptcy court, notwithstanding that the

-27-
contempt sanction was vacated by the district court.

An important part of Lawrence‘s claims concern the undisclosed wiretapping

and use thereof of extensive attorney-client communications concerning all aspects of

the bankruptcy case and trial strategy, this advantage continues to exist.

Here, the Trustee conducted deliberate: (1) intrusion into the attorney-client

relationship through phone eavesdropping; (2) eavesdropping on attorney-client

communications concerning trial strategy and full case matters; and (3) use of the

"tainted" eavesdropping evidence in court. These actions were a plain (and continuing)

violation of Lawrence's First, Fourth, Fifth, and Sixth Amendment rights and rights

under Title III, thereby requiring reversal of the subject orders. Weatherford v. Bursey,

429 U.S. 545 (1977).

There is no precedent that permits a litigant before this (or any other court) to

wiretap his opponents attorney-client communications concerning the case at issue,

particularly in a civil case. Without a strong statement on this matter, the precedential

nature of this case (through published opinion) breed chaos in the court process and

establishes the means used by the Trustee as legitimate means in debt collection (and

other civil) cases.

Lawrence‘s claims involve irretrievable rights, which could not have been raised

years ago, to invalidate the challenged orders. His rights were irretrievably lost. This

further denied Lawrence due process. See, Alderman v. U.S, ,394 U.S. 165 (1969)

-28-
(vacating judgments where defendant did not have adequate opportunity to seek to

suppress communications interception where fruits used in trial); Gideon v.

Wainwright, 372 U.S. 335 (1963) (actual or constructive denial of counsel is structural

error requiring automatic reversal); Waller v. Georgia, 467 U.S. 39 (1984) (exclusion of

public from wiretap suppression hearing without prior notice and mandatory findings is

structural error requiring automatic reversal). The many proceedings Lawrence and his

attorneys were excluded from were all ―critical stage‖ proceeding, thereby requiring

per se reversal.

The rights Lawrence cites to have already been ruled by this Court to be

indisputable due to him in this Court‘s previous order Lawrence v. Bankruptcy Court

153 Fed Appx. 552 (11th Cir. 2005) .That decision ruled Lawrence had an unrestricted

right of access to the court, as guaranteed in Boddie v. Connecticut, 401 U.S. 371

(1971). Id..

In addition, an enormous fine was entered against Lawrence of approximately

$25, 000, 000, that accumulated at $10,000 per day since the inception of the contempt

sanction, where 1) no consideration was ever made on Lawrence‘s ability to pay the

fine, an impossibility from day one since he was a bankrupt and the allegedly hidden

assets were all asserted to by estate property, not his; 2) the fine was not compensatory;

and 3) there was no indication who the fine was payable to.

Also important is the now undisputed fact that the subject Trust was settled in

-29-
1991, six years before the bankruptcy filing. Thereby leaving the Trustee with only the

option of an avoidance action under 11 U.S.C. § 541 and recovery under 11 U.S.C. §

550. The Trustee never pursued his available remedies and has admitted he has no

money judgment against Lawrence. The question now is where is the Trustee‘s

enforceable money judgment against Lawrence, that permits imprisonment as a means

of execution, where turnover is governed by state law execution procedures

(Fed.R.Civ.P, 69)? The answer is that it does not exist.

This case can also be resolved by the Trustee‘s decision to waive argument on

the claims presented by Appellee/Lawrence to the lower courts. By waiver, he defaults

all claims not addressed. Those claims are direct or supporting bases for district court‘s

decision, and to vacate the contempt sanction and other orders ab initio. Flanigan's

Enterprises, Inc. of Georgia v. Fulton County, Georgia, 242 F.3d 976, 987 n.16 (11th

Cir. 2001), cert, denied, 536 U.S. 904 (2002) (stating, "Although in their Brief Flashers

and Fannies allege that the defendants deprived the Clubs of their right to substantive

and procedural due process, they fail to elaborate or provide any citation of authority in

support of the former allegation. Therefore, we are left to conclude that Flashers and

Fannies have waived this argument....")

For the above reasons and other reasons presented herein the contempt sanction

and predecessor orders should be vacated ab initio, whether directly or under

Fed.R.Civ.P. 60(b) (CP‘s 1312, 1314)).

-30-
 ARGUMENT

I. LAWRENCE'S CONSTITUTIONAL AND STATUTORY RIGHTS WERE

VIOLATED BY IMPRISONING HIM FOR OVER SIX YEARS,
OSTENSIBLY FOR CIVIL CONTEMPT, AND HIS RIGHTS CONTINUE
TO BE VIOLATED

The large scope of rights violations asserted herein is a direct result of the

manner in which this case was conducted. The formerly sealed record, existing

transcripts, and admissions by the Trustee, as described in the Statement of Facts, and

infra, prima facie identity a wide range of rights violations.

Those violations were not isolated and unique but instead continued unabated,

for years, without disclosure to Lawrence and his attorneys despite repeated and

ongoing attempts to obtain access to the sealed record. Successive layers of orders were

used. Most prominently, the discharge order was the foundation for the turnover and

contempt orders. Those later proceedings were nothing more than an ―execution‖ on

the discharge judgment, which is governed by Fed.R.Civ.P. 69.

The challenged sealed matters were not isolated instances. They continued in a

repeating manner, and comprised most of the relevant proceedings.

Specifically, as shown herein, at all stages of relevant proceedings, Lawrence

was deprived of his Fifth Amendment right to due process and his right against

self-incrimination; his Sixth Amendment rights to counsel and confrontation. He and

-31-
his attorneys never knew about and the hearings, and filings submitted under seal since

May 1998. Those matters concerned extremely prejudicial hearsay testimony and

evidence that was presented against him.

Because every stage that Lawrence and his attorney were excluded from related

to matters germane to these proceedings, they were ―critical stages‖ under Sixth

Amendment jurisprudence, thereby requiring per se reversal. Satterwhite v. Texas, 86

U.S. 249, 256-57 (1988).

The rights violation identified and claimed are violations of due process,

beginning with the discharge proceeding, which proceeding was used as the foundation

for Lawrence‘s long imprisonment, fine, and the unlawful money judgment.

Even if it can be said there was authority to assign a multi-million dollar

liability/debt to a debtor in a section 727 discharge proceeding (which the law does not

provide), Lawrence was still denied due process which is a well settled defense to ―res

judicata‖

To seek summary execution on a judgment, the requirements of res judicata

must be met, which constitutional requirements are that procedural and substantive due

process was accorded. Twigg v. Sears Roebuck, 153 F.3d 1222 (11th Cir. 1998),

―Principles of res judicata, or claim preclusion apply to judgments … [but] are subject

to the requirements of due process … there can be no doubt that at a minimum [due

process requirements] require that deprivation of life, liberty or property by

-32-
adjudication be preceded by notice and opportunity for hearing appropriate to the

nature of the case. Before the bar of claim preclusion may be applied ... it must be

demonstrated that he demonstrated that invocation of the bar is consistent with due

process." Id. at 1226; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313

(1950); Trustmark Lns. Co. v. ESLU, Inc., 299 F.3d 1265, 1267 (11th Cir. 2002) ("This

Circuit has consistently interpreted the notice rules strictly"). See also, Nelson v.

Adams. 529 U.S. 460 (2000).

Lawrence‘s self-incrimination claims are addressed in Issue Page 76

A. Lawrence's rights were violated through a sealed record, hearings, and

orders where undisclosed ex parte sworn and unsworn testimonial
hearsay was presented against him, and the Trustee electronically
eavesdropped on his attorney-client (and other) phone communications

Lawrence's basic rights were irretrievably lost through the existence of the

sealed undocketed trial/adversary proceedings, orders, and other court records; and the

extensive secret electronic eavesdropping on his attorney-communications. Because

those violations of Lawrence's rights occurred without his knowledge, he and his
23
attorneys were unable to raise multiple defenses that are now raised years later.

In short, the premise that Lawrence and his attorneys' presence and input was not

necessary during the many critical stages of his trial that they were excluded from,

violated Lawrence‘s substantive rights, and invalidated the challenged orders and his
23
All claims were timely asserted in the lower courts as information became available to
Lawrence and his attorneys.

-33-
wrongful incarceration.

1. The res judicata and law of the case doctrines did not bar defenses
based on the previously unknown sealed record and new events

Both "res judicata" (consisting of true res judicata (claim preclusion) and

collateral estoppel (issue preclusion)) and the law of the case doctrines do not apply

when a matter could not have been raised, or the affected party did not have a full and

fair opportunity to previously litigate the matter. See In re Piper Aircraft Corp., 244

F.3d 1289, 1296 (11th Cir. 2001) ("claim preclusion . . . bars the parties . . . from

re-litigating a cause of action that was or could have been raised[.]"); Cotton States

Mut. Lns. Co. v. Anderson,749 F.2d 663, 666 (11th Cir. 1984) (Offensive issue

preclusion limited to where opposing party had a "full and fair hearing in [prior]

proceeding"); Conway v. Chemical Leaman Tank Lines, Inc.-, 644 F.2d 1059, 1062 (5th

Cir. 1981) ("unlike common law res judicata, the law of the case established by a prior

appeal does not extend to preclude consideration of issues not presented or decided on

the prior appeal," or where a party "h[as] not had [his] day in court[.]"). Also, "the

availability of review for the correction of errors has become critical to the application

of preclusion doctrine." Avondale Shipyards, Inc. v. Insured Lloyd's, 786 F.2d 1265,

1270-71 & n.8 (5th Cir. 1986).

In addition, another defense to ―res judicata‖ is lack of jurisdiction, to issue the

challenged order, which is addressed infra. Res judicata (claim preclusion) never

-34-
applied in this case since actual liability for the trust transfer in 1991was not, nor could

it be, a claim in an 11 U.S.C. § 727 proceeding. Instead, the decided issues (still

challenged) would be governed by issue preclusion, where the issue adjudicated then is

accepted in a later proceeding where the remedy sought is noticed and possible to assert

(i.e., an avoidance action).

2. The Ex Parte Proceedings and Record Violated Lawrence's Right Of

Access To The Court, and His First, Fourth, Fifth And Sixth
Amendment Rights To Due Process, Counsel, Confrontation,
Compulsory Process, And A Public Trial

It is only now known that the sealed record and closed hearings in this

bankruptcy case began on May 5, 1998 (R-119-69 to 76), supra, before the July 1998

discharge hearing and resulting September 1998 discharge order—the foundation of all

later orders, Thereby all proceedings and orders occurred in violation of Lawrence's

right of access to the court, and his First, Fourth, Fifth, and Sixth Amendment rights,

including his rights to due process, counsel, confrontation, compulsory process, and to

a public trial.

The constitutional and statutory violations were substantive and extensive. They

fall into the well-settled category of "structural" errors, which individually and

collectively call for all affected orders to be vacated. U.S. v. Cronic, 466 U.S. 648

(1984); Neder v. U.S., 527 U.S. 1 (1999) (identifying "structural" errors requiring

automatic reversal as: complete denial of counsel, denial of self-representation at trial,

-35-
denial of public trial, biased judge); Crawford v. Washington, 541 U.S. 36.(2004)

(identifying bright-line rule of prohibition of unconfronted testimonial hearsay);

Holmes v. South Carolina, S.Ct. Case No. 04-1327 (dec'd 5/1/06) (denying a criminal

defendant's meaningful opportunity to be heard by not permitting him to introduce

evidence violates his constitutional rights to due process, compulsory process,

and confrontation); Alabama v. Shelton. 535 U.S. 654 (2002) (reviewing court may not

postpone Sixth Amendment review when proceeding could be basis for a possible later

imprisonment; imprisonment based on prior unreviewable proceeding supported Sixth

Amendment right to counsel at prior proceeding); Howard v. U.S., 374 F.3d 1068 (11th

Cir. 2004) (identifying Shelton as a retroactively applicable rule in habeas corpus

proceedings).

The Trustee has never disputed that the Sixth Amendment right to counsel and

other protections, also basic components of due process, applies to Lawrence who was

deprived of his liberty and subject to an unconscionable fine. Ridgway v. Baker, 720

F.2d 1409, 1413 (5th Cir. 1983) (civil contempt implicates Sixth Amendment right to

counsel which "extends to every case in which the litigant may be deprived of his

personal liberty[.]"); Lassiter v. Dept. of Soc. Services, 452 U.S. 18 (1981) (same).

3. During the discharge proceedings secret testimonial hearsay was

presented against Lawrence and he was denied the opportunity to
defend himself

-36-
 On May 5, 1998, Trustee's attorney James H. Fierberg filed ex parte court papers
24
that were not docketed (R-119-69 to 76). Because Lawrence had no opportunity to

defend himself against the highly prejudicial, material, sworn ex parte hearsay

testimony contained in those sealed court papers, he was denied his right to defend

himself against that evidence at the crucial July 1998 Fed.R.Civ.P. 37(b) discovery

hearing, which resulted in the Sept. 1998 default discharge order, In re Lawrence, 227

B.R. 907 (Bankr. S.D. Fl 1998). The Fierberg affidavit‘s; unconfronted and

unconfrontable testimonial hearsay perpetuated throughout all later proceedings.

The sealed Fierberg affidavit contained only multiple hearsay (including

Lawrence's own purported statements) from seven identified (and other unidentified)

alleged witnesses, without personal knowledge. It accused Lawrence of the crimes of

witness tampering (18 U.S.C. § 1512) and obstructing- justice: "the Debtor Stephan Jay

Lawrence has been engaged in a systematic pattern of corrupt persuasion, intimidation

and threat.... in furtherance of his witness tampering." (R-119-70).

Mr. Fierberg's motion (to which his affidavit was attached) asserted that the

witness tampering concerned the Trustee's allegations that "form the substantive basis

for the [Discharge] Complaint[.]" (R-119-69). Thereby, by estoppel, the sealed

allegations against Lawrence were admittedly "substantive[ly]" material to the then

pending discharge proceeding, and by extension to all later proceedings. This

24
The Fierberg court papers were not originally unsealed when the rest of the record was
unsealed, and were unknown to Lawrence until early Feb. 2006,see p.4 n.4 above.

-37-
establishes the nature of the testimonial hearsay and related closed hearing(s) as

―critical‖ stages concerning materially prejudicial testimonial hearsay evidence.

Moreover, Mr. Fierberg alleged further attempts to corrupt future testimony so

he needed the secrecy to "prevent Stephan Jay Lawrence and/or his agents from further

compromising the official processes of this Court." Id. at1112 (emphasis added). The

corrupting "agents" included Lawrence's attorney Robert Stok, a subject of the later

crime-fraud exception order.

Because the allegedly tampered testimony was nowhere identified in the sealed

Fierberg court papers, rebuttal was impossible, even inadvertently.

The timing of Mr. Fierberg's sworn accusations of past and future witness

tampering and obstruction of justice was just prior to the crucial July 1998 discharge
25
hearing.

The perjured Fierberg affidavit (R-119-73-75) had additional devastating

character impeachment value against Lawrence in all proceedings, since it also falsely

accused Lawrence of making threats to a fourteen-year-old child. Id.. FRE 404. When

Mr. Fierberg filed his affidavit he knew that the Trustee intended to hinge his case on

Lawrence's "credibility," and that his accusations would materially permeate

(off-the-docket) throughout all future proceedings. Indeed, he alleged prospective

25
After the ex parte papers were filed, the trustee presented no witnesses and Lawrence was
barred from presenting any witnesses at the July 1998 discharge hearing. He never knew of those
papers during later proceedings. The record shows no further reference to P.I. Riley, who‘s stated
role was to stop Lawrence from his alleged future witness tampering and obstruction of justice.

-38-
witness-tampering and obstruction of justice. Id..

Mr. Fierberg was available as a witness in all proceedings, his affidavit's

unconfronted sworn testimonial hearsay was admitted into the record, and he claimed

his allegations were substantively material. This was a plain violation of Lawrence's

right of access to the court, and his Sixth Amendment and due process rights to

confrontation, compulsory process, and the constructive/actual assistance of counsel.

The requirements for reversal under Ohio v. Roberts, 448 U.S. 56 (1980) and later,

Crawford v. Washington, 541 U.S. 36 (2004) were clearly met. See also, Gideon;

Cronic.

In effect, the discharge proceeding consisted of the July 1998 Rule 37(b)

hearing, in which Lawrence's credibility was the sole determinative factor; he was not

permitted to introduce witnesses or supporting deposition testimony. In re Lawrence,

227 B.R. 907, 910 & n.4 (Bankr. S.D. Fl 1998): "The Court denied the Debtor's request

to call this witness as the only relevant inquiry, at the hearing was the Debtor's personal

knowledge [.]" Id. at 910 n.4 (emphasis added); "[T]he Debtor was the sole witness."
26 27
Id.. at 910; "[T]he Debtor chose not to testify truthfully." Id.. at 910.

26
Because Lawrence only had two hours notice of the Rule 37 hearing, he sought to support his
testimony, under FRE 804(b)(1), with the deposition of his accountant, Hilton Sokol (who is in
New York), from litigation with Bear Stearns over the Trust's assets. Pompano-Windy City
Partners v. Bear Stearns &Co. , Case No. 93-6489-CIV-KING. Mr. Sokol had succeeded to the
accounting business of Mr. Martin Bach (an alleged witness tampering victim).That testimony was
ruled inadmissible when the Trustee argued that he did not (nor could) seek the Trust's assets in the
discharge proceeding: "MR.SINGERMAN: We may, if we prevail, pursue the Trust. That's not

-39-
 No proffers were permitted at the Rule 37 hearing. Id. at 300, 352-53.

Mr. Stok objected to all court rulings during the hearing, which objections were

noticed by the court. Id. at 58, 130, 257, 348, 504.

a. Lawrence's Fifth and Sixth Amendment rights were violated by the

secret docketing and related errors during the discharge proceeding

When a defendant is denied assistance of counsel at a stage where he must assert

of lose certain rights or defenses, the error pervades the entire proceedings and reversal

is automatic and that stage is a "critical stage." Satterwhite v. Texas, 486 U.S. 249,

256-57 (1988); Mempa v. Rhay, 389 U.S. 128 (1969) (Sixth Amendment right to

counsel applies "at every stage in a criminal proceeding where substantial rights of an

accused may be affected"). Lawrence had full Sixth Amendment rights in the discharge
28
proceeding because its findings were used "res judicata" to imprison him.

Lawrence was actually and constructively denied his right to counsel when the

what's happening here. We're pursuing a statutory 727 claim.... Bear Stearns is not the Chapter7
Trustee's predecessor in interest by any stretch of the imagination and the objection ought to be
sustained." July 22-24 trans, at 349-50,: see also at 342-53 (Exhibit E).
27
Lawrence took all steps to transmit to the district court the bankruptcy record (including the
sealed record), supra.
28
Ridgway v. Baker, 720 F.2d 1409, 1413 (5th Cir. 1983) (Sixth Amendment right to counsel
"extends to every case in which the litigant may be deprived of his personal liberty[. ]"); Lassiter v.
Dept. of Soc. Servs., 452 U.S. 18(1981) (same); U.S. v. Harnage, 976 F.2d 633, 636 (11th Cir.
1992) (if collateral estoppel is permitted to be used against a criminal defendant then "the district
court would be compelled to determine whether counsel in the prior proceeding was effective.");
Arizona v. Shelton, 535 U.S. 654 (2002)(reviewing court may not postpone Sixth Amendment
review when proceeding could be a basis for a possible later imprisonment); Howard v. U.S., 374
F.3d 1068(11th Cir. 2004) (Shelton is a retroactive rule in habeas proceedings).

-40-
May 1998 Fierberg court papers and affidavit (using unconfronted multiple hearsay

testimony of alleged seven + witnesses against Lawrence) were filed, off-docket, under

seal; and again at the July 1998 discharge hearing (and thereafter). See also, U.S. v.

Yates, 391 F.3d 1182 (11th Cir.2004) (aff'd en banc) (vacating conviction where Sixth

Amendment right of face-to-face confrontation was not met by video-conferencing of

witnesses); BankAtlantic v. Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1050

(11th Cir. 1994) ("rule 37(b) implicates the Due Process Clause of the Fifth

Amendment.").

b. Lawrence was denied his right of appeal of the discharge order

when the concealed information was dispositive under existing case
law, and he had no rational basis to make appellate decisions
without that information

Lawrence and his counsel did not know of the substantive appealable issues due

to the off-docket sealing, supra, Therefore, no rational appellate decision, including

whether to pursue an appeal, could be made, and Lawrence never was afforded his right

to "first appeal" under the Sixth Amendment. Gray v. U.S., 834 F.2d 967(11th Cir.
29
1987) (defendant has Sixth Amendment right to first appeal).

Lawrence and his attorneys did not know of and could not confront his principle

29
In addition, to due process and Sixth Amendment claims, had Lawrence known of the sealed
accusations of criminal conduct he would have refused to testify at the Rule 37 discharge hearing
on self-incrimination grounds, and appealed. Pillsbury Corp., v. Conboy, 459 U.S. 248 (1983).11
U.S.C §727(a)(6) prohibits denying a debtor his discharge for properly invoking his
self-incrimination privilege, unless he is granted immunity.

-41-
accuser, attorney Fierberg (R-119-73-75), nor had knowledge of the related closed

hearing, he was thereby denied the very information he needed to make rational

appellate decisions (including whether to appeal the discharge order--which order was

not appealed), Roe v. Flores-Ortega, 528 U.S. 470, 483-86 (2000) (identifying an

appeal as a "critical stage" of a proceeding where a denial to the defendant of an

opportunity to make rational appellate decisions with aid of attorney is a per se Sixth

Amendment denial of counsel "structural error").

4. During the turnover and contempt proceedings multiple off-docket ex

parte trial hearings were held without Lawrence's knowledge and in
further violation of his rights; undisclosed unlawful electronic
surveillance of his attorney-client (and other) phone calls, occurred

During the turnover and contempt proceedings, adversarial trial matters were

conducted without the knowledge of Lawrence and his attorney, off-docket and under

seal, which resulted in further extensive violations of his First, Fourth, Fifth, Sixth
30
Amendment, and statutory rights.

During 2000-2001: (1) further extensive ex parte sealed court papers were filed

and orders issued (some off-docket); (2) at least four undisclosed off-docket ex parte

hearings were held to enforce the turnover and contempt orders, to take further

unconfronted ex parte testimonial hearsay evidence, and to issue Title III orders; (3) the

30
The turnover, and contempt, orders depended entirely on the bankruptcy record, which included
the sealed Fierberg court papers.

-42-
Trustee (and Bear Stearns) conducted extensive unreviewed electronic

communications surveillance of Lawrence's attorney-client (and other) phone calls

throughout Lawrence's prior appeal to this Court in 2000-2001; and (4) the purported

results of the unlawful eavesdropping were used against Lawrence in the ex parte

turnover and contempt hearings (and elsewhere). All of the foregoing occurred without

any disclosure to Lawrence, his attorneys, and all reviewing courts.

a. The turnover and contempt bankruptcy hearings in late 1999

During the Aug. 26, 1999 turnover and Sept. 2, 1999 contempt hearings, both

parties relied completely on the bankruptcy record hearing. In re Lawrence, 251 B.R.

630, 637-38 & n.4,5, 648-49 (S.D. Fl 2000). But, again (as during the discharge

proceeding), Lawrence could not defend against the unknown accusations of criminal

conduct, material to turnover, or confront the off-docket ex parte sealed Fierberg court

papers including his sworn testimonial hearsay affidavit (R-119-73 to 75). So the

constitutional rights violated during the discharge proceeding were again violated,

creating new claims and thereby providing further grounds to void the turnover and

contempt orders.

Again, as in the discharge proceedings, because the bases for Lawrence to assert

on appeal the clear violations of his rights were sealed from him and his attorney; this in

turn, further violated Lawrence's due process rights by preventing him from raising on

-43-
appeal substantive claims.

B. The ex parte turnover and contempt bankruptcy hearings and unlawful

eavesdropping on Lawrence's attorney-client (and other) phone
communications and use thereof violated Lawrence's rights

Further violations of Lawrence's substantive rights occurred when the off-docket

closed ex parte hearings were conducted in late 2000-2001 (when Lawrence was first

incarcerated), again without Lawrence's and his attorney's knowledge (see bankr.

hearing transcripts for November 16, 2000, December 5, 2000, December 28, 2000,

and February 2, 2001). Lawrence first learned of those hearings on September 26,

2005, long after all appeals were taken. The parties at the hearings were the Trustee, the

U.S. Attorney's Office (―USAO‖), and the Federal Bureau of Prisons (―FBOP‖).

The hearings were kept off-docket and sealed, at the request of the parties for the

stated fear that "hearing [s] like this ... might become public," Nov. 16, 2000 trans, at

p.37 ln.19 to p.39 ln.4.

The four ex parte hearing transcripts show that excluding Lawrence and his

attorney from the hearings violated his First, Fourth, Fifth Amendment rights to due

process and against self-incrimination, Sixth Amendment rights to counsel,

confrontation, compulsory process, and a public trial, and statutory rights identified

below, including under Title III (the "Wiretap Act"). See above, Gideon; Satterwhite;

Cronic; Maine v. Moulton, 474U.S. 159 (1985); Weatherford v. Bursey, 429 U.S. 545

-44-
(1977).

Because there was no disclosure to Lawrence of the hearings (for many years),

he again lost irretrievable substantive rights without his knowledge, including the right

to appeal those issues. The lost rights clearly identified those hearings as "critical

stages" of Lawrence's ongoing trial. Satterwhite, 249 U.S. at 256-57.

The ex parte hearings also violated Lawrence's Sixth Amendment right to a

public trial, which is a structural error that required reversal of the turnover and

contempt orders. The Supreme Court, in Waller v. Georgia, 467 U.S. 39 (1984),

determined it was per se structural error to close a suppression hearing from the public

without both a prior hearing where the affected parties were heard, and articulated

on-the-record findings. Judd v. Haley, 250 F.3d 1308, 1314-15 (11th Cir. 2001)

(following Waller).

Here, a fortiori, there was no closure hearing, no articulated findings, and

Lawrence was denied counsel at a "critical stage." Gideon; Cronic.

Notably, throughout the appeals in 2000-2001, and now, the Trustee sought

remand to the court where he knew a prejudicial sealed record already existed.

In January 2000, further ex parte sealed motions was filed by the Trustee to

ostensibly secretly retain professionals to aid in enforcing the turnover order. CP's

799-802, 1060-64, 1074, 1083-87 (R-130-46, R-23 to 32). The motions made further ex

parte testimonial hearsay allegations against Lawrence, and closed hearings were held.

-45-
 On Sept. 28, 2000, P.I. Juval Aviv executed a sworn affidavit containing

unconfronted multiple testimonial hearsay (citing to unidentified sources) and alleging

Lawrence was actively hiding, trading, and moving assets in secret international bank

and brokerage accounts, and attesting to Lawrence's personal lifestyle (listing an

31
incorrect address for Lawrence), and attacking Lawrence's personal character The

Aviv affidavit was sealed off-docket (and is not yet unsealed in the docket). As did the

Fierberg affidavit, the sealed filing and use of the Aviv affidavit violated Lawrence's

Fifth and Sixth Amendment rights. Crawford; Gideon; Cronic.

1. The Title III orders were invalid; Lawrence was deprived of his rights
to suppress the contempt

On Nov. 7, 2000, the Trustee filed a sealed motion to obtain Lawrence's phone

tapes at the FDC Miami, where. Lawrence was incarcerated for civil contempt [CP

1060, R-23 to 32]. A second sealed tape motion was filed on Dec. 4, 2000 (R-130-46)

in which the Trustee first disclosed that he had referred Lawrence to the USAO for

prosecution concerning alleged hidden assets and the Trust. Id.. He stated that he

sought evidence from Lawrence's phone tapes, and Lawrence's compliance with the

turnover order, to support that prosecution referral. Id..

31
At the June 17, 2004 hearing. the bankruptcy court disclosed that the Aviv affidavit:"was under
seal," Id. at p.17, and that the court had reviewed it. Id. at p.69.

-46-
 The sealed Title III orders [CP's1088,1093,1101,1107] (R-23-32) were invalid.32

At the Dec. 28, 2000 ex parte hearing both the Trustee and P.I. Aviv gave

unsworn testimony on the purported contents of Lawrence's phone tapes (alleging

falsely the tapes showed wrongdoing, but without playing or sealing them); none of the

required Title III protections described herein were followed.

The Government's and Lawrence's objections to the tape orders were:

(1) A bankruptcy judge is not a "judge of competent jurisdiction," authorized to

issue Title III orders, who 18 U.S.C. §2510(9) defines as: "[A] judge of a United States

district court … or a court of appeals[.]" The Government raised this issue (Nov. 16,

2000 trans, at p.30 Lns.12-17). 28 U.S.C. §1334(b) limits the authority of a non Article

III bankruptcy judge to "civil" matters. See also In re Davis, 899 F.2d 1136, 1138-39

(11thCir. 1990) (bankruptcy courts are not "court[s] of the United States" under

28U.S.C. §451).

(2) The Government (and Lawrence) objected that private parties cannot obtain

law enforcement tape; United Kingdom v. U.S., 238 F.3d 1312, 1322-23 (11th Cir.

2001) (18 U.S.C. §§2510(7), 2517(1) limits disclosure of law enforcement tapes to an

"[i]nvestigative or law enforcement officer" "empowered by law to conduct

32
Even the Trustee's use of subpoena powers, to obtain what effectively were wiretap orders,
violated due process because Lawrence was not noticed of the sealed motions, to allow him to seek
a protective order concerning irretrievable rights, and he was excluded from the closed hearings.
E.g., see Fed.R.Civ.P. 45(b)(1), (c)(3), 26(b)(l),(c) (Fed.R.Bankr.P. 9016, 7026), providing that
failure of mandatory service (to give parties an opportunity to obtain protective order) invalidates
subpoena. Moreover, Title III governs.

-47-
investigations of or to make arrests for offenses enumerated in this chapter, and any

attorney authorized by law to prosecute or participate in [a] prosecution[.]"). The

Trustee and Bear Stearns (a newly disclosed recipient of the tapes) are private
33
individuals/entities.

(3) When the Trustee sought the current and future FDC phone tapes, and used

their "contents" (defined as "any information concerning the substance, purport, or

meaning of that communication." 18 U.S.C. § 2510(8)) in the ex parte hearings, he was

required, under section 2517(5), to separately justify his access and court use of the

tapes "in accordance with the provisions of this chapter"; in effect, he had to meet the

requirements of a wiretap application, under 18 U.S.C. §§ 2516 and 2518. This Court,

in U.S. v. Van Horn,789 F.2d 1492, 1503-04 (11th Cir. 1986), determined that the

Congressional intent of 18 U.S.C. § 2517(5) was to prevent "subterfuge" where an

unqualified second intended recipient of law enforcement tapes deliberately uses a

qualified party to obtain those tapes. Here, under section 2517(5), the Trustee (and Bear

Stearns) had to justify a wiretap to acquire Lawrence's phone tapes, and could not

simply use the FDC Miami‘s narrow Title III permission to tape inmate phone calls, as

33
The failure to disclose to the Government that Bear Stearns was given the contents of the law
enforcement tapes concealed an illegal act, under 18 U.S.C. § 2511(1)(e), which section states it
applies to prison phone tapes obtained under "[18 U.S.C. §] 2511(2)(c)." "[18 U.S.C] § 2511(1),
defined five offenses.... subsection (e) prohibited the unauthorized disclosure of the contents of
interceptions that were authorized for law enforcement purposes." Bartnicki v. Vopper, 532 U.S.
514, 524 (2001).

-48-
a conduit. Law enforcement tapes are for criminal law enforcement, and not for private

creditors to use for debt collection or other private financial gain or to snoop. Bartnicki,

532 U.S. at 530 n.16.

(4) The failure to have the USAO submit an application (to the district court)

seeking approval to provide the FDC Miami‘s tapes to Goldberg invalidated the initial

tape order, and thereby all successive "extensions" to that order (the USAO never filed

any application in support of "extensions"). U.S. v. Giordano, 416 U.S. 505, 521,

531-32 (1974) (where no pre-application approval of USAO to original order all

extensions to order are invalid).

(5) The tapes were used in court without notice to Lawrence in violation of 18

U.S.C. § 2518(9) (requiring notice to defendant of "not less than ten days before" court

use). Alderman v. U.S., 394 U.S. 165 (1969);

(6) The failure to seal the tapes per se required suppression of the fruits of the

eavesdropping. 18 U.S.C. § 2518(8)(a). In Jones v. U.S., 224 F.3d 1251, 1253-54 (11th

Cir. 2000), this Court followed U.S v. Ojeda Rios, 495U.S. 257 (1990) and states:

"[Rios] rul[ed] that defendant need not show prejudice to obtain suppression;

government could not use wiretap evidence unless it could show ... sealing." Jones, at

1254 n.7. Jones found a Sixth Amendment ineffective assistance of counsel violation

when counsel did not raise that clear "winner" on appeal and ordered suppression on

remand to reevaluate habeas relief.

-49-
 The foregoing suppression defenses could have been raised years earlier.

Alderman v. U.S., 394 U.S. 165 (1969) (vacating judgment where defendant was not

provided transcripts or given chance to suppress fruits of eavesdropping evidence used

in trial). It is clear that Lawrence's attorney could not raise the clear suppression

"winners" resulting from the 2000-2001 ex parte proceedings and eavesdropping when

he did not know those matters occurred.

C. The intrusion into Lawrence's attorney-client relationship through the

taping of his attorney-client phone calls during trial, invalidated all further
orders

Because Lawrence's Sixth Amendment rights attached due to his incarceration,

when the Trustee obtained access to his attorney-client phone tapes, vacating the

turnover and contempt orders was required. In Weatherford v. Bursey, 429 U.S. 545

(1977) the Supreme Court set forth the standard for a Sixth Amendment violation when

attorney-client conversations are overheard by the Government. In Weatherford a

confidential informant had been invited to attorney-client meetings. The Court did not

dismiss the indictment: "[because there was] no tainted evidence, no communications

of defense strategy to the prosecution, and no purposeful intrusion ... there was no
34
violation of the Sixth Amendment[.]" Id. at 558.

The Weatherford Court reaffirmed previous precedent in Black v. U.S., 385 U.S.

34
Notably, Weatherford did not involve wire communications, governed by more stringent
requirements of Title III and Florida wiretap law § 934

-50-
26 (1966) and O'Brien v. U.S., 386 U.S. 345 (1967) (per curiam) where in those cases,

when electronic eavesdropping on a defendant and his attorney occurred during trial

preparation and the prosecution team became aware they had access to those

communications, even though the Government stated the interception was inadvertent

and the information was not used, a new trial was still required where there was no

prior judicial determination that no prejudice to the defendant had occurred (under the

Weatherford standard).

In U.S. v. Morrison, 449 U.S. 361 (1981), the Supreme Court, reconfirmed that

the remedy of a new trial was appropriate under the conditions set forth in Black and

O'Brien. 449 U.S. at 364-65. In U.S. v. Bell, 776 F.2d (65, 972-73 (11th Cir. 1985), this

Court followed Morrison, to rule that when an intrusion into the attorney-client

relationship occurs, a tailoring of remedies was proper, based on the nature of the Sixth

Amendment violation, and that absent prejudice, an indictment would not be

dismissed, but other remedies are appropriate:

[D]ismissal of the indictment ... in inappropriate, absent prejudice. Morrison,

449 U.S. at 365.... The proper approach is to identify and neutralize the taint by
suppressing the evidence or by ordering a new trial if the evidence has
already been wrongfully admitted. Id. at 365[.]

Id. at 972-73 (emphasis added).

In Terazdo-Madruga, 897 F.2d 1099, 1117 (11th Cir. 1990) attorney-client

conversations were intercepted but the Government used a separate team of prosecutors

to screen that evidence from the prosecution team for the trial in which the defendant's

-51-
Sixth Amendment rights had attached. Thereby, this Court found no prejudice was

shown. This Circuit followed Maine v. Moulton, 474 U.S. 159 (1985), and ruled that the

screening prevented a Sixth Amendment violation.

Here, all of the Weatherford elements were present: (1) a deliberate intrusion
35
occurred when the Trustee sought and obtained Lawrence's attorney-client tapes; (2)

defense strategy and all aspects of Lawrence's case were discussed in the intercepted

conversations (R-101-4) over almost one year of taping; and (3) "tainted" evidence was

introduced at the ex parte hearings, and alleged evidence derived therefrom was

introduced as hearsay evidence (see trans. December 28, 2000 hearing).

The Government adopted the Weatherford factors when promulgating its

regulations setting up special screening procedures for "consensual" monitoring of

36
attorney-client communications prison taping.

35
The Trustee provided Bear Stearns unrestricted access to the contents of Lawrence's
attorney-client calls where an attorney for Bear Stearns' law firm was representing Lawrence
during 2000-2001.
36
Regulations 28 C.F.R. 500-501 provide for special "taint" teams to screen intercepted
attorney-client communications from prosecutors (except for acts of terror or violence). See
Modern Criminal Procedure, Kamisar, LaFave et al (10thEd.) at 382 noting that in crafting
sections 500-501: "Attorney General[Ashcroft] relied specifically on Weatherford v. Bursey,
where, as he put it, the Supreme Court held that 'when the government possesses a legitimate law
enforcement interest in monitoring [conversations between a defendant and his attorney] no Sixth
Amendment violation occurs so long as privileged communications are protected from disclosure
and no information recovered through monitoring is used by the government in a way that deprives
the defendant of a fair trial.'"

-52-
 D. The district court proceedings did not afford due process to Lawrence
when he was restricted from presenting his claims and confronting the
witnesses used against him

The transcripts of the September 22, 2006 and the December 8, 2006 district

court hearings show that Lawrence was restricted in the claims he could raise and was

denied access to the (many still unknown) witnesses used against him throughout the
37
prior proceedings by those restrictions, infra,

II. THE 25 MILLION DOLLAR FINE, BASED ON A RULE 37(b) DISCOVERY

SANCTION AND RESULTING CONTEMPT, WAS A CRIMINAL
SANCTION WHEN THERE WAS NO ABILITY TO PAY, IT WAS NOT A
COMPENSATORY FINE, AND THERE WAS NO INDICATION WHO
THE FINE WAS PAYABLE TO

The non-compensatory fine of $10,000/day (now over $25,000,000) and the

discovery sanction— later interpreted as an obligation for Lawrence to pay millions of

dollars to the Trustee, are punitive criminal sanctions entered without jurisdiction.

A civil contempt fine or sanction must be either compensatory or coercive. A

compensatory sanction is paid to the plaintiff to compensate for actual losses, while a

coercive sanction is paid to the court. International Union v. Bagwell, 512 U.S. 821

(1994).

Here, neither the $25 million dollar fine, nor the unspecified multi-million dollar
37
The Trustee has incorrectly contended that Lawrence could have called his attorneys as
witnesses but 1) given the restrictions placed on the subject matter of the hearings that would have
been fruitless; assuming Lawrence was permitted to examine them 2) past damage to Lawrence‘s
rights is already clear from the now known sealed record (the Trustee argues that it is too late to
revisit those matters; 3) the ―critical stage‖ proceedings already took place and cannot be repaired.

-53-
discharge Fed.R.Civ.P. 37(b) sanction (executed on as "turnover") were compensatory

or coercive. Thereby those sanctions were punitive criminal contempt sanctions. In In

re Chase & Sanborn Corp., 872 F.2d 397 (11th Cir. 1989) this Circuit ruled that a civil

contempt fine may not be used to pay money judgment, but only to reimburse plaintiff

for compensatory losses. Id. at 401. The Court then vacated the fine because:

[I]t is impossible to determine whether the fine is meant to be coercive,

compensatory, or a hybrid of both.... no evidentiary predicate has been shown to
support the ... fine ... there is no proof that the trustee suffered an actual loss
which would support a fine payable to the trustee.
Id. at 400.

Here (1) there was never a determination that Lawrence could pay the

$10,000/day fine, and common sense dictated otherwise since his alleged hidden assets

were ruled to be estate property; (2) who the fine was payable to was not identified and

it clearly was not to compensate the trustee for his actual losses.

In International Union v. Bagwell 512 U.S. 821, 837-38 (1994) the Supreme

Court found a $52 million dollar fine against a major international union to be a

criminal sanction notwithstanding civil aspects, stating, ―The fines assessed were

serious, totaling over $52 million. Under such circumstances, disinterested fact finding

and even handed adjudication were essential, and petitioners were entitled to a criminal

jury trial.‖

-54-
III. ESTATE ASSETS WERE NOT INVOLVED UNDER THE BANKRUPTCY
CODE SINCE NO AVOIDANCE ACTION WAS EVER UNDERTAKEN
AND UNDER Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416 (1972)
SINCE AN IN PARI DELICTO RELATIONSHIP WAS ALLEGED

A. Recovery of a pre-bankruptcy transfer requires an avoidance action

under the Bankruptcy Code and cannot be accomplished through an
objection to discharge under 11 U.S.C. § 727

It is fundamental in bankruptcy that "[s]ection 704 ... outlines the duties of a

Chapter 7 trustee and requires [him] to "collect and reduce to money the property of

the estate for which the trustee serves * * *." 11 U.S.C. § 704(1) (emphasis added)....

[under] section 541(a)(1)—property of the estate comprises only "legal and equitable

interests of the debtor" (emphasis added)," "as of the commencement of the case." In

re Ozark Restaurant Equip. Co, Inc., 816 F.2d 1222, 1224 (8th Cir. 1987).

In the case of a pre-bankruptcy transfer section 541 provides the Trustee two

methods of recovery: first, as the debtor under section §541(a)(l); and second, on behalf

of creditors under §541(a)(3) (using an avoidance provision of the Bankruptcy Code).

Id. at 1225-30.

The Supreme Court, in Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416

(1972), established that a trustee, acting under section 541(a)(1), has no standing to

pursue claims on behalf of creditors based on an in pari delicto relationship involving

the debtor since there is a constitutional bar to such cause of action because the

trustee/debtor was not harmed. See E.F. Hutton & Co., Inc. v. Hadley, 901 F.2d 979,

984-85 (11th Cir. 1990); O'Halloran v. First Nat. Bank of Florida, 350 F.3d 1197,

-55-
1202-03 (11th Cir. 2003) ("the complaint alleges [the debtor] to be one of the principal

culprits in the Ponzi scheme. Thus neither [the debtor] nor its bankruptcy trustee can

sue anyone."). Obviously, the Trustee never acted as Lawrence, the debtor, to pursue

any claims whatsoever.

Importantly, those claims are not lost; instead they belong to creditors and

cannot be assigned to a trustee. Bear Stearns was free to pursue such claims at any time,

but not the Trustee. Hutton, 901 F.2d at 986; In re Icarus Holdings, LLC, 391 F.3d

1315, 1319 n.4 (11th Cir. 2004) (following Hutton); Shearson Lehman Hutton, Inc. v.

Wagoner, 944 F.2d 114, 118 (2nd Cir. 1991); Williams v. California 1st Bank, 859 F.2d

664, 666-67 (9th Cir. 1988). The discharge and later proceedings were based on an

alleged in pari delicto relationship involving Lawrence, to the exclusion of using the

avoidance provisions of the Bankruptcy Code..

It is now undisputed that the Trust was settled with a pre-bankruptcy transfer in

1991, and it was not concealed. On January 15, 2005, the bankruptcy court recognized

that the Trust existed and was settled in 1991:

THE COURT: ... [The Trust] does say 1991, doesn't it?

MR. FIERBERG: That was the date of the Trust.

THE COURT: I would have to agree with counsel that this was something that
was a fait accompli.... As of the date of his consulting Mr. Stok, then if that —
assuming that that was wrongdoing when it was done, it was already done.... But
here the Trust was apparently created in '91, and it was disclosed, and he put it on
the Schedule[.]

-56-
January 13, 2005 deposition of Robert Stok at p.25 lns.1-23.

It is also undisputed that the Trustee never pursued an avoidance action under

section 541(a)(3). Effectively, he abandoned those claims to creditors.

1. 11 U.S.C. § 727, the basis for the 1998 discharge proceeding, has no
provision for recovery of transfers, nor can 11 U.S.C. § 521,
identifying a debt’s duties create such a remedy

11 U.S.C. § 727, the basis for the 1998 discharge proceeding, has no provision

for recovery of transfers and is not recognized as a means of recovery under sections

541(a)(3) or 550.

Nor could 11 U.S.C. §521 (identifying the duties of a debtor) convert a section

727 claim into a money judgment against the debtor. Section 521, in its Historical and

Statutory Notes, states: "The Rules of Bankruptcy Procedure will specify the means of

carrying out these duties... [under which duties] the debtor must surrender to the trustee

all property of the estate[.]" 28 U.S.C. § 2075 which granted the Supreme Court

bankruptcy rule making authority, states: ―Such rules shall not abridge, enlarge, or

modify any substantive right.‖ The rule used for enforcement is Fed.R.Civ.P. 69, which

in turn is governed by Florida state law. Here, no money judgment was ever entered

against Lawrence, in favor of the Trustee, nor could it be respecting the 1991 transfer.

The Trustee, and Bear Stearns, simply exploited an area where great publicity

was generated, offshore trusts. But ignored was the fact that those trusts were and

remain perfectly legal. Indeed, when Congress amended the Bankruptcy Code in 2005,

-57-
it made no distinction between domestic or non-domestic trusts and created a new

subsection 11 U.S.C. § 548(e), which extended to 10 years the limitations period within

which any self-settled trust to be challenged in an avoidance action—applicable to all

trusts, regardless of domicile. If Congress intended to make it unlawful for a US citizen

to settle a non-domestic trust, it would have passed such legislation.

B. 11 U.S.C. § 550 is the only means by which liability for transfers is

established if an avoidance action occurs it and does not assign liability to
a transferor debtor

Whether as debtor, or on behalf of creditors, the Trustee was required to first

pursue and avoidance action, supra, and then an action was required under 11 U.S.C. §

550 to assign liability for an avoided transfer. Notwithstanding that not even the first

step, avoidance, was undertaken by the Trustee, under § 550 a debtor/transferor has

no liability for a pre bankruptcy transfer. In re Coggin, 30 F.3d 1443, 1452-54 (11th

Cir. 1994) ("there is no cause of action created by section 550(a)(1) in a trustee to

recover the value of an avoidable conveyance from a transferring debtor." Id. at 1454).

C. The Trustee now admits that he has no money or enforceable judgment

against Lawrence

Significantly, the Trustee now admits that he has no money or enforceable

judgment:

[The] inaccurate characterization of the September 1998 memorandum opinion

denying [Lawrence] his discharge..., as a money judgment or executable
judgment should be rejected out of hand by the Court.
CP 1315 at 1. See also CP 1343 at 16-19

-58-
 [T]his Court should also reject ... in the context of Lawrence's claim ... that the
Trustee made use of section 521(4) as a means to recover the Trust res ...
[footnote 1:] Section 521(4) is not a means of recovery by the Trustee[.]"

CP 1315 at p.3 & n.1.

In summary, 1) there was never a mandatory avoidance action undertaken by the

Trustee; 2) if he had done so, there is no liability to a transferor debtor for a

pre-bankruptcy transfer; and 3) the nature of his alleged non-judgment, is an assertion

of an in pari delicto relationship which deprives his of authority to pursue such a claim,

in favor of individual creditors.

D. The District Court Ruled That the Alleged Debt Used to Incarcerate
Lawrence Was Unlawful and That “Our Constitution Prohibits
Imprisonment For Unlawful Debt”

The district court did not elaborate in detail on its significant statement,

supporting the above argument, which it used as part of its explanation for releasing

Lawrence from prison: ―at the same time, our Constitution prohibits imprisonment
38
for unlawful debt.‖ Omnibus Order (R-161-5).

There is no typographical error to the foregoing statement, since it simply

reflects what the law provides, there was no debt owed by Lawrence to the Trustee

who never properly proceeded against Lawrence to obtain such a judgment nor could

he, and as argued herein. Florida and the Bankruptcy Code and rules prohibit

imprisonment for debt (see Page 86) where it is now undisputed that a transfer to a

38
The Appellant, nowhere in his initial brief addresses these issues, and thereby waived any
argument about the invalidity of the underlying orders (the discharge order in particular).

-59-
trust occurred in 1991, and the contrary argument, that there was no trust, no longer

had validity.

The Supreme Court has visited the nature of claims respecting transfers

pre-bankruptcy in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 44-49 (1989), and

declared that a Trustee‘s rights, in seeking recovery of transfers, are legal in nature and

in the nature of private rights, not ―public‖ rights. Those rights are governed by state

law in bankruptcy, here Florida. Consolidated Edison Company of New York v. United

States, 247 F.3d 1378 (Fed. Cir. 2001) (a money judgment by any other name is

subject to the same jurisdictional constraints).

IV. LAWRENCE'S RIGHTS OF ACCESS TO THE COURT, DUE PROCESS,

AND SIXTH AMENDMENT RIGHTS WERE VIOLATED WHEN HE WAS
EXCLUDED (PRO SE) FROM HEARINGS, CONTEMPT PROCEEDINGS,
ARE CONTINUING, AND THE BANKRUTPCY COURT RULED IT WILL
RESTRICT LAWRENCE’S RIGHTS

This Court has already unequivocally ruled that Lawrence has an unfettered

right of access to the court, Lawrence v. Bankruptcy Court 153 Fed Appx. 552 (11th Cir.

2005).That decision ruled that Lawrence had an unrestricted right of access to the court,

as guaranteed in Boddie v. Connecticut, 401 U.S. 371 (1971). Id..

After Lawrence became pro se on October 8, 2003 his incarceration was used to

keep him from other critical stage hearings held on November 4, 2003 (where

instructions were provided on new requirements to be released from prison), and June

-60-
21, 2005. (where his privileged attorney client files were turned over to the control of

the Trustee). Lawrence filed an objection to his exclusion. His privileged files that were

turned over to the Trustee were from the law firm of Storch & Brenner ("S&B"), which

firm represented Lawrence in the late 1980's.

In 1998, the bankruptcy court had found those privileged files to be protected

and blocked their production to the Trustee—who did not appeal that ruling. Bankr.

CP's 236, 246, 249, 338.

Lawrence objected, by motion, to the turnover of the S&B files [CP 1589]. He

also sought to have his contempt sanction vacated because it effectively was denying

him counsel at critical stages where his substantive rights were adversely affected and

irretrievably lost. Faretta v. California, 422 U.S. 806 (1975); Satterwhite v. Texas, 486

U.S. 249, 256-57 (1988); Mempa v. Rhay, 389 U.S. 128 (1969) (Sixth Amendment

applies at every stage where a defendant's substantial rights may be affected); Gideon v.

Wainwright, 372 U.S. 335 (1963).

When Lawrence attempted to appeal these matters, he filed a notice of appeal the

same day he received at the FDC Miami the order denying his motions; but that appeal

was rejected as untimely and notwithstanding an appeal of that rejection, under local

rules, no further processing of his appeal took place. CP's 1608, 1619, 1621, 1623,

1630, 1633.

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V. FURTHER SANCTIONS ARE BEING UNLAWFULLY IMPLEMENTED
AGAINST LAWRENCE WHEN THE CONTEMPT WAS IDENTIFIED AS
PUNITIVE, AND UPON NO NOTICE TO LAWRENCE

A. No Notice

The district court‘s (alleged by the Trustee) order to the bankruptcy court to

impose ―post-release obligations‖ a.k.a. sanctions, on Lawrence, after the contempt

sanction was vacate was made without notice to Lawrence, and no opportunity to

research the issue or to file a response brief, Indeed, he never even saw the alleged

―obligations‖ until after the district court issued its order.

Significantly, the district court was requested by the Trustee to itself add to its

Omnibus Order the actual ―obligations‖ but declined to do so. In effect, the Trustee

simply asked for what he was entitled to without asking, that is, can he file any motion

with the bankruptcy court while knowing the answer is yes. But he then takes the

position that the merits of the motion were decided by the district court—all without

notice to Lawrence and his chance to be heard. Trustmark Lns. Co. v. ESLU, Inc., 299

F.3d 1265, 1267 (11th Cir. 2002) ("This Circuit has consistently interpreted the notice

rules strictly"); Finn v. Gunter, 722 F.2d 711, 713 (11th Cir. 1984) (same).

The bankruptcy court order (CP 1774) (Writ of NE EXEAT) created one of the

post-release obligations on Lawrence by depriving him of his right to travel inter-state

(he is prohibited from leaving Florida) and enjoining the Government from issuing him

a passport, in violation of Government regulations. There was no notice given to

-62-
Lawrence, or the Government and the order was plainly a punitive sanction, and

therefore void. Trustmark, Id..

A second order (CP 1775) orders Lawrence to testify on the very matters he had

been referred for prosecution for, which matters the bankruptcy court ruled constitute

the crime of concealing estate property. Moreover, as shown supra, the subject matter

of the questions will clearly be the same subject matter as the intercepted

attorney-client communications obtained by the Trustee, and thereby cannot be asked

under Title III. These issues, including Lawrence‘s self-incrimination claims, have

already been presented for review to the district court, and now this Court.

B. Further Bankruptcy Court Contempt Proceedings Will Be Conducted

Without Due Process and Counsel For Lawrence

On January 16, 2007, the bankruptcy court also, made it clear that because

Lawrence disobeyed a court order, he will not obtain access to the court, through

consideration of any claims or argument he may raise:

THE COURT: Because you are in violation of orders of this Court, this Court
rules that you are not entitled to relief from this Court or assistance while you
remain in violation of Court orders. You cannot thumb your nose at the Court
and disobey its orders…. when you bring it back, this Court will then consider
purging your contempt and offering other benefits that might be available to
litigants before a Court, but under these circumstances the Court just does not
believe you are entitled.

Trans. January 16, 2007 bankr. hearing at p.19 ln.24 to p.20 ln.16.

-63-
VI. EVEN IF LAWRENCE’S IMPRISONMENT WAS INITIALLY LAWFUL,
HE WAS KEPT IN PRISON FAR LONGER THEN THE LAW ALLOWS
UNDER 28 U.S.C. § 1826 AND IN VIOLATION OF HIS RIGHT TO DUE
PROCESS

A. The Trustee’s contention that there is no outside due process and

statutory limit to the incarceration of a contemnor in federal court is
contrary to law

The Trustee's cite to Chadwick v. Janecka 312 F.2d 597 (3rd Cir. 2002) is to a

case that does not address the issues in this case. Nor does it reflect the law in this

Circuit. Chadwick is a state habeas corpus case that is governed by the Antiterrorism

and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214

(enacted April 24, 1996). The Third Circuit made it clear that AEDPA review standards

dominated the Chadwick decision. In applying AEDPA standards, Chadwick found no

current undisputed Supreme Court law that could serve to change Chadwick‘s state

court contempt order and that case's effective disposition was thereby made.

Chadwick specifically stated that because this was an AEDPA case, it was not

necessary to determine if its binding circuit law, under In re Grand Jury Proceedings

(Braun), 600 F.2d 420 (3rd Cir. 1979) (identifying an eighteen month due process limit

to all federal court contempts as determined by Congress in 28 U.S.C. § 1826(a))

should be reversed: "We have no need here to decide whether In re Grand Jury

Investigation remains good law in light of Bagwell. It is enough for present purposes

that the state court decisions cannot be disturbed under the restricted standard of

-64-
[AEDPA] review applicable in this habeas case." Chadwick 312 F.3d at 613.

Braun plainly states:

Congress has, in effect, addressed essentially the same problem that courts must
tackle under a due process analysis, and has thereby filled the void that existed
under prior practice, where there was a possibility that unconscionable,
indeterminate periods of confinement might be imposed for civil contempt.

Braun, 600 F.2d at 427

Therefore, even under still existing Third Circuit precedent, there was an

eighteen month limit to Lawrence's incarceration. Importantly, it would have required

an en banc review to reverse the third circuit precedent contained in Braun.

1. 28 U.S.C. § 1826(a) eighteen month limit applied to Lawrence’s

contempt sanction

Precedent in this Circuit clearly shows 28 U.S.C. § 1826(a) applies to Lawrence.

Matter of Younger, 986 F.2d 1376 (11th Cir. 1993) (per curiam), squarely addressed the

issue of the mandatory application of 28 U.S.C. § 1826 to all civil contempt sanctions

issued in bankruptcy courts. Younger ruled that a bankruptcy debtor could only be

confined under a bankruptcy contempt sanction for a maximum period of eighteen

months under section 1826. Younger based its decision on the plain language of section

1826 and found no distinction between bankruptcy courts, other federal courts, and

grand juries and that therefore section 1826 governed bankruptcy contempt sanctions.

Younger states:

"The issue of whether 28 U.S.C. § 1826 is applicable to a civil contempt order in

bankruptcy cases is a question of first impression in this Circuit. In pertinent part,

-65-
 the statute provides that: (a) Whenever a witness in any proceeding before or
ancillary to any court or grand jury of the United States refuses without just
cause shown to comply with an order of the court to testify [or provide other
information] ... the court ... may summarily order his confinement at a suitable
place until such time as the witness is willing to give such testimony.... No
period of such confinement shall exceed the life of ... the court proceeding . . .
before which such refusal to comply with the court order occurred, but in no
event shall such confinement exceed eighteen months. 28 U.S.C. § 1826(a)
(emphasis added). The plain language of the statute includes within its scope
any proceeding before any court of the United States. There is no exception
made in the statute for refusals to testify in bankruptcy cases. We hold that
the district court erred in ordering that the Appellant be held for an
indefinite term. By its clear language, 28 U.S.C. § 1826(a) requires that the
term be limited by the lesser of the duration of the bankruptcy case or
eighteen months."
Id. at 1378 (emphasis added).

"We hold that the confinement ... must be limited to the length of the bankruptcy
case or eighteen months ... whichever is less."
39
Id. at 1378 (emphasis added).

The Trustee ignored precedent in this circuit that sets an eighteen month limit to

a bankruptcy contempt sanction based on the plain language of 18 U.S.C. 1826 and

asks this Court to apply a Third Circuit standard that is only applicable for AEDPA

cases involving state court civil contempts, when the current precedent in the Third

Circuit for federal contempt sanctions remains undisturbed at a maximum eighteen

month limit.

The Trustee's reliance on Chadwick's interpretation, in dicta, of Mine Workers v.

39
Even if Lawrence's assertion of the privilege against self-incrimination is not valid, he clearly
was and still is the principal "witness" in these proceedings. Thereby, Lawrence clearly falls under
the jurisdiction of 28 U.S.C. § 1826.

-66-
Bagwell, 521 U.S. 821 (1994) is equally unavailing. First, as shown supra, Chadwick

made it clear that because this was an AEDPA case, it was not deciding if Bagwell

called for reversal of Third Circuit precedent in Braun. Second, equally important is the

nature of the Bagwell case and what it was actually deciding--which was if a $50

million dollar fine was a criminal contempt sanction--it was so found, based in part on

the size of the sanction. The length of a contempt incarceration was not an issue in that

case, and presumably was not an issue briefed by the parties.

The language the Trustee and the Third Circuit relies on in Bagwell is the words

that a contemnor could be held "indefinitely until he complies." The term "indefinitely"

has been recognized as being bound by the outer limit of eighteen months under section

1826. In re Grand Jury Proceedings (Joseph Howald), 877 F .2d 849, 850 (11th Cir.

1989) ("That determination [that incarceration is still coercive] is within the sound

discretion of the trial judge and a reviewing court should be reluctant to conclude that

civil contempt has lost its coercive effect prior to the maximum time limit--eighteen

months --established by Congress [in section 1826]. In re Grand Jury Proceedings

(Braun), 600 F .2d at 427; Simkin, 715 F.2d at 37;" (emphasis added)).

Because a limit to a contempt incarceration was set by Congress in section 1826,

then how can Bagwell determine that there is no limit to the length of incarceration for

those contemnors that indisputably fall under section 1826? The answer is that

Bagwell's language must be qualified and recognized to have been used in a context

-67-
where the length of a civil incarceration was not at issue. The context of the language in

Bagwell shows that the Court was simply distinguishing, in general, between civil and

criminal contempts, in a case where only a fine, not imprisonment, was at issue. It was

not meant to be dispositive on the legality of section 1826 which section the Trustee's

interpretation of Bagwell would invalidate. This view is completely supported by

referring to the omitted parts of the paragraph that Chadwick quotes to in Bagwell:

"The paradigmatic coercive, civil contempt sanction, as set forth in Gompers,

involves confining a contemnor indefinitely until he complies with an
affirmative command such as an order ―to pay alimony, or to surrender property
ordered to be turned over to a receiver, or to make a conveyance.‖ 221 U. S., at
442; see also McCrone v. United States, 307 U. S. 61, 64 (1939) (failure to
testify). Imprisonment for a fixed term similarly is coercive when the contemnor
is given the option of earlier release if he complies. Shillitani v. United States,
384 U. S. 364, 370, n. 6 (1966) (upholding as civil “a determinate [2-year]
sentence which includes a purge clause”). In these circumstances, the
contemnor is able to purge the contempt and obtain his release by committing an
affirmative act, and thus ― ‗carries the keys of his prison in his own pocket.‘ ‖
Gompers, 221 U. S., at 442, quoting In re Nevitt,117 Fed. 448, 451 (CA8 1902).
Bagwell 512 US at 828

The first missing case cited in the above paragraph, McCrone, involves the

commonest form of contempt, involving a witness who refuses to testify. Yet, no one

would contend that the Supreme Court was intending, in its general discussion of

distinctions between civil and criminal sanctions, that section 1826 is unlawful. The

second missing case Shillitani, also involving a failure to testify, occurred before

Congress passed section 1826. That 1826 supplanted Shillitani was noted in Gelbard v.

U.S. 408 U.S. 41, 42 n.1 (1972) (stating: "[28 U.S.C. 1826(a)] was enacted as part of

-68-
the Organized Crime Control Act of 1970. It was intended to codify the existing

practice of the federal courts. S. Rep. No. 91-617, pp. 33, 56-57, 148-149 (1969); H. R.

Rep. No. 91-1549, pp. 33, 46 (1970); see Shillitani v. United States, 384 U.S. 364

(1966)"). The Trustee's interpretation of Bagwell, would apply to contemnors falling

under the facts of Shillitani and McCrone cases, i.e., refusal to testify, thereby

invalidating section 1826. This was clearly not the intention of the Supreme Court.

Moreover, the Chadwick court stated: "there was no dispute that Chadwick had

the current ability to comply with the turnover order:" Here, the Trustee does not

acknowledge that Lawrence has raised claims that squarely fall under the umbrella of

"inability" a.k.a. "impossibility." In fact, the Trustee seeks an order to force Lawrence

to "refuse" to comply and thereby self-implicate through inference that a) he was and is

currently concealing assets; and b) that it is undisputed that said assets are estate

property, thereby under FRE 901 there would be no need for the Government to prove

these unprovable facts in follow-up of the previously undisclosed criminal referral

made by the Trustee in 2000 to the USAO.

Also, as discussed elsewhere, the claim against Chadwick was for alimony, a

well settled exception to the prohibition against imprisonment for debt, while in

Lawrence's case he owes no debt to the Trustee, who never pursued a claim against him

for what is now clearly and indisputably a pre bankruptcy transfer in 1991.

-69-
VII. LAWRENCE’S SIXTH AMENDMENT RIGHT TO COUNSEL WAS
VIOLATED WHERE UNDISPUTED FACTS SHOW ATTORNEY
CONFLICT EXISTED THAT ADVERSELY AFFECTED ATTORNEY
PERFORMANCE

In May 1998, the Fierberg Court papers (R-119-73 to 75) implicated Mr. Stok

(Lawrence‘s attorney) and Lawrence in obstruction of justice, witness tampering, and

active concealment of estate assets. Yet, while the bankruptcy court was aware of the

sworn Fierberg allegations (and acted on them), no U.S. v. Garcia, 517F.2d 272 (5th

Cir. 1975) conflict hearing was held. In U.S. v. Greig, 967 F.2d1018, 1021 (5th Cir.

1992) the Fifth Circuit reversed conviction when it found an actual conflict and

prejudice when "[t]he trial court, being aware of critical facts, erred in not holding a

Garcia hearing to insure that [defendant] was fully informed of his counsel's ethical

violation and whether [defendant] nevertheless wanted counsel to continue in his

defense."

In Pegg v. U.S., 253 F.3d 1274, 1277 (11th Cir. 2001) this Court determined that

when an attorney is alleged to be implicated in a defendant‘s criminal activity

concerning the subject matter of representation, then an actual conflict and prejudice is

shown requiring reversal.

The fact that Lawrence was only later incarcerated is irrelevant since by

applying "res judicata" principles to the discharge proceeding for the later contempt

incarceration, the bankruptcy court was then obligated to assure that Lawrence‘s Sixth

Amendment rights had not been violated during the prior proceeding. Ridgway v.

-70-
Baker, 720 F.2d 1409, 1413 (5th Cir. 1983) (Sixth Amendment applies to contempt and

"extends to every case in which the litigant may be deprived of his personal liberty[.]");

Lassiter v. Dept. of Soc. Servs,452 U.S. 18 (1981) (same); U.S. v. Harnage, 976 F.2d

633, 636 (11th Cir. 1992) (if collateral estoppel is permitted against a criminal

defendant then "the district court would be compelled to determine whether counsel in

the prior proceeding was effective."); Arizona v. Shelton, 535 U.S. 654 (2002)

(reviewing court may not postpone Sixth Amendment review when proceeding could

be a basis for a possible later imprisonment); Howard v. U.S., 374 F.3d 1068 (11th

Cir.2004) (finding Shelton to be a retroactive rule).

Moreover, Lawrence instructed Mr. Stok to appeal the discharge default order,

but he did not file the notice of record, thereby defaulting on the appeal. That act was

sufficiently prejudicial to violate Lawrence's Sixth Amendment rights, with or without

―actual conflict.‖ See Gray v. U.S., 834 F.2d 967 (11th Cir. 1987) (defendant has

automatic entitlement to "first appeal" if requested).

The conflict problem compounded when Mr. Neiwirth also became implicated

by the crime-fraud order (also enforced against him) concerning the subject matter of

his representation of Lawrence. Again, no Garcia hearing was held, even though

Lawrence was incarcerated. So there were then prejudicial ―actual conflicts" with both

Mr. Stok and Mr. Neiwirth and reversal of all orders was required a fortiori. Pegg;

Greig; Shelton.

-71-
 Mr. Neiwirth also belatedly disclosed that his law firm was representing Bear

Stearns throughout his representation of Lawrence. Although Lawrence and Neiwirth

disagree as to whether Lawrence was informed of that representation, Mr. Neiwirth's

version of events is more prejudicial than Lawrence's since he said he informed

Lawrence that he had no conflict for the matters he actually represented

Lawrence on. Thereby waiver became impossible because the attorney stated to the

client he had no conflict, so no disclosure ever occurred.

Mr. Neiwirth filed a motion to withdraw Lawrence's appeal (to reinstate the

discharge order appeal) in this Court, without service to Lawrence, which motion was

granted after the turnover and contempt orders were issued, but he made no attempt to

withdraw his motion to dismiss the appeal.

VIII. THE ASSIGNMENT OF AN APPEAL OF A BANKRUPTCY COURT

CONTEMPT SANCTION TO A MAGISTRATE, WITHOUT CONSENT,
VACATED THE CONTEMPT SANCTION AB INITIO UNDER 28 U.S.C. §
636 AND Gomez v. United States, 490 U.S. 858 (1989)

The Magistrate Judge did not have authority to conduct bankruptcy appeal

proceedings. This case is a bankruptcy appeal case, subject to 28 U.S.C. § 158(a) and

Fed.R.Bankr.P. 9033. Lawrence, 251 B.R. 630. By assigning appellate matters to a

magistrate, the contempt sanction and other appealed matters, were improperly shifted

to a judge who has no authority to adjudicate those appellate matters. Also applicable is

28 U.S.C. § 636.

Fed.R.Bankr.P. 9033, by its plain language, requires the district court judge to

-72-
review all referrals of facts and findings, from a bankruptcy judge. Thereby, it bars a

magistrate from duplicating the bankruptcy court's function. This is necessary, in the

case of a contempt sanction, because review by an judge is mandatory. Matter of Hipp,

Inc., 895 F.2d 1503, 1519-20 (5th Cir. 1990).

The R&R and transcript confirms that there was no "on the record," explicit,

consent by Lawrence to adjudication of a critical stage of a contempt sanction- whether

continued incarceration appropriate. The R&R itself makes clear the critical role the

Magistrate assumed, when it identified the importance of that role, and his "virtually

unreviewable discretion" on that matter, (R-131-3 to 8).

Lawrence asserted his rights to have his bankruptcy appeal (including appeal of

the contempt sanction) heard by an Article III district court judge, not a non-Article III

magistrate judge (R-151-4 to 6). In U.S. v. Ruiz-Rodriguez, 277 F.3d 1281, 1293 n.17

(11th Cir. 2002), this Circuit identified this error as requiring per se reversal, and no

harmless error analysis is appropriate. In that case, the magistrate held an evidentiary

hearing to determine facts for sentencing, without explicit consent of the parties.

Because that hearing was a "critical stage," per se reversal of the sentencing was

required. Thomas v. Wentworth, 136 F.3d 756 (11th Cir. 1998) established that § 636

constraints on magistrates equally apply in civil and criminal cases.

Here, the critical stage evaluation of the coercive effect of incarceration (a

"sentencing" matter) was arguably even more critical then sentencing in a criminal

-73-
proceeding after trial. See also Peretz v. U.S., 501 U.S. 923 (1991); Gomez v. U.S., 490

U.S. 858 (1989).

IX. APPELLANT WAIVED ANY ARGUMENT THAT THE DISTRICT

COURT COMMITTED REVERSIBLE ERROR IN THIS APPEAL

The Trustee/Appellant‘s failure to present argument in his initial appellant's brief

to addresses most of the claims presented herein constitutes waiver on those claims,,

which were all presented to the lower courts.

A litigant's failure to address an argument in his brief constitutes a waiver

thereof. Flanigan's Enterprises, Inc. of Georgia v. Fulton County, Georgia, 242 F.3d

976, 987 n.16 (11th Cir. 2001), cert, denied, 536 U.S. 904 (2002) (stating, "Although in

their Brief Flashers and Fannies allege that the defendants deprived the Clubs of their

right to substantive and procedural due process, they fail to elaborate or provide any

citation of authority in support of the former allegation. Therefore, we are left to

conclude that Flashers and Fannies have waived this argument...."), Continental

Technical Servs., Inc. v. Rockwell Int'l Corp., 927 F.2d 1198, 1199 (11th Cir. 1991)

(holding that "an argument not made is waived").

The Trustee presented the incorrect argument that the district court proceedings

were not an appeal of the bankruptcy court orders. Yet, he did not address the issues

presented to the district court except for applying the wrong standards in evaluating a

civil contempt sanction and briefly addressing the wrong Fifth Amendment

self-incrimination issue, infra. He thereby waived the right to have considered the other

-74-
issues presented to the lower courts.

Even applying the correct construction of the district court proceedings, that is

that they were appellate proceedings undertaken under Fed.R.Bankr.P. 9033, which

constituted the law of the case, the Trustee was still duty-bound to address the claims

raised or otherwise waive objection to them.

Even though the district court may not have been clear in its decisions

concerning the issues raised, including application of the mootness doctrine, those

claims were still presented and subject to adjudication whether by the district court, or

even this court in the absence of a definitive explanation, particularly where the facts

are undisputed and the issues concern application of well settled law – subject to de

novo review. The district court vacated the contempt sanction and Lawrence presented

his arguments in support of that decision, including support for alternative reasons for

vacation ab initio. The Trustee never addressed those other arguments but instead chose

to waive objections to those issues and concentrate exclusively on the issues he did

address.

Moreover, the issues are relevant to the continuing contempt proceedings being

conducted in the bankruptcy court, since they are repeating in nature. Appellant‘s initial

brief, at 12, at minimum, acknowledges the continuing existence and timely nature of

Lawrence‘s Fifth Amendment self-incrimination claims which, in turn, necessarily

implicates Lawrence‘s other claims, concerning the prior and continuing proceedings.

-75-
The Trustee initiated the continuing bankruptcy contempt proceedings by citing to the

Omnibus Order as authorizing those proceedings.

X. LAWRENCE’S RIGHTS AGAINST SELF-INCRIMINATION AND DUE

PROCESS WERE VIOLATED BY CONCEALMENT OF THE BASIS FOR
INVOCATION OF HIS PRIVILEGE

There is now overwhelming and undisputed evidence from the sealed record,

admissions by the Trustee, and on-the-record statements by the bankruptcy court that

give cause for Lawrence‘s invocation of his privilege against self incrimination. The

type of invocation of the privilege is both for the ―act of production‖ and for oral

testimony sought by the Trustee and obtained from Lawrence‘s phone tapes, the

purported contents of which was related in the closed proceedings—making Lawrence

a witness against himself, without his and his attorney‘s knowledge, or a Miranda

warning.

This Circuit also recognizes two forms of privilege applicable to Lawrence: (1)

the "act of production," associated with the act of turnover, U.S. v. Argomaniz, 925 F.2d

1349, 1355-56 (11th Cir. 1991); U.S. v. Hubbell, 530 U.S. 27 (2000); and (2) testimony

respecting "what role he might have played in the fact that alleged hidden assets are no

longer available." U.S. v. Meeks, 642 F.2d 733, 735 (5th Cir. 1981). Both forms of

privilege were invoked by Lawrence in the lower courts (R-138-21).

Moreover, in Lawrence‘s case, unlike in U.S. v. Rylander. 460 U.S. 752 (1983),

-76-
the information needed by Lawrence to have earlier asserted his privilege were

improperly denied him. Because he could not raise claims earlier based on information

improperly withheld from him, this precludes ―res judicata,‖ respecting an earlier

chance to invoke the privilege (also, unlike Rylander, Lawrence did testify earlier at the
40
discharge proceeding).

Indeed, Trustee‘s attorney (Paul Avron) went to great lengths to keep from

Lawrence the information needed by Lawrence to support his self-incrimination

privilege claim. At the June 19, 2003 hearing on Lawrence‘s privilege claim, after

Lawrence‘s attorney asserted that Lawrence was at risk, and requested an answer on

whether Lawrence had been referred to the USAO for prosecution, Mr. Avron stated

the opposite and challenged Lawrence to prove otherwise::

MR. AVRON: I am unaware of any prosecution ' or investigation, and I would

invite opposing counsel to produce even one piece of paper showing a pending
criminal investigation ... until I've seen such a paper or such papers are produced
to this Court, I think it's just a misrepresentation of fact ... it just hasn't
happened to our knowledge. We certainly have never seen it.
June 19, 2003 bankr. trans. (CP 1231) at p.36 lns.14-23

Lawrence never was granted immunity, which in the cases cited to throughout

the lower court proceedings was always present when a risk of self-incrimination

40
Rylander makes it clear that the contemnor‘s burden and right is to first show impossibility, not
to prove coercive effect has ended, which presumes an ability to comply without affording an
opportunity to prove otherwise.

-77-
 41
existed.

The bankruptcy court has already made findings of criminal conduct:

THE COURT: [I]t is the opinion of this Court that.... [this is] a case of
bankruptcy fraud under 18 United States Code Section 157.... anything that...
was done in conjunction with Mr. Stok is within ... the crime fraud exception and
subject to inquiry.

October. 4, 2004 bankr. trans. at p.80 ln.16 to p.81 ln.17.

The Fierberg Affidavit and court papers, and the rest of the sealed record all

contain explicit and implicit allegations of criminal conduct.

A secret referral for prosecution of Lawrence, to the USAO, occurred in late

2000 (CP 1074) and the Trustee, in his sealed papers stated that if was essential for his

request for prosecution to obtain the information he was seeking from Lawrence

through both his phone communications interceptions and his attempts to comply with

the turnover order. Id..

It also now seems clear that the Trustee was engineering an entrapment scheme

whereby Lawrence was being forced into providing information the Trustee deemed

essential to securing his prosecution, while the information needed to invoke the

protection of the self-incrimination clause, a principle defense to a civil contempt, was

being denied him.

41
The only previous answer to this argument advanced by the Trustee, was that he would support
a grant of immunity, after Lawrence provided his (presumed by the Trustee) incriminating
testimony, when it is too late.

-78-
 XI. THE INCORRECT STANDARD WAS USED TO JUDGE THE
CONTEMPT SANCTION WHEN LAWRENCE’S CLAIMS THAT
RELATED TO “IMPOSSIBILITY” WERE IGNORED ON THE BASIS
THAT HIS ONLY PERMITTED DEFENSE WAS TO ARGUE THAT THE
COERCIVE EFFECT OF INCARCERATION HAD ENDED

This Court, in CFTC v. Wellington Precious Metals, Inc., 950 F.2d 1525,

1528-29 (11th Cir. 1992) states:

We must consider the following issues on appeal: (1) whether the district court
erred in refusing to allow [the defendant] to reargue the amount he was required
to pay in the underlying disgorgement order; (2) whether the district court was
clearly erroneous in finding that [the defendant] failed to prove he was unable to
comply with the district court's disgorgement order; and (3) whether the civil
contempt order ... continues to coerce.

In In re Lawrence, 279 F.3d 1294 (11th Cir. 2002), the right to raise all available

civil contempt defenses was retained. The only defense raised in that appeal was the

"inability" defense, but new evidence can be used to show the contempt is punitive, Id.

at 1301. There, this Court stated that current "impossibility" is to be considered in any

further review by the district court: "the district court [is] to review whether

[Lawrence's] continued incarceration has lost its coercive effect. This issue, however,
42
should be considered under the context of his claim of impossibility." Id.

42
Clearly, a determination of present impossibility involves the right to present all available
evidence. Maggio v. Zeitz, 333 U.S. 56, 76 (1948); In re Lawrence, 251 B.R. 630, 643 (S.D. Fl
2000) (relying on Maggio to afford Lawrence the opportunity to present all of his then current
evidence on his inability to comply with the turn over order). Also, a review of the full trial record
is needed on review: "The Circuit Court['s] ... power was limited to a consideration of the
justifiability of the District Court's findings on the basis of the record before that court." Maggio
333 U.S. at 90 (Frankfurter dissenting).
In addition, the law of the case doctrine does not apply to the evidence that Lawrence never

-79-
 A court makes its individualized determination of the continued coercive effect

of incarceration by a weighing of factors. Wellington 950 F.2d at 1530. But the first

factor must always be allowing the contemnor to prove ―impossibility‖ and a review of

the full record as part of evaluation of that proof. Otherwise, the contemnor is placed in

the position of having to admit to lying in order to advance his cause.

Both the bankruptcy and district courts proceeded under the assumption that the

burden on Lawrence was not to show ―impossibility,‖ the correct standard, but instead

to show ―coercive effect of incarceration,‖ whose predicate is an admission of guilt.

This was in direct violation of the precepts of Maggio and Wellington.

The magistrate‘s report clearly stated that ―Lawrence … argue[d] matters

outside of this Court's limited referral.‖ (R-131-9). In short, by using the wrong

standard of having a burden to prove ―coercive effect‖ to the exclusion of the

opportunity to prove ―impossibility‖ due process was lacking.

'

A. The Magistrate, after holding an evidentiary hearing, made a factual

finding that he could not determine if Lawrence had the current ability
to comply with turnover, thereby invalidating the civil contempt sanction

Notwithstanding other objections, critically, Magistrate Turnoff conducted an

evidentiary and as a result, made a specific factual ruling that he could not determine if

knew about, to changes in controlling law, or where the prior decision was clearly erroneous and
would work manifest injustice. Wheeler v. City of Pleasant Grove, 746 F.2d 1437, 1440 (11th Cir.
1984)

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Lawrence had the current ability to comply with turnover (R-131-8) (Magistrate

Turnoff ruled that he "conducted an individual determination as to whether there exists

a realistic possibility that Lawrence will comply [with turnover]." (R-131-8), and then

made the factual finding that "it is not clear whether [Lawrence] has any future plans

and/or ability to comply." Id.)

In U.S. v. Rylander. 460 U.S. 752, 761 n.3 (1983), the Supreme Court identified

the inextricable link between the trial court's contempt decision and the requirement

that there be a concomitant finding by that court that the ability to currently comply

exists. Effectively, if a court makes a specific finding that it cannot determine a current

ability to comply, then it cannot meet the affirmative obligation to reach the different

conclusion that there is a current ability to comply—a mandatory requirement to

continue a civil contempt sanction. Id..

Therefore, when the Magistrate found that he could not determine if Lawrence

had the current ability to comply, he reached the wrong legal conclusion that

"[Lawrence] has failed to meet his burden in this regard[.]‖ His finding that after

consideration of the evidence, he cannot find that there is a current ability to comply on

Lawrence‘s part, invalidated the contempt sanction.43

The finding that it cannot be determined if Lawrence has the current ability to
43
This is a completely different situation then one where the Court does not make any finding on
the state of the contemnor‘s current ability to comply, and then an inference is made that the Court
implicitly found that there was a current ability to comply.

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comply with turnover is supported by the record, including the Trustee's own binding

admissions. For example, Trustee's attorney Michael Budwick (co-counsel), stated at the June

17, 2004 bankruptcy court "memo" hearing, when questioned under oath as to if he knew that

Lawrence did not have any hidden assets: "I could not testify to that effect because I do not

know one way or the other whether or not he has hidden bank or stock accounts." June

17, 2004 bankruptcy trans. at p.55 ln.19 to p.57 ln.3.

Moreover, the above finding was made despite important improper adverse

inferences made against Lawrence at the September 22, 2007 hearing. For example, the R&R

made an improper adverse inference based on Lawrence's demeanor during his

self-representation, (R-131-8). Lawrence was not under oath, FRE 603, and he repeatedly

stated that he was only speaking as his attorney and respecting pleadings made by prior

attorneys and while pro se (which hearing statements accurately reflected the contents of

those pleadings), Sept. 22, 2006 trans. at p.9 lns.6-11, p.12 ln.17 to p.13 ln.17. McKaskle v.

Wiggins 465 U.S. 168, 177 n.8 (1984) ("Since the right to self-representation is a right that

when exercised usually increases the likelihood of trial outcome unfavorable to the defendant,

its denial is not amendable to 'harmless error' analysis"); United States v. Gonzalez-Lopez, 126

S.Ct. 2557 (2006) (denial of defendant's right to counsel of choice is per se 'structural error'

requiring reversal).

B. Both the bankruptcy and district courts found that coercion had lost
whatever effectiveness is may have previously had

The Trustee acknowledges that, at minimum, when the district court made a

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factual finding that Lawrence‘s incarceration had lost its coercive effect, under this

Circuit‘s precedent, the civil contempt had to be vacated. Appellant initial brief at 14-15

citing to Commodity Futures Trading Comm’n, 950 F.2d 1530-31.

Moreover, in the continuing contempt proceedings still being conducted in the

bankruptcy court, that court specifically found that Lawrence‘s imprisonment no longer

had any realistic chance of being coercive. The bankruptcy court stated:

THE COURT: …. The Court will grant the motion for post-release obligations,
with a note that it is considered doubtful that Mr. Lawrence will comply. What
are you going to do if he doesn't comply, put him back in jail?

MR. SINGERMAN: Your Honor –

THE COURT: It doesn't have any coercive effect.

January 16, 2007 bankr. trans. at p.20 lns.17-24.

XII. A REVIEW OF THE SEALED RECORD WAS REQUIRED ON DUE

PROCESS GROUNDS AND UNDER Maggio v. Zeitz, 333 U.S. 56, 76 (1948)

It is a necessary part of any contempt review that the entire record before the

lower court (the bankruptcy court) is reviewed. This principle was set for clearly in

Maggio v. Zeitz, 333 U.S. 56, 76 (1948); In re Lawrence, 251 B.R. 630, 643 (S.D. Fl

2000) (relying on Maggio to afford Lawrence the opportunity to present all of his then

current evidence on his inability to comply with the turnover order). "The Circuit

Court['s] ... power was limited to a consideration of the justifiability of the District

Court's findings on the basis of the record before that court." Maggio 333 U.S. at 90

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(Frankfurter dissenting).

In addition, the law of the case doctrine does not apply to bar challenge based on

evidence that Lawrence never knew about, to changes in controlling law, or where the

prior decision was clearly erroneous and would work manifest injustice. Wheeler v.

City of Pleasant Grove, 746 F.2d 1437, 1440 (11th Cir. 1984).

The review must encompass the entire record, to assure that reversible error is

not erroneously ignored. This appeal right is a basic due process and Sixth Amendment

right. Krys v. Lufthansa German Airlines, 119 F.3d 1515, 1523 (11th Cir. 1997) ("A

finding is clearly erroneous when the reviewing court, after assessing the evidence in its

entirety, is left with a definite and firm conviction that a mistake has been committed.

Anderson v. City of Bessemer City, 470 U.S. 564 (1985)."); Solomon v. Liberty County

Com'rs, 166 F.3d 1135, 1140 (11th Cir. 1999) (same).

No evidence or testimony was introduced in the district court hearings, so the

only basis for review was the entire record. Under F.R.E. 603 (requiring an oath or

affirmation to give admissible testimony), and the Sixth Amendment, even Lawrence,

appearing pro se, was not a witness (this error had also occurred in the bankruptcy court

proceedings). So the hearing and R&R rested entirely on the entire record, which

should have included the sealed record, and legal argument. But the entire record, the

sealed record in particular, was not reviewed.

Furthermore, any collateral estoppel reliance on the unreviewed bankruptcy

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court orders, is erroneous, since those orders are (1) under review in this appeal; (2)

have not been previously tested and finalized on review; and (3) Lawrence never had

the previous opportunity to challenge the sealed orders; and (4) Lawrence was not at

the closed hearings where challenged orders were issued. Cotton State Mut. Ins. Co. v.

Anderson, 749 F.2d 633, 666 (11th Cir. 1984) (issue preclusion limited to where

opposing party had a "full and fair hearing in [prior] proceeding"). Therefore those

orders/issues were subject to de novo challenge.

In addition, an evaluation of the invocation of the Fifth Amendment privilege

against self-incrimination requires a review of the entire record. U.S. v. Gecas, 50 F.3d

1549, 1556 (11th Cir. 1995) (factual finding on self-incrimination privilege must be

reviewed "in light of the record as a whole"). Here, the sealed record comprises a

critical part of Lawrence's basis for invoking his privilege and could not be ignored.

The Magistrate committed clear error of law, when he (1) ignored Lawrence's

appealed claims of error in the bankruptcy court proceedings; (2) did not conduct a

required review of the sealed record (even in the context of continued coercion— itself

requiring consideration of the full bankruptcy/ trial record); and (3) restricted the scope

of the September 22 hearing, and thereby Lawrence's defenses, to the issue of the

coercive effect of continued incarceration.

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 XIII. WHETHER LAWRENCE WAS IMPRISONED FOR DEBT IN
VIOLATION OF THE FLORIDA CONSTITUTION AND 28 U.S.C. § 2007(a)

Article 1, Section 11 of the Florida Constitution prohibits imprisonment for debt.

28 U.S.C. § 2007(a) prohibits imprisonment to enforce debt in an state that bars such

imprisonment. The district court was correctly stating the law when it ruled that ―our

Constitution prohibits imprisonment for unlawful debt,‖ as a reason for releasing

Lawrence from prison, Omnibus Order (R-161-5).

All of the cases ever cited to imprison Lawrence, where imprisonment was used

to coerce payment of money, involved non-bankruptcy actions based in equity, not

44
legal actions to collect debt that were specifically authorized by Congress. In those

cases (1) the underlying "disgorgement" judgment (which actually existed and was to

pay money); and (2) the later equitable enforcement remedy of imprisonment, were

based on the Congressional granting of equitable "disgorgement" powers to assert and

enforce "public rights." Both Commodity Futures Trading Comm'n v. Wellington

Precious Metals, Inc., 950 F. 2d 1525 (11th Cir. 199 and the notorious Commodity

Futures Trading Comm'n v. Armstrong, 284 F.3d 404 (2d Cir. 2002) cases involved the

CFTC, which entity acted under legislation that granted it the authority to pursue

equitable "disgorgement" and enforcement action (including imprisonment) that

44
Florida does recognize some limited exceptions to its prohibition against imprisonment for debt,
these exceptions include alimony or child support, and the constitution itself makes an exception
for cases where the source of the funds was fraud. Here, the funds involved were not the product of
fraud but instead earnings over a long number of years.

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it used. There has never been a bankruptcy case where a debtor was imprisoned to pay

a pre-bankruptcy transfer— which action only involves "private" not "public" rights

and where Congress limited a trustee's authority to that normally available to a creditor

under the Fed.R.Civ.P. Granfinanciera, S.A., v. Nordberg, 492 U.S. 33 (1989). See also,

Pierce v. Vision Investments, Inc., 779 F.2d 302, 306-310 (5th Cir. 1986) which

identifies the "public rights" exceptions to the definition of "debt" under 28 U.S.C. §

2007(a).

In interpreting the Fed.R.Civ.P on executions in federal courts in Florida, this

Circuit has repeatedly made it clear that it strictly follows Florida law on executions. In

such case where a debt is reduced to judgment, the only remedy is a writ of execution,

not a finding of contempt. Combs v. Ryan’s Coal Company, Inc., 785 F.2d 970 (11th Cir.

1986), Rosen v. Cascade International, Inc., 21 F.3d 1520 (11th Cir. 1994) (equitable

remedies may not be used to enforce money judgments).43 The process to enforce

money judgments is governed by Fed. R. Civ. P. 69 and Fed. R. Bank. P. 7069.

(R-151-20, CP 1312 at 30).

XIV. RES JUDICATA, WAS IMPROPERLY USED WHEN THE BANKRUPTCY

COURT HAD NO JURISDICTION TO AWARD A MONEY JUDGMENT
UNDER 11 USC § 727 AND LAWRENCE WAS DENIED DUE PROCESS
AND OTHER RIGHTS

These issues are addressed in Issue (Page 55) and Page 34, but importantly, as

shown throughout this brief, challenges to underlying order(s) are not only permissible

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but well settled as a civil contempt defenses that fall under the umbrella of

―impossibility.‖ Those defenses are usually distinct defenses from simply showing an

inability to comply (for example, the self-incrimination privilege is always appealable

and can invalidate a contempt sanction if valid) which presumes validity to the

underlying order(s) being enforced.

Importantly, in a civil contempt context, the challenge to underlying order(s) is

simply showing their ―invalidity‖ and not the more restrictive collateral bar rule (res

judicata) necessary in a criminal contempt context. In distinguishing between available

defenses to a civil versus criminal contempt, this Court states: "Invalidity of the

underlying order is a defense to a civil contempt citation. See United Mine Workers,

330 U.S. at 294[,]" In re Novak, 932 F.2d 1397, 1401 n.6 (11th Cir. 1991). In Novak a

criminal contempt sanction was at issue, hence this Court set forth the distinction in

defenses to civil versus criminal contempts. This distinction means that the restrictive

"collateral bar rule" does not apply in civil contempt, and under the more lenient civil

contempt defense standard of "invalidity," all of the exceptions to the collateral bar rule

apply a fortiori. Lawrence‘s claims all fall under and fully meet even the restrictive

standards set forth under this collateral bar rule in Novak.932 F.2d at 1399-1402.

CONCLUSION

For the foregoing reasons, it is respectfully requested that:

a. the turnover and contempt orders be vacated ab initio;

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 b. the 1998 discharge order be vacated ab initio, or its adjudication of liability

be vacated, or its appeal be reinstated;

c. other appropriate just and proper relief be granted.

CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 32(a)(7)

It is estimated that this brief contains approximately words.

Respectfully Submitted,

_____________________________
Stephan J. Lawrence

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed

to Paul Avron, Esq., Berger Singerman, 200 S. Biscayne Blvd., Suite 1000, Miami, FL

33131, on June 20, 2007.

____________________________
Stephan J. Lawrence
19500 Turnberry Way #23A
Aventura, FL 33180

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