Case 0:07-cr-60172-JAL Document 294 Entered on FLSD Docket 02/01/2013 Page 1 of 37

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 07-CR-60172-LENARD UNITED STATES OF AMERICA, Plaintiff, vs. PATRICK COULTON, Defendant. ____________________________/ REPORT AND RECOMMENDATIONS AND ORDERS THIS CAUSE is before the Court upon Defendant Patrick Coultons Motion for Contempt (ECF No. 199), as well as other related motions set forth herein. This matter was referred to the undersigned by the Honorable Joan A. Lenard, United States District Judge for the Southern District of Florida. (ECF No. 200). The unique circumstances of this case have necessitated several hearings on this matter. The following hearings were held before the undersigned: March 29, 2012 (ECF No. 202); May 31, 2012 (ECF No. 209); June 1, 2012 (ECF No. 210); July 6, 2012 (ECF No. 232); July 24, 2012 (ECF No. 243); August 9, 2012 (ECF No. 253); August 16, 2012 (ECF No. 264); and September 4, 2012 (ECF No. 279). The undersigned has considered the written and oral arguments, the testimonial and record evidence, the post-hearing submissions, the applicable law, and is otherwise duly advised in the premises.

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I.

Background1 By way of summary, these civil contempt proceedings arose from non-compliance with an

Order of the Court, consistent with a prior order of reference from Judge Lenard (ECF No. 176), finding that the alleged contemnors engaged in ineffective representation in a criminal case and requiring them, inter alia, to return all legal fees and property taken from Defendant Patrick Coulton and his family. The undersigned held a hearing on Defendant Patrick Coultons Motion for Return of Unearned Legal Fees and Imposition of Sanctions, at which neither Respondent Emmanuel Roy nor Peter Mayas appeared. (ECF No. 186). Proceeding under the Courts ancillary jurisdiction, on September 16, 2011, the undersigned entered a 33page, detailed Order granting the motion, entering judgment in favor of Coulton in the amount of $275,800.00, representing unearned legal fees paid to former counsel, Roy and Mayas, with statutory interest from the date of judgment, requiring the return of all personal and real property taken from the Coultons, and imposing sanctions. (ECF No. 196). The Order required payment of the judgment only as an alternative to their returning the real and personal property taken from the Coultons. That is, Roy and Mayas were required to return the real and personal property taken from the Coultons, or its monetary equivalent. The Order further required Roy and Mayas to cooperate with Coulton in the enforcement and collection of the disgorgement Order. In the event they did not satisfy the disgorgement portion of the Order, they were required to complete and file sworn, personal and business financial statements. Further, in the
1

The background of this case has been set forth extensively in the Courts Order (ECF No. 196) granting Defendants Motion for Return of Unearned Legal Fees and Imposition of Sanctions With Request for Evidentiary Hearing. (ECF No. 167). Page 2 of 37

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event Roy and Mayas failed to comply with this additional provision, they, and their respective law firms, were subject to what amounted to a complete asset injunction. In addition, Roy and Mayas, and their respective law firms, were held in contempt of court. The undersigned found that Roy and Mayas willful, deliberate, and fraudulently contemptuous conduct warranted the imposition of sanctions pursuant to 28 U.S.C. 1927, summarized as follows: (1) Roy and Mayas were enjoined from practice before the Court; (2) they were publicly reprimanded; (3) they were referred to the relevant disciplinary bodies of the Bars of which they are, or were, members; (4) they were ordered to reimburse Coulton for all fees expended to retain substitute counsel, Paul D. Petruzzi, Esq., in the amount of $7,500.00, within 10 days of being served with a copy of the courts Order; (5) they were ordered to pay the additional fees and costs associated with litigating Defendants motion to refund attorneys fees (ECF No. 167); and (6) they were ordered to pay any fees and costs incurred in collecting any and all monetary sums awarded to Coulton, as ordered by the court, if said amounts were not paid in full within 10 days of service of the Courts Order. A. Service on Roy and Mayas

On October 13, 2011, the United States Marshals Service served a copy of the Courts September 16th Order upon Roy. (ECF No. 198). The Florida Bar served a copy of same upon Mayas. While the exact date of service is unclear, the Court accepts Coultons estimated service date of November 22, 2011, based upon correspondence between Mayas and the Florida Bar. (ECF No. 199) at 4. Notwithstanding proper service, neither Roy nor Mayas complied with any of the Courts directives. As a result, on January 27, 2012, Coulton filed the instant Motion for Contempt, followed Page 3 of 37

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by a Supplement thereto. (ECF No. 199, 206). B. Contempt Hearings

The instant motion was originally scheduled to be heard on March 29, 2012. (ECF No. 201). Due to the fact that Roy and Mayas had not been properly served with the contempt motion or the notice of the hearing, the matter was reset for May 31, 2012, and Coulton was ordered to serve Roy and Mayas. (ECF No. 202, 203). On May 30, 2012, counsel for Coulton filed an Affidavit indicating the various efforts undertaken to provide notice of the contempt hearing and to serve Roy and Mayas with the contempt motion. (ECF No. 206). An evidentiary hearing on the contempt motion was held before the undersigned on May 31, and June 1, 2012, where Mayas and other witnesses testified. (ECF No. 209, 210). The Court allowed Mayas to represent himself during the two-day hearing but encouraged him to retain counsel. (ECF No. 220). Roy failed to appear, and matters concerning his contempt were reset to July 6, 2012. (ECF No. 212). At the July 6th hearing, the Court addressed the issue of counsel for Mayas.(ECF No. 232). Due to Roys failure to appear, the undersigned issued a bench warrant for Roys arrest. Id. On July 24, 2012, the Court held a status conference to address issues concerning Mayas representation and the Report updating the Court that he filed. (ECF No. 236, 243). At that time, in an abundance of caution, the undersigned appointed CJA counsel for Roy to ensure him due process. Id. On July 26, 2012, the undersigned entered an Order which detailed the history of the issues concerning Mayas and reopened the contempt record. (ECF No. 245). Upon being advised of Roys arrest, the Court set his initial appearance for August 9, 2012, and required all parties to appear. (ECF No. 250). At the initial appearance, the Court set a bond as Page 4 of 37

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to Roy, reopened the contempt proceedings, and reset the contempt hearing as to Roy for August 16, 2012. (ECF No. 253, 259). This time, it was Mayas who failed to appear. The Court ordered Mayas to appear at the August 16th hearing. (ECF No. 259). On August 16, 2012, a bond was set as to Mayas, and a final evidentiary hearing on the contempt motion was reset for September 4, 2012. (ECF No. 264). Several witnesses testified at the September 4th hearing, and the court took matters under advisement. (ECF No. 279). The parties filed post-hearing submissions. (ECF No. 284, 287, 288; 224). The Court notes that, in the interest of making a complete record in this case, it allowed the parties to present evidence as to any issue. Upon consideration of all such evidence, the undersigned finds that nothing presented at the contempt hearings was contrary to the Courts findings in its September 16, 2011 Order granting the motion for return of legal fees. II. Contempt A. Burden of Proof

A finding of civil contempt must be supported by clear and convincing evidence that (1) the allegedly violated order was valid and lawful; (2) the order was clear and unambiguous; and (3) the alleged violator had the ability to comply with the order. Georgia Power Co. v. Natl Labor Rel. Bd., 484 F.3d 1288, 1291 (11th Cir. 2007); Riccard v. Prudential Life Ins. Co., 307 F.3d 1277, 1298 (11th Cir. 2002). Upon making a prima facie showing of contempt, the burden shifts to the contemnor to produce detailed evidence regarding inability to comply. United States v. Rylander, 460 U.S. 752, 757 (1983); In re Lawrence, 279 F.3d 1294, 1299-1300 (11th Cir. 2002); Popular Bank of Florida Page 5 of 37

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v. Banco Popular De Puerto Rico, 180 F.R.D. 461, 466 (S.D. Fla. 1998). If the alleged contemnor makes a sufficient showing of impossibility, the burden of proving ability to comply shifts back to the party seeking to show contempt. Rylander, 460 U.S. at 757; In re Lawrence, 251 B.R. 630, 650 (S.D. Fla. 2000). In order to rely upon an inability defense, there must be more than a mere assertion of inability to pay. Chairs v. Burgess, 143 F.3d 1432, 1436 (11th Cir. 1998); U.S. v. Hayes, 722 F.2d 723, 725 (11th Cir. 1984). To satisfy the burden, the contemnor must prove that, despite all reasonable efforts to comply, compliance was impossible. In re Chase & Sanborn Corp., 872 F.2d 397, 400 (11th Cir. 1989); Rylander, 460 U.S. at 756-57. Even if the efforts undertaken were substantial, diligent or in good faith, unless there is evidence that all reasonable efforts were made, the claimed inability to comply will not rebut a prima facie showing of contempt. Hayes, 722 F.2d at 725 (quoting United States v. Rizzo, 539 F.2d 458, 465 (11th Cir. 1976)). Finally, where the person charged with contempt is responsible for the inability to comply, impossibility is not a defense to the contempt proceedings. Lawrence, 279 F.3d at 1300 (quoting Pesaplastic, C.A. v. Cincinnati Milacron Co., 799 F.2d 1510, 1521 (11th Cir. 1986)). III. Discussion The undersigned notes that, while it is impossible to address everything that transpired at the various hearings held in connection with this matter, in the instant Order the Court has attempted to summarize the most salient aspects that are representative of the general conduct of the parties throughout these proceedings. The record in this case is extensive and speaks for itself. As shall be set forth herein, in the course of the contempt proceedings, Mayas decided to cooperate with the disgorgement Order and turn over to Coultons counsel certain assets whose Page 6 of 37

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ownership he had disputed vigorously at several hearings. In so doing, Mayas intentionally provided untruthful testimony to the Court. Although Mayas actions purged him of any contempt, his conduct throughout the proceedings evidenced his willful disregard of the Courts authority and was certainly not befitting an officer of the Court. Consequently, the undersigned imposes sanctions on Mayas pursuant to 28 U.S.C. 1927 and the Courts inherent powers. Roys conduct was likewise egregious and sanctionable. The Court notes that Roy is under the supervision of Pretrial Services in New York in connection with a pending criminal trial. Notwithstanding, he actively avoided these proceedings forcing the Court to issue a bench warrant to secure his appearance. Unprecedentedly, in an abundance of caution, the undersigned went so far as to appoint the public defender to represent him in connection with this matter from the time he was arrested until he made his first appearance. Once he appeared, Roy attempted to further thwart the proceedings by seeking a stay under the Bankruptcy Code and then by refusing to provide any testimony with respect to his ability to comply with the Courts Order. Roys reprehensible conduct caused the Court to expend much effort in vindicating its authority. Therefore, the undersigned imposes sanctions on Roy pursuant to the Courts inherent authority. A. Coultons Burden

The Court must first consider whether Coulton has met his initial burden of establishing a prima facie case of civil contempt. Undoubtedly, the Courts Order is valid and lawful, as well as clear and unambiguous. More so considering that both Roy and Mayas are sophisticated parties familiar with court proceedings, procedural rules, and legal terminology, as they are experienced attorneys. Despite having been served with various Court Orders and having understood the full extent of their obligations thereunder, as well as the consequences of ignoring same, both Roy and Page 7 of 37

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Mayas chose to take no action toward compliance. Thus, the undersigned finds that Coulton has made a prima facie showing of contempt, thereby shifting the burden to Roy and Mayas, as the contemnors, to demonstrate their inability to comply. B. Mayas 1. Contempt

While Mayas had notice of the courts hearing on the motion for return of fees, he chose not to appear, or otherwise participate, eventually attributing his absence to medical problems. [Coulton Exh. AA]; (ECF No. 186). In the Order granting the motion for return of legal fees, the Court found that Mayas, inter alia, engaged in the knowing, unauthorized practice of law before this Court, misrepresented himself to Coulton and his family, obtained property from Coulton and his family outside the scope of the fee agreement, using threats, lies and coercion in so doing. (ECF No. 196). As noted supra, the Order required Roy and Mayas to return real and personal property, or its equivalent, as well as provide personal and business financial statements, and otherwise cooperate in the enforcement of the Order. At the contempt hearing, Mayas testified that he read the Order but maintained that it was unjust and that he had nothing to do with the Coulton case. [5/31/12 TR at 51, 66].2 Although the Court pointed out to Mayas that he cant just ignore court orders [5/31/12 TR at 66], the record was reopened as to Mayas on July 24, 2012. (ECF No. 243, 245). The Court allowed him to present testimony covering any issue that he wanted to address. Having determined that Coulton met his burden to establish a prima facie case of contempt, the burden shifted to Mayas to show that he made all reasonable efforts to comply but that compliance was impossible. As noted supra, Mayas took the position that the Courts Order
2

References to transcripts of the various hearings shall be referred to as follows: [date TR at page #]. Page 8 of 37

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requiring him to return legal fees to Coulton was unjust, testifying that I dont owe it, and I dont have it. [5/31/12 TR at 48]. Consistent with this position, Mayas made no effort, whether reasonable or otherwise, to satisfy the judgment or to comply with any of the terms of the Order. Instead, he intentionally disregarded the Order and took steps to thwart its execution by failing to cooperate and provide financial information; by failing to appear at duly noticed hearings; and by providing testimony that was evasive and intentionally untruthful, as shall be set forth infra. After various evidentiary hearings pertaining to Mayas contempt, on July 12, 2012, Mayas counsel filed a Report to the Court to Update the Court on Developments Since the Last Court Hearing (ECF No. 236), which had taken place on July 6, 2012 (ECF No. 232). The Report indicated that the parties were attempting to reach agreement as to Coultons contempt claims against Mayas, who had provided a financial statement at the June 1st hearing. (ECF No. 220). At the next hearing on August 16, 2012, Coultons counsel advised the Court that he was able to obtain Mayas signature on an agreement indicating that Mayas: (a) would convey all right, title and interest in the Miramar property, along with the keys and all personal property therein, to Coultons counsel, as trustee for Coulton; (b) would no longer enter the Miramar property or remove items therefrom; and (c) would convey ownership and possession of his 2001 BMW, along with the keys and the title thereto. In exchange therefor, Coulton would indicate to the Court that Mayas was making a good faith effort to comply with the financial obligations set forth in the September 16th Order. [8/16/12 TR at 4647]. At the following hearing on August 16, 2012, Coultons counsel indicated that Mayas had not complied with any of these terms. However, in open court, Mayas handed over to Coultons counsel the keys to the 2001 BMW, and the keys to the Miramar property. As a result, the Court Page 9 of 37

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finds that Mayas has met his obligations under the September 16, 2011 Order to the best of his current abilities. Thus, Mayas has purged himself of any contempt. Although there is no finding of contempt against Mayas, the undersigned finds that his conduct throughout these proceedings is sanctionable under 28 U.S.C. 1927 and the Courts inherent powers.3 2. Sanctions

In his attempt to misrepresent his involvement in Coultons case and his ability to comply with the Courts Order, Mayas provided intentionally untruthful testimony. Although Mayas openly and actively denied both involvement in Coultons case and ownership of the Miramar property, the evidence showed otherwise. The following is set forth as an exemplary illustration of the basis of the Courts imposition of sanctions against Mayas. a. Mayas Involvement in Coultons Case

Mayas testified that he did not represent Coulton in the criminal case [5/3112 TR at 16-18]; that he only went to see Coulton a few times on behalf of his friend, Roy [5/31/12 TR at 17]; [Coulton Exh. S]; that he was not paid by Coulton or Coultons family members [5/31/12 Tr at 50]; and that he had no assets from which to make payment on the judgment. [5/31/12 TR at 15; 35-36; 6/1/12 TR at 39]. Mayas also testified that he has never been admitted to practice in federal court. [5/31/12 TR at 13].

In addition to the conduct set forth herein, the Court notes that the undersigned was forced to place Mayas under the supervision of Pretrial Services due to difficulties in obtaining his appearance in Court. (ECF No. 215). After Mayas obtained counsel, the Court ordered that he was no longer under pretrial supervision at the hearing on July 24, 2012. (ECF No. 243). Due to his failure to appear at the next hearing on August 9, 2012, the Court was forced to reimpose the conditions of release. (ECF No. 253, 259, 264, 266). Page 10 of 37

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Coulton testified that he met Roy and Mayas together at the Federal Detention Center, and that they held themselves out to be partners. [6/1/12 TR at 5-6]. Mayas advised Coulton that he was fully competent in federal criminal law and that he had been an FBI agent. [6/1/12 TR at 6]. Coulton further testified that Mayas had met with him on several occasions, had attended various court hearings on his behalf, and had met with prosecutors regarding the seizure of his assets. [6/1/12 TR at 6-8]. Coultons testimony is bolstered by the record in this case, to wit: joint notices of appearance and a joint substitution of counsel filed by Roy and Mayas, (ECF No. 40, 41, 42); [Coulton Exh. B, C, D]; Roy appeared at Coultons initial appearance before Magistrate Judge Ted E. Bandstra, [audiotape record of proceedings]4 (ECF No. 25); Mayas appeared at Coultons detention hearing before Magistrate Judge Stephen T. Brown [audiotape record of proceedings] (ECF No. 56); Mayas appeared at Coultons change of plea before District Judge Joan A. Lenard and signed both the plea agreement and the factual proffer [Coulton Exh. AA, BB]; (ECF No. 63, 68, 136); and both Mayas and Roy appeared at Coultons sentencing before Judge Lenard. [Coulton Exh. AA]; (ECF No. 111). Moreover, Assistant United States Attorney Joanne Fine, the prosecutor assigned to the underlying criminal investigation and prosecution of Coulton, submitted an Affidavit indicating that, to her knowledge, Mayas appeared at Coultons pre-trial detention hearing, that she had various telephone conversations and email exchanges with Roy and Mayas, both of whom held themselves out as joint counsel for Coulton, that Mayas appeared at the change of plea hearing, that Mayas signed the plea agreement, and that Roy and Mayas both appeared at Coultons sentencing. (ECF No.

The undersigned takes judicial notice of the recordings of the proceedings in the underlying criminal case. Page 11 of 37

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231). Notwithstanding ample, verifiable record evidence, Mayas testified incredulously that the only time he appeared in court was for Coultons sentencing. [5/31/12 TR at 18, 28; 6/1/12 TR at 56]. As demonstrated by the record, Mayas made several appearances on Coultons behalf. When Mayas was shown transcripts of those proceedings, not only did he deny having been present, but he also denied it was his signature on the documents. [5/31/12 TR at 28-29]. Further illustrating the incredulity of Mayas testimony, he denied ever having filed any notice of appearance in federal court for any defendant [5/31/12 TR at 21], despite multiple exhibits showing his appearances in several cases in this District. [Coulton Exh. B, C, D, G, AA]. Mayas also denied being Roys partner [5/31/12 TR at 22-23; 26], although there were notices of appearance and substitutions of counsel (ECF No. 40, 41, 42), as well as an email he wrote to Coultons counsel, all indicating that he and Roy were partners. [Coulton Exh. H]. After Mayas obtained counsel, he justified his testimony that he did not represent Coulton by claiming that, since he practiced mainly in state court, he had misunderstood the procedure and significance of entering an appearance in federal court. (ECF No. 236). Mayas explanation in this regard, although possibly true, is unsatisfactory. Mayas, as a practicing attorney, had a professional duty to familiarize himself with the rules of court prior to undertaking the representation of a client or even standing in for a fellow attorney. Ultimately, Mayas is responsible for his actions and misunderstandings. Given the irreconcilable testimony in the face of credible record evidence, the undersigned is left with no alternative but to conclude that Mayas intentionally lied, under oath, to the Court about his involvement in the Coulton case and should be sanctioned therefor. Page 12 of 37

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B.

Miramar Property

Considerable time was spent on establishing the ownership of the property located at 2748 SW 129 Terrace, Miramar, FL (hereinafter, the Miramar property). Mayas testimony, regarding the sale to Carmel Sanon-Bryant and the circumstances surrounding his current living arrangements, was dubious. During his testimony on May 31, 2012, and June 1, 2012, Mayas denied that he had any present ownership interest in the Miramar property. He claimed to have sold it to Carmel SanonBryant and her husband, Freddie Bryant, in 2010, with Roys assistance. [5/31/12 TR at 38-39; 54]. Mayas testified that Sanon-Bryant was living at the Miramar property. [5/31/12 TR at 57-58]. According to Investigator Robert Whiting, however, a background check showed that Mayas was presently residing at the Miramar property and that Sanon-Bryant and her husband resided at a different address. Photographic evidence depicting the interior of the Miramar property one year after Mayas claimed to have sold it to Sanon-Bryant showed Mayas artwork and clothing still inside the house, which Mayas confirmed. [5/31/12 TR at 55-56; 61; 6/1/12 TR at 73-74]. In addition, Mayas testified that he still received mail at the Miramar property, which was also his listed address on the Florida Bar website. [5/31/12 TR at 37]. When asked to explain, Mayas testified that he had been living at the Miramar property on a part-time basis [5/31/12 TR at 37], since January or February of 2011. [6/1/12 TR at 58]. Although Mayas had advised Pretrial Services that, for the past two years, he and his girlfriend had been renting at 1033 NW 180 Terrace, Plantation, FL [6/1/12 TR at 28], at the hearing, he testified that, due to problems with his relationship, he rented some of the rooms in the Miramar property from Sanon-Bryant at a cost of $1,200 to $1,500 per month. [5/31/12 TR at 37; Page 13 of 37

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56-57]. The last rent payment he made to Sanon-Bryant had been in February 2012. [5/31/12 TR at 57]. The Court also heard testimony from Patricia Saint Vil-Joseph, the attorney who effectuated the sale of the Miramar property in 2010. Saint Vil-Joseph testified that Mayas asked her to do the title work on the short sale of his homethe Miramar propertyto Sanon-Bryant and her husband. [5/31/12 TR at 75-77]. At the hearing, Saint Vil-Joseph examined several documents in the loan file and conceded that they contained false and/or incorrect signatures for Freddie Bryant, SanonBryants husband. [5/31/12 TR at 85-89]. She further conceded that Bryants signatures on the documents did not match that on his drivers license. [5/31/12 TR at 85-89]. She concluded that, had she noticed the discrepancies at that time, she would not have effectuated the closing of the sale. Mayas was shown copies of records from the short sale of the property that were obtained from First Choice Bankthe purported lender for Sanon-Bryant. [6/1/12 TR at 45]. The documents showed that, contrary to his denials, Mayas was coordinating the transaction using Sanon-Bryants identity. Moreover, he denied having seen a letter that was faxed to the lender from the law office of Peter M, purportedly signed by Sanon-Bryant, wherein her name was misspelled. [6/1/12 TR at 53-56]; [Coulton Exh. CC]. In addition, the documents from the lender that were introduced into evidence showed that the name Freddie Bryant was spelled differently than on his drivers license. [5/31/12 TR at 86-87]. Further, Investigator Whiting testified that he spoke to Bryant who denied having signed any mortgage documents and indicated that his name was misspelled therein. [5/31/12 TR at 116]. Also at issue was whether Mayas, while maintaining a hidden ownership interest in the Miramar property, should have been held in contempt for attempting to sell the property in violation Page 14 of 37

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of this Courts September 16, 2011 Order, which expressly forbade such transactions. (ECF No. 196). The testimony revealed that, a few months previously, Mayas approached Tamara Georges, a realtor, to do a listing agreement on behalf of his client, Sanon-Bryant, who wanted to sell the Miramar property. [5/31/12 TR at 40; 98-99]. Georges testified that the Miramar property seemed to be occupied by a man, and that she never actually met Sanon-Bryant. [5/31/12 TR at100-101]. After Georges testified on May 31, 2012, she found a document in her file indicating that the forwarding address that was listed for the seller was the same address where Mayas testified that he was currently residing. (ECF No. 223). The evidence demonstrates that Mayas retained control and possession of the Miramar property despite the purported sale to Sanon-Bryant in 2010. Mayas even admitted that he continued making some mortgage payments on the Miramar property after its sale. (9/4/12 TR at 216). Moreover, in January 2012, he attempted to sell the Miramar property using Sanon-Bryants identity in contravention of the Courts Order which forbade him from, inter alia, transferring any property. (ECF No. 196). Indeed, at the September 4, 2012 hearing, Mayas testified that Roy, who assisted him in the transactions involving the Miramar property, had told Mayas that it was better not to have assets in ones own name and that Mayas was stupid for having same. (9/4/12 TR at 214-215). It appears to the undersigned that Mayas intentionally lied to the Court about the Miramar property, only to turn it over after forcing the Court to hold multiple hearings, take testimony from several witnesses, and review numerous exhibits. For this conduct, Mayas is sanctioned by the Court. b. Mayas Ability to Comply

Mayas testimony concerning his assets was evasive and inconsistent. [5/31/12 TR at 51-72]. Although he testified that he had no assets from which to make payment on the judgment or legal Page 15 of 37

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fees to Coultons counsel [5/31/12 TR at 48], further testimony and evidence revealed otherwise. With respect to his finances, Mayas testified that he was currently unemployed and had 4 or 5 pro bono cases [6/1/12 TR at 61]; that he had no bank accounts [6/1/12 TR at 66]; that some clients may owe him money but he has not made efforts to collect [6/1/12 TR at 71-72]; and that he had no stocks, interest in any business, bonds, mutual funds, or government securities [6/1/12 TR at 71]. Mayas also testified that he owns a 2001 BMW, and a 1994 Nissan Sentra, both free and clear of encumbrances [5/31/12 TR at 52, 63; 6/1/12 TR at 75], as well as various works of art, furnishings, and other belongings [5/31/12 TR at 54-56, 63, 64; 6/1/12 TR at 63-78]. Despite having reported to Pretrial Services that his monthly income was 0, Mayas testified that, until February 2012, he paid Sanon-Bryant between $1,200 and $1,500 per month in rent for the Miramar property [5/31/12 TR at 57], and that he has lived off of $6,500 in cash gifts from family. [6/1/12 TR at 87]. Furthermore, Mayas offered no believable explanation as to why he did not comply with the other directives contained in the Courts Order. As to the $7,500 he was required to pay to Coultons attorney in attorneys fees, he testified that he simply did not have the money. [5/31/12 TR at 48]. With respect to the sworn financial affidavit, Mayas testified that he had not provided one because he had been unable to hire an attorney to represent him in challenging the Order and cited his health problems as well. [5/31/12 TR at 49, 65; 6/1/12 TR at 38-40]. Mayas then testified disingenuously that he did not file a financial affidavit, because he was not admitted to practice in federal court and, thus, could not file any paperwork. [6/1/12 TR at 38]. Were such a statement attributable to a witness unfamiliar with the workings of the court system, it might be acceptable; however, coming from an experienced attorney, not only is it steeped in falsity, but it also constitutes a violation of professional norms. Page 16 of 37

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The undersigned finds that Mayas testimony was evasive and argumentative and resulted in the unnecessary prolongation of the proceedings by the calling of additional witnesses and the introduction of copious exhibits. Despite Mayas attempted denials during the contempt proceedings, there was ample evidence supporting Mayas extensive involvement in Coultons case, his ownership of the Miramar property, and his ability to comply with at least some of the terms of the Order. Therefore, the Court sanctions Mayas not only pursuant to its inherent powers but also pursuant to 28 U.S.C. 1927 for the multiplication of the proceedings resulting from his unreasonable and vexatious conduct. C. Sanon-Bryants Contempt

Coulton filed a Motion for an Order to Show Cause for Sanon-Bryants failure to appear at the May 31, 2012 hearing, after she was subpoenaed as a witness. (ECF No. 225). The show cause hearing was held on July 6, 2012, and the Court took the issue of Sanon-Bryants contempt under advisement. (ECF No. 228, 232); [7/6/12 TR 46]. Mayas had previously testified at the May 31, 2012 hearing that he did not advise SanonBryant not to appear. [5/31/12 TR at 59]. Sanon-Bryant testified that Mayas and Anthony Box, her attorney, had advised her that she did not need to appear at the May 31st hearing because they had filed a document with the Court. [7/6/12 TR at 19, 27]. Sanon-Bryant asserted her Fifth Amendment rights as to all other questions pertaining to the Miramar property and its sale. [7/6/12 TR at 25]. Sanon-Bryants counsel argued that she relied in good faith upon the advice of her then attorney. Coulton argued that, based upon the allegations that Sanon-Bryant had conspired with Mayas with respect to the Miramar property, her good faith reliance was questionable.

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Based upon the witness testimony and her demeanor, the undersigned finds that SanonBryant was reasonably relying upon the advice of her attorney in failing to appear at a duly noticed hearing for which she was subpoenaed. There is no evidence that Sanon-Bryants conduct was in willful disregard of the Courts authority. As such, the Court finds that Sanon-Bryant should not be held in contempt of Court. Accordingly, the Motion for an Order to Show Cause should be granted insofar as the undersigned held a hearing, but no finding of contempt should be entered against Sanon-Bryant. D. Roy

As noted supra, Roy was personally served with this Courts Order on October 13, 2011, by the United States Marshals Service. (ECF No. 199) at 3. Not only did Roy fail to comply, but he spent months avoiding communications from Coultons counsel, avoiding service of process, and ignoring various court orders to the point where the Court was forced to issue a bench warrant to secure his appearance. (ECF No. 199, 202, 203, 206, 212, 217, 222). When he finally appeared, Roy filed a suggestion of bankruptcy in yet another attempt to thwart the contempt proceedings against him. (ECF No. 274). 1. Effect of Roys Bankruptcy

Roy filed a sworn bankruptcy petition in the Eastern District of New York on September 28, 2012, and had previously filed a bankruptcy petition on May 12, 2010. (ECF No. 274-1), [Coulton Exh. GG]. As a result thereof, Roy argued that the Court should stay the contempt hearing scheduled for September 4, 2012, as it pertained to him. 11 U.S.C. 362. Toward this end, Roy filed a Motion for Enforcement of the Automatic Stay Provisions of 11 U.S.C. 362(a). (ECF No. 277). Roy argued that, because this was a criminal proceeding that was civil in nature, it was subject to the automatic Page 18 of 37

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stay provisions of the Bankruptcy Code. Further, even if the proceedings were based upon Roys disregard for the Courts authority, he argued that the warrant issued by the Court was done to assist in enforcing the judgment lodged against him, and, thus, was subject to the automatic stay. Coulton responded that these proceedings were explicitly exempted from the automatic stay provisions of the Bankruptcy Code because they were intended to enforce the police powers of this Court. 11 U.S.C. 362(b)(4). (ECF No. 278). Generally, the filing of a bankruptcy petition operates to stay, inter alia, the continuation of a judicial proceeding against the debtor that was commenced prior to the filing of the petition. 11 U.S.C. 362(a)(1). However, there are exceptions to the automatic stay provisions. 11 U.S.C. 362(b). The stay does not bar the commencement or continuation of an action or proceeding by a governmental unit . . . to enforce [its] police or regulatory power. Griggs v. Gadsden Revenue Dept, 327 Fed. Appx 186, 188 (11th Cir. 2009) (citing 11 U.S.C. 362(b)); see also In re Union Golf of Fla., Inc., 242 B.R. 51, 60 (M.D. Fla. 1998) (holding that bankruptcy courts should not interfere with the enforcement of valid state and local laws or with the exercise of a local governments police power). The exception to the automatic stay . . . recognizes that the government must be able to enforce its laws uniformly without regard to the debtors position in the bankruptcy court. Brock v. Rusco Indus., Inc., 842 F.2d 270, 273 (11th Cir. 1988) (internal quotations and citations omitted). Indeed, [t]his exemption prevent[s] the bankruptcy court from becoming a haven for wrongdoers. In re Berg, 230 F.3d 1165, 1167 (9th Cir. 2000) (quoting OBrien v. Fischel, 74 B.R. 546, 550 (D. Haw. 1987)). Initially, the Court notes that district courts have jurisdiction concurrent with the originating bankruptcy court to determine the applicability of the automatic stay provisions of the Bankruptcy Page 19 of 37

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Code. Erti v. Paine Webber Jackson & Curtis, Inc. (In re BaldwinUnited Corp. Litig.), 765 F.2d 343, 347 (2d Cir. 1985) (Whether the stay applies to litigation otherwise within the jurisdiction of a district court . . . is an issue of law within the competence of both the court within which the litigation is pending . . . and the bankruptcy court supervising the reorganization.). Therefore, this Court has the power to determine the applicability of the automatic stay provisions. In In re Berg, the Ninth Circuit noted that a majority of courts agreed that a claimant may proceed to collect attorneys fees imposed as a sanction for the [attorney] debtors improper conduct in litigation without regard to the automatic stay. 230 F.3d at 1167-68. Adopting the reasoning of several other courts, the Berg Court held that Section 362(b)(4)s government regulatory exemption exempts from the automatic stay an award of . . . sanction[s] for unprofessional conduct in litigation. Id. at 1168 (citing Maritan v. Todd, 203 B.R. 740, 741 (N.D. Okla. 1996); In re Williams, 158 B.R. 488, 491 (D. Ida. 1993); OBrien, 74 B.R. at 550. The undersigned finds that such reasoning is sound and adopts same. Here, sanctions were imposed on Roy and Mayas, in part, for their reprehensible behavior as officers of the court and for the abuse of their fiduciary position with respect to their client. Moreover, the Courts Order was predicated, in part, upon 28 U.S.C. 1927, as well as the Courts inherent powers to vindicate its authority. The Court found that Roy and Mayas, inter alia, had acted in bad faith and had caused the unreasonable and vexatious multiplication of the proceedings. Thus, the undersigned finds that the instant matter is exempted from the automatic stay provisions of the Bankruptcy Code. To find otherwise would reward wrongful behavior and sly craftsmanship. Given the hybrid nature of these proceedings, and the Courts Herculean efforts in securing the presence of the alleged contemnors, the undersigned announced in open court that the contempt Page 20 of 37

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hearing would go forward in spite of the bankruptcy filing, in order to make a complete record for the District Court. The motion for enforcement of the automatic stay provisions of 11 U.S.C. 362(a) is DENIED. It shall be for the District Court to ultimately decide the fate of these parties. The District Court may well determine that the proceedings should not have been had. Even if so, this Courts efforts will not have been in vain, BoreWarner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir. 1982) (actions taken in violation of a bankruptcy stay are void and without effect), because, at such time as the stay is lifted (Coulton remains free to pursue a lifting of the stay from the bankruptcy court), and for any other purpose that may arise, then a complete record will have been made. 11 U.S.C. 362(c)(2) (The automatic stay remains in effect until, inter alia, the earliest of the close or dismissal of the bankruptcy case). The Court recognizes that requiring Roy to comply with the disgorgement of funds would strip the bankruptcy estate of control over a sizable financial asset, while securing a pre-petition debt for Coulton to the possible detriment of other creditors. Therefore, any findings as to Roy with respect to enforcement of the monetary judgment or the turning over of assets cannot proceed to collection. Notwithstanding, that portion of the contempt proceedings relating to the enforcement of sanctions granted in the nature of vindicating the authority of the court due to the outrageous conduct exhibited by Roy (and Mayas) is unaffected by the filing of Roys bankruptcy petition. The Court further notes that certain assets obtained from the Coultons were last known to be possessed by Roys wife, Rebecca Newlin Roy, and other third parties that may be identifiable. Any such assets in the possession of third parties may not necessarily fall within any bankruptcy protection extended by the filing of Roys personal bankruptcy petition. Page 21 of 37

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2.

Contempt

Having determined that Coulton met his burden to establish a prima facie case, the burden shifted to Roy to show that he made all reasonable efforts to comply but that compliance was impossible. In this connection, Roy intentionally disregarded the Order and refused to comply with any of its terms, failed to appear at hearings, and otherwise attempted to thwart the proceedings. As noted supra, the Courts Order clearly stated that Roy was required to return the real and personal property taken from the Coulton family or its monetary equivalent. (ECF No. 196 at 30). It also required Roy to cooperate with Coulton in the enforcement and collection of the disgorgement Order itself. Id. at 27. Additionally, and in the event Roy did not satisfy the disgorgement portion of the Order, he was required to complete and file sworn, personal and business financial statements. Id. at 30. Finally, and in the event Roy did not comply with this additional provision, he was subject to what amounted to a complete asset injunction. Id. at 31-33. Roy participated in hearings conducted on August 9, 2012, August 16, 2012, and September 4, 2012. (ECF No. 253, 254, 264, 265, 279, and 280). Roys first appearance before this Court was on August 9, 2012. (ECF No. 253). It was during this hearing that the Court set Roys bond and, on the basis of his claim of indigence, formally appointed counsel to represent him. Interestingly, in an abundance of caution, the Court went out of its way to afford Roy the due process he denied his own clients. (ECF No. 260); [8/9/12 TR at 12-13, 32]. Both Roy, and his friend, Renee Hasler, testified as to his indigence and the nature of their relationship. (ECF No. 254). Three pre-trial services reports concerning Roy, along with letters sent by Roy to the District Court Judge presiding over his New York case, were also submitted to the Court during the hearing. [8/9/12 TR at 12].

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At his initial appearance, during the inquiry for appointment of counsel, Roy testified that he had not made any money for the past two years, that he supported himself with help from his family, and that his sister was paying for his lawyer in New York. [8/9/12 TR at 14-16]. Roy testified further that he did not own any assets, including real estate, and that he did not remember taking a ring from Mrs. Coulton as was previously determined by the Court at the hearing on the motion to return fees. Id. at 17. Despite this testimony, the evidence showed that Roy had made two requests to the Honorable Thomas P. Griesa, United States District Judge for the Southern District of New York, to travel on behalf of his employer, C.R. America Industries & Consulting, Inc., indicating that he was a consultant and that was how he had been making a living, earning money to support my family and pay my legal fees. Id. at 18-20. Further, Roy owned a property in New York, located at 163 Taaffe Place, that he transferred from his name to the name of his law firm, which he testified was in foreclosure. Id. at 25. Roy denied owning or transferring ownership of any other property. Id. at 27. However, based upon the unrefuted evidence presented at the hearing on the motion for return of fees, it was established that Roy had obtained certain property belonging to the Coultons, which he then had caused to be transferred to third parties, such as his wife and mother-in-law. Lastly, in the Order entered by the Court pursuant to Roys initial appearance, the undersigned imposed sanctions on Roy for his violation of the Courts Order which resulted in the issuance of the bench warrant. (ECF No. 259). The next hearing was held on August 16, 2012. (ECF No. 264). The Court heard testimony from Roys former secretary, Ingrid Hendricks. (ECF No. 265). Hendricks testified that she was helping out in Roys office when he took on the Coulton case. [8/16/12 TR at 65]. She confirmed that Mayas also worked on the case and that Roy obtained money and property from the Coulton Page 23 of 37

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family. [8/16/12 TR at 70,78]. Her testimony was consistent with the testimony provided by the Coulton family at the hearing on the motion for return of legal fees. According to Hendricks, Roy took the Coultons Porsche SUV, a townhouse in Florida, and jewelry. [8/16/12 TR at 67, 69-70]. Hendricks further testified how she inadvertently walked in on Roy and his business associate, Jean Vernet, as they were dividing the Coulton jewelry. [8/16/12 TR at 70-71]. She also testified as to conversations with Roy wherein he described giving Mrs. Coultons wedding ring to his mother-inlaw, Ingrid Newlin. [8/16/12 TR at 114]. Hendricks identified photographs of Roys mother-in-law with, and without, the Coulton wedding ring on her finger. [Coulton Exh. NN]. Finally, Hendricks examined the billing statements that Roy sent to the Coulton family. She recalled having witnessed Roy preparing them and advised that her signatures on the statements were forgeries. [8/16/12 TR at 82]; (Coulton Exh. P). The final hearing on this matter was conducted on September 4, 2012. (ECF No. 279). Several witnesses were called to testify. (ECF No. 280). Although Roy introduced several dozen emails as exhibits, none of these was relevant to the contempt proceedings. Roy presented no other evidence, witnesses, or testimony. Id. Coulton called Roy as a witness. Roy declined to testify as to his ability to comply with the Courts September 16th Order and asserted his Fifth Amendment privilege in response to every single question. The Fifth Amendment privilege protects a person against being incriminated by his own compelled testimonial communications. Fisher v. United States, 425 U.S. 391, 409, 96 S. Ct. 1569, 1580, 48 L.Ed.2d 39 (1976). It applies equally to civil proceedings. See Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L.Ed.2d 212 (1972). Generally, the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to Page 24 of 37

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probative evidence offered against them. Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551, 47 L.Ed.2d 810 (1976); United States v. A Single Family Residence and Real Property Located At 900 Rio Vista Blvd., Fort Lauderdale, 803 F.2d 625, 629, n. 4 (11th Cir.1986). The decision to invoke the Fifth Amendment does not have to be consequence-free. Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1304 (11th Cir. 2009) (citing United States v. White, 589 F.2d 1283, 1287 (5th Cir. 1979)). Here, the Court may and does draw an adverse inference from Roys invocation of the Fifth Amendment privilege that his testimony would not have been favorable to the contempt issues before the Court. Baxter, 425 U.S. at 318, 96 S. Ct. at 1558; A Single Family Residence, 803 F.2d at 629, n. 4. However, any negative inference drawn from the assertion of the Fifth Amendment does not substitute for evidence needed to meet the burden of production. Rylander, 460 U.S. 752, 103 S. Ct. 1548. Coulton then called Richard Cramer who described Roy as his business partner and testified that they met in alcohol rehabilitation in 2010. [9/4/12 TR at 67-68]. Cramer testified that he, Roy, three of Roys friends, and Roys girlfriend, Renee Hasler (the friend who posted Roys bond), all owned shares of the company, CR America Industries and Consulting, Inc., which was involved in the development of infrastructure in Haiti. [9/4/12 TR at 68]. Roy represented to Cramer that he had the necessary political contacts in Haiti to obtain multi-million-dollar government contracts. Cramer testified further that Roy went on numerous trips to Florida and Haiti over the past year in connection with the business, that he witnessed Roys use of a Bank of America debit card, and that Roy was the one who opened and controlled their bank accounts. [9/4/12 TR at 81-82, 101]. Cramer explained how he was recently arrested and jailed after being charged with a DUI as a result of an alcohol relapse. [9/4/12 TR at 87]. He testified that, just prior to his arrest, in June Page 25 of 37

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2012, he had participated in a conference call with Roy, Roys friend, Joel Lespinasse, and others, where he was informed that 30 million dollars had been escrowed as part of a mining project that CR America Industries and Consulting, Inc., was working on in Haiti. [9/4/12 TR at 86, 101]. While Cramer conceded that he did not consider the company stock to have any value until it received funding pursuant to the contract, he was unaware that, while he was in jail, Roy and Hasler had incorporated a new company in the State of Washington, similarly named CR America Industries, Inc. [9/4/12 TR at 80]. Finally, he testified that, although his company had bank accounts at Bank of America and TD Bank, he never saw the statements nor did he know where they were being sent. [9/4/12 TR at 77, 79-80]. He did recall seeing Roy use a Bank of America debit card on one occasion. Id. at 103. Renee Hasler a/k/a Renee Martin also testified. She had previously appeared before the Court at Roys initial appearance and had co-signed on his bond. (ECF No. 253). She testified about her business relationship with Roy through several companies, including CR America Industries and Consulting, Inc. (the Florida corporation with Richard Cramer), CR America Industries (the Washington corporation she opened with Roy), and East Coast Hoopfest (a company with Roy and Lespinasse), that were reflected in Coulton Exhibits VV, WW, and YY. The Court notes that, at the initial appearance, she failed to advise the undersigned of the extent of her business and personal relationship with Roy. Hasler produced a bank statement for CR America Industries and Consulting, Inc., and a Bank of America visa debit card in the name of Emmanuel Roy for CR America Industries, Inc., that Coulton introduced as Coulton Exhibits QQQ and RRR. Although Hasler testified that she believed the two bank records were for the same account as she was only aware of a single account [9/4/12 Page 26 of 37

Case 0:07-cr-60172-JAL Document 294 Entered on FLSD Docket 02/01/2013 Page 27 of 37

TR at 111], an examination of the records themselves revealed that they were for two different accounts. [Compare Exh. QQQ with RRR]. Hasler, like Cramer, conceded that, even though she was the president of CR America Industries, she did not receive the bank statements. [9/4/12 TR at 164166]. She also confirmed that Roy was both a signer and authorized user on the bank accounts. Id. Hasler testified that she had an account with Roy for CR America Industries and Consulting, Inc., in which Roy was a user but not a signatory. [9/4/12 TR at 108]. Although she had testified that there was only one account, there was also a debit card for CR America Industries, Inc. Id. Hasler further testified that Roy traveled frequently in 2011 and 2012 to Washington, Florida, New York, Illinois, and Haiti. [9/4/12 TR at 124, 170]. She testified that Roy took a trip to Illinois for the purpose of obtaining a Mercedes that she claimed she purchased for her use in New York during business trips. [9/4/12 TR at 114]. However, the vehicle was registered in the State of Florida. Id. She further claimed that she sold the vehicle to Joel Lespinasse. Id. at 115. A review of the vehicle title records, however, revealed that both she and Roy purchased the vehicle as joint owners before it was gifted to Lespinasse. (ECF No. 282). Hasler also described Roys Brooklyn apartment and identified Coulton Exhibit LL as a composite of accurate photographic depictions of the apartment when she was last there a few months ago. [9/4/12 TR at 145]. She did not know whether Roy ever leased the apartment. [9/4/12 TR at 153-154]. 3. Ability to Comply

Roy argued that it was impossible for him to comply because he no longer had any money or assets. In support, he relied upon the assertion that he was penniless, as evidenced by his bankruptcy filing. (ECF No. 260, 274). As noted supra, Roy had filed sworn bankruptcy petitions in the Eastern District of New York on September 28, 2012, and May 12, 2010. Further illustrating Page 27 of 37

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discrepancies as to Roys finances, the most recent bankruptcy petition actually showed a decrease in liabilities and an increase in net worth over the two years. (ECF No. 274-1); [Coulton Exh. GG]. Even if the Court were to believe Roy, he cannot rely on an impossibility defense where he is responsible for creating same. Roy offered no evidence as to the disposition of the money he was given or the property he took from the Coultons. Thus, the undisputed testimony and exhibits showed that the Coultons Porsche SUV and townhouse were titled to Roys wife, Rebecca Newlin Roy, that Mrs. Coultons wedding ring was given to Roys mother-in-law, Ingrid Newlin, and that Coultons other jewelry was divided between Roy and his friend, Jean Vernet. It appears to the Court that Roy intentionally divested himself of assets, used corporate alteregos to maintain bank accounts, and used friends and relatives to hold his assets as nominees. (ECF No. 282); [Coulton Exh. V, W, HH, JJ, KK, LL, NN, VV, WW, YY, EEE, KKK, QQQ, RRR, SSS]. This is not surprising given Roys advice to Mayas that having assets in ones name was stupid. [9/4/12 TR at 212, 214]. In his post-hearing submission (ECF No. 287), Roy argued that Coulton failed to rebut the evidence of his present inability to comply because Hendricks was unable to identify any property presently in Roys possession; Cramer testified that CR America Industry and Consulting, Inc., had, to date, only earned $7,000.00, all of which he had withdrawn as reimbursement for monies he lent CR America Industries and Consulting, Inc., and that its shares were worthless [9/4/12 TR at 93; 100]; Hasler testified that she had invested $10,000.00-$15,000.00 of her own money into CR America Industry and Consulting, Inc., and that she financed the cost of tickets, hotels, and rental cars for Roy, Id. at 130-31; and Mayas could not establish the current whereabouts of the Coultons Porsche or the status of the real estate previously owned by Coulton. Id. at 225. Finally, Roy argued Page 28 of 37

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that he did not cause the impossibility and that no evidence had been introduced indicating that he was hiding money in offshore accounts or elsewhere. The undersigned finds that Roy has offered no justification for his failure to cooperate with Coultons efforts; to return the real and personal property he took from the Coultons; and to make any, even a nominal, payment to the Coultons as ordered. Roy relied solely upon the mere assertion that he was penniless and had filed for bankruptcy protection. (ECF No. 260, 274). Even if this Court were to believe Roys self-serving, conveniently-timed representations, Roy cannot avail himself of an impossibility defense where he was responsible for causing the impossibility. It was Roy who transferred the assets that he obtained from the Coultons, as well as his own assets, to his family and friends. However, the undersigned would have to agree, albeit reluctantly, that none of the testimony elicited by Coulton established conclusively that Roy had the present ability to comply with the financial obligations of the Courts September 16, 2011 Order. As noted supra, any inferences drawn from Roys invocation of his Fifth Amendment rights with respect to questions regarding his financial status cannot substitute for proof of ability to comply. Notwithstanding, the Order called for more than the payment of funds. It is clear that Roy has failed to comply with any of the Courts other directives. For those failures, he is found to be in contempt. At his initial appearance, the undersigned had imposed sanctions on Roy for his violation of the Courts Order which resulted in the issuance of the bench warrant. [8/9/12 TR at 34]. D. Haslers Contempt

At the hearing on September 4, 2012, Hasler had testified that, in late 2011, she had purchased a 2000 Mercedes Benz S430 in Illinois, which had been registered in Florida. [9/4/12 TR Page 29 of 37

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at 113-114]. When asked directly if it was Roys car, she denied it. [9/4/12 TR at 115]. On September 6, 2012, Coulton filed the title documents obtained from the Florida Department of Motor Vehicles (DMV) concerning the Mercedes. (ECF No. 282). Contrary to Haslers testimony, the title documents clearly showed that both Hasler and Roy signed the Illinois title as buyers. Thus, it appears that Hasler lied to the Court and that Roy purchased this vehicle after being served with this Courts original contempt Order, dated September 16, 2011, and in direct violation thereof. Hasler also testified that she sold the Mercedes to Roys friend and business associate, Joel Lespinasse, for $5,000.00. [9/4/12 TR at 115, 126]. However, according to the Florida DMV records, Roy and Hasler gave Joel Lespinasse a power of attorney over their affairs with respect to this vehicle, and the vehicle was then transferred to Lespinasse and his wife as a gift. Thus, it appears that the sale was a sham transaction. (ECF No. 282). In this connection, Coulton filed a Motion for an Order to Show Cause Why Renee Hasler Should Not Be Held in Contempt for lying under oath about Roys ownership of the Mercedes Benz S430 at issue in this case. (ECF No. 283). Accordingly, the Court shall schedule a show cause hearing as to why Renee Hasler a/k/a Renee Martin should not be held in contempt for lying under oath to the Court about the ownership of the Mercedes Benz S430. IV. Sanctions The undersigned finds that Roy and Mayas conduct throughout these proceedings has been tantamount to bad faith and, on that basis, imposes sanctions. As to Mayas, there is ample evidence that he lied under oath about his involvement in the Coulton case, his ownership of the Miramar property, and his ability to comply with the Courts September 16, 2011 Order. As to Roy, there is evidence that he intentionally ignored various court orders, which ultimately resulted in the issuance Page 30 of 37

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of a bench warrant against him, and that he transferred assets to third parties in order to avoid compliance. A. 28 U.S.C. 1927

Section 1927 provides: Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys fees reasonably incurred because of such conduct. 28 U.S.C. 1927. In order to justify the imposition of sanctions pursuant to 1927, three requirements must be met: 1) an attorney must engage in unreasonable and vexatious conduct; 2) such conduct must multiply the proceedings; and 3) the amount of the sanctions cannot exceed the costs incurred due to the conduct. Jerelds v. City of Orlando, 194 F.Supp.2d 1305, 1312 (M.D. Fla. 2002) (citing McMahan v. Toto, 256 F.3d 1120, 1128 (11th Cir. 2001)). However, 1927 is not a catch-all provision for sanctioning merely objectionable conduct by counsel. Peterson v. BMI Refractories, 124 F.3d 1386, 1396 (11th Cir. 1997); Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003). To impose sanctions under 1927, the Court must find that the attorneys conduct is so egregious that it is tantamount to bad faith. Amlong & Amlong, P.A., v. Dennys Inc., 500 F.3d 1230, 1239 (11th Cir. 2007) (quoting Avirgan v. Hull, 932 F.2d 1572, 1582 (11th Cir. 1991)). Indeed, the provisions of 1927, being penal in nature, must be strictly construed. Peterson, 124 F.3d at 1395. Bad faith does not turn on the attorneys subjective intent, but on the attorneys objective conduct. Amlong & Amlong, 500 F.3d at 1239; Bettis v. Toys R Us, 2009 WL 5206192, at *7 Page 31 of 37

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(S.D. Fla. Dec. 30, 2009). The crux of the finding is, whether, regardless of the attorneys subjective intentions, the conduct was unreasonable and vexatious when measured against an objective standard. Id. (quoting, Hudson v. Intl Comp. Negotiations, Inc., 499 F.3d 1252, 1262 (11th Cir. 2007)). That is not to say that an attorneys subjective state of mind is to be disregarded because certain actions may prove to be unreasonable and vexatious if done with a malicious purpose or intent. Amlong & Amlong, 500 F.3d at 1241. The meaning of unreasonable and vexatious is subject to interpretation, but at [a] minimum . . . merely unintended, inadvertent, and negligent acts will not support the imposition of sanctions under 1927; [r]ather, the power to impose sanctions under 1927 should be exercised only in instances of a serious and studied disregard for the orderly processes of justice. See Corwin v. Walt Disney World Co., No. 6:02cv1377Orl19KRS, 2008 WL 754697, at * 15 (M.D. Fla. Mar. 18, 2008) (quoting Jerelds, 194 F.Supp.2d at 1312). Moreover, even if counsel acted in bad faith, to warrant sanctions under 1927, there must be a causal connection between the objectionable conduct of counsel and multiplication of the proceedings. Peterson, 124 F.3d at 1396. Thus, objectionable conduct that is unreasonable and vexatious may not be sanctionable unless it also resulted in proceedings that would not have been conducted otherwise. Id. Mayas conduct in this case is precisely the type of behavior sanctionable under 1927. Mayas is not just a party; he is an attorney. Against this Courts advice, he served as his own counsel for part of the contempt hearings. His unreasonable behavior and untruthful testimony directly contributed to the multiplication of these proceedings. First, he failed to attend duly noticed hearings necessitating the imposition of pretrial supervision. Then, he maintained a position throughout the hearings only to turn over one of the very assets whose ownership he had vehemently disputed. Had Page 32 of 37

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Mayas been forthcoming about the ownership of the Miramar property from the beginning, this Court, as well as the other litigants and participants, could have been spared considerable time and expense. Instead, Mayas chose to insist on a defense that he knew was false. Therefore, the undersigned finds that it is appropriate to sanction Mayas under 28 U.S.C. 1927. B. Courts Inherent Authority

Undoubtedly, federal courts are vested with the inherent power to vindicate their authority in the face of misconduct by attorneys and parties appearing before them. U.S. v. Shaygan, 661 F.Supp.2d 1289 (S.D. Fla. 2009). The Court has the power to manage its affairs which necessarily includes the authority to impose reasonable and appropriate sanctions upon errant lawyers practicing before it. Malautea v. Suzuki Motor Company, Ltd., 987 F.2d 1536 (11th Cir.1993) (citing Carlucci v. Piper Aircraft Corp., 775 F.2d 1440, 1447 (11th Cir. 1985)) (citation omitted). This power extends to parties to litigation as well. Chambers v. NASCO, Inc., 501 U.S. 32, 45-46, 111 S. Ct. 2123, 115 L.Ed.2d 27 (1991). A court may appropriately sanction a party or attorney who shows bad faith by delaying or disrupting the litigation or by hampering enforcement of a court order. Hutto v. Finney, 437 U.S. 678, 689 n. 14, 98 S. Ct. 2565, 57 L.Ed.2d 522, (1978). Without these powers, the Court would be unable to manage the expeditious disposition of its docket, enforce its orders, and guard the integrity of its proceedings. Bettis, 2009 WL 5206192, at *7. However, these inherent powers must be exercised with restraint and discretion. Chambers, 501 U.S. at 44, 111 S. Ct. 2123. A court may exercise its inherent powers even if procedural rules exist which sanction the same conduct. In re Mroz, 65 F.3d 1567, 1575 (11th Cir.1995); Allapattah Services, Inc. v. Exxon Corp., 372 F.Supp.2d 1344, 1373 (S.D. Fla. 2005). In the Eleventh Circuit, a district courts authority to issue sanctions under its inherent authority is no broader than its authority to issue sanctions Page 33 of 37

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pursuant to 1927. See Id. (citing Amlong & Amlong, 500 F.3d at 1239; Cordoba v. Dillards, Inc., 419 F.3d 1169, 1178, n. 6 (11th Cir. 2005)). Some cases have suggested that sanctions under the courts inherent powers carry a higher burden than under 1927. Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998) (The key to unlocking a courts inherent power is a finding of bad faith.). The Court is imbued with the inherent power to impose sanctions against counsel not only for violating court orders but also for engaging in behavior that sullies the dignity of the Court. Bettis, 2009 WL 5206192, at *22 (citations omitted). Sanctions may be imposed against a party who has acted in bad faith, vexatiously, wantonly, or for oppressive reasons, or when a court finds that a fraud has been practiced upon it, or that the very temple of justice has been defiled. Barash v. Kates, 585 F.Supp.2d 1347, 1364 (S.D. Fla. 2006) (citing Chambers, 501 U.S. at 4546, 111 S. Ct. 2123. Bad faith may be demonstrated by, inter alia, delay or disruption of the litigation or hampering enforcement of a court order. Eagle Hosp. Physicians, 561 F.3d at 1306; .Barash, 585 F.Supp.2d at 1362. Without a smoking gun statement from the plaintiff, . . . a district court makes a determination of bad faith by drawing inferences from the conduct before it. Byrne v. Nezhat, 261 F.3d 1075, 1125 (11th Cir. 2001). In sanctioning litigants, the Court need not resort to the powers of civil or criminal contempt. Kleiner v. First Nat. Bank of Atlanta, 751 F.2d 1193, 1209 (11th Cir. 1985) (citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-65, 100 S. Ct. 2455, 2463, 65 L.Ed.2d 488 (1980)); Eagle Hosp. Physicians, 561 F.3d at 1306. The Court possesses the ability to fashion an appropriate sanction for conduct that abuses the judicial process. Allapattah, 372 F.Supp.2d at 1373. Among the available sanctions are discipline by the legal profession and assessment of attorneys fees and costs. Id. Page 34 of 37

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When a partys continued violation of a court order requires the opposing party to seek enforcement of the order through a motion for contempt, the resulting attorneys fees and costs may be assessed against the noncomplying party, even if the court ultimately does not hold that party in contempt. See Casale v. Kelly,710 F.Supp.2d 347, 367 (S.D.N.Y. 2010); see also Wild Cats, Inc. v. Blas, No. 0622345, 2007 WL 1545876, at *1 (S.D. Fla. May 29, 2007) (Attorney fees and costs [for a contempt motion] are awarded pursuant to this Court's discretion and inherent power to sanction.). And a court has broad discretion to award costs incurred by the party seeking a contempt finding, regardless of whether such costs would otherwise be recoverable. See Tom James Co. v. Morgan, 141 F. Appx 894, 900 (11th Cir. 2005) (per curiam). Thus, pursuant to its inherent authority, a court may award attorneys fees and costs as a sanction for bad faith litigation. See Chambers, 501 U.S. at 51-53, 111 S. Ct. 2123 (discussing the courts inherent power to assess attorneys fees as sanction for bad faith conduct before the court). As noted by the Chambers Court, the underlying rationale of fee shifting is, of course, punitive. 501 U.S. at 53, 111 S. Ct. 2123 (quoting Hall v. Cole, 412 U.S. 1, 4-5, 93 S. Ct. 1943, 36 L.Ed.2d 702 (1973)). In the presence of bad faith, a court may award to the injured party the entire amount of its reasonable attorneys fees as an appropriate monetary sanction. In re Graffy, 233 F.R. 894, 899 (M.D. Fla. 1994) (citing Chambers, 501 U.S. at 55, 111 S. Ct. 2123). For their wilful disregard of the Courts authority resulting in the Court having to expend its efforts and resources unnecessarily, particularly in light of the fact that the alleged contemnors are both attorneys, based upon the Courts inherent power to vindicate its authority, the undersigned imposes sanctions on Roy and Mayas, generally, in the form of an award of attorneys fees and costs incurred by Coulton throughout the entire duration of these contempt proceedings. Coulton is Page 35 of 37

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directed to submit his attorneys fees and costs within ten (10) days from the date of this Order. IV. Conclusion A. Recommendations

Accordingly, it is hereby RESPECTFULLY RECOMMENDED that: 1. Defendant Patrick Coultons Motion for Contempt (ECF No. 199) be DENIED as

to Peter U. Mayas, Esq. As set forth in detail herein, Mayas is sanctioned pursuant to 28 U.S.C. 1927 and the Courts inherent powers. Moreover, for his behavior during these proceedings, the undersigned RECOMMENDS that Mayas be referred to the Florida Bar for potential disciplinary action; and to the Office of the United States Attorney for perjury prosecution, as well as for investigation regarding the potentially fraudulent short sale of his former residence. 2. Coultons Motion for Contempt (ECF No. 199) be GRANTED-IN-PART AND

DENIED-IN-PART as to Emmanuel Roy, Esq. As set forth in detail herein, Roy is sanctioned based upon the Courts inherent powers. Moreover, for his behavior during these proceedings, the undersigned RECOMMENDS that Roy be referred to the Office of the United States Attorney for an investigation of perjury, as well as for investigation regarding the Mayas short sale and whether it was fraudulent. 3. The sanctions imposed by the Court against Roy and Mayas in vindication of its

authority shall consist of an award to Coulton of all of the attorneys fees and costs, with any and all applicable interest, that have been incurred in connection with these contempt proceedings since the filing of the Motion for Contempt. Coulton shall submit his attorneys fees and costs within ten (10) days from the date of this Order. It is the intention of this Court that any judgment entered based upon these sanctions not be dischargeable in bankruptcy proceedings according to the applicable law. Page 36 of 37

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4.

Coultons Motion for an Order to Show Cause for Carmel Sanon-Bryants failure to

appear at the May 31, 2012 hearing, after she was subpoenaed as a witness (ECF No. 225) be DENIED. Pursuant to local Magistrate Rule 4(b), the parties may serve and file written objections with the Honorable Joan A. Lenard, United States District Court Judge, within fourteen (14) days of being served with a copy of this Report and Recommendation. Failure to file timely objections shall bar the parties from attacking on appeal any factual findings contained herein. Loconte v. Dugger, 847 F. 2d 745 (11th Cir. 1998); RTC v. Hallmark Builders, Inc., 996 F. 2d 1144, 1149 (11th Cir. 1993). B. 5. Orders Since Mayas turned over the Miramar property to Coultons counsel, he is

ORDERED to provide full cooperation with respect to the pending foreclosure action filed by Wells Fargo, including providing all of the documents from the homeowners association, and all of the mail that has been sent to the house by the lender and the homeowners association. 6. Roys Motion for Enforcement of the Automatic Stay Provisions of 11 U.S.C.

362(a) (ECF No. 277) is DENIED. 7. Coultons Motion for an Order to Show Cause Why Renee Hasler Should Not Be

Held in Contempt for lying under oath about Roys ownership of the Mercedes Benz S430 at issue in this case (ECF No. 283) shall be set for hearing via separate order. DONE, ORDERED AND RECOMMENDED in Chambers, at Miami, Florida, this 1st day of February 2013. ___________________________ WILLIAM C. TURNOFF United States Magistrate Judge
cc: Hon. Joan A. Lenard All Counsel of Record

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