Transcript Nov 16, 2000 secret bankruptcy wiretap hearing excerpts

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2 3 4 5 6 7 8 9 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 1 . UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 97-14687-BKC-AJC IN RE: ML S TE PHAN 'JAY LAWRENCE, C T ; . 7 7- --3 , i 1 i i i = Debtor. i = , SEP 1 ? 6 7005 1 ---- I: —____---J NOVEMBER 16, 2000 HEARING RE: IN CAMERA INSPECTION The above-entitled cause came on for hearing before the HONORABLE A. JAY CRISTOL, at the Claude Pepper Federal Building, 14th Floor, Miami, Dade County, Florida, at 10:30 a.m. on Thursday, November 16, 2000, and the following proceedings were had: OUELLETTE & MAULDIN COURT REPORTERS 305-358-8875

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Excerpts from one of many secret hearings that were an amalgam of illegal wiretap and secret trial proceedings. They were held in a local bankruptcy court. Many more such hearings were held but only four had a court reporter present. They were all concealed from myself, my attorneys, and all reviewing courts even though an appeal to the 11th Cir. was proceeding and all of my attorney-client phone calls were being tapped. Also victimized were the many friends, family members, attorneys, and reporters I spoke to on the phone. No one ever knew these bizarre and highly illegal 'hearings' were occurring and they were concealed for years until a bankruptcy "sealed" record was ordered disgorged by the district court.All of my attorney-client phone calls were wiretapped from the FDC Miami, which maintains a taping system for the limited purpose of maintaining security. The recorded tapes are protected law enforcement tapes, covered under a "Wiretap Act" (Title 3) exception for only the limited purpose of institutional security. There are heavy penalties for their theft. The attorney-client and all other intercepts were illegally and secretly funneled to Bear Stearns by Berger Singerman, under the direction of Paul Singerman. Juval Aviv, a self proclaimed Israeli assassin, who had recently been prosecuted by the U.S. Government, was a key player in the theft of law enforcement materials and illegal wiretapping. Inexplicably, he illegally directed the local U.S. Attorney's Office in the wiretapping. Aviv had become an "officer of the bankruptcy court" by filing sham, secret filings. Aviv, along with Berger Singerman were the key figures in illegally passing the surveillance phone tapes and other protected law enforcement material to Bear Stearns senior managing directors Daniel Taub and Mark Lehman. Paul Singerman later confessed that Bear Stearns used the law enforcement material and wiretap results for their own private purposes — that admission is posted on this site.

Transcript of Transcript Nov 16, 2000 secret bankruptcy wiretap hearing excerpts

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. UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 97-14687-BKC-AJC

IN RE:

MLS TE PHAN 'JAY LAWRENCE,

• CT ; . 77---3, i 1ii i =Debtor.i =, SEP 1 ? 6 7005 1

---- I:—____---JNOVEMBER 16, 2000

HEARING RE: IN CAMERA INSPECTION

The above-entitled cause came on for hearing

before the HONORABLE A. JAY CRISTOL, at the Claude

Pepper Federal Building, 14th Floor, Miami, Dade

County, Florida, at 10:30 a.m. on Thursday,

November 16, 2000, and the following proceedings were

had:

OUELLETTE & MAULDIN COURT REPORTERS305-358-8875

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APPEARANCES:

BERGER DAVIS & SINGERMAN

by: JAMES FIERBERG, ESQUIRE

PAUL AVRON, ESQUIRE

on behalf of the Trustee

U.S. ATTORNEY'S OFFICE

by: GRISEL ALONSO, ATTORNEY-AT-LAW

on behalf of the U.S. Attorney's Office

FEDERAL BUREAU OF PRISONS

by: RICHARD DEAGUIAR, ESQUIRE

on behalf of the Federal Bureau of Prisons

OFFICE OF THE UNITED STATES TRUSTEE

by: ROBERT ANGUEIRA, ASSISTANT U.S. TRUSTEE

on behalf of the Office of the United States

Trustee

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THE COURT: As I understand it, this matter

is a request for an in camera inspection.

MR. FIERBERG: Judge, good morning. James

Fierberg on behalf of the Trustee. With me is my

colleague, Paul Avron. It's not an inspection, Judge,

it's a request for authority to take discovery from the

U.S. Bureau of Prisons under seal.

THE COURT: Okay.

MR. FIERBERG: And this is an in camera

hearing because of the sensitivity of the matters

presented.

THE COURT: Is there anyone here for the

Bureau of Prisons?

MS. ALONSO: Good morning, Your Honor.

Grisel Alonso, Assistant United States Attorney. With

me here today is Richard Deaguiar, a senior attorney

with the Federal Bureau of Prisons. Mr. Deaguiar will

be arguing the Government's position in this matter.

We're here as an interested party.

THE COURT: All right. Well, basically I

have read the motions and I thought that under the

circumstances it was proper to do this in camera. The

matter of concern is whether or not the Bureau of

Prisons has any objection and whether or not there's

some reason why this should not be allowed.

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As you know, the Trustee is seeking various

telephone records, specifically recorded telephone

conversations made by the Debtor.

Excuse me, Your Honor, I have a bit of a

cold.

THE COURT: Take your time. Do you need some

water?

MR. DEAGUIAR: I'm fine. Thank you.

As well as some visiting records that are

maintained by the Bureau. The Government concedes that

the Trustee, the Trustee's cause, is an honorable one.

However, the Government would respectfully submit that

it objects to the relief sought because, first,

believes that the Trustee is on nothing more than a

fishing expedition which will, in fact, pose a

significant and unreasonable burden on the Federal

Detention Center, which will significantly impede the

Institution's ability to maintain security.

Secondly, the Government objects because the

relief sought would be in violation of Federal

Regulations found at Title 28 Sections 16.21,

exequatur, and I have copies of those regulations if

Your Honor would like.

THE COURT: That's 28 CFR?

MR. DEAGU1AR: Yes, sir.

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THE COURT: All right. I would like them if

you have them. Do you have them for opposing counsel?

MR. DEAGUIAR: Yes, I do.

THE COURT: Thank you, sir.

MR. DEAGUIAR: Thirdly, Your Honor, the

Government feels that compliance with the Trustee's

request would violate both the Privacy Act found at 18

USC 552 (a), I have copies of that statute as well if

you would like, Title 5, and also Title 3 of the

Omnibus Crime Control and Safe Streets Act of 1968

found at 18 USC Sections 2510 through 2522, and I have

copies of pertinent sections with me as well.

THE COURT: Very well. If you'd distribute

them to the Court and opposing counsel as well.

MR. DEAGUIAR: Proceeding to the regulations,

Your Honor, the United States argues that the Trustees

presently seek disclosure of law enforcement records in

the Federal Detention Center's possession, and

disclosure of such records is governed by the Federal

Regulations found at 28 CFR Sections 1621, exequatur.

THE COURT: All right. Point out the

regulation that you're referring to. I have it in my

hand.

MR. DEAGUIAR: Okay. Specifically Section

1621 encompasses release of records in response to a

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demand whether from a party or from a court.

THE COURT: All right. So we're talking

about 1621 (a) (2), is that it?

MR. DEAGUAIR: Yes, Your Honor. And this is

specifically in cases where the United States is not a

party. And --

THE COURT: Just a second. Let's see what it

says. Okay. It starts out by saying procedures to be

followed with respect to production or disclosure.

MR. DEAGUIAR: That's correct, Your Honor.

THE COURT: Okay. And then in (a) (2) it says

in Federal and State proceedings which the United

States is not a party. We have no dispute the United

States --- well, I don't know. Is the United States a

party?

MR. FIERBERG: I just confirmed with

Mr. Angueira about that because Mr. Goldberg is the

party here.

THE COURT: Mr. Goldberg is at least an agent

of the Department of Justice. What do you think,

Mr. Angueira, is he or isn't he?

MR. ANGUEIRA: Judge, I haven't read the

regulations that have been cited to you. We were not

planning to take a position on this matter. What we

were -- the reason I'm here is when I got the motion I

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saw that the U.S. Attorney's Office had not been

served, the Bureau of Prisons had not been served, and

I wanted to make sure, or the U.S. Trustee wanted to

make sure, that they were made aware and if they had

any comments that they would make them to you. I would

be more than glad to take those regulations, take a

look at them.

THE COURT: Well, that's what we're doing.

We're not doing anything hastily here.

MR. ANGUEIRA: Right. And take it to Atlanta

and --

THE COURT: Quickly, but not hastily.

For example, it says for the purposes of --

this subpart determined employee of the Department --

of the Department includes all officers and employees

of the United States appointed by -- subject to the

supervision, jurisdiction or control of the Attorney

General of the United States.

Well, certainly the Attorney General of the

United States supervises your office and your office

supervises the Trustee. So it looks like they may -- I

mean, may fit in there. I mean, I don't know. This is

the first time I've seen these regulations.

MR. FIERBERG: Your Honor, if you read on it

does specifically state U.S. Trustees.

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THE COURT: Oh, okay. I haven't read that

far. Oh, yes, U.S. Trustees and members of the staffs

of those officials. Okay.

So the first thing that we have to decide is,

are we dealing with a request from a situation where

the United States is not a party or is the United

States a party by virtue of the status that the party

that's making the request is a panel trustee.

MS. ALONSO: Your Honor, if I could address

that? I believe the statute is clear. It would

indicate where the United States is a party, and the

issue here is the United States is not a defendant in

this case. We're not in a contested matter where the

United States is the party.

THE COURT: Well, if the United States is

Mr. -- who's the Trustee in this case?

MR. FIERBERG: Alan Goldberg, Judge.

THE COURT: If Mr. Goldberg is the Trustee

and he is the United States then I would certainly

think he's a party. He's the one that has brought

these proceedings and has caused this person to be

incarcerated because of his failure to comply with the

turn over of the property and that the United States is

seeking the property.

MS. ALONSO: Well, then he would be seeking

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the discovery from himself, I mean, if he is the party:

THE COURT: Not for himself. You may not be

aware of this, but there are several different agencies

in the United States. He happens to be also in the

Department of Justice where you're located, but not

necessarily in the same building or same office. And,

of course, the Bureau of Prisons is the United States.

So the question is -- well, as I say -- the

question is, should we do this? And I'm trying to go

through these regulations. I mean, we want to be on

the same wavelength.

Clearly if the United States is not a party

we've got one subsection and if the United States is a

party we've got another subsection, and then I don't

know where we go from there. I'm only on the first

page with you. So, I mean, let's try and go through it

together.

We do need to determine, I presume, whether

we're on subsection 1 or 2, is the United States a

party or is the United States not a party? 1 suggest

that the United States may well be a party by virtue of

the language of subsection 2, but again, that is not a

ruling, that's a reading that I made on the basis of 60

or 120 seconds of observation.

Let's see, it says it's intended to provide

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guidance for the internal operations of the Department

of Justice and is not intended to or not to be relied

on to create any right or benefit, substantively or

procedurely, enforceable in law by a party against the

United States.

Well, obviously if the Bureau of Prisons is

the United States we're seeking to enforce, I guess,

something against them. On the other hand, if the

panel trustee is the United States then is the United

States against the United States? I don't know. It's

getting a little mixed up, but let's go on.

MR. DEAGUIAR: If it appears --

THE COURT: Pardon?

MR. DEAGUIAR: If it appears it is getting a

little convoluted I can, if the Court wishes, simply

refer to the regulations governing disclosure of

authority in Federal and State proceedings in which the

United States is in fact a party.

THE COURT: Well, I mean, as I say, we need

to look at both unless we can all agree as to whether

or not the United States is a party.

MR. DEAGUIAR: Both sections refer me to the

same subpart --

THE COURT: Okay. And where is it?

MR. DEAGUIAR: -- which is going to prohibit

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disclosure in this case.

THE COURT: And where is that?

MR. DEAGUIAR: Specifically, the sections

provide that a party cannot disclose -- the United

States cannot disclose records without proper

authorization from a departmental official and the

departmental official is to consider several factors.

THE COURT: Where is that in the regulations,

Counsel?

MR. DEAGUIAR: The factors are at Section

1626, Your Honor.

THE COURT: 1626?

MR. DEAGUIAR: Yes.

THE COURT: Well, let's see, 1623 says

general disclosure authority when the United States is

a party, and 1622 has general prohibition of production

or disclosure in which the United States is not a

party.

So are we conceding you under 1623 or are we

arguing under 1622?

MR. DEAGUIAR: Not at all, Your Honor. I'm

saying merely that --

THE COURT: Okay.

MR. DEAGUIAR: -- since both of them refer us

to the same factors for consideration perhaps the Court

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should look at those factors --

THE COURT: All right.

MR. DEAGUIAR: -- to determine whether this

disclosure is appropriate.

THE COURT: And there you say it's 1626, and

1626 says what?

MR. DEAGUIAR: 1626 basically sets forth

factors to be weighed by the authorizing department

official, which in this case is going to be an

individual in the Bureau of Prisons southeast regional

office in Atlanta, Georgia. Okay?

And the factors to be weighed include- whether

disclosure is appropriate under the rules of procedure

governing the case, 1626 (a) (1), whether disclosure

would violate a statute, that's at 1626 (b) (1).

In this case, the United 4tates argues that disclosure

would violate both the Privacy Act and Title 3.

Furthermore, --

THE COURT: Well, let's -- run that by me a

little bit. The Privacy Act says certain things, but

when someone has -- is in a situation of this

individual, are they covered by the Privacy Act when

they have consented to the recording of their

conversations?

MR. DEAGUIAR: The Government argues that

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they have consented to recording of the conversations

for purposes of the Bureau of Prisons law enforcement

objectives.

Additionally, the Government's position is

that the individuals with whom the Debtor may be

speaking themselves would have a privacy interest in

these records, and the Privacy Act does in fact state,

as this Court knows, that no agency shall disclose any

record which is contained in a system of records by any

means of communication to any person or to another

agency except pursuant to a written request or with the

prior written consent of the individual to whom the

record pertains. That's found at 5 USC Section 552 (a)

(b).

THE COURT: Go ahead.

MR. DEAGUIAR: Now, the Privacy Act itself

does provide remedies when an agency would

inappropriately withhold records and it does within the

language give this Court jurisdiction to then take

action.

Arguably, however, the Government feels that

the Trustee has not even indicated that this Court has

jurisdiction to enter an order pursuant to the Privacy

Act.

The Government will concede that records can

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be disclosed pursuant to an order of a court of

competent jurisdiction. The caveat is we would place

the burden upon the Trustee to demonstrates that this

Court is of competent jurisdiction, without any

disrespect to Your Honor.

THE COURT: Well, we'll certainly hear

argument on that, and I wonder what conclusion we'll

come to on that point?

Okay.

MR. DEAGUIAR: Now, the Government argues

that disclosure of these records would also be a

violation of the provisions of Title 3 and --

THE COURT: Pardon me. Let me just check

this 5 (b) here. It says here, Assistant Attorneys'

General, U.S. -- United States Attorney, the Director

of the -- D.O.U.S.T. and the United States Trustee --

United States Trustee and their designees are

authorized to issue instructions to attorneys without

supervising practices consist with this subpart in

order to help foster assistant application of the

court-ordered standards of the requirements of this

subparagraph.

Okay. So we keep getting back to the

Executive Office of the United States Trustee and the

U.S. Trustees, et cetera, is somehow being involved

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here. I'm not making this as a determination yet, but

certainly it points to the United States being a party

as opposed to not being a party.

So what you're telling me at this point is

that the matter should go from here to an official in

the Bureau of Prisons to consider the request, is that

what your argument is?

MR. DEAGUIAR: Yes, Your Honor.

THE COURT: All right. I think that's

reasonable. And where and who? I mean, how far away?

How much time are we talking about? Days? Weeks?

Months?

MR. DEAGUIAR: Pursuant to the regs what the

Bureau of Prisons would first request is that the

Trustee provide in detail a summary of exactly what the

information they are seeking is in the pleadings,

although the Trustee does in fact reference somewhat

what they're seeking it seems that their request is

overly broad and burdensome, and in fact, may be more

of a hunch than anything else.

So we would request if we're going to proceed

and consider this matter that they provide us either

with specific phone numbers that they feel were called

THE COURT: Oh, come on. Now you're talking

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nonsense. I mean, if they knew the numbers they

wouldn't have to ask you for them. I mean,

MR. DEAGTHAR: They would be able to give

certain names.

THE COURT: The question is, is this guy in

the can in touch with somebody that's holding the ten

million and if he is, that's what they're looking for.

If they already knew that they wouldn't have to be

bothering you.

The question is, do they have a right to get

a list of numbers that he's calling to see if they can

trace the money. That's what this is about.

So whether they may or may not do that, that's what

we're here to talk about, but to suggest that they

can't get the numbers unless they've got the numbers,

is a cercuitous argument that won't fly as far as I'm

concerned.

MR. DEAGUIAR: Okay. The Government also

feels that it 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

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enforcement officials in the ordinary course of their

duties.

Under this very narrow accension the Bureau

of Prisons records all inmate telephone conversations

and the Bureau does not feel that its authorized to

release these to a third party even if this Court

wishes to consider that it's the Trustee's Office.

THE COURT: Okay.

MR. DEAGUIAR: Finally, what I'd like to

point out is the burden that could be placed upon the

Bureau of Prisons and the Federal Detention Center, in

particular, if the Bureau is required to engage in

discovery as is sought in the Trustee's request for

relief.

To that end, we understand that the Trustees

are seeking visiting records and we would object on

grounds that there could be many visiting records.

HoweVer, the Government will concede that in the

Debtor's case records indicate only one visitor.

So on the grounds of visiting records, we

will not be arguing undue burden. We would keep our

Privacy Act objections for the Court to consider.

As to the telephone tapes themselves,

however, I would like to describe to the Court how the

entire process works so that the Court can consider the

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dynamics involved and the extent of the burden. In

doing so, I would request the Court to allow the

Federal Detention Center to present those facts in

camera ex-parte due to the sensitive nature.

THE COURT: Okay. So we're going from in

camera to in camera ex-parte and maybe after that we

can go to some sort of a star chamber in camera until

we finally get down to where I go out in the field

somewhere and meditate, but I don't know where were

going here but that may not be an unreasonable request.

MR. FIERBERG: Your Honor.

THE COURT: Yes.

MR. FIERBERG: Mr. Avon and I --

THE COURT: Oh, just a moment. I'm sorry,

Miss Yanks, but the courtroom is closed.

MS. YANKS: Oh, I'm sorry.

THE COURT: This is an in camera hearing.

When it's finished we'll be happy to see you and we'll

let you know as soon as it's over.

MS. YANKS: I'm sorry.

MR. ANGUEIRA: Excuse me, Judge. Her hearing

is at two, I believe.

THE COURT: No, no. She's here for a

ten o'clock. It was scheduled at two, but she's here

now for a ten.

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So it's amazing what computers can do.

MR. DEAGUIAR: Your Honor, if I can quickly

touch upon the fees?

THE COURT: All right. Let me just glance

through here again. However, the international calls

-- well, there's a good number of them, yeah. On some

pages there are only a few. It appears on this page

only one international call and the international

numbers seem to be limited to -- looks like at least

three of them. So, by initially identifying where the

calls are going it may knock out the need for a whole

bunch of them, but I thank you for the look at this

telephone account statement. I wonder how we did this

before computers? Just incredible.

MR. DEAGUIAR: We were not as efficient, Your

Honor.

THE COURT: I'll return this to you, sir.

Okay. So what further do we have to add?

MR. DEAGUIAR: It seems at this juncture that

the Court is not ready to decide whether or --

THE COURT: Well, I think what you have

suggested is that the next step in this procedure, if

it's to continue forward, is that this matter needs to

be forwarded for a determination by an official of the

Bureau of Prisons as to whether or not they want to

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honor the request under the procedures that

Mr. Fierberg has described.

I don't know, do we need -- you raised a

question of determination of whether or not this Court

was a court of competent jurisdiction to hear this.

Perhaps we ought to argue that matter right now and we

can get that issue out of the way so that we know where

we're going with it.

So if you have any argument on that point, I

will be happy to receive it and then we'll hear from

Mr. Fierberg and at least we can resolve that issue.

MR. DEAGUIAR: Respectfully, Your Honor, I

would submit that I was unable to find authority giving

this Court the jurisdiction to issue an order here.

However, what I would do is place the burden on the

Trustee to demonstrate jurisdiction in this case,

unless Miss Alonso would like to argue.

THE COURT: Miss Alonso, would you like to

add anything?

MS. ALONSO: No, Your Honor.

THE COURT: All right. Mr. Fierberg, do you

want to make any comments on the issue of this Court's

jurisdiction in the matter?

MR. FIERBERG: Yes, Judge. We had the

benefit of arguing this issue before Judge Utschig in

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we schedule some kind of a status conference in this

matter?

THE COURT: What do you think, a week? Next

week is Thanksgiving. Why don't we all come in on

Thanksgiving Day?

MR. FIERBERG: Are you serving the turkey?

Perhaps two weeks, Judge.

THE COURT: Well, that will work. Check with

Barbara because I will be here the week after, but then

I have a long scheduled vacation that's going to take

me out of the office for over a week. So let's get it

in before I go away, which I think I leave on December

2nd, and I will be back very quickly.

MR. FIERBERG: Shall I include that in the

order today, Judge, that a status conference is being

set for that day?

THE COURT: Is that a feasible way to go,

Counsel? Should we include that in the order?

MR. ANGUEIRA: Excuse me. The particular

order that says status quo, I don't know if that's

under seal or anything like that. Whether it is or

isn't, I don't know if you want to put another date of

another hearing like this that might become public.

MR. FIERBERG: My intention was it would all

be under seal as everything is.

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CERTIFICATE OF REPORTER

STATE OF FLORIDA )

: SS

COUNTY OF DADE )

I, GWEN M. TIPALDI, Notary Public in and for

the State of Florida at Large, do hereby certify

that I was authorized to and did report the

foregoing proceeding; and that the transcript is a true

record.

Dated this 14th day of September, 2005.

EN '"-:'- TIPALDI