UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Appeal No. 07-10295-II

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

Appellant,

vs.

STEPHAN JAY LAWRENCE

Appellee.

APPEAL AND CROSS-APPEAL FROM AN ORDER

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

Case No. 05-20485-CV-GOLD

APPELLEE REPLY BRIEF

Stephan J. Lawrence, pro se

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

CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE
STATEMENT

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

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

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

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

C-1 of 1
 TABLE OF CONTENTS

TABLE OF CONTENTS....................................................................................... 3
TABLE OF AUTHORITIES................................................................................... 4
Summary ............................................................................................................... 6
Argument............................................................................................................... 7
A. The Trustee ignores the impossibility defense to contempt; and
misstates the standards concerning the coercive effect of
incarceration .......................................................................................... 8
B. When the district court ruled further imprisonment was punitive the
contempt proceedings were deemed criminal; the bankruptcy court
lacks authority to impose “post-release obligations” on Lawrence ....... 14
C. The Trustee does not adequately explain how Lawrence came to be
liable for an indeterminate liability (in the tens of millions of dollars)
and an indefinite (possibly life) sentence where he was provided
with none of the rights, including notice, associated with such
excessive penalties............................................................................... 16
D. The Trustee misrepresents the scope of 11 U.S.C. § 521(4); it does
not impose liability against debtor/transferors...................................... 17
E. The Trustee offers no cognizable challenge to the application of 28
U.S.C. § 1826 to this case .................................................................... 19
F. The Trustee’s attorneys flagrantly violated Title III and
unconstitutionally intruded into Lawrence’s attorney-client
relationships through illegal wiretapping; they opened an appellate
Pandora’s box ...................................................................................... 20
G. The Trustee incorrectly alleges that Lawrence’s claims had all been
previously heard; later obtained information and decisions show
otherwise ............................................................................................. 23
H.
The Trustee fails to address Lawrence’s claims concerning well
settled defenses to enforcement of prior orders entered without due
process or jurisdiction; the discharge order was misused as a money
judgment.............................................................................................. 24
CERTIFICATE OF COMPLIANCE WITH F.R.A.P. 32(a)(7) ............................ 33
CERTIFICATE OF SERVICE............................................................................. 33

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 TABLE OFAUTHORITIES

Cases
CFTC v. Wellington Precious Metals, Inc.. 950 F.2d 1525 (11th Cir. 1992) .....9, 26

Crawford v. Washington, 541 U.S. 36 (2004) ...................................................... 28

Flanigan's Enterprises, Inc. of Georgia v. Fulton County, Georgia, 242 F.3d

976, 987 n.16 (11th Cir. 2001), cert, denied, 536 U.S. 904 (2002)................. 6

Gelbard v. U.S., 408 U.S. 41 (1972) .................................................................... 22

Hicks v. Feiock, 485 U.S. 624 (1988)................................................................... 26

In re Brown, 303 F.3d 1261, 1270 (11th Cir. 2002) .............................................. 24

In re Coggin, 30 F.3d 1443 (11th Cir. 1994) ........................................................ 18

In re DuPont De Nemours & Co., 99 F.3d 363 (11th Cir. 1996) ........................... 25

In re Gallucci, 931 F.2d 738 (11th Cir. 1991) ...................................................... 25

In re Lawrence 279 F.3d 1291 (11th Cir 2002) ..................................................... 23

In re Lawrence, 251 B.R. 630 (S.D. Fla 2000)....................................................... 9

In re McCormick, 49 F.3d 1524, (11th Cir. 1995) ................................................ 12

In re Novak, 932 F.2d 1397(11th Cir. 1991) ........................................................ 25

Matter of Adams, 734 F.2d 1094, 1099 (5th Cir. 1984) ........................................ 18

Matter of Hipp, Inc., 895 F.2d 1503, 1519-20 (5th Cir. 1990).............................. 14

Matter of Younger, 986 F.2d 1376 (11th Cir. 1993) .............................................. 19

McCarthy v. Arndstein, 266 U.S. 34 … (1924) .................................................... 12

McGregor v. Chierico. 206 F.3d 1378 (11th Cir. 2000) ..................................25, 26

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Norwest Bank Worthington v. Ahlers, 485 U.S. 197 (1988) ................................. 27

Ohio v. Roberts, 448 U.S. 56 (1980) .................................................................... 28

Rylander v. United States....................................................................................8, 9

U. S. v. Herring, 602 F.2d 1220, 1227 & n.13 (5th Cir. 1979) ............................. 12

U.S, v. Gregory, 730 F.2d 692 (11th Cir. 1984) ................................................... 12

U.S. v. Cronic, 466 U.S. 648 (1984)..................................................................... 30

U.S. v. Garcia, 517 F.2d 272 (5th Cir. 1975) ....................................................... 29

U.S. v. Gecas, 120 F.3d 1419 (11th Cir. 1997)..................................................... 12

U.S. v. Koblitz, 803 F.2d 1523 (11th Cir. 1986) .................................................... 26

U.S. v. Novaton, 271 F.3d 968, 1009-12 (11th Cir. 2001) .................................... 30

Statutes
11 U.S.C. § 25(a)(10)........................................................................................... 12

11 U.S.C. § 344 ..............................................................................................11, 12

11 U.S.C. § 521 ................................................................................................... 17

11 U.S.C. § 521(4) ..........................................................................................17, 18

11 U.S.C. § 548(e) ............................................................................................... 17

11 U.S.C. § 727 ........................................................................................12, 16, 27

11 U.S.C. § 727(a)(6)(B) ..................................................................................... 12

18 U.S.C. § 157 ................................................................................................... 11

18 U.S.C. § 2510.................................................................................................. 21

18 U.S.C. § 6002.................................................................................................. 12
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28 U.S.C. § 2075.................................................................................................. 18

Rules
Fed.R.Civ.P. 60(b) ............................................................................................... 25

Fed.R.Civ.P. 69.................................................................................................... 18

Fed.R.Civ.P. 804(b)(1)......................................................................................... 17

Summary

The Trustee’s Reply to Lawrence’s Cross-Appellate Brief applies the wrong law,
1 2
misstates Lawrence’s claims, or ignores those claims.

A central issue is the fundamental unfairness of a debtor, as a Rule 37(b)

discovery sanction resulting from a single hearing in which he was afforded no right to

defend himself through witnesses or evidence, resulted in fines and liability in the

many 10’s of millions of dollars and over six years in prison.

The undisputed facts now show (1) an extensive exclusion of Lawrence and his

attorneys from the trial process extending back to 1998; (2) an extensive intrusion into

1
Lawrence’s cross-appeal brief is labeled (“Appellee Brief”); Trustee’s initial
appellant brief (“Tr. Brief”); Trustee’s Reply to Appellee Brief (“Tr. Reply”).
2
The Trustee’s Brief, did not address most of the claims raised in Appellee’s Brief
though those claims were all before the lower courts. Thereby, he waived his
objections to those claims. Flanigan's Enterprises, Inc. of Georgia v. Fulton County,
Georgia, 242 F.3d 976, 987 n.16 (11th Cir. 2001).

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his attorney-client relationship through the unlawful taping and use of his

attorney-client (and other) phone calls by the Trustee and Bear Stearns (the largest

creditor) throughout his appeal to this Court in 2000-2001; (3) extensive disclosures in

the formerly sealed bankruptcy court record and admissions concerning that record.

These and other undisputed facts provide bases for Lawrence’s claims, including those
3
under the Fifth and Sixth Amendments, Title III and other presented claims.

Importantly, the Trustee’s principal argument, concerning the “coercive effect of

incarceration,” obfuscates correct contempt standards. He ignored a contemnor’s right

to present “impossibility” defenses, and applicable standards concerning coercion.

Argument

Lawrence’s claims arose after the initial turnover and contempt proceedings in

1999-2000, and were presented to the lower courts in 2002 by new counsel, and

expanded as new information was disclosed and admissions were made by the Trustee.

CP #’s 1227, 1312, 1314.4

3
Relevant events were either sealed from Lawrence and his attorneys (since 1998),
or occurred after the initial turnover and contempt proceedings in 1999; the sealing
and non-disclosure continued until at least August 2004.
Thereby, it is appropriate that Lawrence has the right to present claims based on
that newly substantive later disclosed information and events.
4
“CP#” will refer to the bankruptcy record; “DE#” will refer district court records in
other related referenced cases.

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 The sealed record was first unsealed in August 2004, on order of the district

court in mandamus case 04-20573-CIV-GOLD [DE# 114]. The Trustee never appealed

the district court’s unsealing order. Lawrence’s right to have had access to those records

since their inception is now law of the case. CP# 1227.

A. The Trustee ignores the impossibility defense to contempt; and misstates

the standards concerning the coercive effect of incarceration

The Trustee states that the “crux” of his appeal is that “(i) [Lawrence] failed or

refused to introduce any form of evidence; (ii) he did not state that he refused,

“steadfastly” or otherwise, to comply with the turnover order no matter how long he

might be incarcerated; and (iii) his assertion of the Fifth Amendment was not a

substitute for meeting his evidentiary burden, Rylander v. United States, 460 U.S. 752,

758 (1983).” Tr. Reply at 2.

The Trustee’s complaint, that no evidence was presented during the lower court

proceedings (Tr. Reply at 2, 14), ignores the extensive sealed record, his later

admissions, and later unfavorable court rulings.5 When Lawrence raised this same

argument during the 1999-2000 turnover and contempt proceedings, i.e., that no

evidence was introduced, the Trustee successfully argued that the bankruptcy court’s

5
Unknown to Lawrence, in late 2000, the Trustee sued an ex-trustee of the Trust in
England seeking execution on the 1998 discharge and later turn over order as a
money judgment. The courts, in 2001, rejected all of the Trustee’s claims, ruling that
the orders were not cognizable money judgments subject to execution, and that the
ex-trustee was not connected to Lawrence. See CP#’s 1312, 1314.

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exclusive reliance on the full bankruptcy court record was sufficient. In re Lawrence,

251 B.R. 630, 648 (S.D. Fla 2000) ("[A]appellee argues that the turn over order was

improper because "no evidence whatsoever was presented regarding Lawrence's

present capability to turn over the assets" of the Trust.... This argument, however, fails

to acknowledge that the Bankruptcy Court properly took notice of the court file to make

its findings.")

The Trustee incorrectly states that the standard set in Commodity Futures

Trading Comm’n v. Wellington Precious Metals, Inc., 950 F.2d 1525, 1530-31 (11th Cir.

1992),” only permits the “coercive effect of incarceration” to be considered when the

correct standard is to first examine impossibility, Tr. Reply at 2.

Rylander contradicts the Trustee’s premise that Lawrence must testify to show

the coercive effect of incarceration has ended. In Rylander, the Supreme Court ruled

that the Fifth Amendment did not apply because Rylander had the option (he was not

required) to testify; thereby he could voluntarily waive his self-incrimination privilege

in aid of meeting his burden of showing a present impossibility (not that incarceration

was no longer coercive). The Trustee’s premise is wrong on three bases. First, if

Rylander had been compelled to testify to gain his freedom, as the Trustee advocates in

Lawrence’s case, then the Fifth Amendment would have been clearly implicated.

Second, Rylander’s testimony concerned the impossibility defense, not the coercive

effect of incarceration. Third, Rylander never testified at the initial enforcement

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hearing, while Lawrence (under compulsion and being the only witness allowed to

testify at the 1998 Rule 37(b) hearing) testified and thereby did not waive his

rights—particularly concerning later events and the already existing undisclosed

sealed record. In that record, James Fierberg, the author of the Trustee’s Reply Brief,

gave sworn hearsay testimony accusing Lawrence of the crimes of witness tampering

and obstruction of justice [R-119-67, R-119-69-76, R-119-68 (CP#’s 1426-1429)].

Moreover, the trustee misstates Lawrence’s Fifth Amendment claims.

Lawrence’s primary self-incrimination claim involves the “act of production,” which is

inextricably intertwined with compelled testimony in a turnover proceeding. The

Trustee is collaterally estopped on this very issue because he successfully plead in the

ex-parte hearings that he required Lawrence’s phone tapes because he did not expect

Lawrence to comply with turnover and thereby provide the information that he (the

Trustee) needed to support Lawrence’s prosecution; Lawrence had earlier been

referred for prosecution to the U.S. Attorney’s Office (“USAO”) in late 2000. See CP#

1074-Exhibit A (letter from attorney Fierberg to the Bureau of Prisons attesting to these

facts to secure the BOP’s cooperation—which was refused by the BOP on the grounds

that Title III made it illegal to provide prison security tapes to the Trustee.). Mr.

Fierberg, at the December, 5, 2000 hearing (trans. at p.19 lns. 18-19) emphasized the

critical nature of the testimony he wanted from Lawrence through the tapes, as

alternative to the act of production, when he stated: “we think that the Holy Grail is in

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those tapes and it's very critical, Judge.”

Furthermore, the Trustee does not dispute that District Judge Gold found that

based on the record before him, Lawrence’s further imprisonment was not coercive; or

that on January 16, 2007, the bankruptcy court also ruled incarceration no longer had a

coercive effect:

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

MR. SINGERMAN: Your Honor –

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

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

1. The Fifth Amendment self-incrimination clause has heightened

importance in bankruptcy; the Bankruptcy Code provides for
immunity under 11 U.S.C. § 344; Lawrence has no immunity.

Unlike normal debt collection proceedings, bankruptcy superimposes severe

6
criminal penalties for concealing assets. 18 U.S.C. § 157.

11 U.S.C. § 344, by its plain language, protects a debtor’s Fifth Amendment

7
self-incrimination privilege. Under the old Bankruptcy Code, § 25(a)(10) provided

6
There is no substantive difference between an alleged bank robber, or embezzler,
being ordered to testify concerning that crime, or to turn over proceeds therefrom in
a civil contempt proceeding, and a bankruptcy debtor who accused of concealing
estate assets being so ordered.
7
Section 344 states: Ҥ 344. Self-incrimination; immunity -- Immunity for persons
required to submit to examination, to testify, or to provide information in a case

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the debtor automatic immunity for testimony in bankruptcy, later superseded by § 344.

U. S. v. Herring, 602 F.2d 1220, 1227 & n.13 (5th Cir. 1979) (“Section 25(a)(10)

compelled Dorminey to testify in the bankruptcy proceedings concerning his financial

matters, but provided that the testimony so given could not be offered in evidence

against him in any criminal proceeding.”); U.S, v. Gregory 730 F.2d 692,

1984.C11.41294, at ¶18 www.versuslaw.com (11th Cir. 1984) (“[the bankruptcy

debtors] ... [were] granted immunity under 18 U.S.C.A. § 6002, [and] .... 11 U.S.C.A. §

344, formerly 11 U.S.C.A. § 25(a)(10)”); In re McCormick, 49 F.3d 1524,

1995.C11.41975, at ¶18 www. versuslaw.com (11th Cir. 1995) (“There is no doubt that

the Fifth Amendment privilege extends to bankruptcy proceedings. McCarthy v.

Arndstein, 266 U.S. 34 … (1924). In Chapter 7 liquidation cases, the Bankruptcy Code

provides that absent a grant of immunity, the debtor is free to invoke his Fifth

Amendment privilege.... 11 U.S.C. § 727(a)(6)(B)[.]”); U.S. v. Gecas, 120 F.3d 1419,

1997.C11.41002, at ¶41 www. versuslaw.com (11th Cir. 1997) (“[A] bankruptcy

proceeding becomes a "criminal case," for purposes of the Self-Incrimination Clause,

as long as the testimony sought from the witness "might tend to subject to criminal

responsibility him who gives it." McCarthy v. Arndstein, 266 U.S. 34, 40 … (1924)”).

It is law of the case that Lawrence was/is a “witness” (against himself), yet the

Trustee contends Lawrence, to secure his release from prison, is required to testify

under this title may be granted under part V of title 18.”

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that he refuses to comply with turnover--thereby admitting he is concealing assets, a

bankruptcy crime.

Lawrence’s legitimate (not speculative) fear of prosecution is plain from the

bankruptcy court’s conclusive ruling that Lawrence (and his attorneys) were

committing bankruptcy crimes:

THE COURT: [I]t is the opinion of this Court that.... [this is] a case of
bankruptcy fraud under 18 United States Code Section 157.

October 4, 2004 bankr. Trans. at p.80 ln.16 to p.81 ln.17.

8
Moreover, even in the Trustee’s reply brief at 48-49, attorney Fierberg uses

Lawrence’s alleged testimonial statements, from the illegally obtained law

9
enforcement tapes, to re-incarcerate Lawrence.

8
The signature on page 64 of the Reply Brief is the distinctive (but illegible)
signature of Mr. Fierberg which is signed (without acknowledgment) over the sole
name of another attorney, Paul Avron.
In plain violation of the advocate-witness rule, Mr. Fierberg also was a principal
ex parte and sealed sworn witness against Lawrence since 1998.
9
Notably, Mr. Fierberg can only cite to one alleged call; he testifies that Lawrence
said the trust, settled in 1991, "was" (not "is") worth "millions" Tr. Reply at 48-49.
Lawrence has no recollection whatsoever of such call, but does remember that the
issue of the trust’s settlement value was discussed extensively with his attorneys
over the phone during the period of taping.
One important topic of those phone calls was that despite Lawrence's repeated
testimony over the years that the actual settlement amount of the Trust in 1991 was
approximately 3.5 to 4 million dollars, due to large liquidation losses, Lawrence was
not given the opportunity at the July 1998 Rule 37(b) discharge hearing to support
that testimony.
In contrast, the many millions of dollars paid to the Trustee's professionals (most
to Mr. Fierberg and his law firm), far exceeds the 1991 Trust settlement amount.

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 B. When the district court ruled further imprisonment was punitive the
contempt proceedings were deemed criminal; the bankruptcy court
lacks authority to impose “post-release obligations” on Lawrence

The “post-release” obligations (an unlawful form of supervised release) compel

Lawrence to testify under oath [RT-159] about alleged hidden assets, and (2) prohibits

Lawrence from his right to travel inter-state. A bankruptcy court has no jurisdiction

over criminal contempts. Matter of Hipp, Inc., 895 F.2d 1503, 1519-20 (5th Cir. 1990).

The bankruptcy court ruled that Lawrence is committing the bankruptcy crime

of concealing assets; he has no immunity and has been referred for prosecution to the

USAO [CP# 1074-Ex. A]. Either, presumptively, he must disclose, under oath, his

alleged hidden assets or he will necessarily be found to have again committed perjury

and to be not credible in any denials—all leading to further punishment in derogation of

his self-incrimination privilege and right to due process. These issues, under appeal to

this Court, keep repeating in the bankruptcy court.

The specific “obligations,” imposed on Lawrence by the bankruptcy court

[CP#1775], were sought against Lawrence in the district court [RT-159], were rejected

by that court, and now comprise part of this appeal. The bankruptcy court not only

adopted those measures [CP# 1775] but also ordered that Lawrence could not travel

outside the state of Florida. Because the district court rejected those measures, and the

Trustee did not brief that issue, he waived the issue of his right to impose new sanctions

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on Lawrence, and the associated self-incrimination/immunity issues.

1. Lawrence has no representation in the bankruptcy court, is not

permitted appeal of most orders, and is again being subjected to
coerced testimony and contempt

Lawrence has no representation in the bankruptcy court. That court, on January

16, 2007, ruled that it would not consider Lawrence’s arguments in its continuing

contempt proceedings:

THE COURT: Because you are in violation of orders of this Court, this
Court rules that you are not entitled to relief from this Court or assistance
while you remain in violation of Court orders. You cannot … disobey [the
Court’s] orders…. when you bring it back, this Court will then consider
purging your contempt and offering other benefits that might be available
to litigants before a Court, but under these circumstances the Court just
does not believe you are entitled.
Trans. January 16, 2007 bankr. Hearing at p.19 ln.24 to p.20 ln.16.

Lawrence is not permitted appeal of bankruptcy orders, and is again subject to

coerced testimony after the bankruptcy court has again ruled Lawrence has no Fifth

Amendment self-incrimination rights. On September 14, 2007 that court issued a show

cause order why Lawrence should not have further contempt sanctions imposed

[CP#1892]—while these matters are under appeal to this Court.

On August 15, 2007, the bankruptcy court issued four new orders: (1) striking

the record Lawrence had designated for appeal of the “post-release obligations” orders

(2) striking the appeal of orders appealed by Lawrence when he was incarcerated but

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which appeal were never processed by the bankruptcy court10 despite full compliance

with all rules by Lawrence. CP#’s1883-1886. That appeal is not being processed in the

bankruptcy court.

C. The Trustee does not adequately explain how Lawrence came to be liable
for an indeterminate liability (in the tens of millions of dollars) and an
indefinite (possibly life) sentence where he was provided with none of the
rights, including notice, associated with such excessive penalties

The Trustee nowhere adequately answers a central issue, repeatedly raised by

Lawrence for over five years: How did he suddenly come to find that he owes tens of

millions of dollars (the exact amount indeterminate) to the Trustee (and/or the

bankruptcy court?) and was subject to a possible term of life imprisonment, without

notice to him of that liability, without the right to put on evidence respecting liability,

without the right to confront unknown witnesses (many still unknown) who were used

against him under seal since May 1998.

The foregoing occurred as a result of a discharge proceeding, in which

proceeding the Bankruptcy Code only provides for a denial of discharge, not ultimate

liability for a (1991 long ago) pre-bankruptcy transfer. 11 U.S.C. § 727. It was

impossible for Lawrence to have notice of what the law does not permit.

In 2005, Congress, after much debate over self-settled overseas and domestic

10
Those appeals concerned hearings held in June 2005 (and earlier) without
Lawrence (pro se), despite his requests for transport, at a June 21, 2005 hearing, his
attorney-client privileged files were turned over to the Trustee over his written
objections.

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trusts, amended the Bankruptcy Code to extend the look back period to avoid transfers

to all self-settled trusts, both domestic and foreign. 11 U.S.C. § 548(e) (2005) now

states:

548(e)(1) - In addition to any transfer that the trustee may otherwise avoid, the
trustee may avoid any transfer of an interest of the debtor in property that was
made on or within 10 years before the date of the filing of the petition, if-- (A)
such transfer was made to a self-settled trust or similar device; …

It is clear from amended section 548 that Congress exercised its legislative

authority to establish that the mandatory prerequisite for liability for the

pre-bankruptcy self-settling of any trust is an avoidance action.

During the July 24, 1998 discharge hearing, to successfully bar Lawrence from

presenting sworn testimony, under Fed.R.Civ.P. 804(b)(1), to support his (Lawrence’s)

testimony, the trustee disclaimed the right to monetary relief:

"MR. SINGERMAN: Bear Stearns is not the predecessor in interest [under

Fed.R.Civ.P. 804(b)(1)]. That's a claim.
Second, Judge, we are before you on a motion to compel in connection with
an adversary complaint to deny discharge, not a post-judgment execution
proceeding ….
We may, if we prevail, pursue the trust. That's not what's happening here.
We're pursuing a statutory 727 claim... Bear Stearns is not the Chapter 7
Trustee's predecessor in interest by any stretch of the imagination and the
objection ought to be sustained."

Transcript Vol. III July 23, 1998 [CP# 334] at p. 349, line 17 through p. 350, line 3).

D. The Trustee misrepresents the scope of 11 U.S.C. § 521(4); it does not

impose liability against debtor/transferors

The Trustee relies on 11 U.S.C. § 521(4), which places an obligation on a debtor

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to turn over estate property, as the overriding basis to bypass the other provisions of the

Code and basic rights. But Congress made clear that section 521(4) is constrained by all

substantive rights. Section 521’s Historical and Statutory Notes, unequivocally states:

“The Rules of Bankruptcy Procedure will specify the means of carrying out these

duties... [under which duties] the debtor must surrender to the trustee all property of

the estate[.]” Effectively, this adopts normal state law debt collection procedures

governing debtor/creditor disputes and executions, e.g., Fed.R.Civ.P. 69.

The trustee has claimed that section 521(4) obligations are akin to a turnover

order. But a turnover order relies on the same procedural rules as those dealing with

judgments and executions; if liability is disputed, the dispute must first be adjudicated

under an avoidance provision of the Bankruptcy Code and liability must then be

assigned under 11 U.S.C. § 550. In re Coggin, 30 F.3d 1443, 1452-54 (11th Cir. 1994)

("there is no cause of action created by section 550(a)(1) in a trustee to recover the

value of an avoidable conveyance from a transferring debtor." Id. at 1454).

Here, the only relevant order in this case, the discharge sanction order, was

misused as a [money] judgment subject to later execution against Lawrence.

Furthermore, 28 U.S.C. § 2075 guarantees that a Debtor's substantive rights are

preserved by the Bankruptcy Rules. That section controls the creation of the

Bankruptcy Rules. Matter of Adams, 734 F.2d 1094, 1099 (5th Cir. 1984) ("bankruptcy

rulemaking power is limited by the Bankruptcy Rule Enabling Act, 28 U.S.C. § 2075.

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Thus a local rule must be procedural and cannot abridge, enlarge, or modify any

substantive right." (Emphasis added)).

E. The Trustee offers no cognizable challenge to the application of 28 U.S.C.

§ 1826 to this case

The Trustee offers no response to the application of 28 U.S.C. § 1826 to this case

except to argue that it doesn’t apply to the “facts of this case”; he doesn’t identify a

single fact that precludes Lawrence from the protection of that statute under the law in

this Circuit, which the Trustee acknowledges applies. Trustee’s Reply at 14; Matter of

Younger, 986 F.2d 1376 (11th Cir. 1993).

It is significant that in Younger the bankruptcy debtor had been provided

immunity before he was held in contempt of court. Lawrence has no immunity. Yet the

Trustee had repeatedly “reassured” Lawrence, pro se, that if he complies with turnover

the Trustee will recommend that the USAO then grant immunity. Under the Trustee’s

own argument, Lawrence must admit to criminal conduct and then hope for immunity.

The Trustee observes and acknowledges that Magistrate Turnoff, on September

22, 2006, limited the contempt hearing to the coercive effect of incarceration. Yet even

so, the Magistrate made a specific ruling that he could not determine if Lawrence could

comply with turnover (R-131-8) based on the record before him. See Appellee Brief at

80-81. Because it is necessary for a court to first be sure a contemnor can comply with

an order of the court before then deciding if the coercive effect of incarceration has

ended, the Magistrate, once he ruled that he could not make that determination, could

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not proceed to the second step, and the contempt had to be vacated.

The Trustee’s attorney Mr. Fierberg, Trustee’s Brief at 23, states that because he

was not called as a witness before Magistrate Turnoff then no constitutional violations

previously occurred. This frivolous argument sidesteps the point that he should have

been confronted when he provided his devastating sworn hearsay testimony in 1998

and during all later proceedings, including those under seal. The Trustee now,

simultaneously, seeks to bar Lawrence from now challenging the discharge

proceedings based on that very matter. Moreover, Mr. Fierberg admits that his prior

testimony was and is inadmissible hearsay (“Anything that these witnesses, including

undersigned counsel, would testify to would be hearsay or speculation” [RT-147 n.4]).

F. The Trustee’s attorneys flagrantly violated Title III and

unconstitutionally intruded into Lawrence’s attorney-client
relationships through illegal wiretapping; they opened an appellate
Pandora’s box

The Trustee completely ignored the facts that he and his attorneys are private

litigants, not law enforcement personnel, and they are involved in a civil, not criminal,

case. Notwithstanding strict prohibitions under Title III, and the Government’s

objections to his obtaining and using law enforcement tapes, the “consent” cases he

relies on do not apply to him, only to the Government, in criminal proceedings.

None of the notice, sealing, and other mandatory requirements of Title III were

followed.

Even in the Trustee’s Reply Brief Mr. Fierberg flaunts his lack of adherence to

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the rules and law by allegedly citing to tapes he never sealed, properly disclosed

possession of, or obtained permission to use (or provide to creditor Bear Stearns). None

of his cited cases identifies a single bankruptcy case where Title III orders were issued.

18 U.S.C. § 2510 et seq.. Indeed, the ex parte transcripts show that the bankruptcy court

itself was uninformed about law it had never utilized before, and therefore relied on the

Trustee’s attorneys, over the objections of the U.S. Government [see trans., November

16, 2000 at p.7 lns.6--11, p.18 ln.18 to p.19. ln.7, p.30 lns. 12-17; December 5, 2000

trans. at pp. 7-8, 15, 17, 22- 23].

The only argument the Trustee makes is the erroneous assertion that Lawrence
11
gave him consent to eavesdrop on Lawrence’s phone calls. Yet, he sought secrecy so

that Lawrence would not know of the eavesdropping.12

The Trustee’s consent argument was pretext. He falsely states that Lawrence

signed a “consent form” but he cannot produce it because none was ever signed by

Lawrence, a civil contemnor, throughout the entire period of taping. In none of the ex

parte hearing transcripts, or motions, does he request the alleged “consent form”

from the BOP, or ask them to see if such form even existed for Lawrence.

11
The Trustee makes no attempt to address “consent” by the parties Lawrence
spoke to on the phone to his and Bear Stearns’ eavesdropping. Florida wiretap law
§934.03(2)(d) (Fla stat.) requires all party consent to such conduct.
12
The Trustee makes is the erroneous assertion that Lawrence gave him consent to
eavesdrop on his phone calls. Yet, the Trustee sought secrecy from Lawrence that he
could so eavesdrop. CP# 1074-Ex-A

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 Furthermore, nobody disclosed to the government that person(s) in the Trustee’s

camp would be funneling the contents of the law enforcement tapes to Bear Stearns, a

large private company that was involved in extensive pending Florida state court

litigation with Lawrence and his family, an issue the Trustee does not address or

dispute.

The Trustee’s attorneys had mandatory obligations (even if under seal) to inform

this Court of the attorney-client eavesdropping, which went on for many months prior

to and after oral argument in this Court in May 2001.

The Trustee’s attorneys learned from the intercepted conversations all of

Lawrence’s attorney-client matters and strategy (as affirmed by Mr. Neiwirth in a

deposition conducted by the Trustee on September 26, 2005).

By monitoring Lawrence’s phone calls the risks of continued concealment of the

surveillance could be determined; that concealment went on for years until first learned

of in August 2004.

The Trustee stated that no inculpatory information was obtained through the

eavesdropping. But he simultaneously attempts to inflame this Court by unlawfully

citing to alleged conversations from the tapes, Tr. Reply at 48-49. The law on

suppression, applicable to suppression of a contempt sanction, Gelbard v. U.S., 92 S.Ct.

2357, 408 U.S. 41 (1972), is clear. It is the subject matter of the intercepted

conversations that determines the scope of suppression, not whether communications

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were inculpatory. Id.

G. The Trustee incorrectly alleges that Lawrence’s claims had all been
previously heard; later obtained information and decisions show
otherwise

Mr. Neiwirth (Lawrence’s appellate counsel in 1999-2001) argued a limited

impossibility defense, distinct from the claims later counsel raised and now under

appeal. Mr. Neiwirth could not raise claims he did not know about. Nor could he raise

claims that adversely affected his law firm’s other client, Bear Stearns.13

During the turnover and contempt proceedings in 1999, the Trustee used legal

theories, later shown to be contradictory. On August 26, 1999, the Trustee successfully

argued that there was no trust since it was void ab initio, so title to the settlement funds

never left Lawrence and only a turnover order was required:

“MR. SINGERMAN: The Trustee is not, this morning, before you pursuing a
fraudulent transfer action, and we have not been before the Court, to date,
pursuing such an action. The reason is simple, Judge. There was never a
transfer which we are seeking to avoid. This is not an avoidance action, Judge.
This is a turn over action.... But that's not the biggest infirmity and that's not why
there wasn't a transfer. Even assuming the Debtor did sign a trust indenture, the
type of trust at issue and the putative conveyances to create it are void under
controlling law in the Eleventh Circuit applying Florida law.

Trans. August 26, 1999 turnover hearing p. 36 ln.18 to p. 37 ln.11 [CP# 682].

MR. SINGERMAN: The trust is void as to the debtor's existing future

creditors and such creditors can reach his interests. But, Judge, I'm sorry, in some

13
This Court, in its decision, stated that it was not then reviewing the discharge
proceedings in the original appeal in 2002, In re Lawrence 279 F.3d 1291, 1298 (11th
Cir 2002) based on Mr. Neiwirth argument.

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 respects, that I took the time to go through this, because, Judge, you know all
this. In the Lawrence Opinion you did this analysis. You've been here before.
On Pages 917/918 of your Lawrence [1998 Discharge Default] Opinion[.]"

Id. p.41 lns. 7-14 [CP# 682].

Subsequent to the Lawrence opinion, this Court reached an opposite conclusion

in In re Brown, 303 F.3d 1261, 1270 (11th Cir. 2002) ("Once conveyed [to a trust], the

assets no longer belong to the settlor and are no more subject to the claims of her

creditors than if the settlor had directly transferred title to the third party."). The Brown

opinion cited directly to the Lawrence Trust and opinion as an example of a valid

Florida Trust with an invalid spendthrift clause. Brown, 303 F.3d at 1268 n.9. The

Brown footnote pointed out that when, as in the referenced Lawrence case, the

district court "intertwines" the distinct issues of "self-settlement" and "control,"

there results the duplicative effect of voiding the spendthrift clause only, and the

Trust remains valid in either case. Id..

H. The Trustee fails to address Lawrence’s claims concerning well settled

defenses to enforcement of prior orders entered without due process or
jurisdiction; the discharge order was misused as a money judgment

Since at least late 2002, Lawrence has consistently challenged 1) the validity of

the Discharge Order on various permissible grounds, i.e., due process and jurisdictional

grounds which claims were expanded after the sealed record was first disclosed in late

2004 and admissions were later made by the Trustee (e.g., the discovery of the

substantive May 1998 Fierberg sworn affidavit and hearsay testimony. Appellee Brief

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 14
at 5-9. 26-27, 37-46, 70); 2) the misapplication of a discharge order as a basis for

execution, under the Fed.R.Civ.P., to collect money is far in excess of a permissible,

compensatory, Rule 37(b) sanction; and 3) alternatively, under Fed.R.Civ.P. 60(b)

[CP#’s 1312, 1314].

The invalidity of an underlying order is a well settled defense to civil contempt

and the Trustee has admitted that a turnover order (an execution governed by the

Fed.R.Civ.P.), by itself does not create liability. See Appellee Brief at xii, 88; In re

Gallucci, 931 F.2d 738 (11th Cir. 1991) (bankruptcy court has no jurisdiction to order

turnover of non-estate property); In re Novak, 932 F.2d 1397, 1401 & n.6, 7 (11th Cir.

1991) (recognizing invalidity of underlying order as a civil contempt defense, and a

right of immediate appeal to protect attorney-client privilege in a contempt

proceeding); In re DuPont De Nemours & Co., 99 F.3d 363, 369 & n.5 (11th Cir. 1996)

(finding an inability defense valid where district court lacked jurisdiction to issue order

being enforced); McGregor v. Chierico. 206 F.3d 1378, 1386 & n.6 (11th Cir. 2000)

14
Sixth Amendment, and Fifth Amendment due process and self-incrimination
claims are immediately appealable defenses to a contempt sanction. Novak 932 F.2d
at 1400-1402; Maness v. Meyers, 419 U.S. 449 (1975); U.S. v. Koblitz. 803 F.2d
1523 (11th Cir. 1986) (vacating civil contempt since underlying order violated Sixth
Amendment).
Moreover, a court has an obligation to assure itself that the underlying order
allegedly being violated is valid and lawful, Koblitz, 803 F.2d at 1527; McGregor
206 F.3d at 1383 ("Upon appellate review, a civil contempt order may be upheld
only if ... clear and convincing proof ... demonstrates] that 1) the allegedly violated
order was valid and lawful, 2) the order was clear, definite and unambiguous; and 3)
the alleged violator had the [current] ability to comply with the order").

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(vacating non-final contempt order on grounds that underlying order is invalid); CFTC

v. Wellington Precious Metals, Inc.. 950 F.2d 1525, 1528-29 (11th Cir. 1992)

(recognizing different standards of review as possible defense to res judicata effect of

prior final order and addressing that defense on its merits); Hicks v. Feiock, 485 U.S.

624, 638 n.10 (1988) ("[A] criminal feature of the [civil contempt] order is dominant

and fixes its character for purposes of review" (citations and internal quotation marks

omitted)).

Importantly, a court has an ongoing duty to assure itself that the underlying order

allegedly being violated is valid and lawful, U.S. v. Koblitz, 803 F.2d 1523, 1527 (11th

Cir. 1986); McGregor 206 F.3d at 1383 ("Upon appellate review, a civil contempt order

may be upheld only if ... clear and convincing proof ... demonstrates] that 1) the

allegedly violated order was valid and lawful, 2) the order was clear, definite and

unambiguous; and 3) the alleged violator had the [current] ability to comply with the

order")

The right to challenge execution on a judgment based on a lack of due process

afforded to obtain that judgment, or the later misuse of a judgment on jurisdictional

grounds, is a basic defense to executions. CP#’s 1312, 1314 generally. The discharge

default “finding” (that assets transferred pre-bankruptcy filing were estate property)

was, at best, a finding on an issue that might later be subject to collateral estoppel usage

by the Trustee in a proceeding where the requested relief could lawfully be provided,

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not in a section 727 discharge proceeding.15

Because the plain language of section 727 only allows the relief of a discharge

denial, it follows that (1) it was impossible for Lawrence to have adequate notice that as

a result of the discharge proceeding he was to be held liable for 10’s of millions of

dollars and imprisoned without trial for over six years; and (2) that no authority existed

that a section 727 proceeding could have this result. Norwest Bank Worthington v.

Ahlers, 485 U.S. 197, 206 (1988) ("[W]hatever equitable powers remain in the

bankruptcy courts must and can only be exercised within the confines of the

Bankruptcy Code."). This claim is a jurisdictional challenge that can be raised only

when and if collateral estoppel concerning liability is later asserted.16

Because section 727 and Rule 37(b) do not grant authority to hold a debtor liable

for a pre-bankruptcy transfer, the alternative conclusion is that the penalties exacted on

15
11 U.S.C. § 727, in relevant part states:
“(a) The court shall grant the debtor a discharge, unless—
…
(c)
(1) The trustee, a creditor, or the United States trustee may object to the
granting of a discharge under subsection (a) of this section. ”
16
Even if Lawrence’s attorneys had sought to vacate the discharge order’s estate
property finding alone, in a direct appeal of the discharge order, that relief is
hypothetical and could not be granted until the Trustee attempted to use that finding
(collateral estoppel) in a proceeding where that relief could be provided (assuming
adequate notice is given). Hutton v. Hadley, 901 F.2d 979 (11th Cir. 1990) (applying
the Bankruptcy Code to the issue of justiciability where a bankruptcy trustee
improperly asserted claims exclusively the right of creditors to assert).

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Lawrence were impermissible criminal contempt sanctions far outside permissible

compensatory Rule 37(b) sanctions.

The Trustee never previously raised his challenges to Lawrence’s Sixth

Amendment claims [CP#’s 1312, 1314] in the lower court and he advances no case law

to refute that Lawrence did not have an undisputed right to counsel under the Sixth

Amendment from the 1998 discharge proceeding on. Therefore, those issues have been

waived by the Trustee.

Mr. Fierberg, in his Trustee’s Reply Brief, fails to disavow his own witness

status, his (self-admitted) substantive and material sworn testimonial hearsay affidavit

and highly prejudicial pleadings that he submitted to the trial court in May 1998. He

claims “the Trustee” “does not recall whether the bankruptcy court conducted a hearing

on the Riley Papers[.]” Trustee Reply at 6 n.8.

Mr. Fierberg’s memory lapse as to whether a hearing was held on his May 1998

submissions does not change the significance of his filings and affidavit because they

went to the trial court, and Lawrence was never afforded the opportunity to confront

that admittedly critical hearsay testimony. Crawford v. Washington, 541 U.S. 36 (2004)

(the use of unconfronted testimonial evidence violates Sixth Amendment) and

Crawford’s predecessor, Ohio v. Roberts, 448 U.S. 56 (1980) (requiring a showing that

a witness was unavailable to testify before her statement could be used). In short, Mr.

Fierberg’s sworn statements were, by his own unequivocal filed admissions at the

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time, crucial testimony; he was always available as a witness for confrontation

purposes; and he was present at all critical hearings including at the discharge

hearing where he played a prominent role.

Moreover, at the time of his testimony, Mr. Fierberg knowingly deprived

Lawrence of his substantive rights, including respecting his and his attorneys’ ability to

make reasoned appellate decisions, and the concomitant ability to assert material

defenses to the discharge, turnover, and contempt orders.

Furthermore, the Trustee makes no serious attempt to refute the prima facie

conflict of Lawrence’s appellate attorney Mr. Neiwirth, who admitted, by letter in late

2001, that his law firm represented Bear Stearns at all “relevant times.” The bankruptcy

court improperly accepted Mr. Neiwirth’s explanation of events without any testimony,

or permitting Lawrence to question Mr. Neiwirth on the subject.

But the revised (and disputed) explanation offered by Mr. Neiwirth was that he

had informed Lawrence that his law firm was actively representing Bear Stearns and

that he therefore could not represent Lawrence in the bankruptcy court proceedings but

could represent Lawrence in appeals to the district court and this Court because he had

no conflict in those courts. Therefore, even ignoring the absence of a mandatory U.S. v.

Garcia, 517 F.2d 272 (5th Cir. 1975) hearing, a knowing and intelligent waiver of

conflict was impossible because Mr. Neiwirth stated that he informed Lawrence that

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he had no conflict in his actual appellate representation.17

When the attorneys subsequently retained by Lawrence presented claims not

presented by Mr. Neiwirth, then the conflict was shown to have adversely affected

performance and a Sixth Amendment violation was established. See Appellee Brief at
18
8-9, 17, 71-72; U.S. v. Novaton, 271 F.3d 968, 1009-12 (11th Cir. 2001).

The Trustee misstates the standards applicable for showing “structural error” in

proceedings. U.S. v. Cronic, 466 U.S. 648 (1984). He claims that because Lawrence

cannot show mention of Mr. Fierberg’s prior sworn testimonial statements in the July

1998 discharge hearing, then there were no Sixth Amendment or due process

violations. It is sufficient that the testimonial hearsay statements were accepted by the
19
bankruptcy court that creates the constitutional violation.

17
Mr. Neiwirth’s version of events is more indicative of a rights violation then
simply not having disclosed his conflict to Lawrence; his statement of what he said
to Lawrence constituted active concealment and misrepresentation of his conflict of
interest.
18
The Trustee’s reference to Link v. Wabash R. Co., 370 U.S. 626 (1962), for the
premise that Lawrence is to be held unconditionally responsible for his attorney’s
performance, circumvents the Sixth Amendment when implicated.
19
The pretext for Mr. Fierberg’s submissions, private investigator Riley, then
vanished from the case. The record shows no further reference to him, including
mandatory Fed.R.Bankr.P. 2016 submissions respecting fee payments (was he paid?
By whom?). Once Mr. Fierberg submitted his sworn testimony, he saw no further
need for P.I. Riley.
Mr. Lawrence’s best recollection is that in late 1998, Mr. Bach (one of the alleged
Fierberg witnesses and who would have played an important role in Lawrence’s
defense), informed Mr. Lawrence, without providing details, that great pressure had

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 Lawrence is still refused access to all reports and statements made by the

Trustee’s “private investigator” witness(es) even though at least one of them, Mr. Aviv,

testified over the telephone (although not under oath) at the December 28, 2000 ex

parte hearing (see trans. at p.13 lns. 1-11) that he had located Lawrence’s alleged

hidden bank accounts, had possession of the account records in his hands, and that

“indeed there are millions of dollars in those accounts.” That unconfronted

inflammatory testimony was plainly relevant to all contempt proceedings, and

respecting the then pending appeal to this Court because if made further contempt

proceedings constitutionally deficient, an argument Lawrence was prevented from then

raising. Id at p.13 lns. 12-14. At that hearing, Mr. Fierberg also testified as to his

interpretation of Lawrence’s phone tapes, complaining that Lawrence “must have run

out of dimes” (since there were so many calls he eavesdropped on). Id at pp.6-9.

Not a single one of the (illusory) twelve (12) witnesses that Mr. Fierberg’s

May 5, 1998 affidavit swore to ever came forward. Nor did he ever obtain a (known)

statement from any alleged witness, depose any alleged witnesses on those matters, or
20 21 22
subpoena them to testify.

been placed on him to make untrue statements by parties associated with the Trustee
and/or Bear Stearns.
20
The Trustee exploited Lawrence’s lack of knowledge of the Fierberg court papers
by continuing to insist that the first sealed matter was not placed on the record until
2000.

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 The Trustee’s attempt to disassociate himself from the sworn statements of

co-counsel Michael Budwick, Appellee Brief 19-20, 82, who still remains Mr.

Fierberg’s co-counsel, depends on this Court not knowing the nature of Mr. Budwick’s

representation of the Trustee. The subject Florida state lawsuit against the Estate of

Fredrica Lawrence which Mr. Budwick conducted concerned the very same matters

Mr. Fierberg was pursuing against Lawrence.23 The Trustee had alleged that Lawrence

had provided his 91 year old mother with hidden assets and that she had aided and

abetted him is creating the trust and in hiding assets. The Trustee, a few weeks ago,

voluntarily dismissed its lawsuit against the Estate with prejudice.

21
Reports to the bankruptcy court were required in court papers: CP#1061 at ¶3
(“the Trustee will supply the Court with reports setting forth the results of any audio
and/or tape recordings of outgoing calls made by the Debtor."); CP#1060 ¶11;
CP#1127 at ¶5; CP#1128 at ¶3; CP#1125 at ¶4; CP#1094 at ¶4; CP#1019 ¶4;
CP#802 ¶3; CP#799 ¶4.
22
The Trustee references a one line order (Trustee’s Reply at 8), issued by Chief
Judge Edmondson concerning a motion to recall mandate filed by Lawrence during
the mandamus appeal to this court in 2004-2005 (appeal no. 04-15131). Later, in the
final September 19, 2005 order, this Court ruled that Lawrence would be able to
present all of his claims in his direct bankruptcy appeal pending in district court.
Also, later disclosures and admissions of the Trustee were not known, and this Court
never requested a response by the Trustee, consistent with the subsequent decision to
order that all issues should be heard in a direct bankruptcy appeal, not in a
mandamus appeal.
23
Mr. Budwick’s retention as co-counsel began on or about March 9, 1998 when he
was employed by Kozyak Tropin. CP #’s 171, 174. Many of his billing records were
sealed. CP#’s 420, 423, 429, 1432.

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

This Brief (a) complies with the type-volume limitation of Fed.R.App.P.

32(a)(7)(B) because it contains 6,994 words, as counted by the word-processing system

used to prepare this Brief, and (b) complies with the typeface requirements of

Fed.R.App.P. 32(a)(5) and the type style requirements of Fed.R.App.P. 32(a)(6)

because it has been prepared in a proportionally spaced typeface using Microsoft Office

Word in 14-point Times New Roman.

Respectfully Submitted,

Stephan J. Lawre

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed

to Paul Avron, Esq., Berger Singerman, 200 S. Biscayne Blvd., Suite 1000, Miami, FL

33131, on August 23, 2007.

Stephan J. Lawr
19500 Tumbeny ay #23A
Aventura, FL 33180

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