UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Case No. 05-11831 and Case No. 06-11250

Appeal from Orders of the United States

District Court for the Southern District of Florida
Case No. 05-20485-CIV-GOLD/SIMONTON

STEPHAN JAY LAWRENCE,

Appellant,

v.

ALAN L. GOLDBERG, chapter 7

trustee for the bankruptcy estate
of Stephan Jay Lawrence,

Appellee.

TRUSTEE'S RESPONSE IN OPPOSITION TO APPELLANT'S MOTION FOR

RECONSIDERATION OF ORDER OF DISMISSAL FOR LACK OF JURISDICTION

BERGER SINGERMAN, P.A.

Attorneys for Alan L. Goldberg, Appellee
200 S. Biscayne Blvd., Suite 1000
Miami, FL 33131
Tel: (305) 755-9500
Fax: (305) 714-4340

Paul Steven Singerman

Florida Bar No. 377860
James H. Fierberg
Florida Bar No. 0050970
Paul A. Avron
Florida Bar No. 0050814
Lawrence v. Goldberg, Case No. 05-11831 and 06-11250

CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT

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

2. Berger Singerman, P.A., counsel for Alan L. Goldberg, Appellee.

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

4. Fierberg, James H., counsel for Alan L. Goldberg, Appellee.

5. Gold, Hon. Alan S., U.S. District Court, Southern District of Florida.

6. Goldberg, Alan L., Bankruptcy Trustee, Appellee.

7. Lawrence, Stephan Jay, Appellant (Pro se).

8. Office of the U.S. Trustee

9. Singerman, Paul Steven, counsel for Alan L. Goldberg, Appellee.

10. Utschig, Thomas S., U.S. Bankruptcy Court, Southern District of Florida.

11. There is no creditors' committee.

•
by Lawrence, making Ochoa-Vasquez inapposite. Likewise with respect to the fact that the

matters under seal in Ochoa-Vasquez were part of a pending criminal prosecution which, again,

was not part of the proceedings that resulted in Lawrence's incarceration. Moreover, unlike in

Ochoa-Vasquez, all of the matters under seal prosecuted by the Trustee, save one, note 4, above,

were undertaken "for one purpose," that is, to try and locate the Trust for the benefit of

Lawrence's creditors consistent with the statutory duties imposed on the Trustee by section

704(1) of the Bankruptcy Code. Exhibit E, at 12, n.10 ("all of the orders authorizing the matters

under seal referred to by Lawrence were brought by the Trustee for one purpose, that is, to fulfill

the statutory duties set forth in 11 U.S.C. § 704(1) (collecting and reducing to money property of

the estate)."). And, of course, these matters would not have had to be initiated had Lawrence

complied with the underlying turnover order. Id. (recognizing that but for Lawrence's failure to

comply with the turnover order the Trustee would not have had to file the complained of

pleadings under seal).

22. Of note, the Eleventh Circuit, in rejecting Mr. Ochoa's challenge to his conviction

based upon the matters under seal, noted that he failed to establish that the sealed records

"exonerated" him. Ochoa-Vasquez, 428 F.3d at 1027. Likewise, as discussed above, the

bankruptcy court's decision to find Lawrence in civil contempt and order him incarcerated for

that contempt was not based upon any matters prosecuted under seal. And, notwithstanding

Lawrence's arguments to the contrary, nothing in or related to the sealed record, including most

prominently the copies of the tapes of outbound non-privileged calls made by Lawrence from the

FDC, 12 "exonerated" him. While it is true that, unfortunately, none of the information accessed

12
Having been on actual notice that all outbound calls, except those properly placed calls to
counsel, Lawrence made from the FDC were monitored and subject to recording, Lawrence
waived any expectation of privacy therein. See, e.g., Cook v. O'Toole, 1998 U.S. Dist. LEXIS
by the Trustee through discovery orders entered by the bankruptcy court uncovered the location

of the Trust res, or property purchased therewith, that fact in no way impairs or otherwise calls

into question the validity of the finding by the bankruptcy court, upheld by the district court and

this Court, that Lawrence retains de facto control over the Trust.

23. Of note, the Court recognized that there may be an "overriding interest" in sealing

certain court proceedings. Ochoa-Vasquez, 428 F.3d at 1030. Here, that "overriding interest" was

in trying to locate the Trust res that Lawrence had been ordered to turn over to the Trustee

without that property being further secreted by Lawrence. Lastly, like in Ochoa-Vasquez, id.,

Lawrence was granted access to most all of the documents filed under sea1, 13 and Lawrence has

failed to establish prejudice in the form of the underlying contempt and incarceration findings

which, as discussed above, were not based on the sealed record. The fact that the matters filed

under seal have been unsealed by order of the bankruptcy court giving access to those documents

by Lawrence remains even assuming arguendo Lawrence's assertion that no prejudice need be

shown. Motion at 9, n.15.

24. For the reasons stated in para. 7, above, Lawrence's purported Fifth Amendment

claim, Motion at 13-14, is not properly before this Court. Even if it were, the bankruptcy court's

5846, *4 (D. Mass. 1998) ("an inmate has no legitimate expectation of privacy in telephone
conversations as to which he has been previously informed that they are subject to monitoring.");
United States v. Lewis, 1999 U.S. App. LEXIS 20337, *2-4 (9 th Cir. 1999) (same); United States
v. Workman, 80 F.3d 688, 694 (2d Cir. 19996) (same); United States v. Van Poyck, 77 F.3d 285,
290-91 (9th Cir. 1996) (same). Upon information and belief, Lawrence was on actual notice that
his outbound calls were monitored and subject to recording through (i) the orientation session he
attended when he was first brought to the FDC, (ii) a written acknowledgment of this policy
which he signed, and (iii) signage on telephones in the FDC. With respect to outbound calls to
counsel, upon information and belief Lawrence failed to seek permission to use phones
specifically set up for such calls that were not subject to monitoring and recordation. Therefore,
Lawrence waived any expectation of privacy in such calls. See id.
'3
This statement assumes arguendo Lawrence's statement that he does not have all of the
documents filed under seal. Motion at 11, n.17.
with the underlying turnover order. Commodity Futures Trading Comm 'n v. Wellington Precious

Metals Corp., 950 F.2d 1515, 1530-31 (11th Cir. 1992).

Conclusion

27. Based on the foregoing, the Court should deny the Motion.

Dated: August 22, 2006 Respectfully submitted,

BERGER SINGERMAN, P.A.

Attorneys for Alan L. Goldberg, Appellee
200 S. Biscayne Blvd., Suite 1000
Miami, FL 33131
Tel: (305) 755-9500
Fax: (305) 714-4340

By: 'Past ).9Z,Z71,_

Paul Steven Singerman
Florida Bar No. 377860
singerman@bergersingerman.com
James H. Fierberg
Florida Bar No. 0050970
j fierberg@bergersin german. corn
Paul A. Avron
Florida Bar No. 0050814
pavrona,bergersingerman.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served via

Federal Express on this 22nd day of August, 2006 upon Stephan Jay Lawrence, Reg. No. 49061-

004 (LEGAL PAPERS/PRIVILEGED) (OPEN IN PRESENCE OF INMATE ONLY), FDC

Miami, 33 N.E. 4th Street, Miami, FL 33132.

Paul A. Avron