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United States District Court, Southern District of New York

July 17, 2001


The opinion of the court was delivered by: Owen, District Judge.


This Opinion and Order serves to supplement my prior oral findings and order of July 6, 2001 that the previously-imposed confinement of Martin A. Armstrong in the Metropolitan Correctional Center on an order of civil contempt still serves coercive purposes; it might yet yield its intended result and should therefore be continued in order to coerce compliance with this Court's Contempt Order of August 25, 2000. The estimated value of the missing corporate assets, as documented by the Temporary Receiver,*fn1 is approximately $14.9 million and Armstrong has come forward with not a scintilla of evidence to suggest good faith efforts to comply with the Contempt Order, or that he is either unable to comply or that the contempt has lost all of its coercive effect.

I reached this conclusion at the hearing on July 6, 2001 and, upon receipt of opposition papers from Armstrong's CJA counsel, I reexamined the issue and remain of the opinion, based on my "individualized assessment" of Armstrong and the circumstances of the contempt, see In Re Grand Jury Subpoena (John Doe), 150 F.3d 170, 172 (2d Cir. 1998), that there is a "realistic possibility" that extending the term of Armstrong's confinement will eventually compel compliance with the Contempt Order. See Simkin v. United States, 715 F.2d 34, 37 (2d Cir. 1983); United States v. Salerno, 632 F. Supp. 529, 531 (S.D.N.Y. 1986) (citing In the Matter of Milton Parrish, 782 F.2d 325 (2d Cir. 1986)). The authority for such continuation is derived from the District Court's general and inherent equitable powers to coerce compliance with its lawful orders.*fn2 See Chambers v. NASCO, be., 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966); Sigety v. Abrams, 632 F.2d 969, 976 (2d Cir. 1980).

The burden is on Armstrong to prove impossibility of compliance or that confinement has become punitive and not coercive. See In re Marc Rich & Co., A.G., 736 F.2d 864, 866 (2d Cir. 1984); Simkin, 715 F.2d at 36-37. Armstrong has net produced the missing black Compaq computer (Contempt Order, ¶ 1(1)), the missing gray Dell computer hard drive (Contempt Order, ¶ 1(2)) or any additional corporate assets since January 14, 2000, all of which are specifically identified in the Contempt Order of August 25, 2000.*fn3 Further, Armstrong has communicated no information whatsoever about the present disposition of those items to the Temporary Receiver, despite no fewer than fourteen letters from April 2000 through June 2001 from the Temporary Receiver to Armstrong personally and his attorneys; all of this correspondence, the latest of which, representative thereof, is attached hereto as Appendix A, offers the Receiver's assistance in retrieving items identified in the Contempt Order and purging Armstrong's contempt. Nevertheless, Armstrong has not come forward with any evidence regarding the whereabouts, much less produced, the 102 gold bars (Contempt Order, ¶ IV(2)), the 699 gold bullion coins (Contempt Order, ¶ IV(1)), the ancient coins purchased pre-September 1998 (Contempt Order, ¶ IV(4)) and the $750,000 bust of Julius Caesar (Contempt Order, ¶ IV(3)), all detailed, again, in this Court's Contempt Order at pages 9-18 and, once more, in the declaration of Tancred V. Schiavoni, Esq., Special Counsel to the Temporary Receiver, executed on July 6, 2001, at ¶¶ 2-3, 6-12.

The burden of producing such evidence is on Armstrong. "It is well-settled that if a court finds that a defendant could at some time in the past have complied with a court order, the court should presume a present ability to comply . . . ." See Thom, 760 F.2d at 739-740 (quoting United States v. Rylander, 460 U.S. 752, 757, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983)). The record is clear that Armstrong remains in possession, custody and control of the corporate assets identified in the Contempt Order and, most recently reidentified in the Stamoulis and Schiavoni Declarations. For example, Armstrong testified at the contempt hearing on January 14, 2000 that he took the gold bars from the office at Carnegie Center in 1998, brought them home and subsequently gave them to Akira Setogawa after Setogawa showed up in a limousine at Armstrong's home. However, the limousine driver, Michael Faulkner, whom Armstrong testified at the contempt hearing witnessed Setogawa take the missing gold bars, denied during a deposition that he ever saw Armstrong give any gold or gold bars to Setogawa. The Temporary Receiver also submitted a signed*fn4 transcript of the examination of Nigel Kirwan, in a proceeding to which the Receiver was not party, on which Armstrong relies to support his assertion that Kirwan is holding the assets in trust and Armstrong has no control over Kirman. Armstrong's counsel argued:

And if I could, your Honor, the only thing is to comment on the Kirwan deposition, which [is] one of the documents of the receiver relies upon — part of the deposition that the receiver cites is that part that talks about the assets being held in trust, that Kirwan's holding certain assets in trust, in Australia, and I don't see, even if Mr. Armstrong is released, he's not traveling to Australia to recover those assets and I don't think that Mr. Kirwan would follow any particular order of Mr. Armstrong to release those assets even if he had the power to ask him to do so.

(Tr. at 30.) Kirwan's answers in this deposition, however, are some of the strangest, most unbelievable, statements this Court has ever encountered. Kirwan claims to be the trustee of two trusts with the same name. (Kirwan Dep. at 89., attached as Ex.18 to Schiavoni Decl.) He testified that one trust has a bank account in Switzerland, (Kirwan Dep. at 91), but he does not know the name of the bank (id.) and does not have any documents in Australia that show the identity of the bank (Id.) despite his position as trustee. If such statements were not enough to warrant dismissal of Kirwan's assertions in this examination, I observe that Kirwan never acknowledges actually having the assets anywhere in the transcript.

Put simply, there is no new evidence before me. Armstrong has provided me, but mostly the Court of Appeals, nothing but self-serving and conclusory statements that he does not have possession, custody or control over the assets sought by the Temporary Receiver, but has come forward with no hard evidence to substantiate this assertion. See Rylander; 460 U.S. at 757-758, 103 S.Ct. 1548 (holding defendant does not meet burden of production with an ex parte affidavit denying ability to comply). Thus, he has not satisfied his burden of production.

Armstrong's remaining assertion is that he cannot comply, and cannot be ordered to comply, with the Contempt Order because he is under indictment in a parallel criminal proceeding. Armstrong argues that, even assuming he had possession, custody or control of the missing corporate assets, compliance with the Contempt Order violates his Fifth Amendment privilege. This assertion must be disregarded on two grounds. First, Armstrong has undeniably waived his Fifth Amendment privilege. He did so on January 14, 2000 at the Contempt Hearing when he testified regarding the factual circumstances surrounding the gold bars, the coins, antiquities and bust of Julius Ceasar and, moreover, that he no longer had possession of these items — all testimony I did not credit. Regardless of my credibility determination on these issues, had he wished to remain silent for fear of self-incrimination at that time, he could have done so by asserting the Fifth Amendment. His failure to do so operates as a waiver of the privilege.*fn5 Second, Armstrong's mountain of papers do not support any assertion of the Fifth Amendment. His current position, documented in an affidavit attached to his counsel's papers of July 11, 2001, is that he does not have possession, custody or control of the missing corporate assets. If this is the case, the Fifth Amendment cannot be asserted in good faith. In my effort to truly make an "individualized determination" about the Contemnor and the circumstances surrounding his contempt. I have reviewed the submissions and proceedings in the Second Circuit. Even the Court of Appeals expressed disbelief regarding his Fifth Amendment claim.*fn6 The following was the colloquy on the issue when the Circuit reviewed the Contempt Order:

The Court:*fn7

How does the Fifth Amendment issue arise — um, if, um, if Mr. Armstrong's position is that he doesn't have it? If he doesn't have any of these things, well, isn't it idle to talk about whether hypothetically it would be a violation of his Fifth Amendment rights to turn them over? To assert a Fifth Amendment right, wouldn't Mr. Armstrong have to say, "I have it" and "I won't give it to you because of my Fifth Amendment right?"


Well, arguably, he has testified that he has had the assets and that he had given them to somebody else, an argument that the District Court does not, um, believe.

The Court:

I just find it strange. I mean, I find the assertion of the Fifth Amendment rather strange because usually one says I have something in my head or I have something in my possession that I will not turn over and that is why I'm asserting the Fifth Amendment because there is that possibility of incrimination. Here, his position is entirely different. His position is I don't have any of this stuff. I couldn't turn it over if I wanted to. So I'm not sure I know why the Fifth Amendment issue is really live here.

Against this background, I am not persuaded by Armstrong's assertion that his confinement for contempt may not continue based on a valid assertion of the Fifth Amendment.

Armstrong has produced no evidence.*fn8 What he has produced, however, is paper. Armstrong has, to date, filed no fewer than fifteen "emergency" motions in the Court of Appeals, including, it appears, two petitions for rehearing en banc, and, most recently, a petition for certiorari in the Supreme Court.*fn9 Although I will address the content of some of these papers which were put before me by Armstrong's CJA counsel, I do observe that this mountain of paper "[s]uggests the opposite of what, I suspect, was its intended effect." Quantum Corp., 2001 WL 637387, at *2. "It demonstrates that [the contemnor] is beginning to feel the full coercive effects of his incarceration for civil contempt. Colloquially, he wants `out.'" Id.

Turning to the specifics of Armstrong's submissions, his counsel contends that there is no realistic possibility of compliance based on an recent affidavit submitted to the Court of Appeals seeking a writ of mandamus to prevent a previously scheduled, and later cancelled, deposition of Armstrong by the Temporary Receiver. Armstrong's affidavit states:

Fifthly, and perhaps of the most importance, is the firm unshakable belief that I have that the proceedings in this Court are solely designed to curb and destroy my civil rights. And, their intent is solely to create pretrial incarceration to extort, through physical and psychological pressure, cruel and unusual punishment prior to any adjudication, in a vain to attempt to extort, by brute force, a guilty plea in the criminal case. I would sooner waive my right to life than compromise my integrity. I shall not submit — ever — to the demands of this Court as I view them as un-American and perfect examples of how the terms "justice" and "liberty" have become hollow words.*fn10

(Armstrong Dep. at 3, attached as Ex. D to Kleinman Decl. and Mem. of Law in Support of Contemnor's Objection to Continued Incarceration. dated July 11, 2001.) Armstrong's counsel contends that these words "[e]stablish the impossibility of Mr. Armstrong's compliance with this order to turn over." (Tr. at 28.) As a threshold matter, "The Court need not accept a contemnor's assertions of unwaivering recalcitrance at face value." Salerno, 632 F. Supp. at 531 (quoting Parrish, 782 F.2d at 327). Indeed, "[e]ven if the judge concludes that it is the contemnor's present intention never to [comply], that conclusion does not preclude the possibility that continued confinement will cause the [contemnor] to change his mind." In re Grand Jury Proceedings, 2001 WL 527401, at *1 (E.D.N.Y. April 27, 2001) (quoting Simkin, 715 F.2d at 37) (internal marks omitted). The discretion in deciding whether further incarceration may have coercive effect is unusually broad.*fn11 See Simkin, 715 F.2d at 38.

As Armstrong's protestations and rhetoric become more vituperative with respect to the motivations of this Court, the Temporary Receiver, the SEC, the CFTC and the U.S. Attorney's Office, I am persuaded that he is just now starting to feel some effects of his continued confinement, especially since his appeal of the Contempt Order failed. Further, his various other attempts at undermining the Contempt Order by pursuing extraordinary forms of appellate relief, which have in some respects provided him with hope of release and thereby reduced the coercive effect of incarceration, have fallen short. It is only now that, with the exception of a few petitions that remain sub judice, the appellate remedies have yielded no success that he will feel the requisite degree of coercion and understand that the only way out of his civil confinement is compliance with this Court's Contempt Order.

Finally, I observe that while it is a matter of discretion to continue Armstrong's contempt indefinitely — which I am exercising here based on the record before roe — I am aware that his civil confinement cannot last forever. See Thom, 760 F.2d at 740 (quoting Maggio v. Zeitz, 333 U.S. 56, 76, 68 S.Ct. 401, 92 L.Ed. 476 (1948)). However, the landscape of case-law addressing this issue reveals that Armstrong's confinement has not yet approached an inappropriate duration, especially given the enormous value of the missing assets and my finding that his detention remains coercive and not punitive. See Thom, 760 F.2d at 740 (considering dollar value of missing assets and contemnor's character); CFTC v. Wellington Precious Metals, Inc., 950 F.2d 1525, 1531 (11th Cir. 1992) (evaluating contemnor's 22 months of detention at time of decision and holding that civil confinement may continue for "many months or perhaps even several years"); Hankins v. Civiletti, 614 F.2d 953, 954-955 (5th Cir. 1980) (upholding civil confinement for approximately three years at time of decision where contemnor claimed he lacked possession, custody or control and argued that privilege against self-incrimination spared him production of certain records). In this regard, it is appropriate to note that one in civil contempt keeps the key to his cell in his own pocket at all times.

The foregoing constitute the Court's findings of fact and conclusions of law.

Accordingly, Armstrong's confinement in the Metropolitan Correctional Center on an order of civil contempt will continue with this Court evaluating from time to time, on its own initiative or application from any party to the above-captioned actions, whether release is warranted.


O ____________________ O'MELVENY & MYERS LLP

LOS ANGELES Citigroup Center WASHINGTON, D.C. CENTURY CITY 153 East 53rd Street HONG KONG IRVINE New York, New York 10022-4611 LONDON


June 15, 2001 OUR FILE NUMBER 684.617.001

WRITERS DIRECT DIAL Bernard V. Kleinman, Esq. 212-326-22 3000 Westchester Avenue Suite 207 WRITERS E-MAIL ADDRESS Purchase, N.Y. 10577-2523

Re: Princeton Economic Institute

Dear Mr. Kleinman:

I reviewed a package of papers from Mr. Armstrong that generally bear the date April 12. 2001. He appears to have mailed some or all of these papers to the Supreme Court. Once again, Mr. Armstrong has gone to great lengths not to attach the Contempt Orders that were issued in August 2000. As you know, these Orders set out in great detail what Mr. Armstrong needs to do to comply. The Orders identify the assets that he has refused to turn over. The Orders also set out in great detail the basis for the contempt findings. Mr. Armstrong does not attach these Orders to his "appendix." Nor does he draw the Court's attention to any of the provisions of these Orders. Rather, Mr. Armstrong simply attaches the one page handwritten Order that was handed to the Marshals on January 14. He then suggests that this is the only Order that has been issued concerning his contempt and argues that this Order is ambiguous. All of this only suggests that Mr. Armstrong wants to divert attention from his actions and the assets that he continues to withhold. After all, he has offered no explanation for why he has failed to turn over these assets. Otherwise, someone in Mr. Armstrong's situation would have long ago offered an explanation for the missing items. Certainly, this is how a lawyer would deal with this issue.

We have previously written Mr. Armstrong to express our concern about these types of intentionally misleading pleadings. This sort of submission is frivolous and wasteful, Even worse, this is all a tremulous waste of time for Mr. Armstrong. Please convey these points to Mr. Armstrong.

We stand ready to provide any reasonable assistance that Mr. Armstrong may need to comply with the District Court's turn over Orders. We have offered to meet with Mr. Armstrong. We have also offered to consider any explanation he may have for his non-compliance. In response, Mr. Armstrong has refused our offer of assistance and declined to meet with us.

O'MELVENY & MYERS LLP Bernard V. Kleinman, Esq., June 15, 2001 — Page 2

Very truly yours, ____________________ Tancred V. Schiavoni for O'MELVENY & MYERS LLP

cc: Martin Armstrong N.Y. 1:812179.1

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