have a chance to review it and maybe even oppose it." (10/14/99
Tr. 11.) The SEC provided the logical explanation why Mr. linger had not
seen it, and the Court facing time pressures involving the order for the
Preliminary Injunction presented for signature (which contained the
proposed approval of the MOA), the transcript reads: "THE COURT:
[Addressing Mr. linger]. I am going to sign it. It will be up to you to
move to vacate [the MOA] if you find there is something in here that is
improper." (Id. at 11-12.)
Mr. linger was thereupon furnished with a copy of the MOA and one would
assume he showed it to his client Mr. Armstrong, but in any event nothing
further was ever heard from either Mr. Armstrong or Mr. Unger with regard
to the MOA until February 22, 2002 — twenty-eight months later
— when Mr. Armstrong, now pro se, first raised the present claim
that by ¶ 13(b) of the MOA the Court was "authorizing a secret
judicial inquisition . . ." (2/22/02 Tr. 43-47.) The above examination
establishes this as contrary to fact and the conclusion is rejected.
Mr. Armstrong next asserts that having sought to take Temporary
Receiver Cohen's deposition as to alleged ex parte contacts Mr. Armstrong
claims Mr. Cohen had with the Court, that "this court retaliated by
closing the court and ordering the press to get out." (Armstrong Moving
Papers, pp. 31-32; emphasis supplied.) What the connection is between
Mr. Armstrong's deposition application and the closing of the courtroom
as a claimed retaliation thereto is not explained, but at that hearing,
April 24, 2000, everybody was in the courtroom including Mr. Armstrong and
his six lawyers,*fn10 four from the firm of Tenzer Greenblatt,*fn11 and
his two criminal defense lawyers.
The background of the closing of the courtroom that day was that Mr.
Armstrong had earlier caused to be delivered to the Court two handwritten
unsworn letters.*fn12 In one he charged his civil lawyers. Tenzer
Greenblatt, with abandoning him by failing to contact him in the
Metropolitan Correction Center ("MCC") for the prior two months,*fn13
and in the other letter, he made the statement that Receiver Cohen and
the Court had engaged in the impropriety of "numerous ex parte meetings
and telephone conferences . . . ."
Because Mr. Armstrong's basically hearsay accusations were quite
derogatory to lawyers in several directions, not to mention the Court,
the Court determined to explore them in a "robing room" — type
setting, although using the courtroom itself because of the substantial
number of persons involved. The courtroom deputy put a sign on the
courtroom door that the courtroom was closed. One reporter appeared,
Noelle Knox, from the Associated Press, who inquired as to this and was
advised it was a closed session. The Court is not aware she protested,
and she, Ms. Knox, obviously received full access to the transcript of
the session, for three days later she reported the proceedings that day
having also interviewed Mr. Armstrong. (Exh. J to Armstrong Moving
At the outset addressing the charge of "retaliating" against Mr.
closing the courtroom for the hearing, it is to be observed
that at the time none of Mr. Armstrong's several lawyers or Mr. Armstrong
himself questioned or complained about the closed courtroom. Nor is there
any claim by any lawyer or Mr. Armstrong that anything was omitted from
the transcript, and as observed, the press did get hold of it and
promptly reported it.
As to the-proceeding that day itself, the transcript at the beginning
in relevant part reads as follows:
THE COURT: [W]e are here because of two
handwritten letters of Mr. Armstrong's
to me. . . . Mr. Armstrong has, by his
criminal counsel, Mr. Siegel,*fn14
had delivered to me a letter dated
April 13, 2000. . . . Now, Mr.
Armstrong . . . I don't believe that I
am required to deal with your letter
at all, unless it is before me in
competent form, and by that I mean
that either you have put it in an
affidavit form, which you did not, or
you take the witness stand here under
oath and testify to the accuracy of
the contents. If you do that, I then
have it competently before me. Without
that, I merely have a letter, which is
unsworn and in my opinion not
competent to raise the issues that you
seek to raise.
THE COURT: Mr. Armstrong, do you want to —
you do not have to, I observe to you
this, you do not have to take an oath
and swear to the truth of the
contents. I would observe to you that
if you don't, I am going to treat it
as a nullity before me, and then on
the record that I have, I will go from
MR. ARMSTRONG: Your Honor, if I'm taking an oath and
you want to question me on the limited
issue of this particular letter, that
(4/24/00 Tr. 3-5.)
Prior to that day, having received Mr. Armstrong's letters and being
concerned with regard to the claim of client abandonment against Tenzer
Greenblatt, the Court, as the transcript reads at p. 13, obtained from
officials at the MCC a list of visits by lawyers to Mr. Armstrong in the
period in question. According to the list, Mr. Armstrong in the prior six
weeks had received 28 attorney visits. Mr. Armstrong, when shown the said
MCC report at the hearing, did not accept the total number of visits, but
did acknowledge that "[t]here are a number of attorneys that have come to
visit me," including his criminal defense lawyer Martin Siegel and Mr.
Siegel's assistant Mr. Legon. (Id. at 13.) He also in his testimony
— notwithstanding his letter in which he stated he had had no
contact with Tenzer Greenblatt for nearly two months (Id. at 6),
acknowledged there were three visits by Tenzer Greenblatt lawyers and
possibly one more in that period. (Id. at 8.) Mr. Armstrong at no time in
his testimony before me set forth any matter that any lawyer on his
behalf had failed to do anything about except problems with a workable
tape player and earphones in the MCC so that he could listen to some
tapes, and as to this, it was acknowledged that his criminal attorney
Mr. Siegel was dealing with this problem and that the Court had also
intervened to help solve it. (Id. at 19-20.) Accordingly, the transcript
sets forth the Court's conclusion that day that there was no basis for
his claim of abandonment by Tenzer Greenblatt. (Id. at 23.)*fn16
Finally, Mr. Armstrong in his second letter, which the Court considered
that day, had renewed his assertion that ". . . you [the Court] have
engaged in numerous ex party meetings and/or telephone conferences with
your former law clerk, Mr. Alan Cohen." (Id. at 27.) This was explored
with Mr. Armstrong by the Court on the stand under oath. At this point,
the transcript needs to be extensively quoted to show the vacuity of this
THE COURT: Let me hear you address yourself to
something specific. Your letter starts
off, "It has been brought to my
attention that you" — that means
me, the Court — "have engaged in
numerous ex parte meetings and/or
telephone conferences with your former
law clerk, Mr. Alan Cohen." Now, where
did you get that?
MR. ARMSTRONG: In part from the record itself, your
Honor, that —
THE COURT: What record?
MR. ARMSTRONG: Pardon me?
THE COURT: What record? Where can you point to a
record that says that?
MR. ARMSTRONG: That Mr. Cohen was appointed ex parte
as the receiver over a
THE COURT: Yes, that was by Judge Kaplan.
MR. ARMSTRONG: No, by you, your Honor.
THE COURT: Not me.
MR. ARMSTRONG: From my understanding, Judge Kaplan
appointed him over PEI and PGM.
Subsequently he —
THE COURT: I see.
MR. ARMSTRONG: — he met with you.
THE COURT: That was here.
MR. ARMSTRONG: Yes, I believe one or two days before
I was incarcerated, I think, or maybe
around very early January, there was
an ex parte appointment of Mr. Cohen
over all the individual PGM
THE COURT: That was done, if I remember —
MR. ARMSTRONG: In early January, I thought.
THE COURT: — on the submission to me of a
proposed order, with copies to
everybody, I am confident.
MR. ARMSTRONG: From the information I had, Mr. Unger
said he was not noticed on that.
THE COURT: Who told you that?
MR. ARMSTRONG: Mr. Unger told me that we were not
THE COURT: "Numerous ex parte meetings." Did Mr.
Unger tell you that I had an ex parte
MR. ARMSTRONG: I am just referring to that one in
particular, your Honor.
THE COURT: No. I'm asking you, did he tell you
that I had ex parte meetings with Mr.
MR. ARMSTRONG: I have been told that Mr. Cohen views
that he has the right to go ex parte
to the Court —
THE COURT: Who told you that?
MR. ARMSTRONG: Your Honor, I think it was Tenzer
Greenblatt who had told me along those
lines, and I think Mr. Siegel referred
THE COURT: That doesn't give me a name and it
doesn't satisfy me. Who told you? What
person told you?
MR. ARMSTRONG: I believe it was at the meeting I had
at the MCC. It was brought up in a
discussion, I believe, by Mr.
Finkelstein or Mr. Kalaria, and Mr.
Sjoblom was there — that there
was some discussion as to the
receiver's position of ex parte
meetings, that he had — was
either reporting or something to that
degree, which was the purpose of why I
wanted to find out exactly what is
THE COURT: I'm looking at language that says,
"You," the Court, "have engaged in
numerous ex pane meetings and/or
telephone conferences." Was that said
to you at any time?
MR. ARMSTRONG: And, also, information was given to me
that Mr. Howard Burns, I think it is,
or the lawyer who represented
Pelletieri, Rabstein, and Altman, made
the same comment as to telephone
conversations that your Honor and Mr.
Cohen were on together and then called
him to be joined on the conference
calls and that he had the impression
THE COURT: I am going to direct that Mr. Burns is
ordered to come to this court and back
MR. ARMSTRONG: This is information that I heard, your
Honor, not directly from Mr. Burns —
THE COURT: From Mr. Burns?
MR. ARMSTRONG: Not directly from Mr. Burns.
THE COURT: Then I cancel that order.
MR. ARMSTRONG: I did not speak to Mr. Burns.
THE COURT: You said that was the source of your
MR. ARMSTRONG: I said this was information of
comments that I had heard from other
lawyers at this table —
THE COURT: Who?
MR. ARMSTRONG: — who told me that that has been
THE COURT: Who?
MR. ARMSTRONG: I don't specifically remember which
lawyer, your Honor.
MR. UNGER: Your Honor —
THE COURT: But it's all unattributed hearsay, is
it not? Mr. Unger, do you want to say
something at this point?
MR. UNGER: I might be able to clarify some of
this. There was a rumor that we had
heard about something like that. I
spoke to Mr. Burns to determine
whether it was accurate or it was
inaccurate, and Mr. Burns assured me
that it was inaccurate and that there
was nothing to back that up at all. So
we did hear it, and we did — you
know, I did follow up on it, to
determine whether there was anything
THE COURT: Mr. Armstrong, is that the high-water
mark of your position?
MR. ARMSTRONG; Your Honor, if the Court is
representing that there was not an ex
THE COURT: I am not going to represent anything.
I am not going to act on this letter,
because you have put nothing competent
THE WITNESS: Your Honor, I was under the impression
that Mr. Cohen went to the Court ex
parte to have himself appointed
receiver over numerous PGM companies,
companies in Europe, companies in
Australia that were not named by Judge
Kaplan, that there was not a hearing
on it, and that it was supposed to
have been ex parte.
THE COURT: It was an order that was served upon
everybody, was it not?
MR. ARMSTRONG: Not to my knowledge.
MR. COHEN: The January 6th order, your Honor,
everybody got it. There was actually
discussion in court about the issue.
And counsel objected to it. And the
order, if your Honor will recall,
clarified Judge Kaplan's order as to
those companies that were within the
ambit of PEI and PGM and attempted to
set forth, in writing, on papers
submitted, not on some ex pane basis,
not on some phone call, not on
anything else, on the papers, to
define the companies that were within
the ambit of Judge Kaplan's order. And
for the record, of course, Judge
Kaplan made the appointment [of me] on
the request of the CFTC and the SEC,
and I wasn't in the room, I wasn't in
the courthouse, or in the state.
THE COURT: OK. Mr. Armstrong, is that not your
MR. ARMSTRONG: Your Honor, I have no transcripts of
any meeting in court on January 6. 1
would respectfully request the court
clerk if he would at least deliver
transcripts of all the court sessions
to the MCC, I would greatly appreciate
it. If there was such a meeting that I
was not at and I was not aware of, I
would appreciate requesting the Court
to have all transcripts of sessions.
And I think that will ensure that I am
not under any misinterpretations in
THE COURT: I have nothing before me raised by the
letter of April 17, 2000, and
therefore I decline to explore it any
further. There being nothing raising
an issue that needs to be addressed as
to your formal request of a subpoena
of Mr. Cohen to appear at MCC for a
deposition, that request is denied.
(H. at 27-33.)
Given the foregoing, there is no basis for Mr. Armstrong's hearsay
accusation of "retaliation" against him by the Court and the claims of ex
parte communications between the Court and the Temporary Receiver having
evaporated, the ruling above denying a deposition of Mr. Cohen on that
subject does not require me to recuse myself to be a witness in this case
as Mr. Armstrong contends at p. 30 of his moving papers.
Finally. Mr. Armstrong asserts at the close of his papers:
It is also clear that the use of a former law clerk
acting as the Receiver in a case and also as judicial
inquisitor and prosecutor, given the continuance of
this indefinite contempt based solely upon his
unspecified allegations arising from this judicial
inquisition (1/7/02. p. 17. L5-6), does not comport
with the appearance of impartiality commanded by
28 U.S.C. § 455 or § 144.
(Armstrong Moving Papers. p. 35; emphasis supplied.)