judge turnoff issues contempt order

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

CASE NO.: 07-CR-60172-LENARD

UNITED STATES OF AMERICA,

Plaintiff,

vs.

PATRICK COULTON,

Defendant.____________________________/

REPORT AND RECOMMENDATIONS AND ORDERS

THIS CAUSE is before the Court upon Defendant Patrick Coulton’s Motion for Contempt

(ECF No. 199), as well as other related motions set forth herein. This matter was referred to the

undersigned by the Honorable Joan A. Lenard, United States District Judge for the Southern District

of Florida. (ECF No. 200). The unique circumstances of this case have necessitated several hearings

on this matter. The following hearings were held before the undersigned: March 29, 2012 (ECF No.

202); May 31, 2012 (ECF No. 209); June 1, 2012 (ECF No. 210); July 6, 2012 (ECF No. 232); July

24, 2012 (ECF No. 243); August 9, 2012 (ECF No. 253); August 16, 2012 (ECF No. 264); and

September 4, 2012 (ECF No. 279). The undersigned has considered the written and oral arguments,

the testimonial and record evidence, the post-hearing submissions, the applicable law, and is

otherwise duly advised in the premises.

Case 0:07-cr-60172-JAL Document 294 Entered on FLSD Docket 02/01/2013 Page 1 of 37

The background of this case has been set forth extensively in the Court’s Order (ECF No. 196)1

granting Defendant’s Motion for Return of Unearned Legal Fees and Imposition of Sanctions WithRequest for Evidentiary Hearing. (ECF No. 167).

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I. Background1

By way of summary, these civil contempt proceedings arose from non-compliance with an

Order of the Court, consistent with a prior order of reference from Judge Lenard (ECF No. 176),

finding that the alleged contemnors engaged in ineffective representation in a criminal case and

requiring them, inter alia, to return all legal fees and property taken from Defendant Patrick Coulton

and his family.

The undersigned held a hearing on Defendant Patrick Coulton’s Motion for Return of

Unearned Legal Fees and Imposition of Sanctions, at which neither Respondent Emmanuel Roy nor

Peter Mayas appeared. (ECF No. 186). Proceeding under the Court’s ancillary jurisdiction, on

September 16, 2011, the undersigned entered a 33–page, detailed Order granting the motion, entering

judgment in favor of Coulton in the amount of $275,800.00, representing unearned legal fees paid

to former counsel, Roy and Mayas, with statutory interest from the date of judgment, requiring the

return of all personal and real property taken from the Coultons, and imposing sanctions. (ECF No.

196).

The Order required payment of the judgment only as an alternative to their returning the real

and personal property taken from the Coultons. That is, Roy and Mayas were required to return the

real and personal property taken from the Coultons, or its monetary equivalent. The Order further

required Roy and Mayas to cooperate with Coulton in the enforcement and collection of the

disgorgement Order. In the event they did not satisfy the disgorgement portion of the Order, they

were required to complete and file sworn, personal and business financial statements. Further, in the


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event Roy and Mayas failed to comply with this additional provision, they, and their respective law

firms, were subject to what amounted to a complete asset injunction.

In addition, Roy and Mayas, and their respective law firms, were held in contempt of court.

The undersigned found that Roy and Mayas’ willful, deliberate, and fraudulently contemptuous

conduct warranted the imposition of sanctions pursuant to 28 U.S.C. § 1927, summarized as follows:

(1) Roy and Mayas were enjoined from practice before the Court; (2) they were publicly

reprimanded; (3) they were referred to the relevant disciplinary bodies of the Bars of which they are,

or were, members; (4) they were ordered to reimburse Coulton for all fees expended to retain

substitute counsel, Paul D. Petruzzi, Esq., in the amount of $7,500.00, within 10 days of being served

with a copy of the court’s Order; (5) they were ordered to pay the additional fees and costs associated

with litigating Defendant’s motion to refund attorney’s fees (ECF No. 167); and (6) they were

ordered to pay any fees and costs incurred in collecting any and all monetary sums awarded to

Coulton, as ordered by the court, if said amounts were not paid in full within 10 days of service of

the Court’s Order.

A. Service on Roy and Mayas

On October 13, 2011, the United States Marshals Service served a copy of the Court’s

September 16th Order upon Roy. (ECF No. 198). The Florida Bar served a copy of same upon

Mayas. While the exact date of service is unclear, the Court accepts Coulton’s estimated service date

of November 22, 2011, based upon correspondence between Mayas and the Florida Bar. (ECF No.

199) at 4.

Notwithstanding proper service, neither Roy nor Mayas complied with any of the Court’s

directives. As a result, on January 27, 2012, Coulton filed the instant Motion for Contempt, followed


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by a Supplement thereto. (ECF No. 199, 206).

B. Contempt Hearings

The instant motion was originally scheduled to be heard on March 29, 2012. (ECF No. 201).

Due to the fact that Roy and Mayas had not been properly served with the contempt motion or the

notice of the hearing, the matter was reset for May 31, 2012, and Coulton was ordered to serve Roy

and Mayas. (ECF No. 202, 203). On May 30, 2012, counsel for Coulton filed an Affidavit indicating

the various efforts undertaken to provide notice of the contempt hearing and to serve Roy and Mayas

with the contempt motion. (ECF No. 206).

An evidentiary hearing on the contempt motion was held before the undersigned on May 31,

and June 1, 2012, where Mayas and other witnesses testified. (ECF No. 209, 210). The Court

allowed Mayas to represent himself during the two-day hearing but encouraged him to retain

counsel. (ECF No. 220). Roy failed to appear, and matters concerning his contempt were reset to

July 6, 2012. (ECF No. 212).

At the July 6th hearing, the Court addressed the issue of counsel for Mayas.(ECF No. 232).

Due to Roy’s failure to appear, the undersigned issued a bench warrant for Roy’s arrest. Id. On July

24, 2012, the Court held a status conference to address issues concerning Mayas’ representation and

the Report updating the Court that he filed. (ECF No. 236, 243). At that time, in an abundance of

caution, the undersigned appointed CJA counsel for Roy to ensure him due process. Id. On July 26,

2012, the undersigned entered an Order which detailed the history of the issues concerning Mayas

and reopened the contempt record. (ECF No. 245).

Upon being advised of Roy’s arrest, the Court set his initial appearance for August 9, 2012,

and required all parties to appear. (ECF No. 250). At the initial appearance, the Court set a bond as


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to Roy, reopened the contempt proceedings, and reset the contempt hearing as to Roy for August 16,

2012. (ECF No. 253, 259). This time, it was Mayas who failed to appear. The Court ordered Mayas

to appear at the August 16th hearing. (ECF No. 259). On August 16, 2012, a bond was set as to

Mayas, and a final evidentiary hearing on the contempt motion was reset for September 4, 2012.

(ECF No. 264).

Several witnesses testified at the September 4th hearing, and the court took matters under

advisement. (ECF No. 279). The parties filed post-hearing submissions. (ECF No. 284, 287, 288;

224).

The Court notes that, in the interest of making a complete record in this case, it allowed the

parties to present evidence as to any issue. Upon consideration of all such evidence, the undersigned

finds that nothing presented at the contempt hearings was contrary to the Court’s findings in its

September 16, 2011 Order granting the motion for return of legal fees.

II. Contempt

A. Burden of Proof

A finding of civil contempt must be supported by clear and convincing evidence that “(1) the

allegedly violated order was valid and lawful; (2) the order was clear and unambiguous; and (3) the

alleged violator had the ability to comply with the order.” Georgia Power Co. v. Nat’l Labor Rel.

Bd., 484 F.3d 1288, 1291 (11th Cir. 2007); Riccard v. Prudential Life Ins. Co., 307 F.3d 1277, 1298

(11th Cir. 2002).

Upon making a prima facie showing of contempt, the burden shifts to the contemnor to

produce detailed evidence regarding inability to comply. United States v. Rylander, 460 U.S. 752,

757 (1983); In re Lawrence, 279 F.3d 1294, 1299-1300 (11th Cir. 2002); Popular Bank of Florida


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v. Banco Popular De Puerto Rico, 180 F.R.D. 461, 466 (S.D. Fla. 1998). If the alleged contemnor

makes a sufficient showing of impossibility, the burden of proving ability to comply shifts back to

the party seeking to show contempt. Rylander, 460 U.S. at 757; In re Lawrence, 251 B.R. 630, 650

(S.D. Fla. 2000).

In order to rely upon an inability defense, there must be more than a mere assertion of

inability to pay. Chairs v. Burgess, 143 F.3d 1432, 1436 (11th Cir. 1998); U.S. v. Hayes, 722 F.2d

723, 725 (11th Cir. 1984). To satisfy the burden, the contemnor must prove that, despite all

reasonable efforts to comply, compliance was impossible. In re Chase & Sanborn Corp., 872 F.2d

397, 400 (11th Cir. 1989); Rylander, 460 U.S. at 756-57. Even if the efforts undertaken were

“substantial,” “diligent” or “in good faith,” unless there is evidence that “all reasonable efforts” were

made, the claimed inability to comply will not rebut a prima facie showing of contempt. Hayes, 722

F.2d at 725 (quoting United States v. Rizzo, 539 F.2d 458, 465 (11th Cir. 1976)). Finally, “‘where

the person charged with contempt is responsible for the inability to comply, impossibility is not a

defense to the contempt proceedings.’” Lawrence, 279 F.3d at 1300 (quoting Pesaplastic, C.A. v.

Cincinnati Milacron Co., 799 F.2d 1510, 1521 (11th Cir. 1986)).

III. Discussion

The undersigned notes that, while it is impossible to address everything that transpired at the

various hearings held in connection with this matter, in the instant Order the Court has attempted to

summarize the most salient aspects that are representative of the general conduct of the parties

throughout these proceedings. The record in this case is extensive and speaks for itself.

As shall be set forth herein, in the course of the contempt proceedings, Mayas decided to

cooperate with the disgorgement Order and turn over to Coulton’s counsel certain assets whose


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ownership he had disputed vigorously at several hearings. In so doing, Mayas intentionally provided

untruthful testimony to the Court. Although Mayas’ actions purged him of any contempt, his conduct

throughout the proceedings evidenced his willful disregard of the Court’s authority and was certainly

not befitting an officer of the Court. Consequently, the undersigned imposes sanctions on Mayas

pursuant to 28 U.S.C. § 1927 and the Court’s inherent powers.

Roy’s conduct was likewise egregious and sanctionable. The Court notes that Roy is under

the supervision of Pretrial Services in New York in connection with a pending criminal trial.

Notwithstanding, he actively avoided these proceedings forcing the Court to issue a bench warrant

to secure his appearance. Unprecedentedly, in an abundance of caution, the undersigned went so far

as to appoint the public defender to represent him in connection with this matter from the time he

was arrested until he made his first appearance. Once he appeared, Roy attempted to further thwart

the proceedings by seeking a stay under the Bankruptcy Code and then by refusing to provide any

testimony with respect to his ability to comply with the Court’s Order. Roy’s reprehensible conduct

caused the Court to expend much effort in vindicating its authority. Therefore, the undersigned

imposes sanctions on Roy pursuant to the Court’s inherent authority.

A. Coulton’s Burden

The Court must first consider whether Coulton has met his initial burden of establishing a

prima facie case of civil contempt. Undoubtedly, the Court’s Order is valid and lawful, as well as

clear and unambiguous. More so considering that both Roy and Mayas are sophisticated parties

familiar with court proceedings, procedural rules, and legal terminology, as they are experienced

attorneys. Despite having been served with various Court Orders and having understood the full

extent of their obligations thereunder, as well as the consequences of ignoring same, both Roy and


References to transcripts of the various hearings shall be referred to as follows: [date TR at page #].2

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Mayas chose to take no action toward compliance. Thus, the undersigned finds that Coulton has

made a prima facie showing of contempt, thereby shifting the burden to Roy and Mayas, as the

contemnors, to demonstrate their inability to comply.

B. Mayas

1. Contempt

While Mayas had notice of the court’s hearing on the motion for return of fees, he chose not

to appear, or otherwise participate, eventually attributing his absence to medical problems. [Coulton

Exh. AA]; (ECF No. 186). In the Order granting the motion for return of legal fees, the Court found

that Mayas, inter alia, engaged in the knowing, unauthorized practice of law before this Court,

misrepresented himself to Coulton and his family, obtained property from Coulton and his family

outside the scope of the fee agreement, using threats, lies and coercion in so doing. (ECF No. 196).

As noted supra, the Order required Roy and Mayas to return real and personal property, or its

equivalent, as well as provide personal and business financial statements, and otherwise cooperate

in the enforcement of the Order. At the contempt hearing, Mayas testified that he read the Order but

maintained that it was “unjust” and that he had “nothing to do with” the Coulton case. [5/31/12 TR

at 51, 66]. Although the Court pointed out to Mayas that he “can’t just ignore court orders” [5/31/122

TR at 66], the record was reopened as to Mayas on July 24, 2012. (ECF No. 243, 245). The Court

allowed him to present testimony covering any issue that he wanted to address.

Having determined that Coulton met his burden to establish a prima facie case of contempt,

the burden shifted to Mayas to show that he made all reasonable efforts to comply but that

compliance was impossible. As noted supra, Mayas took the position that the Court’s Order


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requiring him to return legal fees to Coulton was unjust, testifying that “I don’t owe it, and I don’t

have it.” [5/31/12 TR at 48]. Consistent with this position, Mayas made no effort, whether

reasonable or otherwise, to satisfy the judgment or to comply with any of the terms of the Order.

Instead, he intentionally disregarded the Order and took steps to thwart its execution by failing to

cooperate and provide financial information; by failing to appear at duly noticed hearings; and by

providing testimony that was evasive and intentionally untruthful, as shall be set forth infra.

After various evidentiary hearings pertaining to Mayas’ contempt, on July 12, 2012, Mayas’

counsel filed a Report to the Court to Update the Court on Developments Since the Last Court

Hearing (ECF No. 236), which had taken place on July 6, 2012 (ECF No. 232). The Report indicated

that the parties were attempting to reach agreement as to Coulton’s contempt claims against Mayas,

who had provided a financial statement at the June 1st hearing. (ECF No. 220). At the next hearing

on August 16, 2012, Coulton’s counsel advised the Court that he was able to obtain Mayas’ signature

on an agreement indicating that Mayas: (a) would convey all right, title and interest in the Miramar

property, along with the keys and all personal property therein, to Coulton’s counsel, as trustee for

Coulton; (b) would no longer enter the Miramar property or remove items therefrom; and (c) would

convey ownership and possession of his 2001 BMW, along with the keys and the title thereto. In

exchange therefor, Coulton would indicate to the Court that Mayas was making a good faith effort

to comply with the financial obligations set forth in the September 16th Order. [8/16/12 TR at 46-

47].

At the following hearing on August 16, 2012, Coulton’s counsel indicated that Mayas had

not complied with any of these terms. However, in open court, Mayas handed over to Coulton’s

counsel the keys to the 2001 BMW, and the keys to the Miramar property. As a result, the Court


In addition to the conduct set forth herein, the Court notes that the undersigned was forced to place3

Mayas under the supervision of Pretrial Services due to difficulties in obtaining his appearance inCourt. (ECF No. 215). After Mayas obtained counsel, the Court ordered that he was no longer underpretrial supervision at the hearing on July 24, 2012. (ECF No. 243). Due to his failure to appear atthe next hearing on August 9, 2012, the Court was forced to reimpose the conditions of release. (ECFNo. 253, 259, 264, 266).

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finds that Mayas has met his obligations under the September 16, 2011 Order to the best of his

current abilities. Thus, Mayas has purged himself of any contempt.

Although there is no finding of contempt against Mayas, the undersigned finds that his

conduct throughout these proceedings is sanctionable under 28 U.S.C. § 1927 and the Court’s

inherent powers. 3

2. Sanctions

In his attempt to misrepresent his involvement in Coulton’s case and his ability to comply

with the Court’s Order, Mayas provided intentionally untruthful testimony. Although Mayas openly

and actively denied both involvement in Coulton’s case and ownership of the Miramar property, the

evidence showed otherwise. The following is set forth as an exemplary illustration of the basis of

the Court’s imposition of sanctions against Mayas.

a. Mayas’ Involvement in Coulton’s Case

Mayas testified that he did not represent Coulton in the criminal case [5/3112 TR at 16-18];

that he only “went to see” Coulton a “few times” on behalf of his “friend,” Roy [5/31/12 TR at 17];

[Coulton Exh. S]; that he was not paid by Coulton or Coulton’s family members [5/31/12 Tr at 50];

and that he had no assets from which to make payment on the judgment. [5/31/12 TR at 15; 35-36;

6/1/12 TR at 39]. Mayas also testified that he has never been admitted to practice in federal court.

[5/31/12 TR at 13].


The undersigned takes judicial notice of the recordings of the proceedings in the underlying criminal4

case.

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Coulton testified that he met Roy and Mayas together at the Federal Detention Center, and

that they held themselves out to be partners. [6/1/12 TR at 5-6]. Mayas advised Coulton that he was

“fully competent” in federal criminal law and that he had been an FBI agent. [6/1/12 TR at 6].

Coulton further testified that Mayas had met with him on several occasions, had attended various

court hearings on his behalf, and had met with prosecutors regarding the seizure of his assets. [6/1/12

TR at 6-8].

Coulton’s testimony is bolstered by the record in this case, to wit: joint notices of appearance

and a joint substitution of counsel filed by Roy and Mayas, (ECF No. 40, 41, 42); [Coulton Exh. B,

C, D]; Roy appeared at Coulton’s initial appearance before Magistrate Judge Ted E. Bandstra,

[audiotape record of proceedings] (ECF No. 25); Mayas appeared at Coulton’s detention hearing4

before Magistrate Judge Stephen T. Brown [audiotape record of proceedings] (ECF No. 56); Mayas

appeared at Coulton’s change of plea before District Judge Joan A. Lenard and signed both the plea

agreement and the factual proffer [Coulton Exh. AA, BB]; (ECF No. 63, 68, 136); and both Mayas

and Roy appeared at Coulton’s sentencing before Judge Lenard. [Coulton Exh. AA]; (ECF No. 111).

Moreover, Assistant United States Attorney Joanne Fine, the prosecutor assigned to the

underlying criminal investigation and prosecution of Coulton, submitted an Affidavit indicating that,

to her knowledge, Mayas appeared at Coulton’s pre-trial detention hearing, that she had various

telephone conversations and email exchanges with Roy and Mayas, both of whom held themselves

out as joint counsel for Coulton, that Mayas appeared at the change of plea hearing, that Mayas

signed the plea agreement, and that Roy and Mayas both appeared at Coulton’s sentencing. (ECF No.


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231).

Notwithstanding ample, verifiable record evidence, Mayas testified incredulously that the

only time he appeared in court was for Coulton’s sentencing. [5/31/12 TR at 18, 28; 6/1/12 TR at

56]. As demonstrated by the record, Mayas made several appearances on Coulton’s behalf. When

Mayas was shown transcripts of those proceedings, not only did he deny having been present, but

he also denied it was his signature on the documents. [5/31/12 TR at 28-29]. Further illustrating the

incredulity of Mayas’ testimony, he denied ever having filed any notice of appearance in federal

court for any defendant [5/31/12 TR at 21], despite multiple exhibits showing his appearances in

several cases in this District. [Coulton Exh. B, C, D, G, AA]. Mayas also denied being Roy’s partner

[5/31/12 TR at 22-23; 26], although there were notices of appearance and substitutions of counsel

(ECF No. 40, 41, 42), as well as an email he wrote to Coulton’s counsel, all indicating that he and

Roy were partners. [Coulton Exh. H].

After Mayas obtained counsel, he justified his testimony that he did not represent Coulton

by claiming that, since he practiced mainly in state court, he had misunderstood the procedure and

significance of entering an appearance in federal court. (ECF No. 236). Mayas’ explanation in this

regard, although possibly true, is unsatisfactory. Mayas, as a practicing attorney, had a professional

duty to familiarize himself with the rules of court prior to undertaking the representation of a client

or even standing in for a fellow attorney. Ultimately, Mayas is responsible for his actions and

misunderstandings.

Given the irreconcilable testimony in the face of credible record evidence, the undersigned

is left with no alternative but to conclude that Mayas intentionally lied, under oath, to the Court

about his involvement in the Coulton case and should be sanctioned therefor.


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B. Miramar Property

Considerable time was spent on establishing the ownership of the property located at 2748

SW 129 Terrace, Miramar, FL (hereinafter, “the Miramar property”). Mayas’ testimony, regarding

the sale to Carmel Sanon-Bryant and the circumstances surrounding his current living arrangements,

was dubious.

During his testimony on May 31, 2012, and June 1, 2012, Mayas denied that he had any

present ownership interest in the Miramar property. He claimed to have sold it to Carmel Sanon-

Bryant and her husband, Freddie Bryant, in 2010, with Roy’s assistance. [5/31/12 TR at 38-39; 54].

Mayas testified that Sanon-Bryant was living at the Miramar property. [5/31/12 TR at 57-58].

According to Investigator Robert Whiting, however, a background check showed that Mayas was

presently residing at the Miramar property and that Sanon-Bryant and her husband resided at a

different address.

Photographic evidence depicting the interior of the Miramar property one year after Mayas

claimed to have sold it to Sanon-Bryant showed Mayas’ artwork and clothing still inside the house,

which Mayas confirmed. [5/31/12 TR at 55-56; 61; 6/1/12 TR at 73-74]. In addition, Mayas testified

that he still received mail at the Miramar property, which was also his listed address on the Florida

Bar website. [5/31/12 TR at 37]. When asked to explain, Mayas testified that he had been living at

the Miramar property on a “part-time” basis [5/31/12 TR at 37], since January or February of 2011.

[6/1/12 TR at 58]. Although Mayas had advised Pretrial Services that, for the past two years, he and

his girlfriend had been renting at 1033 NW 180 Terrace, Plantation, FL [6/1/12 TR at 28], at the

hearing, he testified that, due to problems with his relationship, he rented some of the rooms in the

Miramar property from Sanon-Bryant at a cost of $1,200 to $1,500 per month. [5/31/12 TR at 37;


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56-57]. The last rent payment he made to Sanon-Bryant had been in February 2012. [5/31/12 TR at

57].

The Court also heard testimony from Patricia Saint Vil-Joseph, the attorney who effectuated

the sale of the Miramar property in 2010. Saint Vil-Joseph testified that Mayas asked her to do the

title work on the short sale of his home–the Miramar property–to Sanon-Bryant and her husband.

[5/31/12 TR at 75-77]. At the hearing, Saint Vil-Joseph examined several documents in the loan file

and conceded that they contained false and/or incorrect signatures for Freddie Bryant, Sanon-

Bryant’s husband. [5/31/12 TR at 85-89]. She further conceded that Bryant’s signatures on the

documents did not match that on his driver’s license. [5/31/12 TR at 85-89]. She concluded that, had

she noticed the discrepancies at that time, she would not have effectuated the closing of the sale.

Mayas was shown copies of records from the short sale of the property that were obtained

from First Choice Bank–the purported lender for Sanon-Bryant. [6/1/12 TR at 45]. The documents

showed that, contrary to his denials, Mayas was coordinating the transaction using Sanon-Bryant’s

identity. Moreover, he denied having seen a letter that was faxed to the lender from “the law office

of Peter M,” purportedly signed by Sanon-Bryant, wherein her name was misspelled. [6/1/12 TR at

53-56]; [Coulton Exh. CC]. In addition, the documents from the lender that were introduced into

evidence showed that the name “Freddie Bryant” was spelled differently than on his driver’s license.

[5/31/12 TR at 86-87]. Further, Investigator Whiting testified that he spoke to Bryant who denied

having signed any mortgage documents and indicated that his name was misspelled therein. [5/31/12

TR at 116].

Also at issue was whether Mayas, while maintaining a hidden ownership interest in the

Miramar property, should have been held in contempt for attempting to sell the property in violation


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of this Court’s September 16, 2011 Order, which expressly forbade such transactions. (ECF No.

196). The testimony revealed that, a few months previously, Mayas approached Tamara Georges,

a realtor, to do a listing agreement on behalf of his client, Sanon-Bryant, who wanted to sell the

Miramar property. [5/31/12 TR at 40; 98-99]. Georges testified that the Miramar property seemed

to be occupied by a man, and that she never actually met Sanon-Bryant. [5/31/12 TR at100-101].

After Georges testified on May 31, 2012, she found a document in her file indicating that the

forwarding address that was listed for the seller was the same address where Mayas testified that he

was currently residing. (ECF No. 223).

The evidence demonstrates that Mayas retained control and possession of the Miramar

property despite the purported sale to Sanon-Bryant in 2010. Mayas even admitted that he continued

making some mortgage payments on the Miramar property after its sale. (9/4/12 TR at 216).

Moreover, in January 2012, he attempted to sell the Miramar property using Sanon-Bryant’s identity

in contravention of the Court’s Order which forbade him from, inter alia, transferring any property.

(ECF No. 196). Indeed, at the September 4, 2012 hearing, Mayas testified that Roy, who assisted him

in the transactions involving the Miramar property, had told Mayas that it was better not to have

assets in one’s own name and that Mayas was stupid for having same. (9/4/12 TR at 214-215).

It appears to the undersigned that Mayas intentionally lied to the Court about the Miramar

property, only to turn it over after forcing the Court to hold multiple hearings, take testimony from

several witnesses, and review numerous exhibits. For this conduct, Mayas is sanctioned by the Court.

b. Mayas’ Ability to Comply

Mayas’ testimony concerning his assets was evasive and inconsistent. [5/31/12 TR at 51-72].

Although he testified that he had no assets from which to make payment on the judgment or legal


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fees to Coulton’s counsel [5/31/12 TR at 48], further testimony and evidence revealed otherwise.

With respect to his finances, Mayas testified that he was currently unemployed and had 4 or

5 pro bono cases [6/1/12 TR at 61]; that he had no bank accounts [6/1/12 TR at 66]; that some

clients may owe him money but he has not made efforts to collect [6/1/12 TR at 71-72]; and that he

had no stocks, interest in any business, bonds, mutual funds, or government securities [6/1/12 TR

at 71]. Mayas also testified that he owns a 2001 BMW, and a 1994 Nissan Sentra, both free and clear

of encumbrances [5/31/12 TR at 52, 63; 6/1/12 TR at 75], as well as various works of art,

furnishings, and other belongings [5/31/12 TR at 54-56, 63, 64; 6/1/12 TR at 63-78]. Despite having

reported to Pretrial Services that his monthly income was “0,” Mayas testified that, until February

2012, he paid Sanon-Bryant between $1,200 and $1,500 per month in rent for the Miramar property

[5/31/12 TR at 57], and that he has lived off of $6,500 in cash gifts from family. [6/1/12 TR at 87].

Furthermore, Mayas offered no believable explanation as to why he did not comply with the

other directives contained in the Court’s Order. As to the $7,500 he was required to pay to Coulton’s

attorney in attorney’s fees, he testified that he simply did not have the money. [5/31/12 TR at 48].

With respect to the sworn financial affidavit, Mayas testified that he had not provided one because

he had been unable to hire an attorney to represent him in challenging the Order and cited his health

problems as well. [5/31/12 TR at 49, 65; 6/1/12 TR at 38-40]. Mayas then testified disingenuously

that he did not file a financial affidavit, because he was not admitted to practice in federal court and,

thus, could not file any paperwork. [6/1/12 TR at 38]. Were such a statement attributable to a witness

unfamiliar with the workings of the court system, it might be acceptable; however, coming from an

experienced attorney, not only is it steeped in falsity, but it also constitutes a violation of professional

norms.


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The undersigned finds that Mayas’ testimony was evasive and argumentative and resulted

in the unnecessary prolongation of the proceedings by the calling of additional witnesses and the

introduction of copious exhibits. Despite Mayas’ attempted denials during the contempt proceedings,

there was ample evidence supporting Mayas’ extensive involvement in Coulton’s case, his

ownership of the Miramar property, and his ability to comply with at least some of the terms of the

Order. Therefore, the Court sanctions Mayas not only pursuant to its inherent powers but also

pursuant to 28 U.S.C. § 1927 for the multiplication of the proceedings resulting from his

unreasonable and vexatious conduct.

C. Sanon-Bryant’s Contempt

Coulton filed a Motion for an Order to Show Cause for Sanon-Bryant’s failure to appear at

the May 31, 2012 hearing, after she was subpoenaed as a witness. (ECF No. 225). The show cause

hearing was held on July 6, 2012, and the Court took the issue of Sanon-Bryant’s contempt under

advisement. (ECF No. 228, 232); [7/6/12 TR 46].

Mayas had previously testified at the May 31, 2012 hearing that he did not advise Sanon-

Bryant not to appear. [5/31/12 TR at 59]. Sanon-Bryant testified that Mayas and Anthony Box, her

attorney, had advised her that she did not need to appear at the May 31st hearing because they had

filed a document with the Court. [7/6/12 TR at 19, 27]. Sanon-Bryant asserted her Fifth Amendment

rights as to all other questions pertaining to the Miramar property and its sale. [7/6/12 TR at 25].

Sanon-Bryant’s counsel argued that she relied in good faith upon the advice of her then

attorney. Coulton argued that, based upon the allegations that Sanon-Bryant had conspired with

Mayas with respect to the Miramar property, her good faith reliance was questionable.


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Based upon the witness’ testimony and her demeanor, the undersigned finds that Sanon-

Bryant was reasonably relying upon the advice of her attorney in failing to appear at a duly noticed

hearing for which she was subpoenaed. There is no evidence that Sanon-Bryant’s conduct was in

willful disregard of the Court’s authority. As such, the Court finds that Sanon-Bryant should not be

held in contempt of Court. Accordingly, the Motion for an Order to Show Cause should be granted

insofar as the undersigned held a hearing, but no finding of contempt should be entered against

Sanon-Bryant.

D. Roy

As noted supra, Roy was personally served with this Court’s Order on October 13, 2011, by

the United States Marshals Service. (ECF No. 199) at 3. Not only did Roy fail to comply, but he

spent months avoiding communications from Coulton’s counsel, avoiding service of process, and

ignoring various court orders to the point where the Court was forced to issue a bench warrant to

secure his appearance. (ECF No. 199, 202, 203, 206, 212, 217, 222). When he finally appeared, Roy

filed a suggestion of bankruptcy in yet another attempt to thwart the contempt proceedings against

him. (ECF No. 274).

1. Effect of Roy’s Bankruptcy

Roy filed a sworn bankruptcy petition in the Eastern District of New York on September 28,

2012, and had previously filed a bankruptcy petition on May 12, 2010. (ECF No. 274-1), [Coulton

Exh. GG]. As a result thereof, Roy argued that the Court should stay the contempt hearing scheduled

for September 4, 2012, as it pertained to him. 11 U.S.C. § 362. Toward this end, Roy filed a Motion

for Enforcement of the Automatic Stay Provisions of 11 U.S.C. § 362(a). (ECF No. 277). Roy argued

that, because this was a criminal proceeding that was civil in nature, it was subject to the automatic


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stay provisions of the Bankruptcy Code. Further, even if the proceedings were based upon Roy’s

disregard for the Court’s authority, he argued that the warrant issued by the Court was done to assist

in enforcing the judgment lodged against him, and, thus, was subject to the automatic stay. Coulton

responded that these proceedings were explicitly exempted from the automatic stay provisions of the

Bankruptcy Code because they were intended to enforce the police powers of this Court. 11 U.S.C.

§ 362(b)(4). (ECF No. 278).

Generally, the filing of a bankruptcy petition operates to stay, inter alia, the continuation of

a judicial proceeding against the debtor that was commenced prior to the filing of the petition. 11

U.S.C. § 362(a)(1). However, there are exceptions to the automatic stay provisions. 11 U.S.C. §

362(b). The stay does not bar “the commencement or continuation of an action or proceeding by a

governmental unit . . . to enforce [its] police or regulatory power.” Griggs v. Gadsden Revenue

Dep’t, 327 Fed. App’x 186, 188 (11th Cir. 2009) (citing 11 U.S.C. § 362(b)); see also In re Union

Golf of Fla., Inc., 242 B.R. 51, 60 (M.D. Fla. 1998) (holding that bankruptcy courts should not

interfere with the enforcement of valid state and local laws or with the exercise of a local

government’s police power). “The exception to the automatic stay . . . recognizes that the

government must be able to enforce its laws uniformly without regard to the debtor’s position in the

bankruptcy court.” Brock v. Rusco Indus., Inc., 842 F.2d 270, 273 (11th Cir. 1988) (internal

quotations and citations omitted). Indeed, “[t]his exemption ‘prevent[s] the bankruptcy court from

becoming a haven for wrongdoers.’” In re Berg, 230 F.3d 1165, 1167 (9th Cir. 2000) (quoting

O’Brien v. Fischel, 74 B.R. 546, 550 (D. Haw. 1987)).

Initially, the Court notes that district courts have jurisdiction concurrent with the originating

bankruptcy court to determine the applicability of the automatic stay provisions of the Bankruptcy


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Code. Erti v. Paine Webber Jackson & Curtis, Inc. (In re Baldwin–United Corp. Litig.), 765 F.2d

343, 347 (2d Cir. 1985) (“Whether the stay applies to litigation otherwise within the jurisdiction of

a district court . . . is an issue of law within the competence of both the court within which the

litigation is pending . . . and the bankruptcy court supervising the reorganization.”). Therefore, this

Court has the power to determine the applicability of the automatic stay provisions.

In In re Berg, the Ninth Circuit noted that a majority of courts agreed that “a claimant may

proceed to collect attorneys’ fees imposed as a sanction for the [attorney] debtor’s improper conduct

in litigation without regard to the automatic stay.” 230 F.3d at 1167-68. Adopting the reasoning of

several other courts, the Berg Court held that “Section 362(b)(4)’s government regulatory exemption

exempts from the automatic stay an award of . . . sanction[s] for unprofessional conduct in

litigation.” Id. at 1168 (citing Maritan v. Todd, 203 B.R. 740, 741 (N.D. Okla. 1996); In re Williams,

158 B.R. 488, 491 (D. Ida. 1993); O’Brien, 74 B.R. at 550. The undersigned finds that such

reasoning is sound and adopts same.

Here, sanctions were imposed on Roy and Mayas, in part, for their reprehensible behavior

as officers of the court and for the abuse of their fiduciary position with respect to their client.

Moreover, the Court’s Order was predicated, in part, upon 28 U.S.C. § 1927, as well as the Court’s

inherent powers to vindicate its authority. The Court found that Roy and Mayas, inter alia, had acted

in bad faith and had caused the unreasonable and vexatious multiplication of the proceedings. Thus,

the undersigned finds that the instant matter is exempted from the automatic stay provisions of the

Bankruptcy Code. To find otherwise would reward wrongful behavior and sly craftsmanship.

Given the hybrid nature of these proceedings, and the Court’s Herculean efforts in securing

the presence of the alleged contemnors, the undersigned announced in open court that the contempt


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hearing would go forward in spite of the bankruptcy filing, in order to make a complete record for

the District Court. The motion for enforcement of the automatic stay provisions of 11 U.S.C. §

362(a) is DENIED.

It shall be for the District Court to ultimately decide the fate of these parties. The District

Court may well determine that the proceedings should not have been had. Even if so, this Court’s

efforts will not have been in vain, Bore–Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308

(11th Cir. 1982) (actions taken in violation of a bankruptcy stay are “void and without effect”),

because, at such time as the stay is lifted (Coulton remains free to pursue a lifting of the stay from

the bankruptcy court), and for any other purpose that may arise, then a complete record will have

been made. 11 U.S.C. § 362(c)(2) (The automatic stay remains in effect until, inter alia, the earliest

of the close or dismissal of the bankruptcy case).

The Court recognizes that requiring Roy to comply with the disgorgement of funds would

strip the bankruptcy estate of control over a sizable financial asset, while securing a pre-petition debt

for Coulton to the possible detriment of other creditors. Therefore, any findings as to Roy with

respect to enforcement of the monetary judgment or the turning over of assets cannot proceed to

collection. Notwithstanding, that portion of the contempt proceedings relating to the enforcement

of sanctions granted in the nature of vindicating the authority of the court due to the outrageous

conduct exhibited by Roy (and Mayas) is unaffected by the filing of Roy’s bankruptcy petition. The

Court further notes that certain assets obtained from the Coultons were last known to be possessed

by Roy’s wife, Rebecca Newlin Roy, and other third parties that may be identifiable. Any such assets

in the possession of third parties may not necessarily fall within any bankruptcy protection extended

by the filing of Roy’s personal bankruptcy petition.


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2. Contempt

Having determined that Coulton met his burden to establish a prima facie case, the burden

shifted to Roy to show that he made all reasonable efforts to comply but that compliance was

impossible. In this connection, Roy intentionally disregarded the Order and refused to comply with

any of its terms, failed to appear at hearings, and otherwise attempted to thwart the proceedings.

As noted supra, the Court’s Order clearly stated that Roy was required to return the real and

personal property taken from the Coulton family or its monetary equivalent. (ECF No. 196 at 30).

It also required Roy to cooperate with Coulton in the enforcement and collection of the disgorgement

Order itself. Id. at 27. Additionally, and in the event Roy did not satisfy the disgorgement portion

of the Order, he was required to complete and file sworn, personal and business financial statements.

Id. at 30. Finally, and in the event Roy did not comply with this additional provision, he was subject

to what amounted to a complete asset injunction. Id. at 31-33.

Roy participated in hearings conducted on August 9, 2012, August 16, 2012, and September

4, 2012. (ECF No. 253, 254, 264, 265, 279, and 280). Roy’s first appearance before this Court was

on August 9, 2012. (ECF No. 253). It was during this hearing that the Court set Roy’s bond and, on

the basis of his claim of indigence, formally appointed counsel to represent him. Interestingly, in an

abundance of caution, the Court went out of its way to afford Roy the due process he denied his own

clients. (ECF No. 260); [8/9/12 TR at 12-13, 32]. Both Roy, and his “friend,” Renee Hasler, testified

as to his indigence and the nature of their relationship. (ECF No. 254). Three pre-trial services

reports concerning Roy, along with letters sent by Roy to the District Court Judge presiding over his

New York case, were also submitted to the Court during the hearing. [8/9/12 TR at 12].


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At his initial appearance, during the inquiry for appointment of counsel, Roy testified that

he had not made any money for the past two years, that he supported himself with help from his

family, and that his sister was paying for his lawyer in New York. [8/9/12 TR at 14-16]. Roy testified

further that he did not own any assets, including real estate, and that he did not remember taking a

ring from Mrs. Coulton as was previously determined by the Court at the hearing on the motion to

return fees. Id. at 17. Despite this testimony, the evidence showed that Roy had made two requests

to the Honorable Thomas P. Griesa, United States District Judge for the Southern District of New

York, to travel on behalf of his employer, C.R. America Industries & Consulting, Inc., indicating that

he was a consultant and that was how he had been “making a living, earning money to support my

family and pay my legal fees.” Id. at 18-20.

Further, Roy owned a property in New York, located at 163 Taaffe Place, that he transferred

from his name to the name of his law firm, which he testified was in foreclosure. Id. at 25. Roy

denied owning or transferring ownership of any other property. Id. at 27. However, based upon the

unrefuted evidence presented at the hearing on the motion for return of fees, it was established that

Roy had obtained certain property belonging to the Coultons, which he then had caused to be

transferred to third parties, such as his wife and mother-in-law. Lastly, in the Order entered by the

Court pursuant to Roy’s initial appearance, the undersigned imposed sanctions on Roy for his

violation of the Court’s Order which resulted in the issuance of the bench warrant. (ECF No. 259).

The next hearing was held on August 16, 2012. (ECF No. 264). The Court heard testimony

from Roy’s former secretary, Ingrid Hendricks. (ECF No. 265). Hendricks testified that she was

helping out in Roy’s office when he took on the Coulton case. [8/16/12 TR at 65]. She confirmed

that Mayas also worked on the case and that Roy obtained money and property from the Coulton


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family. [8/16/12 TR at 70,78]. Her testimony was consistent with the testimony provided by the

Coulton family at the hearing on the motion for return of legal fees. According to Hendricks, Roy

took the Coulton’s Porsche SUV, a townhouse in Florida, and jewelry. [8/16/12 TR at 67, 69-70].

Hendricks further testified how she inadvertently walked in on Roy and his business associate, Jean

Vernet, as they were dividing the Coulton jewelry. [8/16/12 TR at 70-71]. She also testified as to

conversations with Roy wherein he described giving Mrs. Coulton’s wedding ring to his mother-in-

law, Ingrid Newlin. [8/16/12 TR at 114]. Hendricks identified photographs of Roy’s mother-in-law

with, and without, the Coulton wedding ring on her finger. [Coulton Exh. NN]. Finally, Hendricks

examined the billing statements that Roy sent to the Coulton family. She recalled having witnessed

Roy preparing them and advised that her signatures on the statements were forgeries. [8/16/12 TR

at 82]; (Coulton Exh. P).

The final hearing on this matter was conducted on September 4, 2012. (ECF No. 279).

Several witnesses were called to testify. (ECF No. 280). Although Roy introduced several dozen e-

mails as exhibits, none of these was relevant to the contempt proceedings. Roy presented no other

evidence, witnesses, or testimony. Id.

Coulton called Roy as a witness. Roy declined to testify as to his ability to comply with the

Court’s September 16 Order and asserted his Fifth Amendment privilege in response to every singleth

question. The Fifth Amendment privilege “protects a person against being incriminated by his own

compelled testimonial communications.” Fisher v. United States, 425 U.S. 391, 409, 96 S. Ct. 1569,

1580, 48 L.Ed.2d 39 (1976). It applies equally to civil proceedings. See Kastigar v. United States,

406 U.S. 441, 92 S. Ct. 1653, 32 L.Ed.2d 212 (1972). Generally, “the Fifth Amendment does not

forbid adverse inferences against parties to civil actions when they refuse to testify in response to


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probative evidence offered against them.” Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551,

47 L.Ed.2d 810 (1976); United States v. A Single Family Residence and Real Property Located At

900 Rio Vista Blvd., Fort Lauderdale, 803 F.2d 625, 629, n. 4 (11th Cir.1986). “The decision to

invoke the Fifth Amendment does not have to be consequence-free.” Eagle Hosp. Physicians, LLC

v. SRG Consulting, Inc., 561 F.3d 1298, 1304 (11th Cir. 2009) (citing United States v. White, 589

F.2d 1283, 1287 (5th Cir. 1979)). Here, the Court may and does draw an adverse inference from

Roy’s invocation of the Fifth Amendment privilege that his testimony would not have been favorable

to the contempt issues before the Court. Baxter, 425 U.S. at 318, 96 S. Ct. at 1558; A Single Family

Residence, 803 F.2d at 629, n. 4. However, any negative inference drawn from the assertion of the

Fifth Amendment does not substitute for evidence needed to meet the burden of production.

Rylander, 460 U.S. 752, 103 S. Ct. 1548.

Coulton then called Richard Cramer who described Roy as his business partner and testified

that they met in alcohol rehabilitation in 2010. [9/4/12 TR at 67-68]. Cramer testified that he, Roy,

three of Roy’s friends, and Roy’s girlfriend, Renee Hasler (the “friend” who posted Roy’s bond), all

owned shares of the company, CR America Industries and Consulting, Inc., which was involved in

the development of infrastructure in Haiti. [9/4/12 TR at 68]. Roy represented to Cramer that he had

the necessary political contacts in Haiti to obtain multi-million-dollar government contracts. Cramer

testified further that Roy went on numerous trips to Florida and Haiti over the past year in connection

with the business, that he witnessed Roy’s use of a Bank of America debit card, and that Roy was

the one who opened and controlled their bank accounts. [9/4/12 TR at 81-82, 101].

Cramer explained how he was recently arrested and jailed after being charged with a DUI as

a result of an alcohol relapse. [9/4/12 TR at 87]. He testified that, just prior to his arrest, in June


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2012, he had participated in a conference call with Roy, Roy’s friend, Joel Lespinasse, and others,

where he was informed that 30 million dollars had been escrowed as part of a mining project that

CR America Industries and Consulting, Inc., was working on in Haiti. [9/4/12 TR at 86, 101]. While

Cramer conceded that he did not consider the company stock to have any value until it received

funding pursuant to the contract, he was unaware that, while he was in jail, Roy and Hasler had

incorporated a new company in the State of Washington, similarly named CR America Industries,

Inc. [9/4/12 TR at 80]. Finally, he testified that, although his company had bank accounts at Bank

of America and TD Bank, he never saw the statements nor did he know where they were being sent.

[9/4/12 TR at 77, 79-80]. He did recall seeing Roy use a Bank of America debit card on one

occasion. Id. at 103.

Renee Hasler a/k/a Renee Martin also testified. She had previously appeared before the Court

at Roy’s initial appearance and had co-signed on his bond. (ECF No. 253). She testified about her

business relationship with Roy through several companies, including CR America Industries and

Consulting, Inc. (the Florida corporation with Richard Cramer), CR America Industries (the

Washington corporation she opened with Roy), and East Coast Hoopfest (a company with Roy and

Lespinasse), that were reflected in Coulton Exhibits VV, WW, and YY. The Court notes that, at the

initial appearance, she failed to advise the undersigned of the extent of her business and personal

relationship with Roy.

Hasler produced a bank statement for CR America Industries and Consulting, Inc., and a

Bank of America visa debit card in the name of Emmanuel Roy for CR America Industries, Inc., that

Coulton introduced as Coulton Exhibits QQQ and RRR. Although Hasler testified that she believed

the two bank records were for the same account as she was only aware of a single account [9/4/12


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TR at 111], an examination of the records themselves revealed that they were for two different

accounts. [Compare Exh. QQQ with RRR]. Hasler, like Cramer, conceded that, even though she was

the president of CR America Industries, she did not receive the bank statements. [9/4/12 TR at 164-

166]. She also confirmed that Roy was both a signer and authorized user on the bank accounts. Id.

Hasler testified that she had an account with Roy for CR America Industries and Consulting, Inc.,

in which Roy was a user but not a signatory. [9/4/12 TR at 108]. Although she had testified that there

was only one account, there was also a debit card for CR America Industries, Inc. Id.

Hasler further testified that Roy traveled frequently in 2011 and 2012 to Washington, Florida,

New York, Illinois, and Haiti. [9/4/12 TR at 124, 170]. She testified that Roy took a trip to Illinois

for the purpose of obtaining a Mercedes that she claimed she purchased for her use in New York

during business trips. [9/4/12 TR at 114]. However, the vehicle was registered in the State of Florida.

Id. She further claimed that she sold the vehicle to Joel Lespinasse. Id. at 115. A review of the

vehicle title records, however, revealed that both she and Roy purchased the vehicle as joint owners

before it was “gifted” to Lespinasse. (ECF No. 282). Hasler also described Roy’s Brooklyn

apartment and identified Coulton Exhibit LL as a composite of accurate photographic depictions of

the apartment when she was last there a few months ago. [9/4/12 TR at 145]. She did not know

whether Roy ever leased the apartment. [9/4/12 TR at 153-154].

3. Ability to Comply

Roy argued that it was impossible for him to comply because he no longer had any money

or assets. In support, he relied upon the assertion that he was penniless, as evidenced by his

bankruptcy filing. (ECF No. 260, 274). As noted supra, Roy had filed sworn bankruptcy petitions

in the Eastern District of New York on September 28, 2012, and May 12, 2010. Further illustrating


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discrepancies as to Roy’s finances, the most recent bankruptcy petition actually showed a decrease

in liabilities and an increase in net worth over the two years. (ECF No. 274-1); [Coulton Exh. GG].

Even if the Court were to believe Roy, he cannot rely on an impossibility defense where he

is responsible for creating same. Roy offered no evidence as to the disposition of the money he was

given or the property he took from the Coultons. Thus, the undisputed testimony and exhibits

showed that the Coultons’ Porsche SUV and townhouse were titled to Roy’s wife, Rebecca Newlin

Roy, that Mrs. Coulton’s wedding ring was given to Roy’s mother-in-law, Ingrid Newlin, and that

Coulton’s other jewelry was divided between Roy and his friend, Jean Vernet.

It appears to the Court that Roy intentionally divested himself of assets, used corporate alter-

egos to maintain bank accounts, and used friends and relatives to hold his assets as nominees. (ECF

No. 282); [Coulton Exh. V, W, HH, JJ, KK, LL, NN, VV, WW, YY, EEE, KKK, QQQ, RRR, SSS].

This is not surprising given Roy’s advice to Mayas that having assets in one’s name was “stupid.”

[9/4/12 TR at 212, 214].

In his post-hearing submission (ECF No. 287), Roy argued that Coulton failed to rebut the

evidence of his present inability to comply because Hendricks was unable to identify any property

presently in Roy’s possession; Cramer testified that CR America Industry and Consulting, Inc., had,

to date, only earned $7,000.00, all of which he had withdrawn as reimbursement for monies he lent

CR America Industries and Consulting, Inc., and that its shares were worthless [9/4/12 TR at 93;

100]; Hasler testified that she had invested $10,000.00-$15,000.00 of her own money into CR

America Industry and Consulting, Inc., and that she financed the cost of tickets, hotels, and rental

cars for Roy, Id. at 130-31; and Mayas could not establish the current whereabouts of the Coultons’

Porsche or the status of the real estate previously owned by Coulton. Id. at 225. Finally, Roy argued


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that he did not cause the impossibility and that no evidence had been introduced indicating that he

was hiding money in offshore accounts or elsewhere.

The undersigned finds that Roy has offered no justification for his failure to cooperate with

Coulton’s efforts; to return the real and personal property he took from the Coultons; and to make

any, even a nominal, payment to the Coultons as ordered. Roy relied solely upon the mere assertion

that he was penniless and had filed for bankruptcy protection. (ECF No. 260, 274). Even if this Court

were to believe Roy’s self-serving, conveniently-timed representations, Roy cannot avail himself of

an impossibility defense where he was responsible for causing the impossibility. It was Roy who

transferred the assets that he obtained from the Coultons, as well as his own assets, to his family and

friends.

However, the undersigned would have to agree, albeit reluctantly, that none of the testimony

elicited by Coulton established conclusively that Roy had the present ability to comply with the

financial obligations of the Court’s September 16, 2011 Order. As noted supra, any inferences drawn

from Roy’s invocation of his Fifth Amendment rights with respect to questions regarding his

financial status cannot substitute for proof of ability to comply. Notwithstanding, the Order called

for more than the payment of funds. It is clear that Roy has failed to comply with any of the Court’s

other directives. For those failures, he is found to be in contempt.

At his initial appearance, the undersigned had imposed sanctions on Roy for his violation of

the Court’s Order which resulted in the issuance of the bench warrant. [8/9/12 TR at 34].

D. Hasler’s Contempt

At the hearing on September 4, 2012, Hasler had testified that, in late 2011, she had

purchased a 2000 Mercedes Benz S430 in Illinois, which had been registered in Florida. [9/4/12 TR


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at 113-114]. When asked directly if it was Roy’s car, she denied it. [9/4/12 TR at 115]. On

September 6, 2012, Coulton filed the title documents obtained from the Florida Department of Motor

Vehicles (“DMV”) concerning the Mercedes. (ECF No. 282). Contrary to Hasler’s testimony, the

title documents clearly showed that both Hasler and Roy signed the Illinois title as buyers. Thus, it

appears that Hasler lied to the Court and that Roy purchased this vehicle after being served with this

Court’s original contempt Order, dated September 16, 2011, and in direct violation thereof.

Hasler also testified that she sold the Mercedes to Roy’s friend and business associate, Joel

Lespinasse, for $5,000.00. [9/4/12 TR at 115, 126]. However, according to the Florida DMV records,

Roy and Hasler gave Joel Lespinasse a power of attorney over their affairs with respect to this

vehicle, and the vehicle was then transferred to Lespinasse and his wife as a gift. Thus, it appears

that the sale was a sham transaction. (ECF No. 282).

In this connection, Coulton filed a Motion for an Order to Show Cause Why Renee Hasler

Should Not Be Held in Contempt for lying under oath about Roy’s ownership of the Mercedes Benz

S430 at issue in this case. (ECF No. 283). Accordingly, the Court shall schedule a show cause

hearing as to why Renee Hasler a/k/a Renee Martin should not be held in contempt for lying under

oath to the Court about the ownership of the Mercedes Benz S430.

IV. Sanctions

The undersigned finds that Roy and Mayas’ conduct throughout these proceedings has been

tantamount to bad faith and, on that basis, imposes sanctions. As to Mayas, there is ample evidence

that he lied under oath about his involvement in the Coulton case, his ownership of the Miramar

property, and his ability to comply with the Court’s September 16, 2011 Order. As to Roy, there is

evidence that he intentionally ignored various court orders, which ultimately resulted in the issuance


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of a bench warrant against him, and that he transferred assets to third parties in order to avoid

compliance.

A. 28 U.S.C. § 1927

Section 1927 provides:

Any attorney or other person admitted to conduct cases in any court of the UnitedStates or any Territory thereof who so multiplies the proceedings in any caseunreasonably and vexatiously may be required by the court to satisfy personally theexcess costs, expenses, and attorneys’ fees reasonably incurred because of suchconduct.

28 U.S.C. § 1927.

In order to justify the imposition of sanctions pursuant to § 1927, three requirements must

be met: 1) an attorney must engage in “unreasonable and vexatious” conduct; 2) such conduct must

“multiply the proceedings;” and 3) the amount of the sanctions cannot exceed the costs incurred due

to the conduct. Jerelds v. City of Orlando, 194 F.Supp.2d 1305, 1312 (M.D. Fla. 2002) (citing

McMahan v. Toto, 256 F.3d 1120, 1128 (11th Cir. 2001)).

However, § 1927 is not a “catch-all” provision for sanctioning merely objectionable conduct

by counsel. Peterson v. BMI Refractories, 124 F.3d 1386, 1396 (11th Cir. 1997); Schwartz v. Millon

Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003). To impose sanctions under § 1927, the Court must

find that “the attorney’s conduct is so egregious that it is ‘tantamount to bad faith.’” Amlong &

Amlong, P.A., v. Denny’s Inc., 500 F.3d 1230, 1239 (11th Cir. 2007) (quoting Avirgan v. Hull, 932

F.2d 1572, 1582 (11th Cir. 1991)). Indeed, “the provisions of § 1927, being penal in nature, must

be strictly construed.” Peterson, 124 F.3d at 1395.

Bad faith does not turn on “the attorney’s subjective intent, but on the attorney’s objective

conduct.” Amlong & Amlong, 500 F.3d at 1239; Bettis v. Toys “R” Us, 2009 WL 5206192, at *7


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(S.D. Fla. Dec. 30, 2009). “The crux of the finding is, ‘whether, regardless of the attorney’s

subjective intentions, the conduct was unreasonable and vexatious when measured against an

objective standard.’” Id. (quoting, Hudson v. Int’l Comp. Negotiations, Inc., 499 F.3d 1252, 1262

(11th Cir. 2007)). That is not to say that an attorney’s subjective state of mind is to be disregarded

because certain actions may prove to be unreasonable and vexatious if done with a malicious purpose

or intent. Amlong & Amlong, 500 F.3d at 1241.

The meaning of “unreasonable and vexatious” is subject to interpretation, but “at [a]

minimum . . . merely unintended, inadvertent, and negligent acts will not support the imposition of

sanctions under § 1927; [r]ather, the power to impose sanctions under § 1927 should be exercised

‘only in instances of a serious and studied disregard for the orderly processes of justice.’” See

Corwin v. Walt Disney World Co., No. 6:02–cv1377–Orl–19KRS, 2008 WL 754697, at * 15 (M.D.

Fla. Mar. 18, 2008) (quoting Jerelds, 194 F.Supp.2d at 1312). Moreover, even if counsel acted in bad

faith, to warrant sanctions under § 1927, “there must be a causal connection between the

objectionable conduct of counsel and multiplication of the proceedings.” Peterson, 124 F.3d at 1396.

Thus, objectionable conduct that is “unreasonable and vexatious” may not be sanctionable unless

it also resulted in proceedings that would not have been conducted otherwise. Id.

Mayas’ conduct in this case is precisely the type of behavior sanctionable under § 1927.

Mayas is not just a party; he is an attorney. Against this Court’s advice, he served as his own counsel

for part of the contempt hearings. His unreasonable behavior and untruthful testimony directly

contributed to the multiplication of these proceedings. First, he failed to attend duly noticed hearings

necessitating the imposition of pretrial supervision. Then, he maintained a position throughout the

hearings only to turn over one of the very assets whose ownership he had vehemently disputed. Had


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Mayas been forthcoming about the ownership of the Miramar property from the beginning, this

Court, as well as the other litigants and participants, could have been spared considerable time and

expense. Instead, Mayas chose to insist on a defense that he knew was false. Therefore, the

undersigned finds that it is appropriate to sanction Mayas under 28 U.S.C. § 1927.

B. Court’s Inherent Authority

Undoubtedly, federal courts are vested with the inherent power to vindicate their authority

in the face of misconduct by attorneys and parties appearing before them. U.S. v. Shaygan, 661

F.Supp.2d 1289 (S.D. Fla. 2009). The Court has the power to “manage its affairs which necessarily

includes the authority to impose reasonable and appropriate sanctions upon errant lawyers practicing

before it. Malautea v. Suzuki Motor Company, Ltd., 987 F.2d 1536 (11th Cir.1993) (citing Carlucci

v. Piper Aircraft Corp., 775 F.2d 1440, 1447 (11th Cir. 1985)) (citation omitted). This power extends

to parties to litigation as well. Chambers v. NASCO, Inc., 501 U.S. 32, 45-46, 111 S. Ct. 2123, 115

L.Ed.2d 27 (1991). A court may appropriately sanction a party or attorney who shows bad faith by

delaying or disrupting the litigation or by hampering enforcement of a court order. Hutto v. Finney,

437 U.S. 678, 689 n. 14, 98 S. Ct. 2565, 57 L.Ed.2d 522, (1978). Without these powers, “the Court

would be unable to manage the expeditious disposition of its docket, enforce its orders, and guard

the integrity of its proceedings.” Bettis, 2009 WL 5206192, at *7. However, these inherent powers

must be exercised “with restraint and discretion.” Chambers, 501 U.S. at 44, 111 S. Ct. 2123.

A court may exercise its inherent powers “even if procedural rules exist which sanction the

same conduct.” In re Mroz, 65 F.3d 1567, 1575 (11th Cir.1995); Allapattah Services, Inc. v. Exxon

Corp., 372 F.Supp.2d 1344, 1373 (S.D. Fla. 2005). In the Eleventh Circuit, a district court’s authority

to issue sanctions under its inherent authority is no broader than its authority to issue sanctions


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pursuant to § 1927. See Id. (citing Amlong & Amlong, 500 F.3d at 1239; Cordoba v. Dillard’s, Inc.,

419 F.3d 1169, 1178, n. 6 (11th Cir. 2005)). Some cases have suggested that sanctions under the

court’s inherent powers carry a higher burden than under § 1927. Barnes v. Dalton, 158 F.3d 1212,

1214 (11th Cir. 1998) (“The key to unlocking a court’s inherent power is a finding of bad faith.”).

The Court is imbued with the inherent power to impose sanctions against counsel not only

for violating court orders but also for engaging in behavior that “sullies the dignity of the Court.”

Bettis, 2009 WL 5206192, at *22 (citations omitted). Sanctions may be imposed against a party who

has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons,” or when a court finds that

a “fraud has been practiced upon it, or that the very temple of justice has been defiled.” Barash v.

Kates, 585 F.Supp.2d 1347, 1364 (S.D. Fla. 2006) (citing Chambers, 501 U.S. at 45–46, 111 S. Ct.

2123. Bad faith may be demonstrated by, inter alia, delay or disruption of the litigation or hampering

enforcement of a court order. Eagle Hosp. Physicians, 561 F.3d at 1306; .Barash, 585 F.Supp.2d at

1362. “Without a ‘smoking gun’ statement from the plaintiff, . . . a district court makes a

determination of bad faith by drawing inferences from the conduct before it.” Byrne v. Nezhat, 261

F.3d 1075, 1125 (11th Cir. 2001).

In sanctioning litigants, the Court need not resort to the powers of civil or criminal contempt.

Kleiner v. First Nat. Bank of Atlanta, 751 F.2d 1193, 1209 (11th Cir. 1985) (citing Roadway

Express, Inc. v. Piper, 447 U.S. 752, 764-65, 100 S. Ct. 2455, 2463, 65 L.Ed.2d 488 (1980)); Eagle

Hosp. Physicians, 561 F.3d at 1306. The Court possesses the ability to fashion an appropriate

sanction for conduct that abuses the judicial process. Allapattah, 372 F.Supp.2d at 1373. Among the

available sanctions are discipline by the legal profession and assessment of attorney’s fees and costs.

Id.


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When a party’s continued violation of a court order requires the opposing party to seek

enforcement of the order through a motion for contempt, the resulting attorney’s fees and costs may

be assessed against the noncomplying party, even if the court ultimately does not hold that party in

contempt. See Casale v. Kelly,710 F.Supp.2d 347, 367 (S.D.N.Y. 2010); see also Wild Cats, Inc. v.

Blas, No. 06–22345, 2007 WL 1545876, at *1 (S.D. Fla. May 29, 2007) (“Attorney fees and costs

[for a contempt motion] are awarded pursuant to this Court's discretion and inherent power to

sanction.”). And a court has broad discretion to award costs incurred by the party seeking a contempt

finding, regardless of whether such costs would otherwise be recoverable. See Tom James Co. v.

Morgan, 141 F. App’x 894, 900 (11th Cir. 2005) (per curiam). Thus, pursuant to its inherent

authority, a court may award attorney’s fees and costs as a sanction for bad faith litigation. See

Chambers, 501 U.S. at 51-53, 111 S. Ct. 2123 (discussing the court’s inherent power to assess

attorney’s fees as sanction for bad faith conduct before the court).

As noted by the Chambers Court, “the underlying rationale of ‘fee shifting’ is, of course,

punitive.” 501 U.S. at 53, 111 S. Ct. 2123 (quoting Hall v. Cole, 412 U.S. 1, 4-5, 93 S. Ct. 1943, 36

L.Ed.2d 702 (1973)). “In the presence of bad faith, a court may award to the injured party the entire

amount of its reasonable attorney’s fees as an appropriate monetary sanction.” In re Graffy, 233 F.R.

894, 899 (M.D. Fla. 1994) (citing Chambers, 501 U.S. at 55, 111 S. Ct. 2123).

For their wilful disregard of the Court’s authority resulting in the Court having to expend its

efforts and resources unnecessarily, particularly in light of the fact that the alleged contemnors are

both attorneys, based upon the Court’s inherent power to vindicate its authority, the undersigned

imposes sanctions on Roy and Mayas, generally, in the form of an award of attorney’s fees and costs

incurred by Coulton throughout the entire duration of these contempt proceedings. Coulton is


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directed to submit his attorney’s fees and costs within ten (10) days from the date of this Order.

IV. Conclusion

A. Recommendations

Accordingly, it is hereby RESPECTFULLY RECOMMENDED that:

1. Defendant Patrick Coulton’s Motion for Contempt (ECF No. 199) be DENIED as

to Peter U. Mayas, Esq. As set forth in detail herein, Mayas is sanctioned pursuant to 28 U.S.C. §

1927 and the Court’s inherent powers. Moreover, for his behavior during these proceedings, the

undersigned RECOMMENDS that Mayas be referred to the Florida Bar for potential disciplinary

action; and to the Office of the United States Attorney for perjury prosecution, as well as for

investigation regarding the potentially fraudulent “short sale” of his former residence.

2. Coulton’s Motion for Contempt (ECF No. 199) be GRANTED-IN-PART AND

DENIED-IN-PART as to Emmanuel Roy, Esq. As set forth in detail herein, Roy is sanctioned based

upon the Court’s inherent powers. Moreover, for his behavior during these proceedings, the

undersigned RECOMMENDS that Roy be referred to the Office of the United States Attorney for

an investigation of perjury, as well as for investigation regarding the Mayas short sale and whether

it was fraudulent.

3. The sanctions imposed by the Court against Roy and Mayas in vindication of its

authority shall consist of an award to Coulton of all of the attorney’s fees and costs, with any and all

applicable interest, that have been incurred in connection with these contempt proceedings since the

filing of the Motion for Contempt. Coulton shall submit his attorney’s fees and costs within ten (10)

days from the date of this Order. It is the intention of this Court that any judgment entered based

upon these sanctions not be dischargeable in bankruptcy proceedings according to the applicable law.


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4. Coulton’s Motion for an Order to Show Cause for Carmel Sanon-Bryant’s failure to

appear at the May 31, 2012 hearing, after she was subpoenaed as a witness (ECF No. 225) be

DENIED.

Pursuant to local Magistrate Rule 4(b), the parties may serve and file written objections with

the Honorable Joan A. Lenard, United States District Court Judge, within fourteen (14) days of being

served with a copy of this Report and Recommendation. Failure to file timely objections shall bar

the parties from attacking on appeal any factual findings contained herein. Loconte v. Dugger, 847

F. 2d 745 (11th Cir. 1998); RTC v. Hallmark Builders, Inc., 996 F. 2d 1144, 1149 (11th Cir. 1993).

B. Orders

5. Since Mayas turned over the Miramar property to Coulton’s counsel, he is

ORDERED to provide full cooperation with respect to the pending foreclosure action filed by Wells

Fargo, including providing all of the documents from the homeowner’s association, and all of the

mail that has been sent to the house by the lender and the homeowner’s association.

6. Roy’s Motion for Enforcement of the Automatic Stay Provisions of 11 U.S.C. §

362(a) (ECF No. 277) is DENIED.

7. Coulton’s Motion for an Order to Show Cause Why Renee Hasler Should Not Be

Held in Contempt for lying under oath about Roy’s ownership of the Mercedes Benz S430 at issue

in this case (ECF No. 283) shall be set for hearing via separate order.

DONE, ORDERED AND RECOMMENDED in Chambers, at Miami, Florida, this 1 dayst

of February 2013.

___________________________WILLIAM C. TURNOFFUnited States Magistrate Judge

cc: Hon. Joan A. Lenard All Counsel of Record


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