Opinion
Criminal Case No. 1:04-CR-508-CAP-JMF.
August 31, 2005
MAGISTRATE JUDGE'S REPORT, RECOMMENDATION AND ORDER
Part One History of the Case
Presently pending before this Court are the Defendant's Motion to Suppress SEC Deposition and to Dismiss Count Two filed on May 10, 2005 [Doc. 33], Brief in Support of Motion to Suppress Defendant's SEC Deposition and to Dismiss Count Two with attachments [Doc. 33, Att. 1], the Government's Response in Opposition to Defendant's Motion to Suppress [Doc. 38], and the Defendant's Reply brief in Support of Motion to Suppress Evidence and supporting exhibits [Doc. 41], and his Post-Hearing brief [Doc. 55]. In the Defendant's Motion to Suppress, he requests this Court to schedule an evidentiary hearing in order to determine the nature of the relationship between the SEC in pursuing its civil action and the United States Attorney's Office and the FBI in prosecuting this matter [Doc. 33]. On August 17, 2005, this Court conducted a hearing to consider the Defendant's request for an evidentiary hearing. At the hearing, this Court heard arguments presented by counsel for all interested parties. The Court having considered the arguments, pleadings and memoranda of the parties, finds that the Defendant has failed to make out a prima facie showing of prosecutorial misconduct. For the reasons discussed below, the Defendant's Motion to Suppress his SEC Deposition and to Dismiss Count Two should be DENIED. It is further ordered that the Defendant's request for an evidentiary hearing on his Motion to Suppress his SEC Deposition and to Dismiss Count Two is hereby DENIED. Part Two Procedural Background
On September 29, 2004, the instant two Count indictment, with special findings, was returned in this district [Doc. 1]. In Count One, the defendant is charged with securities fraud — falsely manipulating the shares of International Biochemical Industries, Inc. (IBCL) through, inter alia, the knowing use of several false and misleading press releases causing, inter alia, prospective purchasers to believe that a U.S. Government Agency was interested in obtaining IBCL's anti-anthrax product in violation of 18 U.S.C. § 1348(1) and (2).
Count One further advises that a staff member of the Securities and Exchange Commission (SEC) contacted the defendant on January 31, 2003, and advised him that they believed the press releases he had issued contained false and misleading statements of material fact, thereby creating the false impression with the investing public that a federal agency was meeting with the defendant for the purpose of obtaining the IBCL's anti-anthrax product, which had the effect of materially impacting the price of the stock and the trading value of its stock. They also told the defendant that if the company did not disseminate accurate information to the investing public, the SEC staff would take appropriate action.
Thereafter, rather than disseminating accurate information to the investing public as directed by the SEC staff, the defendant issued yet another press release containing false and misleading material facts. As a consequence, on February 6, 2003, the SEC suspended trading of IBCL stock until February 21, 2003. Count One also alleges that the defendant unlawfully engaged in insider trading, all in violation of 18 U.S.C. § 1348(1) and (2).
Thereafter, the SEC staff issued a subpoena to the defendant to take his deposition on February 11, 2003 in a civil enforcement action. See SEC v. IBCL and Timothy Moses, Civil Action No. 1:03-CV-0346-JTC (N.D. Ga). Count Two alleges that he willfully and falsely perjured himself during the foregoing sworn deposition, in violation of 18 U.S.C. § 1621(1). The cover pages of excerpts of depositions of the defendant, Deirdre Baker and FBI agents Jon Watson and Jeffrey Haverty have been included as Exhibits B, C, F, and G to the Government's Response.
In due course, on January 27, 2005, this Court certified the case as Ready for Trial [Doc 25]. Thereafter on May 10, 2005, the defendant filed a Motion to Suppress the Government's use of the foregoing deposition, and to dismiss Count Two (the perjury count) [Doc. 33]. The Government, has filed its response [Doc. 38], and the defendant has filed his reply to the response [Doc. 41]. On June 16, 2005, the District Judge referred the Motion to Suppress and to Dismiss to the undersigned [Doc. 40].
In his Motion to Suppress and to Dismiss, the defendant contends that at the time he was to be deposed by the SEC attorneys, the United States Attorney's Office was pursuing the above-styled criminal matter, and unlawfully utilized the SEC to obtain evidence for the criminal case through the use of his deposition testimony. The defendant therefore contends that his deposition testimony was obtained in violation of his Fifth Amendment rights to due process and to not incriminate himself. He also contends that this Court should also exercise its supervisory power to prohibit the Government's use of his deposition at his criminal trial, and to dismiss Count Two of the indictment. In connection therewith, he seeks an evidentiary hearing to present evidence to show the relationship between the SEC staff, the United States Attorney's Office, and the FBI agents (i.e., that the SEC attorneys were being directed by the U.S. Attorney's Office). Compare United States v. Scrushy, 366 F.Supp.2d 1134 (N.D. Ala. 2005) (a copy of which is attached to defendant's brief [Doc. 33]);United States v. Handley, 763 F.2d 1401, 1405 (11th Cir. 1985);United States v. Parrott, 248 F.Supp. 196, 202 (D.D.C. 1965); see also SEC v. HealthSouth Corp., 261 F.Supp.2d 1298 (N.D. Ala. 2003). Compare United States v. Teyibo, 877 F.Supp. 846, 855 (S.D.N.Y. 1995).
In response, the Government contends that where the SEC and the Department of Justice are conducting good faith parallel civil and criminal investigations, the SEC is not prohibited from sharing with the DOJ the evidence it obtained in the SEC civil proceedings. Standard Sanitary Manufacturing Co. v. United States, 226 U.S. 20, 52, 33 S.Ct. 9, 57 L.Ed. 107 (1912);United States v. Kordel, 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1 (1970); SEC v. First Financial Group of Texas, Inc., 659 F.2d 660, 666-667 (5th Cir. 1981); SEC v. Dresser Industries, 628 F.2d 1368 (D.C. Cir. 1980). Compare SEC v. Zimmerman, 854 F.Supp. 896, 899-900 (N.D. Ga. 1993); SEC v. Horowitz Ullman P.C., No. C80-590A, 1982 WL 1576 at *3, Not Reported in F.Supp. (N.D. Ga. March 4, 1982); United States v. Fields, 592 F.2d 638, 646 (2nd Cir. 1978); Bass v. United States, 409 F.2d 179, 180 (5th Cir. 1969). Indeed section 21(d) of the Securities and Exchange Act ( 15 U.S.C. § 78u(d)) authorizes the SEC to furnish the DOJ with evidence of misconduct it has uncovered in its civil proceedings. It is also clear that Congress approved of this procedure. See Senate Committee Report on Foreign Corrupt Practices Act, S. Rep. No. 114, 95th Congress, 1st Session 12 (1977).
The Government further contends that the defendant has the burden of showing that there was improper cooperation between the SEC and the DOJ. See United States v. Rand, 308 F.Supp. 1231 (N.D. Ohio 1970); United States v. Parrott, supra 248 F.Supp. at 199; see also United States v. Scrushy, supra at p. 12. It further contends that the defendant is not entitled to an evidentiary hearing absent such a showing; and that the 18 month time period between the time that the SEC deposed the defendant and the return of the instant indictment at least circumstantially shows that the SEC was conducting its own independent investigation as was the DOJ. United States v. Torquato, 602 F.2d 564, 569 (3rd Cir. 1979); United States v. Thayer, 214 F.Supp. 929 (D. Col. 1963). Compare United States v. Unruh, 855 F.2d 1363, 1374 (9th Cir. 1987). See also In re Wood, 430 F.Supp. 41, 48 (S.D.N.Y. 1977); Wade v. United States, 504 U.S. 181, 186, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992); United States v. Corbin, 734 F.2d 643, 647-48 (11th Cir. 1984). It also contends that the record shows that the SEC had undertaken its own independent investigation of the defendant and IBCL based on its belief that the defendant was engaged in,inter alia, defrauding the investing public as to the value of IBCL stock via false and misleading press releases, which the defendant failed to correct after being directed to do so by SEC staff. Indeed, as previously noted, to protect the investing public, the SEC filed a civil action seeking to enjoin the defendant from further misconduct. See SEC v. IBCL and Moses, supra; see also the February 6, 2003 Order suspending trading in IBCL stock, Exhibit A to the Government's Response.
Part Three
The Issues
1. Whether the Defendant has made a prima facie showing of prosecutorial misconduct that would enable this Court to provide the Defendant an evidentiary hearing.Part Four Conclusions of Law
1. The Defendant bears the burden of establishing a prima facie case of prosecutorial misconduct warranting an evidentiary hearing.
In the Defendant's Motion to Suppress, the defendant makes two claims: first, that the SEC civil proceeding denied him due process because it was a subterfuge to obtain evidence for use in the Defendant's criminal indictment and, was, therefore, a departure from the proper administration of criminal justice and, second, that the United States secured evidence from the Defendant through deceit in violation of the Defendant's Fifth Amendment due process rights and privilege against self-incrimination. The Defendant first asks for an evidentiary hearing to afford the Defendant an opportunity to substantiate the claimed misconduct.
The decision of a trial court not to hold such a hearing is within the trial court's sound discretion, subject to review only for an abuse of that discretion. United States v. Slocum, 708 F.2d 587, 600 (11th Cir. 1983); U.S. v. Schlei, 122 F.3d 944, 990 (11th Cir. 1997). However, such a hearing is not appropriate unless the Defendant can make an unrebuttedprima facie showing of prosecutorial misconduct. See generally United States v. Baptista-Rodriguez, 17 F.3d 1354, 1360 (11th Cir. 1994) (stating "[t]o warrant an evidentiary hearing, however, the defendant must at least allege facts, if proved, would make out a prima facie case"). Without a prima facie showing of prosecutorial misconduct, the Court will not provide the Defendant an evidentiary hearing.
Federal courts have supervisory authority over the manner in which Federal agents exercise their power. Rea v. United States, 350 U.S. 214, 217, 76 S.Ct. 292, 100 L.Ed. 233 (1955). However, a defendant cannot succeed on a theory of "perjury trap" when the questions relate to a legitimate, parallel investigation. United States v. Waldon, 363 F.3d 1103, 1112-13 (11th Cir. 2004), cert. denied, 125 S.Ct. 208 (2004). It is well settled that the Government may initiate civil and criminal proceedings either "simultaneously or successively." Standard Sanitary Manufacturing Co., 226 U.S. at 52; Kordel, 397 U.S. at 11-12. It is also well settled that the SEC is authorized pursuant to § 21(d) of the Securities and Exchange Act ( 15 U.S.C. § 78u(d)) to furnish the DOJ with evidence of misconduct it has uncovered in its civil proceedings. While parallel investigations and the sharing of information by governmental agencies are generally unobjectionable, the United States Supreme Court has found that evidence obtained in a civil proceeding may be used in a subsequent criminal proceeding unless the defendant shows that to do so would violate his constitutional rights or depart from the proper administration of justice. Kordel, 397 U.S. at 12-13. The Supreme Court also recognized that "prompt investigation of both civil and criminal claims can be necessary to the public interest." Id. at 11. In Kordel, supra, the Supreme Court further determined that certain circumstances may lead to a finding that a defendant's right to due process has been violated. Id. at 12. These circumstances include cases in which (1) the Government pursued a civil action solely to obtain evidence for a criminal prosecution; (2) the Government failed to advise the defendant during the civil proceeding that it is contemplating criminal prosecution; (3) the defendant was without counsel; (4) the defendant reasonably feared prejudice from pre-trial publicity or other unfair injury; or (5) other special circumstances suggest that the criminal prosecution is unconstitutional or improper. Kordel, 397 U.S. at 12. In this regard, the Defendant bears the burden of making out a prima facie case showing that the SEC and the DOJ engaged in improper cooperation during parallel civil and criminal proceedings violating his right to due process entitling him to an evidentiary hearing.
2. The Defendant has failed to establish a prima facie case of prosecutorial misconduct warranting an evidentiary hearing.
In the present matter, the record is clear that the SEC was conducting its own independent investigation related to the false press releases issued by IBCL and potential manipulation of the value of IBCL stock in order to protect the investing public. It is undisputed that a long line of cases have established that when a person gives statements under oath as part of a legitimate investigation, that person may be charged with perjury if he lies. This is not the first time an individual has given testimony in a civil proceeding that was later sought to be used against him in a criminal proceeding. Civil depositions can be admitted as party admissions in criminal trials. Bass v. United States, 409 F.2d 179, 180 (5th Cir. 1969) ("[A]ppellants attack their convictions on the ground that the trial court erred in admitting deposition testimony given by them in a prior civil action. The record reveals that appellants were represented by competent counsel at their depositions, that they were aware of their Fifth Amendment rights against self-incrimination . . .").
The Defendant relies heavily on a line of cases where courts have concluded that there was prosecutorial misconduct through the most egregious abuses of parallel proceedings by the Government. See United States v. Scrushy, 366 F.Supp.2d 1134 (N.D. Ala. 2005); United States v. Parrott, 248 F.Supp. 196 (D.D.C. 1965); United States v. Thayer, 214 F.Supp. 929, 933 (D. Colo. 1963). However, these cases are inapposite. InScrushy, the district court suppressed SEC deposition testimony the defendant gave and dismissed the perjury counts based on that testimony concluding that the government had manipulated the civil investigation for its own purposes when testimony from a senior accountant with the SEC at trial revealed that the SEC took explicit directions from the U.S. Attorney's Office for the Northern District of Alabama regarding the venue and content of the deposition. Scrushy, 366 F.Supp.2d at 1140. The district court invoked its supervisory authority to exclude the deposition finding that the Government had departed from the proper administration of criminal justice. Id.
In Parrott, the SEC initiated a civil injunctive action against the defendants. Parrot, 248 F.Supp. at 198. More than six months before the trial on the injunctive action, the SEC recommended criminal prosecution of these defendants. Id. at 199. The defendants were not informed of the recommended criminal prosecution, nor were they warned of their Fifth Amendment rights against self-incrimination. Subsequently, their depositions were taken in preparation for the trial. Id. Less than a month after the civil trial, the SEC initiated a revocation proceeding that involved some of the same defendants from the previous civil trial. At this hearing, the SEC attorney denied that criminal proceedings had been instituted against any of the defendants.Id. Subsequently, the defendants testified. Indeed, the criminal prosecutor intentionally concealed his identity when he attended the SEC civil deposition. Id. The D.C. district court found, under these facts, that "the Government may not bring a parallel civil proceeding and avail itself of civil discovery devices to obtain evidence for subsequent criminal prosecution."
Another case the Defendant relies on is United States v. Thayer, supra. In Thayer, the defendant was convicted of perjury based on his testimony before the SEC concerning his relationship to a corporation under inquiry. The SEC had reason to believe that the defendant testified falsely. Subsequently, he was subpoenaed again and a second deposition was taken. Defendant was uncounseled, but he did receive the standard warnings. His testimony at this deposition was received into evidence at the criminal trial. The trial court held that:
The giving of the warning cannot have much significance where the defendant was, so to speak, then within the sights of the Government and did not receive an explanation of the true import of the second inquiry.Id. at 933. Apart from any Fifth Amendment self-incrimination issue, the trial court was concerned with considerations of justice and fair play. Id. at 933-934. In ordering a new trial to determine the propriety of receiving the evidence taken at the second deposition, the trial court stated:
The fact that the accused has been warned that false answers can result in a perjury prosecution can be of little value in circumstances where the defendant may have been misled by the fact that the main object of the investigation appeared to be inquiry as to substantive violations. A warning in such circumstances could not be effectual unless it includes a full disclosure to the effect that a perjury charge is then being contemplated and is almost sure to follow if the defendant persists in the answers which he has been giving.Id. at 932. This type of zeroing-in on the defendant at issue in Thayer is not the situation present in the instant case. The present case simply does not fall within the egregious circumstances set forth in the district court cases discussed above.
First, it is undisputed that the SEC began its civil investigation based on four false and misleading press releases issued by the Defendant on January 29, January 30, and February 3, 2003. That civil investigation was unquestionably initiated first. Based on the Defendant's failure to take corrective action pursuant to the instructions of the SEC, the SEC filed its Complaint and TRO with the Northern District of Georgia on February 6, 2003, only three days after the Defendant issued the last press release at issue. See SEC v. IBCL and Timothy Moses, Civil Action No. 1:03-CV-0346-JTC (N.D. Ga). A TRO was granted on February 10, 2003 and the hearing on the preliminary injunction was scheduled. The Defendant was deposed the very next day on February 11, 2003. The Defendant issued subpoenas to FBI Special Agents Jon Watson and Jeffrey Haverty for them to appear and be deposed on February 13, 2003, which was subsequently reset for February 19, 2003. Based on the issuance of these subpoenas by the Defendant and the request by the Government for their testimony at the preliminary hearing, it was necessary for the FBI Special Agents to obtain authorization to testify in the SEC proceeding from the U.S. Attorney's Office pursuant to 28 C.F.R. § 16.21, et seq. The SEC and the Defendant settled the civil action on February 19, 2003, one day prior to the scheduled preliminary hearing on February 20, 2003, leaving open only the issue of civil penalties. Discovery as to the remaining issue of civil penalties ended on September 24, 2003 and the SEC filed its motion for penalties on January 21, 2004. The instant indictment was not returned until almost eight months later on September 29, 2004. As noted above, the SEC issued a subpoena to the Defendant for his testimony long before learning that a criminal investigation was beginning.
Indeed, pursuant to this Court's August 23, 2005 Order [Doc. 54], the prosecutor furnished for this Court's in camera examination the document showing that the criminal case was not even opened up in the United States Attorney's office until February 13, 2003, which document is hereby ordered sealed for the District Judge's possible review.
The Government cites United States v. Handley, 763 F.2d 1401 (11th Cir. 1985), which appears to be the most closely analogous Eleventh Circuit case to the instant case. In Handley, the Eleventh Circuit reversed the district court's decision to suppress depositions taken by a civil rights plaintiff. The Eleventh Circuit found that depositions taken in a civil case should have been admitted in the criminal case as party admissions. The Government in Handley brought an indictment based primarily on evidence gathered through the civil discovery process. Although one of the purposes of the plaintiff in those civil depositions was to reopen the criminal case, the Court found that "depositions legally taken in previous civil or criminal proceedings" were not barred from admission. In finding the depositions were admissible, the Eleventh Circuit stated:
The civil case was not filed solely for the criminal prosecution and is viable wholly apart from any criminal connotations. Any compulsion exerted by [the civil plaintiff] therefore may not be imputed to the Government.Id. at 1405-06. The Court also found the deposition admissible because "[t]he government had no advance notice of any of the depositions and no input into their conduct." Id. at 1403.
In the present case, the Government concedes that the U.S. Attorney's Office was aware of the SEC civil investigation based on the giving of authorization for the FBI agents to testify in the preliminary hearing. However, any such contact appears to have taken place on the same day as the Defendant's deposition. As present in Handley, the U.S. Attorney's Office had no input into how the SEC conducted the Defendant's deposition. They were not present at the deposition and did not direct the SEC in any way as to how and what questions to ask the Defendant. Despite the Defendant's assertions that the SEC cooperated with the DOJ in their parallel proceedings, the facts belie that assertion.
The Government also relies on the district court case ofUnited States v. Teyibo, supra. The district court inTeyibo concluded, under the facts of that case, that the defendant's due process rights or right to refrain from self-incrimination were not violated in a criminal securities fraud case by the prosecutor's use of the defendant's deposition from the SEC civil proceedings. Teyibo, 877 F.Supp. at 856. In denying the defendant's motion to suppress evidence, the district court stated the controlling rule of law that "the prosecution may use evidence acquired in a civil action in a subsequent criminal proceeding unless the defendant demonstrates that such use would violate his constitutional rights or depart from the proper administration of criminal justice." Id. at 855.
In finding that the defendant's due process rights had not been violated, the Teyibo court noted that the SEC began its investigation several months before the U.S. Attorney's Office began its own inquiry, and the SEC continued to pursue the civil action for more than two years ultimately receiving a judgment.Teyibo, 877 F.Supp. at 855-56. The court further noted that no advice was given by the U.S. Attorney's Office to the SEC regarding the conduct on any part of the civil case, and the SEC was not told that a grand jury had been convened. Id. The court further found that the defendant received sufficient notice from the SEC that any information could be used against him in a subsequent criminal proceeding. Id. In so finding, the court stated:
In fact, SEC Form 1662 stated in no uncertain terms that the Government's request for information could be refused pursuant to the Fifth Amendment's protection against compelled self-incrimination. SEC Form 1662 cautioned further of the possibility that the information elicited would be transmitted to the United States Attorney's Office or other federal authorities for criminal prosecution.Id.
The Defendant simply offers no evidence that the SEC investigation and proceeding was a ruse, agreed upon by the SEC and DOJ on collusion to obtain incriminating evidence for use in a subsequent criminal proceeding. The Defendant offers no evidence except for conclusory allegations that the DOJ had knowledge of the SEC proceeding because it had to authorize testimony of FBI Special Agents Jon Watson and Jeffrey Haverty pursuant to 28 C.F.R. § 16.21, et seq., in the SEC proceeding and therefore, may have been involved or at least contemplated a criminal prosecution. Moreover, the instant indictment was filed some 18 months after the SEC filed its civil complaint, and the SEC retained its own case and pressed its civil claims independently of any criminal investigation or proceeding. The Defendant further claims that the questions asked during his SEC deposition may have been asked for the sole purpose of setting him up for a perjury charge or a later criminal trial [Doc. 41, p. 6]. The Defendant has not shown, however, why the questions were improper or unrelated to the SEC's own investigation. The mere fact that there is a possibility that a witness may later be indicted does not mean that a witness may not be asked questions, the answers to which may be incriminating; neither does the possibility that the witness may later be indicted require that he be advised of his rights under the Fifth Amendment if the Defendant was not in custody at the time. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United States v. White, 846 F.2d 678, 689 (11th Cir. 1988). Deposition testimony in a SEC proceeding can in no way be likened to the degree of restrictions associated with formal arrest. Accordingly, no violation of the Fifth Amendment occurred because the Defendant was not "in custody" at the time of his SEC deposition.
Furthermore, this Court is not convinced that the Defendant was somehow lulled or deceived into waiving his privilege against self-incrimination. The Defendant appeared at the SEC hearing represented by counsel. Pursuant to SEC Form 1662, as inTeyibo, the Defendant was advised of his Fifth Amendment rights prior to be being deposed on February 11, 2003. [Government's Exhibits "1" and "2" admitted at the August 17, 2005 hearing]. Although there may be a question as to whether the letter addressed to the Defendant from the SEC may have lulled the Defendant into a false sense of security, there can be no doubt that the Defendant, represented by counsel, did in fact receive his Fifth Amendment warnings. As previously stated, the Defendant was represented by counsel at the time of his SEC deposition testimony and, at a minimum, the Defendant's counsel could have intervened to ask for clarification of the warnings in SEC Form 1662.
The Court can only ponder the inherent conflicts which could arise should the Defendant be allowed to conduct discovery and an evidentiary hearing in this matter based on such vague allegations of prosecutorial misconduct. Indeed, this Court would be allowing the Defendant to conduct a fishing expedition based on insufficient facts and evidence. This Court declines to provide the Defendant with such an unprecedented hearing. What would happen if this Court granted the Defendant an evidentiary hearing when the Defendant has failed to make a prima facie showing of prosecutorial misconduct? Allowing the Defendant to proceed with an evidentiary hearing, thereby allowing him to subpoena various government attorneys based on nothing more than unsubstantiated allegations would lead to defendants insisting on an evidentiary hearing any time there has been a parallel proceeding between various governmental agencies. Clearly, this is not what Congress intended when it authorized the SEC and the DOJ to cooperate and share information relating to their investigations. See Section 21(d) of the Exchange Act [ 15 U.S.C. 78u(d)].
In sum, the Court concludes that the SEC proceeding was not used in order to trick the Defendant into unwittingly giving information for the criminal proceedings nor to bring a perjury charge against the Defendant. There is no evidence before this Court that the Government already knew the answers to the questions it was asking and was only attempting to entrap the Defendant into perjury. Defendant, represented by counsel, must have been fully aware of his rights, his duty to answer truthfully, and the consequences of committing perjury. The SEC proceedings were viable legal proceedings wholly apart from the criminal investigation. Consequently, the Defendant's claim for suppression based on prosecutorial misconduct or impropriety fails.
This Court, having concluded, however, that the Government was within its rights in pursuing the successive investigations, this Court finds that the Defendant has failed to make the requisiteprima facie showing of governmental misconduct which would entitle him to obtain discovery or an evidentiary hearing. The evidence presented by the Defendant is insufficient to show governmental knowledge at the time of the alleged misconduct. Without such requisite proof, the case law and the Fifth Amendment does not authorize the suppression of the Defendant's SEC deposition or warrant an evidentiary hearing.
IT IS THEREFORE RECOMMENDED that Defendant's Motion to Suppress his SEC Deposition and to Dismiss Count Two is DENIED. IT IS FURTHER RECOMMENDED that the accompanying request for Discovery and an Evidentiary Hearing in Support of Defendant's Motion to Suppress be DENIED.
IT IS SO RECOMMENDED, ORDERED AND CERTIFIED.