Opinion
Case No. 05-20863-CIV-MOORE.
March 24, 2006
Teresa Verges, Esq., Yolanda Gonzalez, Esq., Roger Cruz, Esq., Security and Exchange Commission, Miami, Florida, Attorney for Plaintiff.
Dennis Gary Kainen, Esq., WEISERG KAINEN, Miami, FL, Defendant.
Guy Alan Lewis, Esq., Michael Ross Esq., LEWIS TEIN, Coconut Grove, FL.
Luis S. Konski, Esq., Manjit S. Gill, Esq., BECKER POLIAKOFF, P.A., Coral Gables, FL.
Thomas G. Schultz, Esq., Jeffrey C. Schneider, Esq., David M. Levine, Esq., TEW CARDENAS LLP, Miami, FL, Receiver.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
THIS CAUSE comes before the Court for disposition after a two-day hearing in Miami, Florida, from January 23, 2006 through January 24, 2006. The Receiver and Securities and Exchange Commission ("SEC") filed joint motions for an order requiring Luis M. Cornide and his wife, Joanna Harrison Datesh as well as Robert De La Riva and his wife, Juliana De La Riva to show cause why they should not be held in contempt of court ("Contempt Motions") (DE #91, 101). In its November 22, 2005 Order, the Court found that the Receiver had made a prima facie showing that Defendants and their wives violated the Court's Temporary Restraining Order and Order of Preliminary Injunction. The burden thus shifted to Defendants and their wives to produce evidence explaining their noncompliance. See Citronelle-Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297, 1301 (11th Cir. 1991) (citing United States v. Rylander, 460 U.S. 752, 755 (1983)). The Court ordered Defendants and their wives to show cause at a hearing why they should not be held in contempt for actions taken after March 28, 2005 as outlined in the Receiver and SEC's Contempt Motions (DE #262). On January 23, 2006 and January 24, 2006 the Court held a hearing on the Contempt Motions.
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the Fifth Circuit rendered prior to October 1, 1981.
Due process requires that the court inform the alleged contemnor of the contemptuous conduct and provide a hearing to allow the contemnor to explain why the court should not make a contempt finding. Citronelle, 943 F.2d at 1305 (citing Mercer v. Mitchell, 908 F.2d 763, 767 (11th Cir. 1990)).
The Court, having heard two days of testimony, having reviewed the applicable pleadings, received evidence, and reviewed the applicable law, makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). Sanders v. Monsanto Co., 574 F.2d 198 (5th Cir. 1978) (Rule 52 (a) findings are required for decisions on motions to hold a party in civil contempt).
FINDINGS OF FACT
1. On March 28, 2005, the Securities and Exchange Commission commenced an enforcement action in this Court against Defendants Robert De La Riva ("De La Riva"), Luis M. Cornide ("Cornide"), Pension Fund of America L.C., PFA Assurance Group Ltd., PFA International, Ltd., and Claren TPA, LLC, (DE #1).
2. On March 28, 2005 and April 15, 2005 respectively, this Court entered a Temporary Restraining Order ("TRO") (DE # 15) and an Order of Preliminary Injunction ("Preliminary Injunction") (DE# 58) freezing Defendants' assets.
3. The Court also entered an Order Appointing Receiver and an Amended Order Appointing Receiver (DE #'s 16, 57).
4. The March 28, 2005 Temporary Restraining Order and the April 15, 2005 Order of Preliminary Injunction stated in relevant part:
The Defendants. . . . and those persons in active concert or participation with any one or more of them, and each of them, who receive notice of this order by personal service, mail, facsimile transmission or otherwise . . . be and hereby are, restrained from, directly or indirectly, transferring, setting off, receiving, changing, selling, pledging, assigning, liquidating or otherwise disposing of, or withdrawing any assets or property . . . including but not limited to cash, free credit balances, fully paid for securities, and/or property pledged or hypothecated as collateral for loans, or charging upon or drawing from any lines of credit, owned by, controlled by, or in the possession of:
(1) Pension Fund of America L.C.;
(2) PFA Assurance Group Ltd.;
(3) PFA International, Ltd.;
(4) Claren TPA, LLC;
(5) Luis M. Cornide; and
(6) Robert De La Riva.
TRO at § III; Prelim. Inj. at § II.
5. The TRO further required Defendants Cornide and De La Riva to
(b) make a sworn accountings to this Court and the Commission of all assets, funds, or other properties held by them, jointly or individually, or for their direct or indirect beneficial interest, or over which either or both of them maintains control, wherever situated . . .; (c) provide to the Court and the Commission a sworn identification of all accounts (including, but not limited to bank accounts, savings accounts, securities accounts and deposits of any kind) in which they (whether solely or jointly), directly or indirectly (including through a corporation, partnership, relative, friend or nominee), either have an interest or over which one or more of them have the power or right to exercise control.
TRO at § V.
6. The Order of Preliminary Injunction required:
[T]hat Cornide and De La Riva shall immediately begin cooperating with the Receiver by providing information and assistance as the Receiver deems necessary to fulfilling his duties as defined by the Court's March 28, 2005 Order Appointing Receiver.
Prelim. Inj. at § V.
7. On March 28, 2005 at approximately 5:00 p.m. De La Riva received a phone call from a PFA employee who informed him that PFA's offices had been "stormed" by federal agents. Tr. De La Riva, Jan. 23 at 8.
8. De La Riva immediately called Jose Villalobos, Esq. ("Villalobos"), his criminal defense attorney. Tr. De La Riva, Jan. 23 at 9. He then called Luis Cornide, informed him of the situation and told him that they were going to meet at Jose Villalobos's offices. Tr. Cornide, Jan. 24 at 39.
9. That evening Cornide and De La Riva met with Nathan Diamond ("Diamond"), another of his attorneys, and Jose Villalobos for several hours. Tr. De La Riva, Jan. 23 at 9; Tr. Cornide, Jan. 24 at 40-41; JE 4-1.
The four Joint Exhibit books admitted into evidence at the January 23, 2006 show cause hearing are cited to as: JE [Book Number]-[Tab Number].
10. At approximately 5:15 p.m. that evening, the SEC faxed the TRO to Hogan Hartson, Nathan Diamond, and Jose Villalobos, all attorneys for Defendants Luis Cornide and Robert De La Riva. Tr. Gainer, Jan. 24 at 6-10; JE 4-6; JE 4-69.
11. That evening Nathan Diamond received and reviewed the TRO and the order appointing receiver. He also conversed with his clients and Jose Villalobos. JE 4-6; Tr. Diamond, Jan. 24 at 35-37; JE 4-47.
12. On March 29, 2005, Cornide and De La Riva attempted to find legal representation with "SEC experience." Tr. De La Riva, Jan. 23 at 12. That evening Cornide and De La Riv a met with Richard Brodsky, Esq. Tr. De La Riva, Jan. 23 at 12.
13. On March 30, 3005 Cornide, De La Riva and Diamond met at the offices of the SEC to review documents for the Preliminary Injunction hearing. Tr. Cornide, Jan. 24 at 45.
14. That same evening Cornide, De La Riva, Diamond and Villalobos met again with Richard Brodsky, Esq. Tr. Cornide, Jan. 24 at 49-51. Richard Brodsky, Esq. was retained that day. Tr. De La Riva, Jan. 23 at 14.
15. The Preliminary Injunction hearing was held on April 7, 2005 before this Court (DE #45).
A. Luis Cornide and Joanna Harrison Datesh
16. After 1999 Luis Cornide had no source of income other than the receivership entities. JE 4-10; April 6, 2005 Deposition of Luis Cornide at 26-27.
17. During the first week of the receivership Cornide represented that all of his and his wife's assets were frozen and that neither he nor his wife had access to any other source of income. Tr. Cornide, Jan. 24 at 96-97. The Receiver agreed to pay the Cornides' reasonable living expenses.
18. However, his wife, Joanna Harrison Datesh maintained the following bank accounts at Bank of America whose existence was not disclosed to the Receiver: (1) The Household Accounts — Bank of America Account Number 005490993201 (the "3201 Account") and Bank of America Account 005505361003 (the "1003 Account") (collectively the "Household Accounts"); and (2) The Harrison Consulting Account — Bank of America Account Number 005490996693 (the "Harrison Consulting Account").
19. These bank accounts were entirely funded with money that was derived from PFA and/or other receivership entities.
1. The Household Accounts
a. Funding of the Household Accounts
20. On May 28, 2003, Joanna Harrison Datesh received a $331,858.63 transfer into her Washington Mutual Account from Luis Cornide through an entity called Beckingham Trading. Tr. Datesh, Jan. 23 at 160; Tr. Cornide, Jan. 24 at 74-75; JE 4-63; JE 3-1.
21. On May 29, 2003, Joanna Harrison Datesh opened Bank of America account number 005490993201 and deposited the $331,858.63 into that account. JE 3-1.
22. The money transferred to Joanna Harrison Datesh through Beckingham Trading "was from Luis [Cornide]." April 6, 2005 Deposition of Joanna Harrison Datesh at 46-47; Tr. Datesh, Jan. 23 at 160; Tr. Cornide, Jan. 24 at 75.
23. On August 29, 2003, Joanna Harrison Datesh wrote a check to Luis Cornide for $50,000; JE 3-4; JE 1-K. The check was filled out by Luis Cornide and signed by Joanna Harrison Datesh. Tr. Datesh, Jan. 23 at 161-162; Tr. Cornide, Jan. 24 at 107.
24. On September 25, 2003, Joanna Harrison Datesh wrote a check to Luis Cornide for $75,000. JE 3-5. The check was filled out by Luis Cornide and signed by Joanna Harrison Datesh. Tr. Datesh, Jan. 23 at 162-163; Tr. Cornide, Jan. 24 at 107-108.
25. On October 10, 2003, Joanna Harrison Datesh wrote a check to Luis Cornide for $182,000. JE 3-5. The check was filled out by Luis Cornide and signed by Joanna Harrison Datesh. Tr. Datesh, Jan. 23 at 163-164; JE 3-5.
26. Cornide never reimbursed Joanna Harrison Datesh for this $257,000. Tr. Datesh, Jan. 23 at 164.
27. On April 15, 2004, Joanna Harrison Datesh deposited a $40,000 check from Cornide into the 3201 Account. JE 3-11; JE 1-D; Tr. Datesh, Jan. 23 at 165; Tr. Cornide, Jan. 24 at 75.
28. On April 22, 2004, Joanna Harrison Datesh deposited a $50,000 check and $60,000 check from Cornide into the 3201 Account. JE 3-12; JE 1-E; Tr. Datesh, Jan. 23 at 167-168; Tr. Cornide, Jan. 24 at 75-76.
29. On May 12, 2004, Joanna Harrison Datesh wrote a check for $30,000 to Atlantic Realty Ventures, one of Cornide's entities. JE 3-12; JE 1-G; Tr. Datesh, Jan. 23 at 168.
30. From April 2004 until October 2004, Joanna Harrison Datesh made several withdrawals from the 3201 Account, resulting in a balance of $75.374.44 in November of 2004. JE 3-13 through 18.
31. On November 10, 2004, Joanna Harrison Datesh transferred the balance of the 3201 Account, $75,374.44, into a new Bank of America account, account number 005505361003. JE 3-18, 19; Tr. Datesh, Jan. 23 at 170-171.
b. The Post-Receivership Activity in the Household Accounts
32. Until March 29, 2005, when Joanna Harrison Datesh made several post-receivership transfers, there was no activity in the 1003 Account. JE 3-19, 20, 21, 22; Tr. Datesh, Jan. 23 at 173-174.
33. On March 29, 2005, Joanna Harrison Datesh wrote a $10,000 check to cash from the 1003 Account. JE 3-23; JE 1-L; Tr. Datesh, Jan. 23 at 134, 157.
34. On March 30, 2005, Joanna Harrison Datesh wrote a $10,000 check to cash from the 1003 Account. JE 3-23; JE l-L; Tr. Datesh, Jan. 23 at 134, 157.
35. On March 31, 2005, Joanna Harrison Datesh wrote a $10,000 check to cash from the 1003 Account. JE 3-23; JE 1-L; Tr. Datesh, Jan. 23 at 134, 157.
36. On April 1, 2005, Joanna Harrison Datesh wrote a $10,000 check to cash from the 1003 Account. JE 3-23; JE 1-L; Tr. Datesh, Jan. 23 at 134, 157.
37. On April 4, 2005 Joanna Harrison Datesh wrote a $10,000 check to cash from the 1003 Account. JE 3-23; JE 1-L; Tr. Datesh, Jan. 23 at 134, 157.
38. Joanna Harrison Datesh cashed each check on the date drawn and walked out of the bank each day with $10,000 in cash. April 6, 2005 Deposition of Joanna Harrison Datesh, at 56.
39. This $50,000 in cash was spent in a variety of ways throughout April and May by both Joanna Harrison Datesh and Luis Cornide. JE 4-62; Tr. Datesh, Jan. 23 at 152-153, 175-181; Tr. Cornide, Jan. 24 at 82.
40. From April 5, 2005 through April 12, 2005, Joanna Harrison Datesh wrote a series of checks from the 1003 Account. JE 3-23. Joanna Harrison Datesh continued to write checks and take cash from this account. JE 4-24, 25.
41. As of April 18, 2005, the closing balance on the 1003 Account was $17,586.31. JE 3-23.
42. From April 19, 2005 through September 19, 2005, various checks were deposited into the account and various checks were written from the account. JE 3-24-29. On October 5, 2005, Joanna Harrison Datesh transferred the balance of the 1003 Account to Bank of America account number 005495163065 (the "3065 Account"). JE 3-24-29.
1. The Harrison Consulting Account
a. Funding of the Harrison Consulting Account
43. Bank of America account number 005490996693 (the "Harrison Consulting Account") was opened by Joanna Harrison Datesh on May 24, 2004 with a $3,000 deposit from Joanna Harrison Datesh's Bank of America account number 005490993201, an account funded by Luis Cornide. JE 3-32; Tr. Datesh, Jan. 23 at 189.
44. On May 26, 2004, Joanna Harrison Datesh wrote a $500 check from the Harrison Consulting Account to Hernandez Co., CPA, the accountant who had formed Harrison Consulting just a few weeks earlier. JE 3-33; June 13, 2005 Deposition of Joanna Harrison Datesh, at 27.
45. On May 28, 2004, Luis Cornide transferred approximately $240,000 from LMC Holdings, Inc., a receivership entity, to the Harrison Consulting Account. JE 3-32; Tr. Datesh, Jan. 23 at 189; Tr. Cornide, Jan. 24 at 76.
46. From May 28, 2004 until July 29, 2004, there was no activity in the account. JE 3-32-34.
47. On July 29, 2004, the Law Offices of Jose A. Villalobos, P.A. wrote a check from its trust account to Harrison Consulting for $689,315.79. JE 3-34; Tr. Datesh, Jan. 23 at 190; Tr. Cornide, Jan. 24 at 76-77.
48. There was no activity in the Harrison Consulting account from July 29, 2004 until February 7, 2005. As of February 7, 2005 the account had a balance of $931,755.79. JE 3-34 through 40.
49. On February 8, 2005, Joanna Harrison Datesh made a $73,125 payment to Optimal Performance Solutions, LLC. JE 3-41.
50. On February 10, 2005, Joanna Harrison Datesh made a $358,400 transfer to the Oscar Vila Trust Account. JE 3-41. She also made a $89,600 transfer to Fieldstone Lester Shear and a $494.98 transfer to Carrollton School. JE 3-41, 42.
51. At the inception of the receivership, on March 28, 2005, the Harrison Consulting account still maintained a balance of over $400,000. JE 3-42.
b. The Post-Receivership Activity in the Harrison Consulting Account
52. On March 29, 2005, one day after the initiation of the receivership, Joanna Harrison Datesh drew $207,000 in cashier's checks from the Harrison Consulting account. Tr. Datesh, Jan. 23 at 157-158.
53. Joanna Harrison Datesh drew a cashier's check to herself for $28,000 for miscellaneous furniture expenses. JE 3-42; JE 1-P; Tr. Datesh, Jan. 23 at 141-142.
54. Joanna Harrison Datesh drew a cashier's check to David Portal (a contractor on the Zambrana property) for $42,000. JE 3-42; JE 1-M; Tr. Datesh, Jan. 23 at 155-156.
55. Joanna Harrison Datesh drew a cashier's check to MBNA America for $23,000 as a prepayment. JE 3-42; JE 1-R; Tr. Datesh, Jan. 23 at 147-148. Joanna Harrison Datesh made this prepayment to MBNA so that she could use checks from her MBNA account. Tr. Datesh, Jan. 23 at 185.
56. Joanna Harrison Datesh drew a cashier's check to American Express for $32,000 as a prepayment on Luis Cornide's American Express Card. JE 3-42; JE 1-Q; Tr. Datesh, Jan. 23 at 146-147, 183-184.
57. Joanna Harrison Datesh continued to use this American Express card throughout April and May. Tr. Datesh, Jan. 23 at 183-184. Luis Cornide knew of this prepayment and continued to use this card throughout April and May. Tr. Cornide, Jan. 24 at 99- 100.
58. Joanna Harrison Datesh drew a cashier's check to Raquel Datesh, her mother, for $44,000 as reimbursement for college expenses incurred over ten years ago. JE 3-42; JE 1-N; Tr. Datesh, Jan. 23 at 136-138, 187.
59. Joanna Harrison Datesh drew a cashier's check to BMW SouthMotors for $30,000. JE 3-42; JE 1-0; Tr. Datesh, Jan. 23 at 140-141, 187. The BMW was purchased on April 19, 2005, by Raquel Datesh for $20,000. Tr. Datesh, Jan. 23 at 187; JE 1-O.
60. Raquel Datesh gave the remaining $10,000 to Jean Bean, Joanna Harrison Datesh's grandmother, for her contribution to Joanna Harrison Datesh's wedding. Tr. Raquel Datesh, Jan. 23 at 207-208.
61. Joanna Harrison Datesh drew a cashier's check for $8,000 which she herself cashed. JE 3-42.
62. As of April 28, 2005, the balance on the Harrison Consulting account was $202,149.91. JE 3-43.
63. On March 29, 2005, Joanna Harrison Datesh executed two separate leases on the Islamorada property on behalf of Harrison Consulting. JE 4-15-19; JE 1-H.
64. In the first five days of the receivership Joanna Harrison Datesh removed $86,000 in cash from the two accounts. Tr. Datesh, Jan. 23 at 158.
65. Luis Cornide had no signature rights on any of Joanna Harrison Datesh's accounts and Raquel Datesh was the named beneficiary on each account. Tr. Datesh, Jan. 23 at 148-149; JE 3-Joanna Harrison Datesh's Signature Cards.
B. Robert De La Riva and Juliana De La Riva
66. After 1999 Robert De La Riva had no source of income other than the receivership entities. JE 4-25; April 6, 2005 Deposition of Robert De La Riva at 70, 81. The Receiver agreed to pay the De La Rivas' reasonable living expenses.
67. Juliana De La Riva maintained the following bank account at Washington Mutual Bank which was not frozen: Washington Mutual account number 098-251027-6
68. This bank account as well as the rest of the property given to Juliana De La Riva by Robert De La Riva was derived from Pension Fund of America. Tr. De La Riva, Jan. 23 at 32-33.
1. The Washington Mutual Account
a. Funding of the Washington Mutual Account
69. In October 2004, Robert De La Riva and his wife Juliana De La Riva executed a Marital Settlement Agreement. Tr. De La Riva, Jan. 23 at 7; Respondent's Ex. 1.
70. Robert De La Riva and Juliana De La Riva have never been legally separated or divorced. Tr. De La Riva, Jan. 23 at 53.
71. Pursuant to that settlement agreement Juliana De La Riva received $200,000 in cash, the condominium at 1280 Alhambra, her horses, her car, alimony and child support. Tr. De La Riva, Jan. 23 at 23.
72. On or about November 9, 2004, Juliana De La Riva opened a Washington Mutual account, — account number 098-251027-6 — with the $200,000 from the Marital Settlement Agreement. Respondent's Ex. 1; April 6 Deposition of De La Riva at 17-18; JE 3-44; JE 4-64, 65.
73. The $200,000 was transferred from RDLR Holdings, Ltd.'s account at Gibralter Bank, account number 900173820, to Juliana De La Riva. JE 4-27. RDLR Holdings, Ltd. is a receivership entity.
74. Robert De La Riva continued to fund Juliana De La Riva's Washington Mutual Account. JE 3-28, 49.
75. On March 24, 2005, three days before inception of the receivership, Robert De La Riva wrote two checks from the RDLR Holdings, Ltd. account to Juliana De La Riva for $120,000 and $85,000. On March 27, 2005 he wrote a check for $5,000. JE 3-49; Tr. De La Riva, Jan. 23 at 49-52, 68.
76. On March 29, 2005 Juliana De La Riva attempted to deposit these checks into her Washington Mutual Account. The checks, however, did not clear as they were drawn on frozen accounts. Tr. De La Riva, Jan. 23 at 52; JE 3-49.
77. Robert De La Riva was not a signatory to this Washington Mutual account. Tr. De La Riva, Jan. 23 at 23; JE 3-Juliana De La Riva's Signature Cards; Respondent Ex. 2.
b. Post-Receivership Activity in the Washington Mutual Account
78. On March 29, 2005, Juliana De La Riva transferred $185,000 from the Tarra Farms account to the Washington Mutual Account. JE 3-49; Tr. De La Riva, Jan. 23 at 51.
79. This check did not clear, as it was drawn on a frozen account. Tr. De La Riva, Jan. 23 at 52; JE 3-49.
80. On March 31, 2005, Juliana De La Riva cut several checks to various vendors from her Washington Mutual Account. JE 2-Ex. A.
81. Shortly after the commencement of the receivership, De La Riva admitted to the Receiver that his wife had transferred approximately $175,000 post-receivership to Jose Diaz ("Diaz"), an architect performing construction administration services for the remodeling of the Hammock Park property. Tr. De La Riva, Jan. 23 at 65-66.
CONCLUSIONS OF LAW
82. Federal courts have the inherent power to impose submission to their lawful mandates and to achieve the orderly disposition of cases. See Chambers v. Nasco, Inc., 501 U.S. 32, 43-44 (1991). For example, "[a] court has the power to conduct an independent investigation in order to determine whether it has been the victim of fraud." Id. at 44.
83. A civil contempt fine can be used to compensate a complainant for losses suffered as a result of noncompliance with a court order. See International Union, UMWA v. Bagwell, 512 U.S. 821, 826-27 (1994) (quoting United States v. Mine Workers of America, 330 U.S. 258, 303-304 (1947)); Hutto v. Finney, 437 U.S. 678, 690-91 (1978).
A. Clear and Convincing Standard
84. Proof of contempt must be clear and convincing. McGregor v. Chierico, 206 F.3d 1378, 1383 (11th Cir. 2000). "This clear and convincing proof must also demonstrate that 1) the allegedly violated order was valid and lawful; 2) the order was clear, definite and unambiguous; and 3) the alleged violator had the ability to comply with the order." Id. (internal marks and citation omitted).
85. First, with respect to the Contempt Motions, Defendants and their wives have not challenged the validity of the Preliminary Injunction or TRO and thus for purposes of this Order the Court assumes that those Orders are valid.
86. Second, Defendants and their wives argue that they cannot be held in contempt because the Court's injunction is ambiguous and subject to more than one reasonable interpretation. Def. Post-Hearing Brief at 15-16.
87. Rule 65 of the Federal Rules of Civil Procedure requires that an injunction be "specific in terms" and describe "in reasonable detail the acts sought to be restrained." Nevertheless, Courts "do not set aside injunctions under Rule 65(d) unless they are so vague that they have no reasonably specific meaning." Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1203 (11th Cir. 2001) (internal quotations omitted). In other words, "the inquiry should be whether the parties subject to the injunctive order understood their obligations under the order." Williams v. City of Dothan, Ala., 818 F.2d 755, 761 (11th Cir. 1987).
88. Defendants, represented by competent counsel, voluntarily agreed to be bound by the terms of the injunction. At no point prior to the contempt proceeding did Defendants complain to the Court about the adequacy of the terms of the injunction or seek to have it modified. Accordingly, at this point, any objection to the specific terms of the injunction is deemed waived. See Combs v. Ryan's Cole Co., Inc., 785 F.2d 970, 979 (11th Cir. 1986).
Defendants filed a motion to modify the asset freeze on November 15, 2005 months after the Contempt Motions had been filed (DE #246).
89. Nevertheless, even if Defendants had not waived their objections to the injunction, the injunction is not vague, ambiguous, or overly broad nor did it contain material omissions.King v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir. 1995) (clear and unambiguous order is one that leaves "no uncertainty in the minds of those to whom it is addressed . . . who must be able to ascertain from the four corners of the order precisely what acts are forbidden.") (citations omitted).
90. The injunction is absolutely clear in that it restrains the Defendants and those persons in active concert or participation with them, who receive notice of the injunction, from transferring or otherwise disposing of, or withdrawing any assets or property owned by, controlled by, or in the possession of Luis M. Cornide and Robert De La Riva. This portion of the TRO is not ambiguous in any way and not susceptible to any other construction. It is under this strictest construction of the TRO that the Court assesses Defendants' and their wives' allegedly contumacious conduct. See United States v. Armour Co., 402 U.S. 673, 692 (1971) (holding that "the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it."), Abbott Lab. v. Unlimited Beverages, Inc., 218 F.3d 1238, 1240 (11th Cir. 2000) ("[a] district court may not expand the decree or impose obligations that are not unambiguously mandated by the decree itself."); Perez v. Danbury Hosp., 347 F.3d 419, 424 (2d Cir. 2003) ("courts must abide by the express terms of a consent decree and may not impose supplementary obligations on the parties even to fulfill the purposes of the decree more effectively.") (internal citations omitted).
91. Finally, it is uncontested that Defendants and their wives had the ability to comply with the Order of this Court.
B. Violation of the Court's Injunction
92. In order to prove civil contempt, the petitioning party must prove by clear and convincing evidence that the underlying order was violated. Howard Johnson Co., Inc. v. Khimani, 892 F.2d 1512, 1516 (11th Cir. 1990).
1. Notice of the Injunction
93. As a threshold matter, parties and non-parties alike must have been on notice of the Court's Order to be subject to the injunction. Fed.R.Civ.P. 65 (d).
94. The evidence presented to this Court clearly and convincingly demonstrates that Defendants Comide and De La Riva were aware of this Court's injunction at or about the date it was issued. Nathan Diamond received and reviewed the TRO and conversed with his clients. JE 4-6; Tr. Diamond, Jan. 24 at 35-37; JE 4-47. Luis Cornide was served, personally on March 29, 2005. Tr. Comide, Jan. 24 at 36-37. By March 29, 2005, the Defendants were preparing for a hearing that had been set in Section I of the March 28, 2005 TRO. Tr. De La Riva, Jan. 23 at 13, 15.
95. With respect to Joanna Harrison Datesh, as outlined above and as discussed below, Joanna Harrison Datesh's actions on the days immediately following entry of the TRO are so consistent with knowledge and inconsistent with innocence as to render her denials of knowledge unworthy of belief.
96. With respect to Juliana De La Riva, the Receiver and SEC have failed to present this Court with evidence, circumstantial or otherwise, as to Juliana De La Riva's knowledge of the TRO on or about March 28, 2005. The only evidence of Juliana De La Riva's notice of the TRO is the Declaration of Mara Garcia who stated that on March 31, 2005, a contractor of Exec 2000 served this Court's TRO on Juliana De La Riva by leaving the document for her in the mailbox at 5000 Hammock Park Drive, Coral Gables, Florida. JE 4-59. The "contractor" however, has not been identified and Juliana De La Riva testified that there was no mailbox at 5000 Hammock Park as, at the time, it was a construction site. Tr. Juliana De La Riva, Jan. 23 at 129. Moreover, the nature of Julian a De La Riva's post-receivership transfers do not convince this Court that she had knowledge of the TRO at or about the time it was entered.
2. Accounts Subject to the Injunction
97. Next, the finding of contempt in this case depends on whether the accounts in question were subject to the injunction. The injunction, by its terms, was limited to those funds that were owned by, controlled by, or in the possession of Luis M. Cornide and Robert De La Riva. TRO at § III.
98. "Ownership of the account depends not only upon the account title and the trust and contract documents in evidence, but also upon the actual operation of the account. Particularly important are facts concerning which party opened the account, which party controlled the account, the source of the funds and their purpose." National Bank of Georgia v. Kennesaw Life Acci. Ins. Co., 800 F.2d 1542, 1546 (11th Cir. 1986) (internal citations omitted).
a. The Washington Mutual Accounts Titled in the Name of Juliana De La Riva
99. Robert De La Riva began depositing funds into the account titled in Juliana De La Riva's name after having been sued for tens of millions of dollars, after having had to return over $50 million and with the knowledge that the U.S. Attorney's Office was investigating himself and PFA. JE 3-1, JE 3-11, 12, 32, 34, 44-50; Tr. De La Riva, Jan. 23 at 36.
100. While it is painfully obvious to this Court that the accounts of Juliana De La Riva were entirely funded with investor money, the Receiver and SEC have nevertheless, failed to provide this Court with clear and convincing evidence that Robert De La Riva controlled the accounts of Juliana De La Riva. Thus, the Washington Mutual account titled in Juliana De La Riva's name does not fall within the scope of the injunction.
101. Furthermore, although De La Riva included Juliana De La Riva's accounts on his sworn accounting, and although the TRO only required De La Riva to include "bank accounts. in which [he] (whether solely or jointly), directly or indirectly (including through a, relative, friend or nominee), either have an interest or over which [he has] the power or right to exercise control," that fact without more is insufficient to establish that De La Riva controlled the Washington Mutual Account.
102. Therefore, transfers from Juliana De La Riva's Washington Mutual Account cannot form the basis of a contempt finding.
b. The Harrison Consulting; Account and Household Accounts Titled in the Name of Joanna Harrison Datesh
103. Cornide began depositing funds into the accounts titled in Joanna Harrison Datesh's name after having been sued for tens of millions of dollars, after having had to return over $50 million and after the U.S. Attorney's office initiated an investigation into PFA. JE 3-1, JE 3-11, 12, 32, 34, 44-50. Tr. Cornide, Jan. 24 at 109-110.
104. The evidence presented to this Court clearly and convincingly establishes that the accounts of Joanna Harrison Datesh were controlled by Luis M. Cornide. For all practical purposes Cornide controlled the influx and outflow of cash in these accounts.
105. For example, with respect to the funding of the Household Accounts Cornide made: (1) a May 28, 2003 transfer of $331,858.63. JE 3-1,2; (2) an April 15, 2004 transfer of $40,000. JE 3-11; JE 1-E; (3) an April 22, 2004, transfer of $50,000 and $60,000. JE 3-12; JE 1-E.
106. Cornide withdrew cash as needed as evidenced by (1) the August 29, 2003 check to Luis Cornide for $50,000. JE 3-4; Je 1-K; (2) the September 25, 2003 check to Luis Cornide for $75,000. JE 3-5; (3) the October 10, 2003 check to Luis Cornide for $182,000. JE 3-5; (4) the May 12, 2004 check for $30,000 to Atlantic Realty Ventures, one of Comide's entities. JE 3-12; JE 1-G.
107. With respect to the Harrison Consulting Account Cornide made: (1) a May 28, 2004 transfer of $240,000 from LMC Holdings, Inc., a receivership entity. JE 3-32; Tr. Datesh, Jan. 23 at 189; Tr. Cornide, Jan. 24 at 76; (2) a July 29, 2004, $689,315.79 transfer from Cornide's attorney. JE 3-34; Tr. Datesh, Jan. 23 at 190; Tr. Cornide, Jan. 24 at 76-77.
108. Cornide used these accounts as his personal checking accounts and removed over $300,000 at his own discretion by simply filling out blank checks and having Joanna Harrison Datesh sign them. JE 3-4,5, 12.
109. Moreover, before institution of the receivership, Joanna Harrison Datesh did not even use these accounts. Rather, she typically used the Bank of America account number 005495163065 Account (the "3065 Account") for normal everyday items and expenses. JE 3-6-23; Tr. Datesh, Jan. 23 at 166. She did not commingle her personal funds with the funds that her husband had given her nor did she deposit any of her personal funds into these accounts. Tr. Datesh Jan. 23 at 166-167.
110. Thus, in tracing the funds deposited into these accounts and having considered the Receiver and SEC's rebuttal evidence on the purpose of the accounts and Joanna Harrison Datesh's control over the accounts, any presumption in favor of Joanna Harrison Datesh's ownership dissolves. All of the facts and circumstances surrounding the operation of these accounts indicate that the accounts indeed were controlled by Cornide. National Bank of Georgia, 800 F.2d at 1546 (11th Cir. 1986); see also SEC v. Antar, 831 F. Supp. 380 (D.N.J. 1993).
111. These facts, coupled with the fact that Cornide included these accounts on his sworn accountings as "bank accounts, savings accounts, securities accounts and deposits of any kind) in which [he] (whether solely or jointly), directly or indirectly (including through a corporation, partnership, relative, friend or nominee), either have an interest or over which [he has] the power or right to exercise control," militates in favor of a finding of control.
3. Individuals Subject to the Injunction
112. Next, any determination of a violation of the Court's injunction necessitates a determination as to whether the individuals engaged in the alleged conduct were subject to the Court's injunction.
113. Rule 65(d) of the Federal Rules of Civil Procedure provides that "[e]very order granting an injunction and every restraining order is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. Fed.R.Civ.P. 65(d).
114. It is undisputed that the Court has jurisdiction over Defendants as parties in this case. Fed.R.Civ.P. 65(d).
115. Non-parties, such as Defendants' spouses, "may be subject to [the] court's jurisdiction if, with actual notice of the court's order, they actively aid and abet a party in violating that order." United States v. Barnette, 129 F.3d 1179, 1185 n. 10 (11th Cir. 1997) (quoting Waffenschmidt v. MacKay, 763 F.2d 711, 714-17 (5th Cir. 1985)); see also Regal Knitwear Co. v. NLRB, 324 U.S. 9,14 (1945) ("Successors and assigns may, however, be instrumentalities through which defendant seeks to evade an order or may come within the description of persons in active concert or participation with them in the violation of an injunction. If they are, by that fact they are brought within scope of contempt proceedings by the rules of civil procedure.").
116. Thus, the next question for this Court is whether the wives aided and abetted or were in active concert or participation with Defendants in circumventing the Court's Orders. Rule 65 was intended to embody "the common-law doctrine that a decree of injunction not only binds the parties defendant but also those identified with them in interest, in `privity' with them, represented by them or subject to their control."Regal Knitwear Co. v. NLRB. 1945, 324 U.S. 9, 14 (1945).
117. With respect to Joanna Harrison Datesh, while she has provided explanations for her post-receivership transfers, the economic substance and reality of these transactions is that Joanna Harrison Datesh was aiding and abetting and acting in concert with Luis Cornide to circumvent the intent of the Court's injunction and dissipate the receivership's assets.
118. The Court rejects Joanna Harrison Datesh's argument that she relied on the advice of counsel and thought that she could use the funds. "The advice of counsel is not available as a defense to such action unless the defendant is shown to have made a full and fair disclosure, in good faith, of all the facts known to him bearing upon the guilt or innocence of the accused, and upon which the criminal prosecution is sought to be based."Gleghorn v. Koontz, 178 F.2d 133, 136 (5th Cir. 1949). The evidence presented to this Court demonstrates that Joanna Harrison Datesh's counsel did not have all of the facts concerning the sources and uses of the funds in her possession. Tr. Bloom, Jan. 24 at 9-16.
119. Moreover, "[t]he focus of the court's inquiry in civil contempt proceedings is not on the subjective beliefs or intent of the alleged contemnors in complying with the order, but whether in fact their conduct complied with the order at issue."Howard Johnson Co., Inc. v. Khimani, 892 F.2d 1512, 1516 (11th Cir. 1990). Thus, it is irrelevant to this Court whether Joanna Harrison Datesh believed she was violating the Court's injunction.
120. The Court further rejects Joanna Harrison Datesh's argument that the court has no power to punish her for contempt where she was acting solely in pursuit of her own interests. Defendants and their wives cite to United States v. Hall, 472 F.2d 261, 264 (5th Cir. 1973) for the proposition that a court of equity has no power to punish for contempt a nonparty acting solely in pursuit of her own interests. As discussed, the Court finds that Joanna Harrison Datesh was not acting solely in pursuit of her own interests. Moreover, what Defendants and their wives failed to include in their brief is that the court inHall further noted that where a third parties' actions disturb the adjudication of rights and obligations as between the original plaintiffs and defendants, and imperil the court's fundamental power to make a binding adjudication between the parties properly before it, broad applications of the power to punish for contempt may be necessary. Id. at 266. In this instance, Joanna Harrison Datesh dissipated assets of the receivership thereby disturbing the adjudication of rights between the original Plaintiffs and Defendants and thus the Court may exercise its contempt power over her.
121. The Court further rejects Joanna Datesh's argument that the court has no power to punish her for contempt where she has independent interest in the subject property. Post-Hearing Brief at 7-10. Joanna Harrison Datesh argues that Heyman v. Kline, 444 F.2d 65 (2d Cir. 1971), controls the decision in this case.Heyman, however, is clearly distinguishable from the instant case. Heyman stated that if a nonparty asserts an independent interest in the subject property and is not merely acting on behalf of the defendant, then Rule 65(d) does not authorize jurisdiction over the party. In contrast, the Court finds that Joanna Harrison Datesh did not have an independent interest in the subject property and merely acted on behalf of Luis Cornide in dissipating the funds.
122. In the days immediately following initiation of the receivership, Joanna Harrison Datesh drew $207,000 in cashier's checks from the Harrison Consulting Account. Each of these transfers was in violation of the Court's injunction. Tr. Datesh, Jan. 23, at 157-1581; JE 3-42; JE 1-P; Tr. Datesh, Jan. 23 at 141-142; JE 3-42; JE 1-M, Tr. Datesh, Jan. 23 at 155-156; JE 3-42; JE 1-R; Tr. Datesh, Jan. 23 at 147-148; Tr. Datesh, Jan. 23 at 185; JE 3-42; JE 1-Q; Tr. Datesh, Jan. 23 at 146-147, 183-184; JE 3-42; JE 1-N; Tr. Datesh, Jan. 23 at 136-138, 187; JE 3-42; JE 1-0; Tr. Datesh, Jan. 23 at 140-141, 187; JE 3-42. This conduct is contumacious.
123. In the days immediately following initiation of the receivership, Joanna Harrison Datesh drew $50,000 in cashier's checks from the Household Accounts. JE 3-23; JE 1-L; Datesh, Jan. 23 at 134; Tr. Datesh, Jan. 24 at 134, 157; JE 3-23; JE 1-L; Tr. Datesh, Jan. 24 at 134, 157; JE 3-23; JE 1-L; Tr. Datesh, Jan. 24 at 134, 157; JE 3-23; JE 1-L; Tr. Datesh, Jan. 24 at 134, 157; JE 3-23; JE 1-L; Tr. Datesh, Jan. 24 at 134, 157. She and Luis Cornide continued to use this $50,000 in cash throughout April and May. JE 4-62; Tr. Datesh, Jan. 23 at 152-153, 175-181; Tr. Cornide, Jan. 24 at 82. This conduct is contumacious.
124. Furthermore, on March 29, 2005, Joanna Harrison Datesh attempted to execute two separate leases on the Islamorada property on behalf of Harrison Consulting in violation of the injunction. JE 4-15-19; JE 1-H. This conduct is contumacious.
125. These post-receivership transfers and encumbrances clearly and convincingly demonstrate that Joanna Harrison Datesh aided and abetted Luis Cornide in violation of the Court's injunction.Howard Johnson Co. v. Khimani, 892 F.2d 1512, 1516 (11th Cir. 1990).
126. The injunction was entered to reach broadly any PFA funds. It lacks credibility that at or about the time of the entry of the TRO, Joanna Harrison Datesh innocently engaged in a series of transactions involving hundreds of thousands of dollars of PFA derived funds simply because the accounts were titled in Joanna Harrison Datesh's name and were facially one step removed from Cornide's accounts. Neither the intent of the TRO nor the law recognizes such chicanery as a way of depriving the Receiver from recovering estate assets on behalf of defrauded investors. It is quite obvious that Cornide saw the law coming and through Joanna Harrison Datesh attempted to conceal and/or dissipate receivership assets.
127. Moreover, with respect to Luis Comide, his sworn accounting does not account for the post-receivership withdrawals from these accounts nor does it account for the $86,000 in cash that was in his possession after initiation of the receivership or the $55,000 prepayment on their credit cards. Tr. Alfonso, Jan. 23 at 226-227; Tr. Alfonso, Jan. 23 at 228-230.
128. Cornide gave intentionally false and misleading statements concerning the sources and uses of his funds, which has interfered with the ability of this Court to preserve the integrity of assets related to the SEC enforcement proceeding.
129. While the Court is cognizant of the principle that it should make sparing use of its contempt power, here the element of obstruction to the Court in performance of its duty was demonstrated by clear and convincing evidence. Thus, in order to vindicate the authority of the Court, a finding of civil contempt by the Court is necessary.
130. Accordingly, the Court finds that Joanna Harrison Datesh had notice of the TRO on March 28, 2005, yet assisted Luis Cornide in his effort to evade the enforcement of this injunction. Therefore, the Court finds that Joanna Harrison Datesh and Luis Cornide in contempt.
131. With respect to Juliana De La Riva the evidence presented to this Court has not clearly and convincingly established that Juliana De La Riva aided and abetted, or acted in concert with, Robert De La Riva in a scheme to evade the injunction. The Court therefore cannot find that her conduct, the transfers to and from her Washington Mutual account, were contumacious.
132. That said, Robert De La Riva's sworn accountings neglected to account for the hundreds of thousands of dollars of checks that were in transit on March 31, 2005 from Juliana De La Riva's account. However, Robert De La Riva cannot be held in contempt for this potentially misleading accounting because as this Court has not been presented with clear and convincing evidence that Robert De La Riva controlled these accounts, or that he had a beneficial interest in these accounts, they need not have been included on his accounting. The Court cannot at this time find Robert De La Riva or Juliana De La Riva in contempt. Juliana and Robert De La Riva may choose to petition the Receiver to reinstate payment of reasonable living expenses. Consideration by the Receiver of any such petition, should one be filed, should take into account alternative sources of funds, other than estate assets, available to the De La Rivas before such expenses are agreed to. In addition, in the event the Receiver agrees to the payment of any reasonable expenses, such payment shall be upon such terms and conditions as are appropriate, including, but not limited to, the cooperation of the De La Rivas in recovering Estate assets, transferring Estate assets held in the name of the De La Rivas, jointly or individually, to the Receiver, and in providing a current sworn net worth statement either jointly or individually under penalty of perjury to be filed with the Court.
Tr. Alfonso, Jan. 23 at 232.
C. Civil Contempt Sanction
133. This Court has the power to impose coercive and compensatory sanctions. In re Chase and Sanborn Corp. v. Nordberg, 872 F.2d 397 (11th Cir. 1989). 134. A court is obliged to use the least possible power adequate to the end proposed in selecting contempt sanctions. See Spallone v. United States, 493 U.S. 265, 276 (1990).
135. When fashioning a sanction to secure compliance, a district court should consider "`the character and magnitude of the harm threatened by continued contumacy and the probable effectiveness of any suggested sanction in bringing about the result desired.'" — EEOC v. Guardian Pools, Inc., 828 F.2d 1507, 1515 (11th Cir. 1987) (quoting United Mine Workers, 330 U.S. at 304).
136. Sanctions may be imposed to coerce the contemnor to comply with the court's order, but may not be so excessive as to be punitive in nature. In re Application to Adjudge Trinity Indus., 876 F.2d 1485, 1493 (11th Cir. 1989).
137. The district court has numerous options, among them: a coercive daily fine, a compensatory fine, attorney's fees and expenses to the Receiver, and coercive incarceration. In re Application to Adjudge Trinity Indus., 876 F.2d at 1494; EEOC, 828 F.2d at 1516; Sizzler Family Steak Houses v. Western Sizzlin Steak House, 793 F.2d 1529, 1535-36 (11th Cir. 1986); see also Shillitani v. United States, 384 U.S. 364, 371 (1966).
138. A Hearing on the appropriate sanction or sanctions to be imposed shall be set for Thursday, April 27, 2006 at 2:30 pm at the James Lawrence King Federal Justice Building, Courtroom 3, 99 NE 4th Street, Miami, Florida. The Receiver may file any memorandum in support of any proposed sanction or sanctions on or before April 10, 2006. Any opposition memorandum must be filed no later than April 17, 2006. No extensions of time for the filing of memorandum will be granted.
DONE AND ORDERED.