Sann Rodrigues found in contempt of court
Fed up a year of lies and stalling, in August the SEC filed a motion requesting that Sann Rodrigues be found in contempt of court.
The regulator demanded Rodrigues be sent to jail, pending identification of
all his current accounts and restoration all assets transferred or disposed of in violation of the Asset Freeze.
Rodrigues initial response to the SEC’s motion was to claim he didn’t speak English.
The SEC replied in kind by declaring Rodrigues defense to be “nonsense“. In support of this motion, the SEC included a statement from Rodrigues bank manager stating he regularly conversed with Rodrigues in English. A YouTube marketing video featuring Rodrigues presenting in English was also submitted.
This saw Rodrigues drop the “no English” defense, with a switch to him being unaware of the TRO granted against him. Rodrigues also raised the argument that he’d since provided as much accounting as he could, within the boundaries of not exposing himself to additional criminal liability.
The SEC countered with the claim that Rodrigues had already effectively waived his right to plead the fifth.
That was October, with mediation efforts between the two parties declared failed as per a Status Report filed on November 30th.
Taking all of this into consideration, on the 18th of December Judge Gorton finally made a ruling on the matter.
If you’ve read the title of this article, you’ll have figured out that Judge Gorton found Rodrigues (right) to be in contempt of court. In saying that however, the SEC didn’t quite get what they asked for.
Judge Gorton’s order fifteen page order begins with a summary of the motion at hand;
The April 16, 2014 Temporary Restraining Order contained a provision requiring each of the defendants to submit an accounting that, among other things, identified all of
their assets and recent transfers larger than $500.
Rodrigues failed to submit such an accounting.
The May 8, 2014 Preliminary Injunction reiterated that requirement. Rodrigues again failed to submit the required accounting.
More than one year later, this Court entered the June 10, 2015 Order (“Order to Provide Accountings”).
That order required Rodrigues to submit the original accounting, provide a list of current assets and describe all transactions over $500 that he had conducted since the TRO was entered.
Rodrigues finally submitted an accounting on July 30, 2015.
In this case, Rodrigues was notified of each of the orders entered against him.
Those orders contained detailed and specific language as to the assets that were frozen and the information that Rodrigues was to provide in his accounting.
The orders require defendant to leave untouched accounts under his direct or indirect control and to provide information on accounts under his control.
The SEC has also provided numerous exhibits of documentary and testimonial evidence demonstrating specifically how defendant violated the orders.
The bulk of the document that follows is then pretty much the systematic dismantling of Rodrigues’ raised defenses.
Rodrigues raises several arguments disputing whether he had actual notice of the orders, the first prong of the civil contempt protocol.
In addition, he asserts that he is unable to comply with the orders because doing so would require him to waive his Fifth Amendment privilege against self-incrimination.
He further contends that if the Court were to hold him in contempt, he would be unable to purge the contempt without waiving his Fifth Amendment right.
With respect to the individual arguments, I’ve headlined them below along with Judge Gorton’s remarks.
Actual Notice of the Subject Orders
Rodrigues raises three arguments with respect to notice in his opposition.
First, he asserts that the TRO and preliminary injunction are very complex and thus he was unable to understand them.
Consequently, he avers, he was left without notice of the orders and therefore unable to comply with them.
Second, defendant explains that he was unable to understand the orders due to his limited comprehension of English.
Finally, he declares that he did not have assistance of counsel to aid him in understanding the orders until the deadlines for compliance with both the TRO and the preliminary injunction had passed, as evidenced by the fact that his counsel did not enter an appearance until June 13, 2014.
His arguments are unconvincing.
Reasons cited for Gorton’s remarks include Rodrigues’ subjection to a similar TRO granted in 2006.
As to the language barrier, the SEC submitted an affidavit of a bank manager who frequently interacted with Rodrigues stating that Rodrigues speaks fluent English.
It also submitted videos of Rodrigues speaking English.
With respect to difficulty in obtaining legal representation accounting for non-compliance;
While Rodrigues did not retain counsel until after the temporary restraining order and preliminary injunction had been entered/ he was represented at the time he consented to the Order to Provide Accountings.
Thereafter, it took him more than 13 months to file his first response and even then he did not restore all of the assets removed in violation of the asset freeze.
Thus, lack of representation does not suffice as an excuse for his lack of compliance.
Thrown out was Rodrigues argument that he ‘did not have actual notice of the April 23, 2014 and April 25, 2014 extensions of the TRO‘.
Because the Court, at a hearing held on October 16, 2015, made a finding of fact that Rodrigues had actual notice of those extensions, that argument will be discredited here.
Fifth Amendment Privilege
Invocation of the Fifth Amendment privilege against self-incrimination requires a showing by the defendant that (1) the statements in question are testimonial, (2) those statements are compelled and (3) the statements pose a real danger of criminal
The parties do not dispute that the first two requirements of this test have been met.
Rather, their disagreement concerns 1) whether defendant has made a sufficient showing of a real prospect of criminal liability and 2) whether he waived his Fifth Amendment right either by consenting to the Order to Provide Accountings or by providing a partial accounting.
Rodrigues argues that providing a full accounting of his assets and transactions would require him to disclose information that could incriminate him in several potential or actual criminal proceedings.
Whether defendant has made a sufficient showing to invoke the Fifth Amendment is irrelevant.
Rodrigues waived his right against self-incrimination by consenting to the Order to Provide Accountings.
In that proceeding, Rodrigues explicitly agreed to provide the very information he is now claiming to be privileged.
(Rodrigues) was represented by counsel, who negotiated the language of the order with the SEC.
In exchange for agreeing to provide the required accountings, Rodrigues received a carve-out of his frozen assets to pay for his bail in the separate criminal visa fraud case.
Defendant could have conditioned his agreement on the preservation of his Fifth Amendment rights and, while the SEC may not have agreed to that condition, he would still have had the option of forgoing the bail money and refusing to consent to the order.
Furthermore, defendant may not raise his Fifth Amendment defense to production for the first time in a contempt proceeding.
Rodrigues would have had to raise the Fifth Amendment defense in his deal with the SEC regarding accounting in exchange for bail money, but didn’t so legally cannot do so now in a contempt proceeding.
By signing the Order to Provide Accountings, (Rodrigues) waived his Fifth Amendment privilege against production with respect to certain potentially incriminating asset information.
Because defendant has already agreed to disclose that information, he may not raise a Fifth Amendment defense against such disclosure through different means.
Thus, defendant has also waived his Fifth Amendment privilege with respect to the restoration of assets dissipated in violation of the TRO and the May 8, 2014 Preliminary Injunction.
By restoring such assets, Rodrigues would reveal only the same information that would have been revealed by the accounting which he agreed to provide.
Ordering Rodrigues to purge his contempt of the asset freeze by restoring dissipated assets will not force him to divulge protected information because he has already waived his right to protection under the Fifth Amendment with respect to that information.
The Court finds that the legal standard for civil contempt has been met and that defendant is not entitled to assert a Fifth Amendment privilege in support of his noncompliance with existing orders.
Order finding Rodrigues in contempt of court
For the reasons given above, on December 18th Judge Gorton found Sanderley Rodrigues de Vasconcelos in contempt of court.
Sanctions will, however, be held in abeyance for the time being.
Extending an olive branch to Rodrigues in what I suspect is an attempt to push proceedings along, Judge Gorton has ordered Rodrigues
(a) restore the following funds that he dissipated either through removing cash from accounts or selling cars ($334,973)
(b) with respect to the wrongfully transferred properties in West Palm Beach, Florida at 1103 18th Street 1, 1014 17th Street and 711 Division Ave., defendant shall either obtain the reconveyance of those properties, remit funds equal to the market value thereof or provide the Court with a detailed plan as to how he will otherwise cure his contempt in relation to the transfer of those properties.
A deadline of January 15th has been set for the above conditions to be carried out, failing which
Rodrigues’ bail will be revoked and he will be incarcerated for contempt of orders of this Court.
On the second of December, Rodrigues appeared in a YouTube video in which he promised to “reveal everything”.
On December 9th a 40 minute webinar purportedly took place, with the following cliff-notes translation provided by a reader:
Same old speech, as always, planting the seeds of a new scam (no English this time because, you know, he does not speak the language). He’s promissed a new conference on December 15th. Apparently people would have to pay 7 USD to join the conf.
Rodrigues having since deleted all of his publicly accessible social media profiles and associated content.
Will he comply with Judge Gorton’s orders by January 16th, or will Rodrigues be returned to a jail cell?
Footnote: Our thanks to Don@ASDUpdates for providing a copy of Judge Gorton’s December 18th “Memorandum & Order”.
Update 20th January 2016 – Having failed to meet the imposed January 15th deadline, Judge Morton remanded Rodrigues to the custody of US Marshals on January 15th.