MICHAEL LAUER, DEFENDANT MICHAEL LAUER'S SECOND MOTION …

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 03-80612-Civ-M ARRA

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..). liu t.yk v. w ' l .'

SECURITIES AND EXCHANGE COM M ISSION,

Plaintiff,

M ICHAEL LAUER,

Defendant.

DEFENDANT M ICHAEL LAUER'S SECOND M OTION FOR RECUSALOF DISTRICT JUDGE. PURSUANT TO 28 U.S.C. :1 144.455(a)

Pttrsuant to 28 U.S.C. jj 144, 455(a), Michael Lauer hereby moves for the recusal of the

District Judge presiding over this case and for the Court to subm it tltis case to the Clerk of the

Court of the United States District Court for the Southem District of Florida for random

reassignment to another Judge of this Court, preferably sitting in Minmi. Pursuant to 28 U.S.C. j

144, the motion is supported by an affidavit by Michael Lauer and a certitkate by David M .

Dorsen, Esq. attached hereto as Exhibit 1. Pursuant to j 144, Lauer moves for the Court to refer

this motion to an independentjudge in a division other than Fort Lauderdale and West Palm

Beach. The grotmds for this motion are containtd in the Order Denying M otion for Recusal, DE

844, Court Appointed Receiver ofL ancer Management Group L L C v. f auer, No. 05-c1v-60584-

MAIG A, S.D. Fla. (hereinafter receivership case). In sum, the principal ground is that in

denying Lauer's motion to recuse, DE 844, the District Judge relied on extra-judicial sources and

did not rely solely on the record. A copy of DE 844 in the receivership case is attached hereto ms

Exhibit 2.

On October 17, 2013, Petitioner Lauer duly filed his motion and affdavit to rtquire the

districtjudge's recusal in the receivership case. DE841. On November 1, 2013, Respondent

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Case 9:03-cv-80612-KAM Document 2776 Entered on FLSD Docket 12/23/2013 Page 1 of 36

Receiver tiled an opposition, which did not include an affidavit. 17E842. On N ovember 15,

2013, Lauer filed his reply without an additional affidavit. 17E843. On Novem ber 22, 2013, the

District Judge filed his Order Denying M otion for Recusal, part of which was a highly factual

affidavit of Edward Sieber, who identifies him self as çtcase Assignm ent Administrator'' in the

United States District Court for the Southern District of Florida.

lt seems beyond dispute that the districtjudge himself secured the Sieber's affidavit. In

so doing, the districtjudge violated Lauer's rights under the Due Process Clause and mandated

court procedtlres. There is no explanation why a clerk in Fort Lauderdale rather than a clerk in

Miami should be executing an aftidavit or how the first reassignment went to a Miami judge

while the next reassignment went to ajudge in Fort Lauderdale. Sieber was not even in the

clerk's office when the reassigmnent took place and speaks in the present (2013) tense.l

Miami is clearly the more convenient location and one that the local procedures

2 J d e Cooke was in M iam i and there is nocontem plates being where the case is heard. u g ,

explanation why the so-called weighted wheel did not select another district judge in Miami.

Also, there is no explanation why Judge Zloch, who allegedly reassigned the case for the reason

that newly appointed Judge Cooke needed work, continued with the reassignment to a busy

sitting judge when she recused herself.

There are many other questions concerninj Sieber's aftidavit and knowledge, yet the

District Judge has irrevocably tainted any lim ited value that Sieber could have provided to

l W hile not suggesting that the District Judge should have interviewed his 2004 1aw clerk about

the reassignment, it is noteworthy that he chose not to even though Lauer quotes her as

defending a personal reassignment on the part of Chief Judge Zloch to herjudge.2 See IOP 2.02.01, S.D. Fla. (çtevery attempt will be made to assign the maximum number ofcases arising in a particular venue to the judges who preside in that venue''). With Miamiunquestionably m ore convenient for all the parties, their lawyers, and other participants, the

recusal will prevent unnecessary expense to the government, to the ilmocent investors, to

possible witnesses, to Lauer, and to counsel by pennitting reassignment to ajudge sitting inM inmi.


resolve factual issues. Sieber is likely to be biased not only in favor of the current district judge

in the case, but perhaps more important, the initial judge, then-chief Judge W illiam J. Zloch,

under whom Sieber served, who is alleged to have engineered the hand-picking of his successor.

To lock Sieber into an affidavit obtained by an interested party and which affects the propriety of

what the conduct of the then Chief Judge, who controls the Office of the Clerk, is highly

prejudicial to Lauer. Moreover, the District Judge used his position to obtain an affidavit from

Sieber. No ordinary party, such as Lauer, would even have access to a coul't clerk. It is also

necessary to ascertain whether Judge Zloch, the Chief Judge when Sieber was hired, spoke either

to Sieber or to the district judge in this case to influence their actions in order to protect himself

from criticism if not worse. That is not how the adversary system is supposed to work.

Because the district judge has personal knowledge of the circumstances of the

reassignment he should have disqualifed himself forthwith. United States v. Alabama, 828 F.2d

th cir 1987) (footnotes omitted), states:1532, 1545 (1 1 .

The language of j 4554b) is unequivocal:

gA1 judge shall also disqualify himself in the following circumstances:

(1) Where he has . . . personal knowledge of disputed evidentiary factsconcerning the proceeding. . . .

The Reporter's Notes to the Code of Judicial Conduct are equally clear. tl-f'he

Committee also concluded that ajudge cannot be, or cannot appear to be,impartial if he has personal knowledge of evidentiary facts that are in dispute.''

Rather than act in ajudicial capacity and evaluating the evidence presented by the parties

as the Constitution and the rules anticipate, the District Judge assum ed the role of a litigant,

securing evidence in the case that favored both the Receiver, a party, and him self. The Receiver

was opposing Lauer's recusal motion, which the Judge was going to decide. The Judge

personally secured evidence on which he relied in deciding the case. M oreover, the Judge and


his predecessor, Judge Zloch, were implicated in the motion subjudice.

he figured he needed to defend him self, nothing more, nothing less.

The Judge secured what

Since Sieber's affidavit was dated October 28, 20 13, the District Judge did not even wait

until he received the Receiver's opposition before creating evidence to defend himself against

Lauer's motion. In fact, he started his counteroffensive on or before October 18, 2013, which is

the date of Exhibit 1, Ex. A. That is hardly the example of tlajudge who can approach the facts

in a detached, objective fashion.'' United States v. Alabama, supra at 1546. A judge should not

have a vested interest in sitting on a particular case. The Constitution and law require an

impartial judge acting with the appearance of impartiality who leaves fact-gathering to the

parties.

The conduct of the District Judge in personally securing an affidavit on a contested

issue in the case conclusively demonstrates his lack of impartiality and the appearance of lack

of impartiality, whatever the evidence and grounds for recusal existed previously. Any judge

who jumps into litigation of an issue between two parties in order to protect his and another

judge's reputation cnnnot be trusted to provide the appearance of impartiality or impartiality

itself. f iteky v. United States, 51 10 U.S. 540, 555, 564 (1994); United States v. Kelly, 888 F.2d

th cir 1989); see Whitaker v. McL ean, 118 F.2d 596 (1St Cir. 1941).732, 744-45 (11 .

Ironically, on a motion to recuse based in part on the alleged violation of judicial procedures by

the District Judge and his predecessor, Judge Zloch, the District Judge blatantly violated

judicial procedures in an unseemly attempt to prevent neutral resolution.

It also appears that the District Judge is providing testimony about his personal

knowledge of Judge Cooke's calendar, perhaps as the result of personal contact. How else

would he know that ççshe essentially had no workload'' a m onth after she was sworn in?

17E844, p.4, n.2. Since Judge Cooke held onto the case for nine days and permitted the

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reassignm ent of the M agistrate Judge, No. 03-80612, DE412, Lauer m ade a reasonable

assumption that it was her workload. The districtjudge knows better.

In addition, the undisputed facts contradict the district judge's explanation. If the

reason for the reassignment by Judge Zloch was the need to give a new districtjudge a work

load, when the newjudge could not accept it why did Judge Zloch reassign the case a second

time and to ajudge who was very busy? Something is wrong.

The district judge is also inaccurate when he stated, ççWhen Judge Marci G. Cooke was

appointed to the bench, Judge Zloch transferred that case to Judge Cooke . . . .'' Judge Cooke

was sworn in on M ay 18, 2004, something Judge Zloch certainly knew, since he was Chief

Judge. He did not, however, reassign the case until June 15. Between M ay 18 and June 15,

Judge Zloch decided against Lauer critical m otions that had been pending before him for

months: Lauer's motion to dissolve the preliminary injunction, DE178 (Feb. 18, 2004),

decided in 17E375 (June 2, 2004) and Lauer's motion to dismiss or transfer the case. 17E207

(March 5. 2004), decided in 17E376 (June 2, 2004).lt was only after irrevocably prejudicing

Lauer that Judge Zloch transferred the case to Judge Cooke, who, according to the subject

district judge, çiessentially had no workload'' and could readily have decided those motions in

the process of fnmiliarizing herself with the case.

The leading treatise on judicial disqualification and recusal demonstrates that the District

Judge must be recused. Richard A. Flamm, Judicial Disqual6cation 423-24 (2007) (emphasis

added), states:

gA1 judge must not abandon her proper role and assume that of an advocate. . . .W here ajudge does shed the role ofa neutral aWudicator and assumes the mantleof an advocate, even in a bench trial, legitimate questions about her impartiality in

deciding such a matter may be raised. Therefore, when ajudge becomespersonally involved in a suit that is pending before her, or even appears to have

done so - or when she has by her tpwa action, injected additionalfacts into therecord - doubt will be cast on the judicial process, due process may be offended,disqualitkation may be appropriate, and reversal may be ordered on appeal.

5


çç-l-he statute g28 U.S.C. j 4551 also did away with the Sduty to sit' so the benefit of the

doubt is now to be resolved in favor of recusal.'' United States v. Alabama, 828 F.2d 1532, 1540

th i 1987) (per curiam) (footnote omitted). Numerous cases disqualify judges who have(11 C r.

demonstrated lack of impartiality in circumstances similar to the one present here. United States

v. Alabama, supra at 1546 Cilaitigants also are entitled to have their case decided by ajudge who

can approach the facts in a detached, objective fashion.''l; United States v.Wecht, 484 F.3d 194,

233-34 (3d Cir. 2007) (ûtAn informed layperson would reasonably ask: Why did the District

Court treat the media differently than W echt?''); United States v. Beaty 722 F.2d 1090, 1093 (3d

Cir. 1983) CçA trial judge must not ûabandon his proper role and assume that of an advocate''');

th Cir 1983) C:A trial judge must assiduously performCrandall v. United States, 703 F.2d 74 (4 .

his function as a governor of the trial dispassionately, fairly, and impartially''); United States v.

th i 1982) (iça trial judge cannot assume the mantle of anBland, 697 F.2d 262, 265 (8 C r.

advoeate''); In re Antar, 71 F.3d 97, 101-02 (3d Cir. 1995); Gardiner v. A.H Robins Co., 747

F 2d 1 180 1 191-92 (8th cir. 1984); United States v.* 5 Wilensky 757 F.2d 74 (4th cir. 1983); In re>

Marshall, 403 B.R. 668, 679 (C.D. Cal. 2009) Ctneutrality is absent where the Judge ads as an

advocate for one side').

Cases where a judge is defending his own conduct are especially suspect. A close

analogy is found in cases where ajudge responds to a petition for a writ of mandamus, rather

than leaving the response to the prevailing party. Recusal or disqualitkation is all but automatic.

Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 164-65 (3d Cir. 1993) Cuudge Lechner, in

responding to the mandamus petition by letter to petitioners' counsel, has exhibited a personal

interest in the outcome of this litigation.''l; accord, United States v. Craig, 875 F. Supp. 8 16

(S.D. Fla. 1994); see Hurles v. Ryan, 201 1 U.S. App. LEXIS 138 19, *3 1 (9th Cir. 201 1) (efforts

of judge to defend his own ruling).6


But what the judge below did was even worse. A party such as the Receiver, who

would have filed the affidavit with his opposition to Lauer's motion to recuse. This would have

provided Lauer with the opportunity to dispute the contents of the affidavit, as the judicial

process contemplates. Instead, the District Judge filed the Sieber affidavit at the same tim e as it

tiled its order, thereby depriving Lauer of his constitutional right to be heard. Even in the far

more innocuous case of judicial notice, the Federal Rules of Evidence require courts to give a

party the right to be heard. See Rule 201(e). Courts nfust give parties an opportunity to be heard

at a meaningful time, which is certainly before the final ruling. Jlg., Unitedstates v. James

Daniel Real Property 510 U.S. 43, 48, 55-56 (1993); Fuentes v. Shevin, 407 U.S. 67, 81 (1972);

Goldberg v. Kelly, 297 U.S. 254 (1970).

This is not the first time this District Judge circumvented Lauer's right to be heard.

Following the District Judge's entry of summary judgment against Lauer in SEC v. f auer, No.

03-80612, S.D. Fla., J//''#, 478 th cir 2012) +er curiam), the same JudgeFed. Appx. 550 (1 1 .

conducted a disgorgement hearing. Following the hearing, pro se Lauer filed ttDefendant

M ichael Lauer's Proposed Disgorgem ent Order Finding.'' DE2207. Plaintiff SEC filed a

motion to strike 17E2207 on the following technical ground:

Lauer has transparently subm itted a supplem ental brief or sur-reply under the

uise of a ltproposed disgorgement order.'' Lauer's so-called lûproposedgdisgorgem ent order'' does not contain a proposed order; instead, it is a thirtp fve

(35) page document consisting of eighteen pages of argument and seven exhibits.If Lauer wishes to file an additional memorandum, he must first seek leave of

court. See S.D. Fla. Local Rule 7.1.C. He m ust also first confer with the

Commission. See S.D. Fla. Local Rule 7.1 .A.3. He has done neither. Lauer

cannot have a second bite at the apple simply by calling a brief a lûproposed

order.'' gDE2212, pp.1-21

The District Judge struck Lauer's submission, but did not nnnounce that action until he

ruled against Lauer on the m erits, thereby denying Lauer the opportunity to be heard. 17E2724.

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The actions of the District Judge have displayed lack of impartiality in numerous other

respects. The District Judge's actions were particularly indefensible because Lauer waspro se as

a result of orders of the court that confiscated Lauer's assets and forced to fight alone against the

combined efforts of the Securities and Exchange Comm ission and the Receiver, who were

supported by dozens of lawyers, experts, and support staff. To give some of the numerous

specitk examples3:

* The District Judge denied Lauer his constitutional right to use his own funds to

i I Bellsouth Corp., 334 F.3d 94 1 955 (1 l th cir 2003).4represent himself in th s case. n re , .

* W hen Lauer sought to have legal expenses advanced to him pursuant to his

contractual indemnification agreement with the Lancer investment-management companies, the

District Judge prejudged his liability and refused, stating, ççLauer did not act honestly and in

good faith.'' DE 491, pp.5-6. Indem nification is routinely perm itted even for defendants in

criminal case until conviction. This action constituted prejudgment of the merits of the case and

clear evidence of lack of impm iality.

* Even though the District Judge knew that Lauer was pro se, without funds, and

overwhelmed by demands by the SEC and the Receiver, while at the same time trying to protect

the Lancer Funds from destruction, the District Judge insisted that Lauer adhere strictly to all

rules, even when it was physically impossible for Lauer to comply.

3 Lauer points out that the standard and requirements to have ajudge recused or disqualified aredifferent from those on whether a particular ruling by ajudge was reversible error. Also, thecourt of appeals reviews a motion for summary judgment de novo and therefore its affirmancedoes not ipsofacto signify approval of any particular ruling. Finally, on a matters of suchimportance as the integrity of the judicial system, res judicata does not apply. Kinnear-Weed

th cir 1968) (en banc) (çtas weCorp. v. Humble Oil & Refining Co., 403 F.2d 437, 439-40 (5 .several times made clear, this is a matter which transcends the interest of the parties. The purity

of the judicial process and its institutions is the thing at stake. Whatever might be the usualconsequences of res judicata, collateral estoppel or doctrines akin to them, we reject them here.They are not a bar or defense here or below.'').4 This issue in pending in SEC v. Lauer, No. 13-131 10 1 1th Cir

> @

8


* The District Judge struck Lauer's motion to dismiss for lack of subject-matter

jurisdiction, a defect that the District Judge was required to raise sua sponte, so the striking was

indefensible. DE 1075; Arbaugh v. F tt H Corp., 546 U.S. 500, 506, 514 (2006).

* The District Judge held Lauer in contempt for violating discovery orders, including

allegedly failing to answer interrogatories. DE 12 1 8. The District Judge stated lltaauer does not

assert that he is unable to comply with the Order requiring answers to interrogatories.'' ln fact,

not only had Lauer provided such an explanation in DE 259 & Ex. 2, he had complied with Rule

33(d) by describing the documents and where they could be viewed (i.e., the SEC and Receiver

had the documents). Thus, the SEC and the Receiver did not need Lauer to give them Lancer

employees' addresses and telephone numbers; they were in the Lancer documents that the SEC

and Receiver illegally seized and absconded with on July 1 1, 2003. The District Judge, however,

insisted that Lauer should have responded in a differently titled document. ççlwauer attempts to

challenge the actual Order to Show Cause rather than establish that he has made in good faith a11

reasonable efforts to meet the term s of the Orden'' DE 12 18, pp.13-14. The District Judge

simply ignored DE 259 and Lauer's explanation in its march to contem pt.

* Lauer sold his life insurance policy in order to support his four minor children and

his elderly mother, since the District Judge denied him access to every bit of his assets. The

District Judge not only order the seizure of the proceeds, a debatable construction of the freeze

order, but it also held Lauer in contempt in part based on Lauer's action. DE 1218, p.10.

* The supposedly neutral Receiver prepared a full-text index of relevant documents,

which he gave to the SEC and DOJ. W hen Lauer requested a copy to be supplied to him on the

same terms as it was supplied to the SEC, the District Judge denied Lauer's motion. DE 1724,

DE l 748, DE 1771, DE 1865.

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. The SEC'S summarpjudgment motion did not attempt to demonstrate ilthat there is

no genuine dispute as to any material facf'; in fact, it simply ignored evidence unfavorable to the

SEC. Courts have awarded Rule 1 1 sanctions against the moving party in these circumstances.

#zz B bbitt 862 F.2d 646, 650-51 (7thcir. 1 988). The District Judge award the SEC#.g., Go v. o ,

summaryjudgment.

* The District Judge scannedthe SEC'S initial purported statement of material facts

not in dispute as the District Judge's order and opinion, including in the process cotmtless

typographical errors.s It simply ignored Lauer's opposition that quoted extensively from

depositions and documents.

* The District Judge granted the SEC summaryjudgment on the basis of a convoluted

and improper standard; tt-f'he failure of proof concerning an essential element of the non-moving

rtzrf.y 's case necessarily renders a11 other facts imm aterial and requires the court to grant the

motion for summary judgment.'' DE 2133, p.3 (emphasis added).

. The District Judge's summarpjudgment opinion relied on evidence presented by

the SEC while ignoring Lauer's evidence from the exact sam e depositions sources taken in this

case that contradicted the SEC'S evidence, hardly impartial aétion.

* The District Judge relied on sworn testim ony from the related crim inal trials in

United States v. Kelly, No. 02-20473, S.D. Fla., while simultaneously striking Lauer's references

to the same testimony. DE 1836, 2 (SEC motion to strike testimony predicated on Lauer not

5 The Court reproduced the misspelling of Mr. Tsakni's name as ik-l-skani,'' compare DE1744,

p.10n.25, with DE2133, p.16n.25; copied ltexited'' for çiexcited,'' compare DE1744, p.22n.115,

with DE2133, p.32n.120, copied ûçtens of million of dollars,'' compare DE1737-1, p.9, withDE2133, p.48; omitted closed parentheses, compare DE1744, p.13n.67 and p.23n.1 16, with

DE2133, p.2111.72 and p.32n.121; omitted $ç!,'' compare DE1744, p.25n.130, p.26n.136, andp.28n.145, with, DE2133, p.35n.133, p.37n.142 and p.41n.153; om itted num ber, compare

DEl 744, p.25n.130, with DE2 133, p.35n. 1359 ended footnote with a semi-colon, compareDE1744, p. 1 1n.55, with DE2133, p.18n.59; and ended footnote without punctuation, compare

DE1744, p.15n.74 and p.14n.81, with DE2133, p.23n.81 and p.2411.88.

10


having been party in United States v. Kellyq); DE 1822, pp.4-5, 16-27; DE 1866; DE 2133, pp.

XX .

* The District Judge entered summaryjudgment against Lauer on the basis of

repeated credibilityjudgments, for example, calling Lauer's evidence tçhyperbole,'' and doing so

without providing any explanation. DE 2 l 33, p.3.6 There was not a single document that

incriminated Lauer absent testimonial evidence, not a letter, not a memo, not an email, not a

recording.

* The District Judge incredibly relied on the fact that six nonparty witnesses pleaded

their Fifth Amendment privilege against self-incrim ination to rule against L auer, DE 2133,

pp.13-15. Lauer had answered every single question posed to him by the SEC and the Receiver.

There was absolutely no basis for that flagrant violation of Lauer's rights. In re Fructose Corn

th cir 2002) (Posner, J.). On appeal the SEC did not evenSyrup Antitrust L it., 295 F.3d 651 (7 .

attem pt to defend the District Judge's unsupportable position.

* The District Judge made a fundamental factual error that demonstrated that it was

totally insensitive to the facts. lt stated that Lauer was a director of the Lancer hedge fllnds. DE

2 133, p.59. That was totally false, without a shred of evidence in the record, and distorted

Lauer's position and a host of issues, including whether Lauer was a control person (the false

statement that Lauer was a director was in the section on his status as a control personl.;

6 The SEC agreed that, ttLauer's criticism of Cowen and Huard goes (tol the weight of theirtestimony.'' DE1852, p.15. They were convicted felons seeking leniency in sentencing! The

Court's opinion relied extensively on testimony by these dubious SEC witnesses. DE2133, > .30-

31, 40, 42-43, 47, 53-54, 77-78, 81, 95-96, l l0, l 19, 123-25, 136-38, 149, 152, 154, 156, 158,

179-8 1 (including lengthy quotations in the text). The Court quoted extensively from depositionsto support its fndings. Passim.1 The court of appeals took numerous indefensible positions, too. Lauer's status as a controlperson was an intricate factual issue on which the SEC bore the blzrden of proof. Rochester Tel.

Corp. v. United States, 307 U.S. 125, 145-46 (1939) (control tiis an issue of fact to be determinedby the special circumstances of each case''); accord, In re Mutual Funds Investment Lit., 566 F.3d

1 1


. The District Judge relied on collateral estopped based on default judgment entered

against Lauer in a California state case. DE 2133, p.36. However, the District Court's Case

Management Order in this case, DE 123, pp.23-24, Jan. 8, 2004, enjoined Lauer from

participating in other cases. Thus, the District Court enjoined Lauer from participating in a case,

and then, when he obeyed the court's order and defaultjudgment was entered against him on

M ay 3, 2005, it used the default as collateral estoppel against him . Hardly the work of an

impartial judge.

* The District Judge found that Lauer violated the Investment Advisers Act: çiauer

and Lancer Management violated Sections 206(1) and (2) of the Advisers Act, because the SEC

has shown all of the elements for liability under Section 17(a) of the Securities Act and Section

10(b) and Rule 10-b-5 of the Exchange Act, which are more stringent than the requirements to

violate Sections 206(1) and (2) of the Advisers Act.'' DE 2133, pp.60-61. In other words,

according to the District Judge, it was not necessary to prove that Lauer and Lancer M anagement

were investment advisers (and the SEC didn't). That position eliminated the sticky problem of

proving as a matter of facts that Lauer and Lancer Management engaged in the business of

advising persons and identifying whom they advised. Perhaps in was M organ Stanley, which the

SEC obviously failed to prove received or relied on Lauer's and Lancer's advice. On appeal the

SEC didn't even try to defend that ruling.

th cir 2009) Ckcomplex factual question''); Arthttr Children's Trust v. Klein, 994 F.2d111, 130 (4 .th çtintensely factual question''). Status is insuftkient. Nevertheless, the1390, 1396 (9 Cir. 1993) (

court of appeals decided as follows: tt-l-he pertinent facts . . . are capably set forth in the district

court's Order and Oginion. For our purposes, it is sufficient to say that Lauer was a founder, thesole manager and prlncipal owner of Lancer M gmt. Group LLC and Lancer M gmt. Group 11 LLC

(together, llaancer'), and in that capacity controlled the operations and activities of several largehedge funds (together, the ûFtmds').'' So much for de novo review! So much for requiringundisputed facts! There were m any other sim ilar instances.

12


* The District Judge denied Lauer any discovery on the theory or evidence on which

the SEC was going to rely in connection with disgorgement, thereby depriving Lauer of any

advance notice of what the SEC was going to argue and the evidence it was going to present at

the disgorgement hearing. DE 800.

* The District Judge denied Lauer's motion to continue the disgorgem ent hearing so

that he could concentrate on his criminal case even though the SEC was not prejudiced because it

and the Receiver had control of all of Lauer's assets. DE 2191.

* The District Judge awarded the SEC disgorgement based on the irrelevant standard

of what Lauer had received from the hedge funds during the alleged fraud period, and, m oreover,

ignored Lauer's undisputed documentary evidence in the form of a Pricewaterhousecoopers

audit that what he had received consisted entirely of sum s he had eanwd prior to the alleged

fraud period.

* The District Judge simultmwously denied Lauer's attempt to file a post-

disgorgement-hearing presentation and granted the SEC the precise amount it sought in excess of

$42 million. lt thereby denied Lauer the opportunity to cure alleged technical defects on which

the SEC relied to prevent Lauer from making his only m itten challenge to the SEC'S evidence,

about which he had no advance knowledge. DE 2724.

* The District Judge made no findings of fact or conclusions of law respecting the

award of disgorgem ent in violation of Rule 52.

* The District Judge improperly awarded against Lauer prejudgment interest on

m oney belonging to Lauer that the Court froze and denied Lauer any access to. That is

improper. Deputy v. Dupont, 308 U.S. 488, 498 (1940); In re CPDC, Inc., 337 F.2d 436, 443

th i 2003); Random House Dictionary ofthe English L anguage 993 (ed unabr. ed. 1987);(5 C r.

DE 1737-1, p.29 (ççwhere a securities 1aw violator has enjoyed access tofunds over a period of

1 3


time as a result of his wrongdoing, requiring the violator to pay prejudgment interest is

consistent with the equitable purpose of disgorgemenf') (emphasis added).

* The Distrid Judge willfully denied Lauer his constitutional right to a jury trial on

the tine imposed by the District Judge, despite Lauer's specitk request for ajury trial and the

District Judge's recognition that Lauer had that constitutional right Cia civil penalty requires a

jury detennination where ajury trial's been requested''). DE 2205, pp.4-5.

The SEC and the Receiver have never presented even a meager list of com parable

indignities.

Lauer can only marvel at the SEC'S quotation from Onishea v. Hopper, 126 F.3d 1323,

1341 (1 1th cir. 1997).Because Lauer tsled this motion to recuse before the Distrid Judge denied

his motion for recusal in Court-Appointed Receiver v. f auer, No. 05-60584-KAM , he did not

quote sufficiently from Onishea, a binding authority that now is so incorrigibly relevant. Lauer

will now reproduce the quotation from that case helpfully presented by the SEC in its response,

but this tim e with citations om itted for clarity:

Extrajudicial fact-finding by ajudge is improper because it cannot be ûitested bythe tools of the adversary process.'' That is, çlajudge cnnnot be, or cnnnot appearto be, impartial if he has personal knowledge of evidentiary facts that are in

dispute.'' Consequently, section 455(b)(1) creates a self-enforcing duty to recuseif ajudge, outside of his or herjudicial capacity, gains knowledge of factsm aterial to the case.''

Thus did the Eleventh Circuit precisely describe what Judge M arra did in connection with

his Order Denying Motion to Recuse (DE844), on which the SEC heavily relies, and, according

to the SEC, imposes a self-enforcing duty to recusal him self. The District Judge obtained and

injected in the record in his Order an affidavit that he obtained, which not only demonstrates his

partiality, but denied Lauer the opportunity to çttestu (it) by the tools of the adversary process.''

M oreover, the fsrst tim e the affidavit surfaced in the litigation was when it appeared as part of the

14


District Judge's order denying the motion to recuse. Fait accompli' As a result of his personal

investigation the District Judge obviously çtgainged) knowledge of facts material to the case . . .

outside of his or her judicial capacity.'' He certainly now has çtpersonal knowledge of

evidentiary facts that are in dispute'' by talking to witnesses and obtaining affidavits.

Recusal is required on the ground, deeply plowed by the SEC, that the source of his

knowledge is ûçextra-judicial.''Judges don't engage in factual investigation on their own! Judges

don't visit crime scenes or the scene where an alleged tort took place on their own. Afortiori,

Judges don't investigate on their own when they have a vested interest in the outcome of the

investigation. Remarkably, the District Judge acknowledged that it was keeping count of the

number of times a litigant was arguing that it engaged in impropriety, dem onstrating its impact

on the judge's psyche. DE 844, p.4. The sequence of events demonstrates the lack of

impartiality and the appearance of lack of impartiality and ticreates a self-enforcing duty to

recuse.

Liteky v. United States, 510 U.S. 540, 550-51 (1994), exempts ajudge's actions where

ççhis knowledge and the opinion it produced were properly and necessarily acquired in the course

of the proceedings.'' The Sieber afsdavit was neither t4properly'' nor ûçnecessarily'' acquired in

the course of the proceedings. The infonnation was acquired tûextra-judicially,'' by private and

ex parte fact gathering.M oreover, as L iteky states, even if the District Judge's taking the role of

a litigant were somehow considered as dtspringging) from the facts adduced or the events

occuning at trial,'' what the District Judge did was çûso extreme as to display clear inability to

render fair judgment.''

W hen a plethora of unsupportable rulings are combined with other evidence of partiality,

recusal is required. See Liteky, supra; Thomas v. Tenneco Packaging Co., 294 F.3d 1306, 1329

15


th Cir 2002); United States v. Kelly, 888 F.2d 732, 744-45 (1 1th Cir. 1989); Philips v. Joint( 1 1 .

f islative Committee, 637 F.2d 1014, 1020 (5th Cir. 1981).eg

In conclusion, since the District Judge has breached the boundaries of the proper role of

the Judicial Branch so completely in his order denying recusal, he must recuse himself from

deciding Lauer's motion to vacate and dismiss, which also is based on the proper roles of

m embers of other branches of the governm ent, nam ely, both the SEC and the Receiver

overstepped their constitutionally assigned roles in the Executive Branch and Judicial Branch,

respectively. That also violated Lauer's constitutional rights.Lauer requests that the District

Judge refer this motion to an independent judge not sitting in Fort Lauderdale or West Palm

Beach.

WHEREFORE, the District Judge must be recused and the case be reassigned to ajudge,

preferably one sitting in the far more convenient location for all of M inmi. The recusal motion

should be referred to a newjudge sitting in a division other than Fort Lauderdale or West Palm

Beach.

Respectfully subm itted,

&

David M . Dorsen

Suite 500

2900 K Street, N .W .W ashington, DC 20007Telephone: 202 204-3706

E-Mail: [email protected] for M ichael Lauer

Voa>.

Dated: December 16, 2013

16


E X H IB IT 1

17


1, Micluel l-auer, flle this Aldavit pursmnt to laws tmder 28 U.S.C. j 1746, and declare as

follows:

I am the defendant in thiK actioq Securkies & Exchange Convnission v. M ichael twauer, No.

806 12, S.D. Fla. 1 am over 2 1 years of age and have persorlal knowledge of the lm tters set forth hereh

l submit thts aëdavit in this case in support of the second nrtion for the recusalof Judge

Kelmeth A . M arra, United Sltes Dktrkt Judge, Southem District of Florida.

1 am fully familiar wkh the contents of the second nrtion to recuse :om personal knowledge.

4. 1 incorporate the contents of the second motion to rectkse as though fully set forth verbatkn in

this aëdavit.

5. The facts and circumstnces incorporated into thts aldavk provide the bases for my flrm belief

that Judge Manu has a bias and prejudice amirtst me and iz favor of the Sece ies and ExcMnge

Commiqsion and the Court-Appointed Receiver.

C L December 12, 2013

swnw - ' V '7%-ya E'cb - 4a / ?

h .>f

of . h, Nv

r- -. ) ,-$,/ /'


CERTIFICATE OF COUNSEL OF RECORD

Pursuant to 28 U.S.C. j 144, David M. Dorsen, Esq., counsel of record in this action,

th d f Decem ber, 2013 that the instant motion and the affidavit of Michaelcertifies, this 16 ay o ,

Lauer to which it is affixed are: (1) made in good faith and (2) true and correct to the best of

my knowledge and belief.

QDAVID M . DORSEN


E X H IB IT 2

18



UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF FLORIDA

CASE N0. 05-60584-CIV-m RM /HOPKINS

COURT-APPOINTED RECEIVER OFLANCER M NAGEMENT GROUP LLC, et at.,

Ptalntlff ,

M.

MICHAEL LAUER, et at-,

Defendants./

ORDER 9ENYIN4 MOTIQN FQR RECUSAL

THIS CAUSE is before the Court upon Defendant Mlchaet Lauer's Motion and

Affidavft for Judge to Recuse IDE 841). The Court has carefutty considered the

motion and is wett versed in the premises.

Defendant Mfchaet Lauer (<<Lauer'') brings this motion under 28 U.S.C. H 144

and 455 pertaining to a judge's obtigation to recuse when the judge has an atteged

bias or prejudice against the movant. Section 144 provides:

Whenever a party to any proceedfng ïn a district court makes and fites a

timety and sufficfent affidavït that the judge before whom the matter fspending has a personat bias or prejudice either agalnst him or in favor ofany adverse party, such judge shatt proceed no further therein.

28 U.S.C. j 144 (20X ).

facts yhat woutd convince a reasonabte person that bfas actuatty exists. christo v.

Padnett, 223 F.3d 1324, 1333 (11th Cir. 2000) citing Phillîps v. Joint Lenislatîve

Comm. on Pedormance 9 Expendîture Rem, 637 F.2d 1014, 1019 n.6 (5th Cir. 1981).

To warrant recusat under j 144, the movïng party must attege


case 0:Q5-cv-60584-KAM Document 844 Entered On FLSD Docket 11/22/2013 Page 2 of 15

Property pteaded facts in a b 144 affidavft must be consfdered as true. Phillips, 637

F.2d at 1019.

Section 455 requires that a judge disquatify himsetf 'tin any proceeding ln

which his impartiality might reasonabty be questioned'' or 'Tlwlhere he has a personat

bîas or prejudice concerninç a party-'' 28 U.S.C. 9 455(a) e (b)(1) (2000). The

standard under 5 455 is ''whether an objective, futty informed tay observer woutd

entertain significant doubt about the judge's impartiatity.'' Christo, 223 F.3d at 1333

cfting United States v. Kelly, 888 F.2d 732, 744-45 (11th Cfr. 1989). às has been

repeatedty stated by the Eteventh Circuit ïn apptying 9 455(a), T'ltlhe test for

determinfng whether a judge's impartiatity might reaxnabty be questloned is an

objectfve one, and requires asking whether a disinterested observer futty informed of

the facts woutd entertain a significant doubt as to the judge's ïmpartïatïty.'' Wvens

Gardens Of/fce Bl% ., InC. 7. Barnett Banks ot Florida, lnc., 140 F.3d 898, 912-13 (11*

ICjr. 1998) (citing niversîlied Numismatks, lnc. v. Cfty of Orlando, 949 F.2d 382, 385

(11* Cir. 1991) and Plrker v.

1988)).

connors Steel Co., 855 F.2d 1510, 1524 (1 1th Cir.

Lauer has not atteged vatid grounds for the undersigned's recusat under j 144

or j 455, f.e., facts that woutd convince a reasonabte person that my fmpartîatity

mïght reasonably be questioned, or that l have a personal bias or prejudice

concerning Lauer. Lauer reties sotety on adverse rutings which the undersigned has

entered fn this case and a retated case, S.E.C. v. Mfchcet Lauer, et Jl, case No. 03-

Page 2 of 5


Case 0:05-cv-60584-* M Document 844 Entered on FLSD Docket 11/22/2013 Page 3 of 15

80612-Civ-Marra (S.D. Fta.).From these adverse rutings, Lauer comes to the incorrect

and unsupportabte conctusion that the undersigned is biased against him. Lauer's

motion is tegatty insufficient. The United States Supreme Court has hetd 'Tjudïciat

rutings atone atmost never constitute vatid basis for a bias or partiatity recusat

motion-'' Lfteky v. U.S., 510 U.S. 540, 555 (1994). Simitarty, f'opinions formed by the

judge on the basis of facts introduced or events occurrlng in the course of the current

proceedings, or of prior proceedings, do not constltute a basis for a bias or partiatity

motion untess they disptay a deep-seated favoritism or antagonism that woutd make

fair judgment impossfble-'' ld.

Lauer has not estabtished that the undersigned's prior rutings were not based

on a carefut review of the evidence and arguments presented, or that l have

disptayed in any way a deep-seated favoritism for the Securfties and Exchange

Commission (T'SEC'') or Receîver or antagonism toward Lauer that woutd make fair

judgment impossibte. Neither has Lauer offered any extrajudiciat statements or

occurrences in support of his motfon upon which a disinterested observer futty

informed of the facts woutd entertafn a signlficant doubt as to my impartiatity. ln

fact, the appeats that have been taken from rutfngs upon which Lauer bases his ctaim

of bias and prejudice have been affirmed on appeat. S.E.C. v. Lauer, Case No. 09-

15138 (11th Cfr. Aprit 19, zolzltunpubtishedltaffirming grant of summary judgment in

favor of the SEC); S.EC. v. Lauer, Case No. 06-12887 (11* Cir. September 5,

zoo7ltunpubtishedltaffirming imposition of sanctions against Lauer for discovery

Page 3 of 5


Case 0:Q5-cv-60584-KAM Document 844 Entered On FLSD Docket 11/22/2013 Page 4 Of 15

1viotations).

i

Moreover, Lauer's assertion (which he has made muttipte times) as to how the

originat SEC case was assïgned to me ïs factuatty fncorrect. As set forth ïn the

affïdavit of Edward Sieber, attached hereto as Exhibit TfA'' and made a part of this

order, the oriçfna! 5EC action was randomty assigned to Judge W ittiam J. Ztoch.

W hen Judge Marcia G. Cooke was appointed to the bench, Judge Ztoch transferred

that case to Judge Cooke, along with many other cases, as part of cases assigned to a

new judge in this district. Judge Cooke then recused hersetf for an unstated reasonz,

and the case property went back to Judge Ztoch sn accordance with tocat

administrative rutes. It was then that Judge Ztoch recused himsetf. Upon Judge

Ztoch's recusat, the case was randomty assigned to me.

White the Court acknowtedges this case has been pending a tong time, it woutd

serve no usefut purpose in having the Court detait the ampte justifications for this

fact. Suffîce it to say that the tength of time the case has been pendjng is not a

ground for recusat. Therefore, it is hereby

The Court of Appeats has atso affirmed the undersigned's ruting denying the

requests for costs and attorney's fees submitted by two individuats against whom

ctaîms have been brought by the Court Appointed Recefver. Bendall v. Lancer

Mcncgement Group, LLC, Case No. 12-16068 (11t9 cïr. Juty 9, zol3ltunpubtfshed).

2 see DE 416 in Case No. 03-80612. Lauer's statements that Judge Cooke

recused hersetf due to ffschedutlng issues'' or her d'worktoad'' (DE 841 at 4 n.10; 9n.16; 17) is puating since the order of recusat makes no such statement and sfnce the5EC case was transferred to her at the begïnnfng of her tenure as a United StayesDîstrîct Judge. At the point Judge Cooke recefved the transfer of the 5EC case, she

essentfatly had no worktoad and woutd not have had scheduting fssues.

Page 4 of 5


case o:o5-cv-60584-KAM Document 844 Entered on FLSD Docket 11/22/2013 Page 5 of 15

ORDERED AND ADJUDGED that Defendant Michaet Lauer's Motion and Afffdavit

for Judge to Recuse IDE 8411 is denied.

DONE AND ORDERED in Chambers at West Patm Beach, Patm Beach County,

Ftorida, this 22nd day of November, 2013.

t* .

KENNETH A. M RRA

United States District Judge

Page 5 of 5


Case 0:05-cv-60584-KAM Document 844 Entered on FLSD Docket 11/22/2013 Pag: 6 of 15

UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 05-60584-ClV-M ARRA/I1OPKINS

COURT-APPOINTED RECEIVER OFLANCER M ANAGEM ENT GRO

.

.IJP LLCLANCER OFFSHORE INC., OM NIFUND LTD., e/ al.,

Plaintift

M ICHAEL LAUER, MARTIN GARVEY, et aI.,

Defendants./

AFFIDAVIT OF EDW ARD SIEBER

STATE OF FLORIDA

COUNTY OF M IAMI-DADE

)l)

SS *

BEFORE ME, the undersigned authority, personally appeared Edward Sieber, who being

f rst duly sworn, stated as follows:

M y name is Edward Sieber and the factual statements set forth herein are based on

personal knowledge and the records of the Clerk's Office of the United States District

Court for the Southern District of Florida (hereinafter *'Court'') about which I would

be competent to testify.

I am currently employed as the Case Assignment Administrator. I have held that

position continually since June 2005. As the Case Assignment Administrator, my

dtlties and responsibilities include transferring cases between judges.

adding/removing judges and users, setting participation rates for senior judges,

correcting errors, ensuring judge assignments in case assignment match presiders in

Y X V IX / W Ff X ? J



CM/ECF, testing moditk ations and generaîing periodic reports. I am familiar with

the record keeping practices of the Court, including the procedures and practices

related to the assignment and reassignment of civil and criminal cases among the

active Judges of the Court.

When a case is tiled with the Clerk of Court, it is assigned to one of the judges of this

Court. To ensure an even and random distribution of the caseload among the judgesa

an electronic case assignment system is utilized (known as the ûiwheel'g). This

algorithmic structure takes into account the judge's location, recusal criteria, and

number of cases that have already been assigned to that judge (known as Gcounters').

This same process takes place when there is the need for a remssignment due to a

recusal.

AlI judicial assignments using the wheel are electronically documented b0th through

a Cast Assignment Transaction Log (hereinaher :1Log'') and an internal computerized

audit trail (hereinaher *Trail''). The Log details when a cmse was assigned, to whom

it was assigned, and whether it was a new random assignment, a direct assignment, or

a reassignment. This Log is gentrated by the input of the assignment clerk and is

viewable to that clerk. Any modifications of assignments are automatically captured

4.

and recorded by the Case Assignment program. Assignment clerks do not have

access to modify, alter or change the transaction information captured by the Case

Assignment program. The Trail provides a step-by-step account of the process that

the system performs in making assignments- The Iog Gles of the Trail are stored

without the case assignment clerk's knowledge as to its location or existence. The

2



Trail cannot be modified by the clerk performing the assignment. cannot be prevented

from running, nor can the cltrk see it recording.

I have access to both the Log and Trail of the electronic case assignment system and

am knowledgeable about the documented textual output of an assignment.

5.

Initial Assienm ent of-lud-e-e-z-lochl Recusal of Ju-dze-zlocha- Reassiznmentto Judze- M-arra

The information on the Log as it concerns case number 9:2003cv8061 2 indicates

three different transactions within the system (see Exhibit A). The transaction dated

July 8, 2003 with the remark .$New Random Assignment'' retlects thal this case was

initially randomly assigned to Jpdge W illiam J. Zloch. The next entry is July 9, 2004,

with the remark of 'iRecusaly'' meaning that Judge Zloch had entered a recusal order

in the case (see DE# 430). This is the only remark of tdRecusal'' in the case in regards

to Judge Zloch. The final entry on the same datt statts ieRecusalReAssignment,''

which means that becaese of the recusal order entered by Judge Zloch, the case was

reassigned to Judge Kenneth A. Marra (see DE# 430). Both the recusal and

reœssignment occurred on the same day and order, with the recusal being signed by

thejudge and the reassignment documented by the Deputy Clerk.

w ith my access, I pulled the Trail regarding case number 9:2003cv80612, reflecting

the date of July 9, 2004 (see attached Exhibit A). The flrst highlighted portion

indicates that a clerk had inputed into the electronic case assignment system that the

current judge in case number 9:2003cv20612 had recused himself Once the recusal

was entered, the system began the process of selecting an alternative judge. Tbe

computtr generated the judges that were available as to their location

(btludgesAvailablelnvenue'g) and excluded judges that fit the recusal criteria


' Case 0:05-cv-60584-* M Document 844 Entered on FLSD Docket 11/22/2013 Page 9 of 15

(yichkludgesRecusals''). With the current judge having recused himseltl the second

highlighted text indicates that that judge is exclnded as being in the judicial recusal

list (UudgelnRecusedList --->0UT! ID= 3C3 17. The #çID'' referred to in the text

is the Administrative Office code for the jtldge and i3C3l '' is code for Judge Z'loch.

The computer then calculated' the available judges' ttcounters''

(stsnmAdjustedcasecounters''). the third highlighted section, the text

w'SelectAludge-RandomAssign'' indicates that the compnter, taking into account the

above criteria of available judges, randomly selected a judge for the assignment.

*1UpRRlnCount- ID= 3C47'9 means that a case has been added to the counter of the

judge with the id of -13C47''. 'iupRRoutcoun- ID= 3C31 '' means that a case has

been subtmcted from the counter of the judge with the id of $:3C3 l ''. Finally, the

fourth highlighted section identifies thejudge with id 1t3C47'' as Judge Marra.

8, An assignment that is not random would be designated on the Iog as

-tDirectAssignment''

Reassitnment from Judae Zloeh to Newlv Appointed Judee Cooke..

Recusal of Ju-d-ze C-ooke and Transfer to Judee Zloch

The Docket Sheet of this case further reflects an initial Order of Reassignment from

Judge Zloch that occurred on June 15, 2004 (DE# 402). This reassignment is not part

of the Log or Trail due to the internal procedures of the 2004 version of the Court

Policy Manual, which does not provide for an electronic Iog of this transaction. On

May 19& 2004. Marcia Cooke was consrmed by the United States Senat: as a United

States Districl Judge for îhe Southern District of Florida. According to section

2.05.0 I of the 2004 Court Policy Manual. when a new judge is appointed, alI attive

judges must transfer to the new judge a set number of civil cases as determined by the

4


A e,

Case 0:05-cv-60584-KAM Document 844 Enterkd on FLSD Docket 11/22/2013 Page 10 of 15I

Court, the selection of which is random. Because ef this rule and as expressed in the

Order of Reassignment (DE# 402), the case was randomly reassigned from Judge

zloch to Judge Cooke. The next relevant entry in the docket is an Order of Recusal

from Judge Cooke (DE# 416) on Junt 24, 2004. This is also not part of the Log or

Trail as it deals with the initial rcassignment for new judges. Pursuant to section

2.05.05 of the Court Policy Manual, when a new judgt who received a transferred

case makes the determination that he or she must recuse, that new judge must enter an

order of recusal and send the case back to the transferring judge. This is the

procedure followed by Judge Cooke as exhibited in the June 24* Order.

Faetual Sum marv

l0. Based upon the available docket and electronic records, case number 9:2003cv80612

was initially randomly assigned to Judge Zloch. Because of Judge Cooke being

newly appointed, a random selection of cases were transferred to her from the dockets

of- active judges within the Court, included case number 9:2003cv80612. Judge

Cooke recused herself from the case and it was transferred back to the original judge,

Judge Zloch. Judge Zloch then recused

made to Judge Marra.

himself and a random rt%signment wms

UNDER PENALTY 0F PERJUR ,Y I DECLARE THAT I HAVE READ THIS AFFIDAVITHAT THE FACTS STATED IN IT ARE TRUE AND CORRECT TO THE BEST OFAND T

M Y KNOW LEDGE

Edward Sieber, Case Assignment Administrator

ibed berore me on 2/14 /J,Sworn to and subscr

yauaoa A MCjN:'YREë ..*1 C* -' qnn' # F F 0 1 7 1 2 7x . > sy

ro up jzj aj;- > RIw Fe '-- G G .MI9



Notary Public

My commission expires:

Personally KnownProduced Identification

ype of identification r duced

6



E X H IB IT A


habe o:os-cv-6o584-KAM Document 844 Entered on FLSD Docket 11/22/2013 Page 13 of 15

Case Past Transactions

''

9it3'*gù:'1z .

Tr.puctlo: Transgttion Judge Judg:pgte Memark: Judge Nlme œ glp D:l. E:d D.I. Empliyv.

07/7:/2063 N@w' Rzndom Axignnxnt Zklcll 472W 003 07/* /2004 ep lœ.a

sectlrllles and vKcbange commlssion v mlchacl lautr t.t al

07/49/2004 Reçqol zloch 07/712003 07/*/20Q4 tlawxrh

reçusal by wjz - sccurilit: znd rxchznge çommission v michzql lautr . el zl

67809/2004 RrçoalReAssigqrnçnt M4rr4 07/09,/2* 4 rlaw*sen

rvcusal by pjz - srcurisies and exçhangr commission v mich4el lxer , e: :1

10/182013

8


$Case 0:05-cv-60584-* M Document 844 Entered on FLSD Docket 11/22/2013 Page 14 Of 15

EX H IBIT B

9


. . - . + .' .

Case O:05-cv-60584-KAM Document 844 Entered on FLSD Docket 11/22/2013 Page 15 0f 15

.. %. * T' . 4 - m. - ... . . . *p . v !. : ' ... . ( .- .*. e :. w. 5 rk .. ,.Y - -

$ 7 e c Ju ' :1 . 7- e Re c. u s e ' 1* s v'.. a l l , -; r- c h e r. . - -

.

N - a *g .= T *5 Re c.u s .% d.T .1 s * .. ..- - ... - NOP D* 1 *' L= 3 ''-* Q :+ * u. - .*œ * w - w@ .

4. . wb> . w. -

10


CERTIFICATE OF SERVICE

his 16th day of December, 2013, a true and correct1 HEREBY CERTIFY that on t

copy of the foregoing has been sent by first-class mail to:

Christopher M artin, Esq.

Securities & Exchange Commission

801 Brickell Avenue

Suite 1800

M iami, FL 33131

and

David Bane, Esq.

Hunton & W illiams

1 1 1 1 Brickell Avenue

Suite 2500

M iami, FL 33131

David M . DorsenAttorney for M ichael Lauer

19


Documents

MICHAEL LAUER, DEFENDANT MICHAEL LAUER'S SECOND MOTION …