01/28/2010 68 MOTION to Suppress Testimony from Deposition by Rufus Paul Harris. (Manchel, Howard) (Entered: 01/28/2010)
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Preliminary Motion to Suppress Defendant’s SEC Deposition Taken Pursuant To A Subpoena But Without Benefit of 5th Or 6th Amendment Warnings
Comes now Defendant RUFUS PAUL HARRIS and requests this Court to conduct an evidentiary hearing to determine whether his 5th and 6th Amendment rights were violated when attorneys from the United States Securities and Exchange Commission deposed Defendant Harris without advising him of his right to counsel and/or his right not to incriminate himself. In support of his motion Defendant Harris shows the following:
1. Defendant has been indicted for conspiracy to commit to commit securities fraud (18 U.S.C. §1349); securities fraud (18 U.S.C. §1348); five counts of fraud by wire (18 U.S.C. §1343); and false certification of a financial statement (18 U.S.C. §1350).
2. The above indictment follows an SEC investigation, temporary restraining order, and finally a permanent injunction against Defendant from trading in his company, acting as an officer or director of a public corporation for seven years, disgorgement of any profits, and a civil penalty of over 1.3 million dollars. Said findings and penalties were imposed by Judge Clarence Cooper in this Court on or about September 10, 2008.
3. On information and belief Defendant Harris was deposed pursuant to a subpoena issued by the SEC directing him to appear at a time and place; said subpoena and deposition occurred after the temporary restraining order was granted by Judge Cooper which suspended trading in Conversion Solutions stock and froze the bank and brokerage accounts of his family. The deposition by three government SEC counsel at their offices lasted at least two days in October and November, 2006. According to the transcripts of the deposition Defendant Harris was not warned by Government counsel of his right not to incriminate himself, or that what he said in the presence of the three attorneys could and would be used against him. Nor is there any advice by Government counsel of the Defendant’s need for counsel or that the matter could be delayed a reasonable time until he obtained counsel.
4. Defendant’s deposition will be used in the Government’s case in chief to establish the elements of the crimes charged against Defendant.
5. The United States Securities and Exchange Commission describes itself
on its web site as being:
First and foremost, the SEC is a law enforcement agency. The Division of Enforcement assists the Commission in executing its law enforcement function by recommending the commencement of investigations of securities law violations, by recommending that the Commission bring civil actions in federal court or before an administrative law judge, and by prosecuting these cases on behalf of the Commission. As an adjunct to the SEC's civil enforcement authority, the Division works closely with law enforcement agencies in the U.S. and around the world to bring criminal cases when appropriate.
6. The 5th Amendment privilege against self incrimination prohibits the state from compelling an individual to incriminate oneself. It was added to the Bill of Rights in the conviction that too high a price may be paid for the unhampered enforcement of the criminal law and that, in its attainment, other social objects of a free society should not be sacrificed. This provision of the 5th Amendment must be accorded liberal construction in favor of the right it was intended to secure. Hoffman v. U.S., 341 U.S. 479 (1951).
7. The right to assistance of counsel, under the 6th Amendment is essential because it is the means by which defendants assert all other constitutional rights. U.S. v. Cronic, 466 U.S. 648, 654 (1984). The right to counsel can be waived but only where such waiver is knowing, voluntary, and intelligent. Benitez v. U.S., 521 F3d. 1072 (6th Cir. 2008). The question this Court must ask was the Defendant made sufficiently aware by government counsel of his right to have counsel present and the fact that answers he provided could lead to a criminal prosecution. In other words, did Government counsel advise the Defendant of the nature of his Fifth and Sixth Amendment rights, and the consequences of abandoning those rights, so the waiver of each right will be considered a knowing and intelligent one? See Patterson v. Illinois, 487 U.S. 285, 292-93 (1988).
8. In this case the Government cannot establish that Defendant Harris knowingly, voluntarily, and intelligently waived his right to an attorney and thereafter knowingly, voluntarily and intelligently waived his right not to incriminate himself by allowing himself to be deposed by attorneys for the SEC.
Wherefore, Defendant requests that this Court conduct an evidentiary hearing to determine whether Defendant knowingly, voluntarily and intelligently waived his 5th and 6th Amendment rights not to incriminate himself and his right to counsel.
Respectfully submitted,
Howard J. Manchel
Attorney for Rufus Paul Harris
Ga. Bar No. 468550
729 Piedmont Avenue, NE
Atlanta, Georgia 30308
404-522-1701 |
