UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-CIV-81205-RAR

SECURITIES AND EXCHANGE 

COMMISSION,

Plaintiff,

v.

COMPLETE BUSINESS SOLUTIONS 

GROUP, INC. d/b/a PAR FUNDING, et al.,

Defendants.

_______________________________/ 

ORDER GRANTING RECEIVER’S MOTION TO COMPEL 

THIS CAUSE comes before the Court upon Receiver Ryan K. Stumphauzer’s Motion to 

Compel Defendant Joseph Cole Barleta to Comply with Court Orders [ECF No. 1188] (“Motion”), 

filed on March 19, 2022. The Court hasreviewed the Motion, Defendant’s Response in Opposition

[ECF No. 1195] (“Response”), Receiver’s Reply in Support of its Motion [ECF No. 1207]

(“Reply”), all relevant portions of the record, and held a hearing on the Motion on April 21, 2022 

[ECF No. 1218] (“Hearing”). For the reasons set forth below, it is hereby

ORDERED AND ADJUDGED that the Receiver’s Motion is GRANTED.

BACKGROUND

On July 28, 2020, the Court granted an Emergency Ex Parte Motion for a Temporary 

Restraining Order and Other Relief [ECF No. 42] (“Asset Freeze”) against various defendants in 

this matter, including Defendant Cole. On July 27, 2020, the Court appointed Ryan K. 

Stumphauzer as Receiver for Complete Business Solutions Group, Inc. (“CBSG”) and other 

associated entities. [ECF No. 36]. In an Amended Order Appointing Receiver [ECF No. 141] 

(“Receivership Order”), the Court explained that a receiver was necessary to marshal and preserve

Case 9:20-cv-81205-RAR Document 1222 Entered on FLSD Docket 04/29/2022 Page 1 of 7
Page 2 of 7

the assets of all defendants. On December 16, 2020, the Court expanded the Receivership over 

Beta Abigail, LLC, an entity owned and controlled by Cole, because it received millions of dollars

in commingled investor funds. [ECF No. 436].

As a result of these orders, on February 12, 2021, the Receiver served Cole with a First 

Request for Production of Documents and a First Set of Interrogatories—which sought the 

production of all documents and communications in Cole’s possession, custody, or control 

concerning any of the Receivership Entities, as well as bank accounts, property, and other assets 

of Cole, with an operative time frame of January 1, 2017, to the present. Mot. at 3–4. Cole took 

the position that he did not have to respond to these requests. Id. at 4.

Most recently, the Court expanded the Receivership to include ALB Management, LLC, 

another entity owned and controlled by Cole, because it too received millions of dollars in

commingled investor funds. See [ECF No. 1156]; Mot. at 4. Again, on February 21, 2022, the 

Receiver contacted Cole’s counsel with a request for information. Mot. at 4. The Receiver 

requested documents related to 10 categories of assets owned by Cole from 2016 through the 

present. Id. On March 7, 2022, counsel for Cole responded and refused to provide the information 

requested on the basis that Cole was “assert[ing] his right not to answer questions” due to “an 

investigation by the U.S. Attorney’s Office in Philadelphia.” Mot. at 5. 

Since the filing of the instant Motion on March 19, 2022, Cole has failed to turn over any 

of the requested documents. Id. Instead, he has responded in opposition, asserting his Fifth 

Amendment privilege. Resp. at 1.

LEGAL STANDARD

While the Court has the “inherent power to enforce compliance with its lawful orders,” 

Sexual MD Sols., LLC v. Wolff, No. 20-20824, 2020 WL 2813146, at *1 (S.D. Fla. May 29, 2020), 

Case 9:20-cv-81205-RAR Document 1222 Entered on FLSD Docket 04/29/2022 Page 2 of 7
Page 3 of 7

a defendant has the right to raise his Fifth Amendment privilege in “any proceeding, civil or 

criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any 

disclosures that the witness reasonably believes could be used in a criminal prosecution or could 

lead to other evidence that might be so used.” In re Grand Jury Subpoena Duces Tecum Dated 

Mar. 25, 2011, 670 F.3d 1335, 1342 (11th Cir. 2012). For a disclosure to fall within the ambit of 

the Fifth Amendment privilege, an individual must show each of the following three things: (1) 

compulsion; (2) a testimonial communication or act; and (3) incrimination. Id. at 1341 (citing 

United States v. Ghidoni, 732 F.2d 814, 816 (11th Cir. 1984) (cleaned up)). 

ANALYSIS

Beginning in February 2021, the Receiver requested any documents in Cole’s possession, 

custody, or control pertaining to 10 categories of assets (real estate; stocks; bonds and securities;

bank accounts; safe deposit boxes; automobiles; indebtedness owed to Cole; partnerships and other 

business interests; trusts; other property; and disposal of property). Mot. at 4. These requests were

based on disclosures made by Cole in a September 24, 2019 Interagency Biographical and 

Financial Report [ECF No. 1207-1] (“2019 Disclosures”). Reply at 3. Cole argues that any 

production of such documents would violate his Fifth Amendment privilege because the act of 

producing the documents is testimonial in nature. Resp. at 1–2.

As a threshold matter, the Court finds that the contents of the requested documents 

themselves are not protected by Cole’s Fifth Amendment privilege. The Supreme Court has 

consistently held that documents previously generated and voluntarily prepared do not fall under 

the protections afforded by the Fifth Amendment. Fed. Trade Comm’n v. PointBreak Media, LLC,

343 F. Supp. 3d 1282, 1286 (S.D. Fla. 2018) (citing United States v. Hubbell, 530 U.S. 27, 35

(2000)). “Where documents are voluntarily prepared before they are requested, for example, the 

Case 9:20-cv-81205-RAR Document 1222 Entered on FLSD Docket 04/29/2022 Page 3 of 7
Page 4 of 7

Supreme Court has held that such documents do not contain ‘compelled testimonial evidence’

within the meaning of the Fifth Amendment, even if the contents are incriminating.” Sallah v. 

Worldwide Clearing LLC, 855 F. Supp. 2d 1364, 1371 (S.D. Fla. 2012) (citing Hubbell, 530 U.S. 

at 36); see also Fisher v. United States, 425 U.S. 391, 409–10 (1976)). Here, the Receiver seeks 

the production of records that were voluntarily prepared and generated prior to the Receiver’s 

request(s). Mot. at 3–4. For instance, Cole’s 2019 Disclosures, which identified his assets at the

time, were voluntarily prepared to assist Cole in his efforts to acquire a bank. Id. The Receiver

simply requests documents relating to the assets identified by Cole in his prior disclosure—

documents which would have been voluntarily prepared prior to the Receiver’s request. Id. 

The Court now turns to the core issue presented by the parties: whether Cole’s act of 

producing the requested documents is testimonial, and therefore, violative of Cole’s Fifth 

Amendment privilege. “[A]n act of production can be testimonial when that act conveys some 

explicit or implicit statement of fact that certain materials exist, are in the subpoenaed individual’s 

possession or control, or are authentic.” In re Grand Jury Subpoena, 670 F.3d at 1345–46. The

Eleventh Circuit has made clear that there are two specific ways in which an act of production is 

not testimonial. Id. First, when it is merely a physical act that is compelled—i.e., “where the 

individual is not called upon to make use of the contents of his or her mind.” Id. And second, 

under the “foregone conclusion” doctrine, “an act of production is not testimonial—even if the act 

conveys a fact regarding the existence or location, possession, or authenticity of the subpoenaed 

materials—if the Government can show with ‘reasonable particularity’ that, at the time it sought 

to compel the act of production, it already knew of the materials, thereby making any testimonial 

aspect a ‘foregone conclusion.’” Id. at 1345–46. Further, “[c]ase law from the Supreme Court 

does not demand that the Government identify exactly the documents it seeks, but it does require 

Case 9:20-cv-81205-RAR Document 1222 Entered on FLSD Docket 04/29/2022 Page 4 of 7
Page 5 of 7

some specificity in its requests—categorical requests for documents the Government anticipates 

are likely to exist simply will not suffice.” Id. at 1347–48 (citing Hubbell, 530 U.S. at 45).

Here, the Receiver argues that the production of the requested documents by Cole falls

under the “foregone conclusion” doctrine because the Receiver has shown, with “reasonable 

particularity,” that he is aware of the materials he is seeking. Reply at 3–4. The Receiver points 

to the 2019 Disclosures made by Cole as the basis for his requests. Id. at 4–5. Those disclosures 

included an accounting of all assets held by Cole as of September 24, 2019, with specific and 

detailed information as to Cole’s cash on hand and in depository institutions, marketable securities, 

notes receivable, real estate, proprietary interests and other securities, retirement funds and other 

assets, accounts payable, and real estate mortgages. 2019 Disclosures at 11–19; cf. Mot. at 5. 

At the Hearing held on April 21, 2022, Cole’s counsel took the position that because time 

has passed between Cole’s filing of the 2019 Disclosures and the Receiver’s requests, those 

disclosures cannot be used to show, with “reasonable particularity,” that the Receiver is aware of 

the materials he seeks because Cole’s assets have changed over time. Therefore, Defendant 

maintains that the “foregone conclusion” doctrine does not apply to Cole’s act of production. 

The Court disagrees. As a starting point, the Court temporarily froze Cole’s assets on July 

28, 2020. See Asset Freeze. Roughly one month later, on August 27, 2020, the Court entered a 

Preliminary Injunction by Consent, freezing Cole’s assets for the pendency of this action. [ECF 

No. 202] (“Preliminary Injunction”). In essence, ten months passed between Cole’s disclosures

and the day his assets were frozen. Whatever change in the valuation of his assets that occurred 

in that ten-month period of time, and whatever limited changes have occurred since the Asset 

Freeze and Preliminary Injunction were put into place (which, this Court must assume, are quite 

limited due to the conditions of the Preliminary Injunction), do not overcome the “reasonable 

Case 9:20-cv-81205-RAR Document 1222 Entered on FLSD Docket 04/29/2022 Page 5 of 7
Page 6 of 7

particularity” the Receiver has shown in requesting documents of which he has prior knowledge.

The circumstances presented here are markedly different than those laid out in Hubbell, a case in 

which the Government wholly failed to show that it had any prior knowledge of either the existence 

or whereabouts of the documents produced. See Hubbell, 530 U.S. at 45.

Lastly, the Court does not find that the Receiver is entitled to any fees and costs associated 

with Cole’s filing of the instant Motion. At the Hearing, Receiver’s counsel asked the Court to 

award the Receiver reasonable expenses under Fed. R. Civ. P. 37(a)(5)(A). Cole’s counsel 

understandably disagreed, arguing that Cole’s objection was substantially justified. The Court 

agrees with the Defendant—Cole’s objection, one made to protect his constitutional rights, was 

substantially justified. As such, Cole is not ordered to pay the expenses of the Receiver associated 

with the filing of this Motion. See Fed. R. Civ. P. 37(a)(5)(A)(ii).

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that the Receiver’s

Motion [ECF No. 1188] is GRANTED. Within seven (7) days of the date of this Order, Cole 

shall respond to the Receiver’s requests—producing copies of all documents within Cole's 

possession, custody, or control containing information from 2016 through the present about the 

following 10 categories of assets in which Cole may have a personal or business interest:

• Real Estate

• Stocks, Bonds, and Securities

• Bank Accounts

• Safe Deposit Boxes

• Automobiles

• Indebtedness Owed to Cole

• Partnerships and Other Business Interests

• Trusts

• Other Property

• Disposed of Property

Case 9:20-cv-81205-RAR Document 1222 Entered on FLSD Docket 04/29/2022 Page 6 of 7
Page 7 of 7

DONE AND ORDERED in Fort Lauderdale, Florida, this 29th day of April, 2022.

__________________________________

RODOLFO A. RUIZ II

UNITED STATES DISTRICT JUDGE

Case 9:20-cv-81205-RAR Document 1222 Entered on FLSD Docket 04/29/2022 Page 7 of 7