IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

THE LANCE AND LINDA NEIBAUER 

JOINT TRUST, an Oregon Trust, by and 

Through LANCE NEIBAUER, as trustee, 

Plaintiff, 

V. 

MICHAEL J. KURGAN, an individual, 

Defendant, 

) Case No. 6=14-cv-01192-MC 

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DEFENDANT MICHAEL J. KURGAN'S ("KURGAN") OPPOSITION TO 

PLAINTIFF'S MOTION FOR CONTEMPT, KURGAN'S REQUEST FOR 

IMMUNITY AND TO SEAL THE RECORDS 

RULE 7-1 COMPLIANCE 

The Defendant hereby certifies that he has made a good faith effort to confer 

with Plaintiff to resolve the subject of this motion, but was unable to resolve the 

dispute. 

LR 7-2 and 26-3(b) CERTIFICATION 

This brief complies with the applicable word count and page count limitations 

under LR7-2(b) and 26-3(b) because the Memorandum contains 3129 words, including 

headings, footnotes, and quotations, but excluding the caption, table of contents, table 

of cases and authorities, signature block, exhibits, and any certificates of counsel. 

INTRODUCTION 

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The Plaintiffs action in attempting to recover satisfaction of their judgment 

has pressed the boundaries of simply attempting to collect a debt, into coercion of 

payment by means of seeking Kurgan's incarceration; threats of further monetary 

sanctions which Kurgan cannot afford; threats and acts seeking criminal prosecution 

and civil liability for corporate and personal fraud; threats against his spouse and 

attachments of her bank accounts; and even threats of fraud against his legal counsel 

and his employees. Other governmental entities have contacted Kurgan arising from 

the Plaintiffs collection efforts. 

The Plaintiff has already accused the Defendant of perjury for Kurgans 

responses to the discovery and seeks to compel further testimony or hold Kurgan in 

criminal contempt. Plaintiffs or plaintiffs agents, or others working with the plaintiff 

then approached the California Franchise Tax Board, reporting Kurgan, which 

resulted in Kurgan being contacted by a revenue officer for the State of California 

regarding his personal taxes and that of Service Wing. This Court has even stated 

that Kurgan was already found in contempt and this Court said it would entertain 

criminal contempt charges. Kurgan also discovered that Plaintiffs are working 

directly with Rich Pickett, a disgruntled investor in Service Wing. Mr. Picket is a 

former detective in the State of Colorado and on information and belief, Kurgan is 

informed that he is or has been a consultant for the FBI. Mr. Picket or others with 

whom he is working has contacted both state and Federal Authorities and is accusing 

Kurgan of crimes of fraud. In fact, when Kurgan appeared for his deposition, he was 

served with a lawsuit filed by Pickett and others alleging Kurgan committed fraud, 

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and that case was dismissed without prejudice because on information and belief, 

Kurgan believes that Mr. Pickett and others are currently working with the 

authorities on the fraud allegations. The post judgment pleadings that Plaintiff has 

filed including attempts at attaching exempt (tenancy by the entirety accounts) with 

Kurgan's wife; attempts to separate Kurgan from his Florida Counsel who tried to 

file for protective orders on behalf of Kurgans spouse, and even attacked counsel's 

paralegal, accusing Kurgan of perpetrating a fraud on the court. All these serious 

matters have led Kurgan to assert his Fifth Amendment privilege from incriminating 

himself from these very real threats. 

Kurgan appeared at his deposition and did not blanket object to every question, 

and only objected to sixty seven questions asked. All of the objections were made on 

the advice of Kurgan's counsel, John Bergenfahai, who was present with him at the 

time of his deposition. None of the objections Kurgan made were out of concern about 

his future testimony as alleged, but in fact, the privilege was asserted because claims 

of perjury, fraud criminal investigations, fraud investigation by Mr. Pickett, a former 

detective and an FBI consultant, orders of contempt that have already been made 

and this court's order stating it will consider criminal contempt of court. The privilege 

was asserted for what has already transpired not based whether future testimony 

might be false or true. 

FACTUAL BACKGROUND 

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1. As noted in the December order on page 9 the plaintiff has accused Kurgan of 

perjury and cited the crime fraud exception. The Court quoting from plaintiff's 

filings said: 

a. "Defendant's perjuey here is clear". Defendant testified under oath that 

he does not currently draw a salary, that he has not received funds from 

any source for the past two years, that he does not receive compensation 

from any of his companies, and that he has not filed tax returns for the 

past four years. (See Exhibits I and J) Of course, evidence produced by 

a disinterested witness in response to a subpoena tells a different story. 

Documents produced by First Florida Credit Union show that Defendant 

has been drawing a bi-weekly salary of $10,416.67 (approximately 

$270,000 per year) from one of his companies, Service Wing Healthcare, 

Inc., and that he has been paying taxes on that income. (See Exhibit K.) 

Thus, Defendant's testimony-which was presumably provided for the 

purpose of evading the judgment against him·is demonstrably false. At 

the very least, the evidence supports a good faith belief by a reasonable 

person that an in camera ... " 

2. On page 10 of the same order, the court also stated it would entertain criminal 

contempt charges. 

3. On or about December 19, 2017 Kurgan learned that the plaintiff was working 

with Rich Pickett. Mr. Pickett is a disgruntled investor in Service Wing 

Healthcare. Mr. Pickett has told Mr. Kurgan that he is a former detective in 

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the state of Colorado and is a consultant to the FBI. On information and belief 

Kurgan feels Mr. Pickett or others he is working with has contacted both state 

and federal authorities accusing him of fraudulent crimes. This is in the court 

records as an exhibit to the motion for attorney's fees. See Exhibit 2, plaintiffs 

motions for attorney's fees filed December 19, 2017. 

4. The department of revenue for the state of California has contacted Kurgan 

and Kurgan has declined to answer the questions. 

5. On March 23rd, 2018, when Kurgan appeared to have his deposition taken he 

was served with a lawsuit from Mr. Pickett and others alleging fraud. 

6. On May 30th, 2018, Kurgan was dismiss without prejudice from that lawsuit 

with the belief that Mr. Pickett continues to work with state and federal 

authorities. 

7. I believe I've properly asserted my constitutional Fifth Amendment rights and 

hired local counsel to advise me in regards to the matters that I believe could 

be currently under criminal investigation. 

ARGUMENT 

GIVEN THE REAL THREAT IN THESE PROCEEDINGS FOR CRIMINAL 

CONTE:MPT AND PERJURY INADDITION THE THREAT OF CRIMINAL 

AND CML PROSECUTION FOR FRAUD OUTSIDE OF THESE 

PROCEEDINGS, AND KURGAN'S CURRENT BELIEF THAT HE MAY BE 

UNDER INVESTIGATION BY FEDERAL AUTHORITIES AND THOSE OF 

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AT LEAST THE STATE OF CALIFORNIA, KURGAN IS ENTITLED TO 

ASSERT ms FIFTH AMENDMENT PRIVILEGE. 

When a person is questioned by the government, if a truthful answer might 

incriminate him in a future criminal proceeding, the Clause provides him with the 

privilege to refuse to answer. Lefkowitz v. Turlev. 414 U.S. 70, 77 (1973). Ordinarily, 

if the person does not assert the privilege at that time-if he simply answers the 

question-his answer is considered voluntary (that is, not "compelled") for purposes 

of the FifthAmendment.W Minnesota v. Muzphy. 465 U.S. 420, 429 (1984). The Fifth 

Amendment provides that no person "shall be compelled in any criminal case to be a 

witness against himself." The Amendment not only protects the individual against 

being involuntarily called as a witness against himself in a criminal prosecution but 

also privileges him not to answer official questions put to him in any other proceeding, 

civil or criminal, formal or informal, where the answers might incriminate him in 

future criminal proceedings. McCarthvv. Arndstein. 266 U.S. 34. 40 (1924), squarely 

held that "[t]he privilege is not ordinarily dependent upon the nature of the 

proceeding in which the testimony is sought or is to be used. It applies alike to civil 

and criminal proceedings, wherever the answer might tend to subject to criminal 

responsibility him who gives it. The privilege protects a mere witness as fully as it 

does one who is also a party defendant." 

In this respect, McCarthvv. Arndstein reflected the settled view in this Court. 

The object of the Amendment "was to insure that a person should not be compelled, 

when acting as a witness in any investigation, to give testimony which might tend to 

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show that he himself had committed a crime." Counselman v. Hitchcock. 142 U. S. 

547, 562 (1892). See also Bram v. United States. 168 U.S. 532, 542-543 (1897); Brown 

v. Walker. 161 U. S. 591 (1896); Bovdv. United States. 116 U.S. 616. 634, 637-638 

(1886); United States v. Saline Bank. 1 Pet. 100 (1828). This is the rule that is now 

applicable to the States. Mallovv. Hogan. 378 U. S. 1 (1964). "It must be considered 

irrelevant that the petitioner was a witness in a statutory inquiry and not a defendant 

in a criminal prosecution, for it has long been settled that the privilege protects 

witnesses in similar federal inquiries." 78*78 Id., at 11. 

The privilege against self-incrimination applies not only to criminal 

proceedings, but to civil proceedings as well where statements may later be used in a 

criminal proceeding against the speaker. See Minnesota v. Mumhv. 465 U.S. 420, 

426, 104 S.Ct. 1136. 79 L.Ed.2d 409 (1984) (privilege against self-incrimination "not 

only permits a person to refuse to testify against himself at a criminal trial in which 

he is a defendant, but also privileges him not to answer official questions put to him 

in any other proceeding, civil or criminal, formal or informal, where the answers 

might incriminate him in future criminal proceedings."); McCarthv v. Arndstein. 266 

U.S. 34, 40, 45 S.Ct. 16, 69 L.Ed. 158, (1924) (The privilege "applies alike to civil and 

criminal proceedings, wherever the answer might tend to subject to criminal 

responsibility him who gives it."). 

A court must, however, be wary that inappropriate procedural remedies or 

unwarranted sanctions do not unduly burden a litigant's valid attempts to seek the 

protection that the privilege against self-incrimination provides, especially when 

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there is nothing to suggest that the Fifth Amendment was used abusively or to gain 

an unfair tactical advantage. See United States v. 4003-4005 5th Ave .. 55 F .3d 78. 85 

(2d Cir.1995); SEC v. Gravstone Nash. 25 F.3d 187, 192 (3d Cir.1994) ("Because the 

privilege is constitutionally based, the detriment to the party asserting it should be 

no more than is necessary to prevent unfair and unnecessary prejudice to the other 

side."). 

Plainly, Kurgan has good reason to seek the protections of the Fifth 

Amendment, as a criminal investigation based on the very conduct alleged here is 

currently pending or likely to be pending by the Federal Government and the State 

of California. See Priebe v. World Ventures, Inc., 407 F. Supp. 1244 - Dist. Court, CD 

California 1976 

Kurgan contends that the allegations contained in the plaintiffs motions and 

discovery involving federal and state securities violations and allegations of actual 

fraud could also support an action for criminal liability. Given the facts, and that Rich 

Pickett's lawyer had Kurgan sued at a privately scheduled deposition clearly shows 

how closely the Plaintiffs are working with the other parties to other actions, 

including a consultant with the FBI. The there is a "reasonable basis" for believing 

that "incriminating evidence would be revealed" and that the privilege must be 

applied only to specific questions asked. 

It is settled that the fifth amendment privilege against self-incrimination 

applies in civil proceedings. McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 69 

L.Ed. 158 (1924). The test for determining the application of the privilege, however, 

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has been variously stated. The United States Supreme Court in United States v. 

Kordel. 397 U.S. l, 9, 90 S.Ct. 763, 25 L.Ed.2d 1 (1969) stated the historic view that 

the privilege cannot be invoked without a demonstration of a "real and appreciable" 

risk of self-incrimination. See, e.g., Minor v. United States. 396 U.S. 87. 98. 90 S.Ct. 

284. 24 L.Ed.2d 283 (1969); Leary v. United States. 395 U.S. 6. 16. 89 S.Ct. 1532. 23 

L.Ed.2d 57 (1969). The question of what constitutes a "real and appreciable" risk has 

often confronted the courts, and the term has been interpreted in a fashion designed 

to fully protect individual rights. McCormick in his treatise on Evidence states that 

"the now prevailing general judicial attitude [is] that almost any conceivable danger 

is 'real and appreciable."' § 123, at 263 (2d ed. E. Cleary 1972). And Wright and Miller 

observe that, "In many of the cases in which the issue has arisen criminal charges 

involving the same occurrences are already pending against the party, but this is not 

the measure of the privilege, and it is available even if the risk of criminal prosecution 

is remote." 8 Federal Practice and Procedure§ 2018, at 141 (1970). These renditions 

are entirely consistent with the test applied by the Supreme Court in Hoffman v. 

United States. 341 U.S. 479, 488, 71 S.Ct. 814, 819. 95 L.Ed. 1118 (1951) (emphasis 

in original), quoting Temple v. Commonwealth. 75 Va. 892. 898 (1881): "In this setting 

it was not 'perfectly clear, from a careful consideration of all the circumstances in the 

case, that the witness is mistaken, and that the answer[s] cannot possibly have such 

tendency' to incriminate." See, e.g., Guv v. Abdulla. 58 F.R.D. l, 2 (N.D.Ohio 1973), 

de Antonio v. Solomon. 42 F.R.D. 320, 323 (D.Mass. 1967). Clearly in this setting, 

where the civil charges dovetail with those which could give rise to criminal 

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sanctions, the risk of criminal prosecution cannot be characterized as "imaginary and 

insubstantial," (Minor v. United States. supra. 396 U.S. at 98, 90 S.Ct. 284) without 

a possibility of a "tendency" to incriminate (Hoffman v. United States. supra. 341 U.S. 

at 488. 71 S.Ct. 814), "trifling" (Marchetti v. United States. 390 U.S. 39, 53. 88 S.Ct. 

697, 19 L.Ed.2d 889 (1968)), or "purely fantastic" (de Antonio v. Solomon. supra. 42 

F.R.D. at 323). 

While Defendants recogmze that under normal circumstances he cannot 

simply make a blanket refusal to answer questions, he answered what he could 

already, and made a particularized objection to each of the questions he was asked ~ 

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(8th Cir. 1972). There a plaintiff judgment creditor asked questions designed to reveal 

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that he knew he could not answer or that his counsel who appeared with him believed 

could incriminate him. See Capitol Products Corporation v. Hernon. 457 F.2d 541 

the assets of the defendant in an effort to assist in the execution of the judgment. The 

defendant, apparently concerned about the criminal tax consequences of full 

disclosure, refused to answer any questions, citing the privilege against selfincrimination. The Eighth Circuit held that the defendant could be required to 

specifically justify the claim of privilege with respect to each question. In Hernon it 

was clear that a blanket claim of privilege was inappropriate. It defied credulity to 

suppose that any and every question about the assets of the defendant created a risk 

of self-incrimination. In the absence of some more definite showing, the court properly 

held that the privilege was not properly invoked. 

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But this case is radically different. Here any questions that could lead to 

discoverable evidence admissible in the civil proceeding could also provide "a link in 

the chain of evidence" needed in a criminal prosecution. Blau v. United States. 340 

U.S. 159, 161. 71 S.Ct. 223, 224, 95 L.Ed. 170 (1950); Mallov v. Hogan. 378 U.S. 1. 

11 ·12, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Here, unlike Hernon, any proper 

question in the civil context inherently gives rise to self-incrimination hazards. 

This, of course, does not mean that the plaintiffs are precluded from further 

discovery." United States v. 3963 Bottles . .. of . .. ''Enerjol Double Strength," 265 

F.2d 332, 336 (7th Cir. 1959). The Plaintiff has readily availed themselves of 

discovery propounded on third parties and other companies. They have ample 

information that all of Kurgans assets, if any there are, are held as Tenants by the 

Entirety. 

It is clear, however, at this point, that the privilege here has been properly 

invoked by Kurgan. See Gellis v. Casey, 338 F.Supp. 651 (S.D. N.Y.1972); J. Wigmore, 

8 Evidence§ 2257, at 339 (Rev. ed. McNaughton 1961). 

POINT THREE 

RELIEF SOUGHT- IMMUNITY, GAG ORDER, AND SEALING THE 

RECORDS, SHOULD BE GRANTED IF THE COURT IS INCLINED TO 

COMPEL KURGAN TO ANSWER 

Because Kurgan has no significant assets that are not held as tenants by the 

entirety, and Kurgan wishes to avoid taking bankruptcy; Kurgan is willing to 

negotiate a potential resolution to this matter. If the court will grant immunity to 

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Kurgan for his responses; seal the record; seal the deposition; and order counsel and 

plaintiff not to share any information they obtain in their discovery with any other 

person, entity, government or agency, then Kurgan would be willing to respond to the 

questions under a single blanket objection and without waiving that objection, fully 

respond to any question with the information he possesses. 

"A witness protected by the privilege may rightfully refuse to answer unless 

and until he is protected at least against the use of his compelled answers and 

evidence derived therefrom in any subsequent criminal case in which he is a 

defendant." Kastigarv. United States. 406 U. S. 441 (1972). Absent such protection, 

if he is nevertheless compelled to answer, his answers are inadmissible against him 

in a later criminal prosecution. Bram v. United States, supra; Bovdv. United States. 

supra. 

Lastly, and most importantly, is that Kurgan is willing to answer the questions 

fully ifthe court is willing to grant limited immunity. None of the questions answered 

in the deposition could be used for criminal prosecution at any time. Furthermore the 

deposition should be sealed to protect the immunity. The court should note that 

Plaintiff has already made several attempts to attach jointly held accounts. While 

the funds in those accounts have not been removed, there were substantial bank fees 

incurred by Kurgan and his wife for each wrongful attempt. Kurgan is fearful, aside 

from being held in contempt, that any information provided will result in more 

attacks on his wife and her funds, causing them to appear in the Southern District of 

Florida (multiple venues) for a protective order. We all know that the last time that 

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happened, David Harris was accused of fraud so he withdrew his pleadings to avoid 

even an appearance of impropriety and will make it much more difficult the next time 

a motion is necessary to find an attorney willing to represent Kurgan and his innocent 

spouse. 

CONCLUSION 

I have absolutely NO INTENTION WHATSOEVER of disrespecting the orders 

of this Court. I apologize profusely if any of my actions appeared disingenuous to this 

court. I am sincerely sorry for any inconvenience my assertion of my privilege may 

cause but I am very concerned for my own safety and that of my rights. 

Respectfully Submitted: 

~At 

l\fichaelJ.~ 6538 Collins Avenue 

Unit 288 

Miami Beach, FL 33141 

Phone (858) 480-9330 

E-Mail n46lbb@gmail.com 

Defendant Pro Se 

Cc: A true and correct copy of the foregoing was provided on the date set forth 

above to: Nicholas J. Henderson, OSB No. 074027 

Email: nhenderson@portlaw.com 

Motschenbacher & Blattner, LLP 

117 SW Taylor Street, Suite 200 

Portland, Oregon 97204-3029 

Telephone: (503) 417-0508 

Facsimile: (503) 417-0501 

By means of email and us postage, first class, postage pre·paid. 

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