SEC Files Reply and "Motion to Strike" AEHI's "Statement of Disputed Material Facts"

The SEC, on time, filed a Reply in Support of their Motion for Partial Summary Judgment.  AEHI, in filing their earlier Response to the SEC's motion, attached a document it called a "Joint Statement of Disputed Material Facts," covering both defendants AEHI and Don Gillispie.
In their reply, the SEC characterized that Statement of Disputed Material Facts as so bad that they filed a motion to strike that statement from the record.

Highlights:

"AEHI’s public filings show a ceaseless trawl for cash beginning in October 2006 (before the first of the 23 PPMs defendants call “offerings”), through the filing of this lawsuit in December, 2010. SUMF ¶ 22.5 In fact, a sideby-side review of AEHI’s monthly stock sales against defendants’ chart of the 23 PPMs selected by AEHI shows no correlation between the sales and the timing of the supposed 23 offerings."

From the Motion to Strike: (emphasis added)
3. Defendants Inappropriately Rely on “Privileges” to Shield Evidence
In a further attempt to limit the Court’s consideration of relevant evidence, defendants rely on privilege arguments that are contrary to law. First, though defendants do not dispute that Gillispie asserted his Fifth Amendment privilege during his April 27, 2012 deposition in refusing to testify substantively to the questions posed, defendants nevertheless claim that his refusal to answer was not made “on the ground that the answer would tend to incriminate him.” The law says otherwise. A person does not have “carte blanche by virtue of the Fifth Amendment’s self incrimination clause to refuse to answer a question,” but can invoke the privilege only if “the answer one would give if one did answer it (and answer it truthfully) must have some tendency to subject the person being asked the question to criminal liability.” “To claim the privilege validly a defendant must be faced with “substantial hazards of self-incrimination, that are real and appreciable and not merely imaginary and unsubstantial.” Accordingly, the only inference that could be drawn from Gillispie’s refusal to answer questions is that the answers would tend to incriminate him.


Here is the SEC Reply:


The SEC's Motion to Strike: