Transcript Washington State Securities Division

2009 NASAA
Attorney/Investigator Training
ANALYZING EVIDENCE
 Randy McNeill, Deputy Director
 334-242-2984, [email protected]
 Martin Cordell, Enforcement Attorney:
 360-902-8772, [email protected]
ANALYZING EVIDENCE:
How and what you should
look for in reviewing your
case in making a referral or
drafting a pleading.
Using evidence to tell your
story.
In evaluating the strength and weaknesses of
your case or evidence, consider:
 What are the violations to be proved?
 What are the elements of each violation?
 What evidence supports each element of the
violation?
 What are potential evidentiary issues or
objections?
 What are the potential violations?
 Typical violations:
 Sale of Unregistered Securities
 Exemptions?
 Unlicensed broker-dealer/salesperson
 Fraud




Device, Scheme, Artifice
Misrepresentions
Omissions
Act, practice or course of business
 What are the elements of each violation?
 Conduct
 Mental State
 Jurisdictional Issues
Statute of Limitations
Subject Matter
Location of the violation
 What evidence supports each
element of the violation?
 Types of Evidence
Testimonial
Documentary
 Strength of Evidence
How Much Evidence Is Needed?
Corroborating Witnesses
Supporting Documents
Impact of Evidence?
Sympathetic Victims
“Smoking Gun” documents
Circumstantial Evidence
Evidence Analysis
How does this piece of
evidence help?
Theory, Theory, Theory!!
First question that you must
answer is, “What is my theory in
this case?”
Questions to Ask in Forming Your Theory
What type of case is this?
What is the fraud?
Who are the investors?
What is the motivation of the
defendant/respondent?
Tell the Story
You should think of every
document as a potential piece
of evidence that will help you
tell the story.
Key Questions
 Does this piece of evidence help prove an
element of the case?
 Does it show relevant pattern or practice?
 Can it be used against me, and if so what
impact?
 Are there evidentiary hurdles in getting the
evidence admitted?
 Does it create an unnecessary appellate issue?
It’s not what you know. It’s what you can
prove!
Goal: Make the Complex Simple
Evidentiary Issues






Authentication: FRE Rule 901.
Best Evidence Rule: FRE Rule 1002, et seq.
Hearsay: FRE Rule 802, et seq.
Relevancy: FRE Rule 402
Undue Prejudice: FRE Rule 403
Other Acts: FRE Rule 404
Twelve Banker Boxes to 38 Exhibits
Number
Admit
Description
Witnesses
1.
Letter to Circuit Clerk Morgan County
Stephens
2A.
Suspension Complaint
Lusk
2B.
Suspension Order
Lusk
2C.
Disbarment Complaint
Lusk
2D.
Disbarment Order
Lusk
3A.
Certified Conviction CC#
Certified
3B.
Certified Conviction CC#
Certified
4.
Bail Bond Act
Self proving
5A.
Certificate of Non-registration for Jailbusters
Certified, Tolar
5B.
Certificate of Non-registration for Butler
Certified, Tolar
6.
Buy/Sell Agreement Jailbusters Marshall County
Roome
7.
Promissory Note 1/22/03
Roome
8.
Corporate Resolution Jailbusters Marshall County
Roome
9.
Articles of Incorporation
Roome
10.
Certificate of Deposit Jailbusters of Marshall County
Roome
11.
Business Signature Card
Roome
12A-Q
Marshall County Monthly Split
Roome
13A-L
Checks/Money Orders
Roome
14.
Lease Jailbusters Morgan County
Roome
15.
Minutes & Addendum 6/6/04 Meeting
Roome
Twelve Banker Boxes to 38 Exhibits
16.
Termination Letter
Roome
17.
Notice of Default
Roome
18.
Buy Sell Agreement Jailbusters Cullman County
Flinner
19.
Promissory Note 1/27/03
Flinner
20.
Corporate Resolution
Flinner
21.
Check #626 1/29/03
Flinner
22.
Articles of Incorporation
Flinner
23.
Certificate of Deposit Jailbusters of Cullman County
Flinner
24.
Termination Letter
Flinner
25.
Buy Sell Agreement Jailbusters Walker County
Parnell
26.
Promissory Note 8/14/03
Parnell
Description
Witnesses
27.
Check # 6689 8/14/03
Parnell
28.
Certificate of Deposit Jailbusters of Walker County
Parnell
29A-H
Checks to Butler or Parallax
Parnell
30.
Termination Letter
Parnell
31.
Notice of Default
Parnell
32.
Withdrawal of CD Jailbusters of Marshall County
Custodian, Lewis
33.
Withdrawal of CD Jailbusters of Cullman County
Custodian, Lewis
34.
Withdrawal of CD Jailbusters of Walker County
Custodian, Lewis
35A-
Bank Records
Custodian, Lewis
36A-
Certificates of Incorporation of Butler Related Companies
Certified, Lewis
37.
Flowchart Butler Related Companies
Lewis
38.
Timeline
Lewis
Number
Admit
Example
Sharp Instrument
GUILTY!
Butler found guilty of securities fraud, faces 10 years to life
Categories: Court
Huntsville TimesJamie Butler, left, confers with defense attorney John Mays of Decatur.
HUNTSVILLE, AL - A Madison County jury has found James L. "Jamie" Butler Jr. guilty of nine counts of securities fraud in the sale of several Bail Busters bail bond company franchises. Butler faces between 10 years
and life in prison and will be sentenced later.
The verdict was read in open court at about 4 p.m. after a jury of 10 women and 2 men deliberated about four hours. Butler's trial lasted a week.
Butler stood impassively as visiting Circuit Judge Brian Howell of Anniston read each of the verdicts on the 11 charges against Butler. He was found not guilty of two charges involving victim Kay Roome.
Butler will be sentenced Sept. 11 under Alabama's Habitual Offenders Act. He has two prior convictions for theft.
Prosecuting Butler under securities laws was like the decision federal investigators made to prosecute Al Capone for income tax evasion. Butler was described as a career criminal who, in the words of lead prosecutor
Randy McNeil of the Alabama Securities Commission, "has hurt a lot of people for a long time."
Butler's lead defense attorney Bruce Gardner expressed disappointment after the verdicts were read. Gardner said he thought the defense would prevail on more of the charges, but "I'm not sure I ever expected to win
on all counts, to be brutally honest."
Summary:
In analyzing the evidence in your
case, prepare a list to ensure that
you cover:
Each violation to be proved,
Each element of the violation, and
Witness or documents supporting
the violation of each element.
Summary:
To tell your story effectively:
Determine your theory of the case,
ID evidence that tells the story,
Keep it simple,
What are evidentiary issues?
Use a sharp instrument to obtain
successul results.
Thank you.