Randy's Trial day 12

This is an email my wife sent during the trial.

A HUGE victory today, but the battle is not over yet.

The state rested it's case and the defense offered a motion for judgment of acquittal, meaning the defense made a case that the state didn't prove what it needed to prove.

The defense points were that the state showed no evidence

1) showing lenders expected a profit (an element of an "investment contract")

2)  showing lenders expected a profit to be made through management and control of others (another element of an "investment contract")

3)  that one of the early loans was nothing but a loan

4)  that Randy performed any act less than 3 years before the state initiated the prosecution

5)  that Randy aided or abetted anyone less than three years before the state initiated the prosecution

6)  that the predicate acts 6-37 for racketeering charge (selling unregistered securities and securities fraud) were conducted as a "pattern" because they were done at one time

After arguments for over 2 hours, the judge took a recess to read the case law, and when we came back at 1:30pm, Judge McHill disagreed on #3 and #4 (the statute of limitations arguments for theft), but granted the motion for reasons 1, 2, 3, 5, & 6. Basing his ruling on case law, he said, "these are loans gentlemen, not an investment contract (securities)". With that ruling, the racketeering charges and selling unregistered securities charges were dismissed!

That leaves the defense to argue against theft. We scrambled to rethink our strategy for our witnesses lined up to testify and just brought on Scott Whitney and Derek Dunmyer  who was asked if he (Dunmyer) prior to August 29, 2008 intended to repay the loan, to which he said 'yes'. Three character witnesses also testified on Randy's behalf.

Randy will testify first thing Friday, followed by closing arguments. Normally, we wouldn't want the case to go to the jury on Friday afternoon, but we are now in a position of the 'domino effect' with the securities charges dropped. We don't think it will take the jury long to decide their verdict.

The state's new theory of theft is that Randy didn't tell lenders what the money was used for (as indicated with the list of payoffs and distributions on the August 29, 2008 closing statement).

Our arguments against this theory: First, Dunmyer testified that he intended to repay the loan. Second, Randy can demonstrate he thought the project was feasible. Third, if this loan is not a securities, the way the money was used does not have to be disclosed. Being cautiously optimistic, we do not believe the jury will find any validity to the state's argument. We shall see what unfolds Friday.

I'm forwarding an additional email sent by my friend.

Thank you all for so much generosity and encouragement!