Case 2:09-cv-00104-LDG-GWF Document 94

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FREDERICK SANTACROCE, ESQ. SANTACROCE LAW OFFICES LTD. State Bar 5121 706 South Eighth St Las Vegas, NV 89101 (702) 598-1666 Email: Fasatty@yahoo.com

IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF NEVADA 8 * * * 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 COMES NOW, Defendant, Marco Glisson, by and through his attorney Frederick Santacroce, Esq., and files this Reply to Plaintiffs Opposition to Defendants Motion in Limine to Preclude the Introduction by the Plaintiff, of all Evidence Pertaining to Glissons Post 2007 Activities. vs. MARCO GLISSON, Defendant SECURITIES AND EXCHANGE COMMISSION, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 2:09-cv-00104-LDG-GWF REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION IN LIMINE TO PRECLUDE THE INTRODUCTION, BY THE PLAINTIFF, OF ALL EVIDENCE PERTAINING TO GLISSONS POST 2007 ACTIVITIES

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Dated: 12/10/2011 FREDERICK SANTACROCE, ESQ. /s/ Frederick Santacroce ____________________________________ FREDERICK SANTACROCE, Esq. Nevada Bar No. 5121 SANTACROCE LAW OFFICES, LTD 706 S. 8th St Las Vegas, Nevada 89101 Telephone: (702) 598-1666 Fax: (702) 385-1327 Attorney for Defendant This Motion is made based upon the pleadings, papers and Affidavits on file herein, the following Memorandum of Points & Authorities, and any argument of counsel to be entertained at the time of any hearing of this matter.

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TABLE OF CONTENTS PRELIMINARY STATEMENT......................................................................................... 5 LEGAL ARGUMENT I. EVIDENCE OF GLISSONS 2010 TRANSACTIONS IN CMKM STOCK IS NOT RELEVANT BASED UPON THE PLAINTIFFS COMPLAINT AND SHOULD BE EXCLUDED OR IN THE ALTERNATIVE LIMITED...................................................... 5 1. Injunctive Relief........................................................................................ 5 2. Ability to Satisfy any Money Judgment.................................................... 5 3. Credibility.................................................................................................. 7

II. IF THIS COURT IS NOT INCLINED TO PRECLUDE THE INTRODUCTION, BY THE PLAINTIFF OF ANY AND ALL EVIDENCE PERTAINING TO GLISSONS POST 2007 ACTIVITIES, THEN THIS COURT SHOULD PROHIBIT THE PLAINTIFF FROM ELICITING TESTIMONY AS TO DEFENDANTS MOTIVATION....................................................................................... 9

CONCLUSION..................................................................................................................... 10

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1 2 3 4 5 Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)........................ 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Federal Rule of Civil Procedure 8(a)(2)............................................................................ Federal Rules of Evidence 401 ............................ 7 6 Other Authority: Swierkiewicz v. Sorema N. A. 534 U.S. 506, 513, 122 S.Ct. 992, 998 (U.S.,2002).. 6 6 Cases: SEC v. Murphy, 626 F.3d 633 (9th Cir. 1980)............................................................... 5 TABLE OF AUTHORITIES

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PRELIMINARY STATEMENT

Defendant Marco Glisson filed his Motion in Limine to Preclude the Introduction, by the Plaintiff, of all Evidence Pertaining to Glissons Post 2007 Activities. Defendant relies on the Facts as set forth in his Motion in Limine and further relies on the Legal Argument set forth

LEGAL ARGUMENT

I. EVIDENCE OF GLISSONS 2010 TRANSACTIONS IN CMKM STOCK IS NOT RELEVANT BASED UPON THE PLAINTIFFS COMPLAINT AND SHOULD BE EXCLUDED OR IN THE ALTERNATIVE LIMITED Plaintiff argues that Glissons 2010 transaction are relevant, for several reasons and therefore should not be excluded. 1. Injunctive Relief: The Plaintiff argues that Glissons 2010 transaction are relevant to show the need for injunctive relief. In order to obtain injunctive relief the Plaintiffs burden is whether the evidence establishes a reasonable likelihood of a future violation of the securities laws. SEC v. Murphy, 626 F.3d 633 (9th Cir. 1980) The factors to be considered are (1) the degree of scienter involved; (2) the isolated or recurrent nature of the infractions; (3) the defendants recognition of the wrongful nature of the

24 25 26 27 28 5 violations might occur; and (5) the sincerity of the defendants assurances against future infractions; (4) the likelihood that because of the defendants professional occupation that future

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violations. Id. Nowhere in the Murphy factors is money either obtained, earned or lost a component to be considered in the equation. It is therefore, of no relevance to the inquiry of injunctive relief whether the Defendant deposited money in his wifes account or his account or anyone elses account for that matter. Arguably, injunctive relief may be had even if the defendant realized no financial benefit from his transactions. In light of the Murphy factors the Plaintiffs argument is without merit and Glisson post 2007 activities should not be allowed or in the alternative limited. 2. Ability to Satisfy any Money Judgment: The Plaintiff argues that Glissons 2010 transaction are relevant to show his ability to satisfy any money judgment. The ability to satisfy any money judgment is not an element of any of the Plaintiffs Causes of Action. Nor is the ability to satisfy a money judgment a prerequisite to obtaining the damages sought. The Plaintiffs Complaint alleges that: Between December 2005 and April 2007, Glisson repeatedly violated the federal securities laws by acting as an unregistered broker-dealer and engaging in hundreds of purchases and sales of the deregistered securities of CMKM Diamonds, Inc. ("CMKM") with individuals throughout the United States and Canada. CMKM's registration with the Commission ("Commission") had been revoked on October 28, 2005. Essentially, Glisson "made a market" in unregistered CMKM securities. Glisson profited from these unlawful transactions by selling the deregistered CMKM securities at substantially higher prices than he paid for them. Glisson made gross proceeds of approximately $2 million as result of his illicit transactions.1 Federal Rule of Civil Procedure 8(a)(2), provides that a complaint must include a short and

See, Complaint [Doc. 1] at Page 2, paragraph 4.

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plain statement of the claim showing that the pleader is entitled to relief. Such a statement must give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). See also, Swierkiewicz v. Sorema N. A. 534 U.S. 506, 513, 122 S.Ct. 992, 998 (U.S.,2002). No such statement exists in the Plaintiffs Complaint. Incredulously, the Plaintiff cites Federal Rules of Evidence 401 to somehow support their position that inquiry into whether Glisson has the ability to satisfy any money judgment is relevant to this proceeding. FRCP 401 defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Somehow the Plaintiff tries to stretch this definition to include the ability to satisfy any money judgment. But the Plaintiff fails to show how the issue of Glissons ability to satisfy any

17 18 19 20 21 22 23 24 25 26 27 28 The Plaintiff argues that Glisson made sworn assurances to this court in 2009 that he had no 7 3. Credibility: The Plaintiff argues that Glissons 2010 transaction are relevant to impeach his credibility because his 2010 activities establish that Glisson provided false assurances to this court in a sworn declaration... money judgment is of consequence to the determination of the action. Inquiry into Glissons ability to pay any money judgment is not relevant to the determination of the action pled by the Plaintiff and should not be allowed.

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intention to purchase or sell any shares of any public company including without limitation CMKM at any time in the future.... The Plaintiff further argues that Glissons 2010 transaction in CMKM stock directly impeach that statement, and are therefore highly relevant to Glissons credibility. If the true the intent of the Plaintiff is to impeach the Defendant with inconsistent statements then they can simply show that Glisson either traded or did not trade the stock after he allegedly gave his 2009 Declaration. The amount of the shares traded, where the funds went, and his motivation are not at issue. The simple fact that he did or did not trade the stock after his 2009 Declaration is sufficient to impeach his credibility. The true intent of the Plaintiff can be gleaned from the filing of their Motion to Reopen Discovery.

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court granted the Plaintiffs motion allowing the additional discovery and extending the filing date for the pretrial order. During these additional depositions the line of questioning by the SEC 8 Plaintiff Securities and Exchange Commission ( "Commission") respectfully moves for an order continuing the filing date for the joint pretrial order, from thirty days after the close of discovery, to June 30, 2011, in order to provide time for the Commission to complete the additional discovery authorized by the Magistrate Judge, analyze the information, and file a motion to amend the pleadings to include conduct in 2010 by defendant Marco Glisson that mirrors the conduct alleged in the Complaint. This is the Commission's first request to continue the filing of the joint pretrial order. (Emphasis added) amend its Complaint (ostensibly to include alleged conduct subsequent to the time period it specified in the original Complaint.) In its motion the SEC stated: On January 27, 2011 the Commission motioned the Court for additional time to review the information it garnered in this extended discovery so that it might be afforded the opportunity to

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seemed to focus on the disposition of the proceeds resulting from the sales in 2010. After the additional depositions were concluded, the SEC issued subpoenas, seeking other financial records pertaining to the Defendants activities in 2010. Despite seeking and securing this extended discovery, despite its request to delay trial preparation so that it might be afforded the opportunity to amend the Complaint, the SEC never actually filed to amend or restate the Complaint in any manner that might warrant the inclusion of evidence or alleged conduct arising subsequent to the time period specifically alleged in the Complaint. It is believed and therefore argued that the motive of the Plaintiff in seeking additional discovery was to attempt to locate additional funds of the Defendant. Coincidentally, after this extended discovery, the IRS levied and/or attempted to levy on bank accounts of the Defendant. II. IF THIS COURT IS NOT INCLINED TO PRECLUDE THE INTRODUCTION, BY THE PLAINTIFF OF ANY AND ALL EVIDENCE PERTAINING TO GLISSONS POST 2007 ACTIVITIES, THEN THIS COURT SHOULD PROHIBIT THE PLAINTIFF FROM ELICITING TESTIMONY AS TO DEFENDANTS MOTIVATION Glisson seeks an order precluding the Plaintiff from inquiring at trial into his motivation for depositing proceeds from the sale of his CMKM stock into bank accounts standing in the name of his current wife and the ultimate disposition of such funds. Plaintiff argues that Glissons motivation for using other bank accounts is relevant. Plaintiff argues that, if in fact, Glisson used other bank accounts, somehow this may be viewed as evidence of his knowledge that he was violating federal securities laws.

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Glisson does not contest that he sold the shares and realized proceeds from the sales or where the proceeds were deposited. He is not trying to avoid the existence of such sales/proceeds/deposits. Where he deposited the proceeds and why, and the ultimate disposition of the proceeds, is simply not relevant to the Plaintiffs broker/dealer/registration liability/damages case against Glisson. It should be noted that Marco Glisson is the only Defendant in this case. By this Motion, Glisson is requesting the Court to issue an order precluding the Plaintiff, at trial, from seeking to elicit evidence from Glisson or otherwise offering any evidence seeking to try to prove any liability against Glisson and/or recover damages of any kind from Glisson as a result of his having been engaged in the business of being a broker/dealer at any time after April 2007, including in 2010 and thereafter. CONCLUSION Based upon the foregoing the Defendant respectfully requests this court grant its Motion in Limine to Preclude the Introduction, by the Plaintiff, of all Evidence Pertaining to Glissons Post 2007 Activities DATED this 10th day of December, 2011. FREDERICK SANTACROCE, ESQ. /s/ Frederick Santacroce ____________________________________ FREDERICK SANTACROCE, Esq. Nevada Bar No. 5121 SANTACROCE LAW OFFICES, LTD 706 S. 8th St Las Vegas, Nevada 89101 Telephone: (702) 598-1666 Fax: (702) 385-1327 Attorney for Defendant

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CERTIFICATE OF SERVICE I hereby certify that this document was filed through the ECF system and has been sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) on December 12, 2011 and paper copies sent to those indicated as non-registered. FREDERICK SANTACROCE, ESQ. /s/ Frederick Santacroce ____________________________________ FREDERICK SANTACROCE, Esq. Nevada Bar No. 5121 SANTACROCE LAW OFFICES, LTD 706 S. 8th St Las Vegas, Nevada 89101 Telephone: (702) 598-1666 Fax: (702) 385-1327 Attorney for Defendant

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