Agent Arrested and Convicted for Selling an Annuity.

I thought it was the surrender charges not the commission that caused this to be a theft?

Being deprived of the use of your money?

My comment about the commission is in response to the comment that Fran didn't pay the commission.

If Glenn was not compensated, it would be hard to charge him with anything, or at least I think it would be. The fact he received a commission check means he was compensated and therefore, his level of responsibility is higher than an unpaid, uncompensated consultant.

Dan
- - - - - - - - - - - - - - - - - -

I've read this. Sounds like Lou might have a bit of dementia as well.

Glenn - I've said this before and I'll say it again. Based on the information I know (mostly provided by you), I'm not sure I wouldn't have written the annuity myself. Its a lot easier to look at this in hindsight and think of all the little warning signs, that by themselves are meaningless, and look at them in totality and think 'Wow, how could that be missed?'. Monday morning quarterbacking is soooooo much easier.

Dan
 
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Table of Contents


Table of Authorities Cited..................................................................... v

Statement of Appealability................................................................... 1

Statement of the Case.......................................................................... 1

Statement of Facts................................................................................. 3

A. Circumstances of Appellant's Sale of Allianz's
Masterdex 10 Annuity to Fran Schuber on
February 4, 2008........................................................................ 3

B. Testimony of Fran's and Jochim's Family
Members...................................................................................... 9

C. Observations by Prosecution's Investigators
Following the Sale of the Masterdex 10 to Fran
Schuber....................................................................................... 14

D. Expert Testimony Regarding Annuities............................ 23

1. Neil Granger...................................................................... 23

2. Richard W. Duff................................................................ 28

E. Psychiatric Testimony Regarding Fran Schuber's
Dementia..................................................................................... 31

F. Testimony by Legal Services Attorney Regarding
2007 Application for Power of Attorney from Fran
Schuber to Jochim.................................................................... 37

Argument................................................................................................ 39

I. AS THERE WAS NO EVIDENCE THAT THE SALE OF
THE ANNUITY DEPRIVED FRAN SCHUBER OF
POSSESSION OF THE $175,000 SHE USED FOR THE
PREMIUM FOR SO EXTENDED A PERIOD OF TIME THAT
SHE WAS DEPRIVED OF THE MAIN VALUE OF THE
PROPERTY, REVERSAL IS REQUIRED............................. 39

A. Jury Instruction on Theft by Larceny and
Defense Objection Thereto................................................. 39

B. A Subjective Interpretation of the Term "Main
Value" of the Property to Mean what the Owner
Customarily Uses the Property for is in Equipose
with an Objective Interpretation, Thus the Rule of
Lenity Requires Application of that Subjective
Meaning to the Facts of this Case..................................... 40

C. The Facts Adduced in this Case Do Not Satisfy
the Requirement that Fran Was Deprived of Her
Customary Use of Property Through Appellant's
Sale of the Masterdex 10 Annuity to Her on
February 4, 2008................................................................... 42

1. Fran's customary use of the $175,000 in
issue demonstrates no deprivation of such use
through purchase of the annuity................................ 42

2. A review of the annuity policy itself
demonstrates no financial loss through its
purchase......................................................................... 44

3. The record establishes that the annuity in
question had a secondary market value of
$180,000, $5000 more than its purchase
price, three years and eight months after the
date of sale...................................................................... 46

D. Reversal on the Ground of Insufficient Evidence
to Prove Theft by Larceny with Instructions to
Dismiss is Required............................................................. 47



II. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT
A FINDING OF APPELLANT'S GUILT OF THEFT ON
THE BASIS THAT HE KNEW OR SHOULD HAVE
KNOWN ON THE DATE OF THE ANNUITY SALE IN
QUESTION THAT FRAN SCHUBER WAS INCOMPETENT
AND THUS UNABLE TO COMPREHEND ITS TERMS..... 48

A. Applicable Authority......................................................... 48

B. The Evidence is Insufficient to Establish that
Fran Schuber did not Understand the Early
Surrender Penalties of the Masterdex 10 Annuity
at the Time She Purchased it from Appellant.................. 50

1. Effect of Dr. Rosoff's testimony.............................. 51

2. Staff present at the time of sale.............................. 52

3. Prosecution's videotaped interview of Fran
three and a half years later irrelevant to
Fran's mental state at the time of the sale,
as were the prosecution's confrontations with
Fran a month to two and a half months
following the sale........................................................... 53

C. Reversal with Instructions to Dismiss is
Required ................................................................................ 54

III. THE COURT PREJUDICIALLY ERRED IN RULING
THAT COUNSEL'S QUESTION TO CALIFORNIA
DEPARTMENT OF INSURANCE INVESTIGATOR
SCHRIBER AS TO WHAT ALLIANZ WOULD DO IF SHE
INFORMED THEM THAT FRAN SCHUBER WAS
INCOMPETENT WHEN SHE PURCHASED HER
MASTERDEX 10 POLICY WAS SPECULATIVE, AND
REVERSAL IS REQUIRED..................................................... 56

A. The Question in Issue..................................................... 56

B. The Question went to the Defense that the
Contract was Void ab Initio Due to Fran's
Incompetency and thus no Surrender Charge would
be Imposed if She or her Conservator Rescinded
the Annuity Contract............................................................ 56

C. As Counsel's Question Went to the Lack of

Necessity to Convict Appellant of Theft in Order to

Obtain Fran or Her Conservator Relief on the

Basis of her Incapacity when the Annuity Purchase

was Made, it was Prejudicial Error to Sustain the

Prosecution's Objection that the Question was

Speculative............................................................ 59


IV. IF DEFENSE COUNSEL'S QUESTION TO SCHRIBER
WHETHER ALLIANZ WOULD TRIP OVER ITS FEET TO
RETURN FRAN'S PREMIUM IF SHE INFORMED THEM
THAT FRAN WAS INCOMPETENT AT THE TIME SHE
PURCHASED THE ANNUITY IN ISSUE WAS INDEED
SPECULATIVE, SUCH IN POSSIBLE COMBINATION
WITH COUNSEL'S FAILURE TO OBTAIN A RULING ON
THE IMMEDIATELY SUBSEQUENT QUESTION WHETHER
SCHRIBER HAD EVER REQUESTED ALLIANZ TO
RETURN SOMEONE'S MONEY, CONSTITUTED
INEFFECTIVE ASSISTANCE OF COUNSEL...................... 61

A. Defense Counsel's Immediately Subsequent
Question................................................................................. 61

V. DISPLAYING A VIDEOTAPE TO THE JURY
DEMONSTRATING THE DEMENTIA OF THE ASSERTED
VICTIM THREE AND A HALF YEARS AFTER
APPELLANT'S SALE OF THE ANNUITY TO HER WAS
UNNECESSARY TO PROVE ANY ISSUE IN THIS CASE
AND FAILURE TO EXCLUDE THAT VIDEOTAPE WAS
PREJUDICIAL ERROR UNDER SECTION 352 OF THE
EVIDENCE CODE..................................................................... 64

A. Proceedings on In Limine Motion to Exclude
People's Exhibits 8 and 8a and Admission of Such
Evidence at Trial.................................................................... 64
B. General Principles Applicable to Evidence Code
Section 352............................................................................ 66

C. The Probative Value of People's Exhibits 8 and
8a was Far Outweighed by their Prejudicial Effect......... 68

D. The Prejudice Emanating from the Admission of
People's Exhibits 8 and 8a Requires Reversal............... 72

Conclusion .......................................................................................... 75

Proof of Service/Word Count Certification........................................ 76
 
I am not an attorney, but you must have a legal reason to appeal, bad defense by your attorney, an error by the court . They won't listen to a rehashed defense. I think your best bet is, INEFFECTIVE COUNCIL by your attorney!
 
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I am not an attorney, but you must have a legal reason to appeal, bad defense by your attorney, an error by the court . They won't listen to a rehashed defense. I think your best bet is, INEFFECTIVE COUNCIL by your attorney!

I'm also not an attorney, nor did I stay in a Holiday Inn Express, but...

As I understand it, the reasons the attorney gives are valid for an appeal. Juror misconduct and reversible error by the trial judge are definitely grounds for an appeal. Now, I'm not saying I think this happened, but certainly something you can file an appeal based upon.
 
I assume the attorney knows what qualifies for an appeal. I'll leave them to decide that (not that the judge will ask my opinion, but hey, figured I'd give it to them anyway).

Dan
 
I assume the attorney knows what qualifies for an appeal. I'll leave them to decide that (not that the judge will ask my opinion, but hey, figured I'd give it to them anyway).

Dan

Exactly. Now if the attorney doesn't know the grounds for appeal, it should be a slamdunk for ineffective counsel on the next appeal.
 
Table of Contents


Table of Authorities Cited..................................................................... v

Statement of Appealability................................................................... 1

Statement of the Case.......................................................................... 1

Statement of Facts................................................................................. 3

A. Circumstances of Appellant's Sale of Allianz's
Masterdex 10 Annuity to Fran Schuber on
February 4, 2008........................................................................ 3

B. Testimony of Fran's and Jochim's Family
Members...................................................................................... 9

C. Observations by Prosecution's Investigators
Following the Sale of the Masterdex 10 to Fran
Schuber....................................................................................... 14

D. Expert Testimony Regarding Annuities............................ 23

1. Neil Granger...................................................................... 23

2. Richard W. Duff................................................................ 28

E. Psychiatric Testimony Regarding Fran Schuber's
Dementia..................................................................................... 31

F. Testimony by Legal Services Attorney Regarding
2007 Application for Power of Attorney from Fran
Schuber to Jochim.................................................................... 37

Argument................................................................................................ 39

I. AS THERE WAS NO EVIDENCE THAT THE SALE OF
THE ANNUITY DEPRIVED FRAN SCHUBER OF
POSSESSION OF THE $175,000 SHE USED FOR THE
PREMIUM FOR SO EXTENDED A PERIOD OF TIME THAT
SHE WAS DEPRIVED OF THE MAIN VALUE OF THE
PROPERTY, REVERSAL IS REQUIRED............................. 39

A. Jury Instruction on Theft by Larceny and
Defense Objection Thereto................................................. 39

B. A Subjective Interpretation of the Term "Main
Value" of the Property to Mean what the Owner
Customarily Uses the Property for is in Equipose
with an Objective Interpretation, Thus the Rule of
Lenity Requires Application of that Subjective
Meaning to the Facts of this Case..................................... 40

C. The Facts Adduced in this Case Do Not Satisfy
the Requirement that Fran Was Deprived of Her
Customary Use of Property Through Appellant's
Sale of the Masterdex 10 Annuity to Her on
February 4, 2008................................................................... 42

1. Fran's customary use of the $175,000 in
issue demonstrates no deprivation of such use
through purchase of the annuity................................ 42

2. A review of the annuity policy itself
demonstrates no financial loss through its
purchase......................................................................... 44

3. The record establishes that the annuity in
question had a secondary market value of
$180,000, $5000 more than its purchase
price, three years and eight months after the
date of sale...................................................................... 46

D. Reversal on the Ground of Insufficient Evidence
to Prove Theft by Larceny with Instructions to
Dismiss is Required............................................................. 47



II. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT
A FINDING OF APPELLANT'S GUILT OF THEFT ON
THE BASIS THAT HE KNEW OR SHOULD HAVE
KNOWN ON THE DATE OF THE ANNUITY SALE IN
QUESTION THAT FRAN SCHUBER WAS INCOMPETENT
AND THUS UNABLE TO COMPREHEND ITS TERMS..... 48

A. Applicable Authority......................................................... 48

B. The Evidence is Insufficient to Establish that
Fran Schuber did not Understand the Early
Surrender Penalties of the Masterdex 10 Annuity
at the Time She Purchased it from Appellant.................. 50

1. Effect of Dr. Rosoff's testimony.............................. 51

2. Staff present at the time of sale.............................. 52

3. Prosecution's videotaped interview of Fran
three and a half years later irrelevant to
Fran's mental state at the time of the sale,
as were the prosecution's confrontations with
Fran a month to two and a half months
following the sale........................................................... 53

C. Reversal with Instructions to Dismiss is
Required ................................................................................ 54

III. THE COURT PREJUDICIALLY ERRED IN RULING
THAT COUNSEL'S QUESTION TO CALIFORNIA
DEPARTMENT OF INSURANCE INVESTIGATOR
SCHRIBER AS TO WHAT ALLIANZ WOULD DO IF SHE
INFORMED THEM THAT FRAN SCHUBER WAS
INCOMPETENT WHEN SHE PURCHASED HER
MASTERDEX 10 POLICY WAS SPECULATIVE, AND
REVERSAL IS REQUIRED..................................................... 56

A. The Question in Issue..................................................... 56

B. The Question went to the Defense that the
Contract was Void ab Initio Due to Fran's
Incompetency and thus no Surrender Charge would
be Imposed if She or her Conservator Rescinded
the Annuity Contract............................................................ 56

C. As Counsel's Question Went to the Lack of

Necessity to Convict Appellant of Theft in Order to

Obtain Fran or Her Conservator Relief on the

Basis of her Incapacity when the Annuity Purchase

was Made, it was Prejudicial Error to Sustain the

Prosecution's Objection that the Question was

Speculative............................................................ 59


IV. IF DEFENSE COUNSEL'S QUESTION TO SCHRIBER
WHETHER ALLIANZ WOULD TRIP OVER ITS FEET TO
RETURN FRAN'S PREMIUM IF SHE INFORMED THEM
THAT FRAN WAS INCOMPETENT AT THE TIME SHE
PURCHASED THE ANNUITY IN ISSUE WAS INDEED
SPECULATIVE, SUCH IN POSSIBLE COMBINATION
WITH COUNSEL'S FAILURE TO OBTAIN A RULING ON
THE IMMEDIATELY SUBSEQUENT QUESTION WHETHER
SCHRIBER HAD EVER REQUESTED ALLIANZ TO
RETURN SOMEONE'S MONEY, CONSTITUTED
INEFFECTIVE ASSISTANCE OF COUNSEL...................... 61

A. Defense Counsel's Immediately Subsequent
Question................................................................................. 61

V. DISPLAYING A VIDEOTAPE TO THE JURY
DEMONSTRATING THE DEMENTIA OF THE ASSERTED
VICTIM THREE AND A HALF YEARS AFTER
APPELLANT'S SALE OF THE ANNUITY TO HER WAS
UNNECESSARY TO PROVE ANY ISSUE IN THIS CASE
AND FAILURE TO EXCLUDE THAT VIDEOTAPE WAS
PREJUDICIAL ERROR UNDER SECTION 352 OF THE
EVIDENCE CODE..................................................................... 64

A. Proceedings on In Limine Motion to Exclude
People's Exhibits 8 and 8a and Admission of Such
Evidence at Trial.................................................................... 64
B. General Principles Applicable to Evidence Code
Section 352............................................................................ 66

C. The Probative Value of People's Exhibits 8 and
8a was Far Outweighed by their Prejudicial Effect......... 68

D. The Prejudice Emanating from the Admission of
People's Exhibits 8 and 8a Requires Reversal............... 72

Conclusion .......................................................................................... 75

Proof of Service/Word Count Certification........................................ 76

This case is a prime example of "malicious prosecution".
The fact the video was shown at all three and a half years after sale is irrelavant to Fran's current condition..
They should of produced the AUDIO TAPE in a timely manner.They claimed under "penalty of perjury" it didn't exist.
 
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This case is a prime example of "malicious prosecution".
The fact the video was shown at all three and a half years after sale is irrelavant to Fran's current condition..
They should of produced the AUDIO TAPE in a timely manner.They claimed under "penalty of perjury" it didn't exist.

I agree with you on this.
 
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