It doesn't matter what he says, only a bank employee and an insurance department employee 2 years after the fact.
Agent Arrested and Convicted for Selling an Annuity.
- Thread starter Crabcake Johnny
- Start date
-
- Tags
- annuity
It doesn't matter what he says, only a bank employee and an insurance department employee 2 years after the fact.
- 3,764
My doctor says I didn't, but my wife says I do...Who do you believe??
- 325
My reactions to the outline are as follows:
1. Section 368(d) provides that there is a violation of the law under that section only if the following happens: A person who is not a caretaker must: (a) violate any provision of law proscribing theft or embezzlement; (b) with respect to property; (c) of a person who the charged person knows or reasonably should know is an elder or dependent adult. Did Neasham violate that law? I think not. Neasham was not a caretaker, so that portion of the law applies to him. Schuber (I think) meets the definition of an "elder or dependent adult." So that definitional test is met (I think). However, what about the first test? What "provision of law proscribing theft or embezzlement" did Neasham violate? As I read 368(d), the "provision of law proscribing theft or embezzlement" must be somewhere other than in 368(d) because there is no such provision in 368()d). Neasham sold an annuity. How does that sale violate "any provision of law proscribing theft or embezzlement?" Is it a violation of law to sell an annuity? Is it a violation of any law other than 368(d) to sell an annuity to an old person? Where is the crime?
2. The second point of the brief puzzles me. I agree that mens rea is required to convict for most, but not all, criminal acts; and I think the exceptions to the mens rea requirement do not apply here. Section 368(d) creates a new crime with which to charge those perceived to be preying upon the elderly. However, as noted in item #1 above, there must be an actual crime ("theft or embezzlement" as defined elsewhere in the penal code?) committed before there is an "elder abuse" crime. One might compare this elder abuse law to the "hate crime" laws. These hate crime laws don't make it a crime to hate the constitutionally protected groups. Importantl;y, it is not a violation of the hate crime law to terrorize somebody - that is already a crime elsewhere defined in the code. But if you commit an crime against someone (as defined elsewhere in the penal code) AND the victim is a member of the protected group AND the prosecution can show that hatred (as defined in the hate crime legislation) toward the group motivated the crime, then you have a hate crime. But absent the first requirement - committing an already defined crime, there is no hate crime. The same principle applies to elder abuse crimes and should be the crux of the appeal in this case (at least as I see it).
The mens rea issue is worth raising, but I think, not very useful because 368(d) makes an act an elder abuse crime if the defendant "reasonably should know" that the victim was an elder or dependent adult. Neasham clearly knew her age and, given that he had her sign the document (which he unfortunately described as a CYA letter), it is not an easy conclusion to get a judge to conclude that he had no idea (or reasonably couldn't have known) that she was not fully competent. The mens rea that the prosecution should have been required to prove (and the failure to do so is, in my view, the reversible error) is the mens rea to commit a theft or embezzlement as those terms are defined in the California penal code.
I suggest that to argue the sale was good because the Calif. DOI had approved it for sale to age 85 is not a strong argument. If she were contractually incompetent but only 63, the sale is still a problem. I think we get nowhere by trying to shift the liability to the state DOI as the determiner of whether the sale was age appropriate. I think the evidence would be introduced that the age limit was set with no regard to the competence of the purchaser and should not be used as a bright line test which says any sale to any person under the age of 85 is ok.
If this case boils down to a factual argument over whether Schuber was competent at the time the annuity was sold, then I think the appeal loses. Where is the reversible error? Are we arguing that there was NO evidence to support a finding by the jury that she was not competent to understand the sale? That seems to be a loser. Better, I think, to argue that even though there were facts available to Neasham that Schuber was not in complete intellectual control of her mental facilities, the sale of the annuity to her in those facts was not a "theft or embezzlement."
3. I agree with the brief summary in section 3(a) and (b) of the draft outline. But I don't see how that issue is relevant to a finding that the trial judge committed a reversible error. It seems to have more relevance to a charge that 368(d) is a hard standard to which producers must be held. I don't think that argument even rises to a challenge to the constitutionality of 368(d). It may be a bad law or a hard law but there are lots of such laws that are constitutional. Suppose the appellate court agrees that requiring a higher level of analysis of an applicant's mental condition (by the producer or by the company) has a chilling effect on sales of annuities. So what? The court isn't going to reverse the conviction or overturn the law simply because the law makes it harder to sell annuities. The Clean Water Act makes it harder to mine coal and comply with the law but the resolution is not that the law is unconstitutional, the coal companies are trying to get the law changed legislatively. I would not encourage a constitutional challenge to 368(d). That's a harder task.
4. I am not an expert in appellate law but it seems to me that the first thing we must establish is that the court made a reversible error. What did the court do wrong?
Please support us in hiring the right attorney to WIN this case.
ANBC - Glenn Neasham Appellate Trust Fund
1. Section 368(d) provides that there is a violation of the law under that section only if the following happens: A person who is not a caretaker must: (a) violate any provision of law proscribing theft or embezzlement; (b) with respect to property; (c) of a person who the charged person knows or reasonably should know is an elder or dependent adult. Did Neasham violate that law? I think not. Neasham was not a caretaker, so that portion of the law applies to him. Schuber (I think) meets the definition of an "elder or dependent adult." So that definitional test is met (I think). However, what about the first test? What "provision of law proscribing theft or embezzlement" did Neasham violate? As I read 368(d), the "provision of law proscribing theft or embezzlement" must be somewhere other than in 368(d) because there is no such provision in 368()d). Neasham sold an annuity. How does that sale violate "any provision of law proscribing theft or embezzlement?" Is it a violation of law to sell an annuity? Is it a violation of any law other than 368(d) to sell an annuity to an old person? Where is the crime?
2. The second point of the brief puzzles me. I agree that mens rea is required to convict for most, but not all, criminal acts; and I think the exceptions to the mens rea requirement do not apply here. Section 368(d) creates a new crime with which to charge those perceived to be preying upon the elderly. However, as noted in item #1 above, there must be an actual crime ("theft or embezzlement" as defined elsewhere in the penal code?) committed before there is an "elder abuse" crime. One might compare this elder abuse law to the "hate crime" laws. These hate crime laws don't make it a crime to hate the constitutionally protected groups. Importantl;y, it is not a violation of the hate crime law to terrorize somebody - that is already a crime elsewhere defined in the code. But if you commit an crime against someone (as defined elsewhere in the penal code) AND the victim is a member of the protected group AND the prosecution can show that hatred (as defined in the hate crime legislation) toward the group motivated the crime, then you have a hate crime. But absent the first requirement - committing an already defined crime, there is no hate crime. The same principle applies to elder abuse crimes and should be the crux of the appeal in this case (at least as I see it).
The mens rea issue is worth raising, but I think, not very useful because 368(d) makes an act an elder abuse crime if the defendant "reasonably should know" that the victim was an elder or dependent adult. Neasham clearly knew her age and, given that he had her sign the document (which he unfortunately described as a CYA letter), it is not an easy conclusion to get a judge to conclude that he had no idea (or reasonably couldn't have known) that she was not fully competent. The mens rea that the prosecution should have been required to prove (and the failure to do so is, in my view, the reversible error) is the mens rea to commit a theft or embezzlement as those terms are defined in the California penal code.
I suggest that to argue the sale was good because the Calif. DOI had approved it for sale to age 85 is not a strong argument. If she were contractually incompetent but only 63, the sale is still a problem. I think we get nowhere by trying to shift the liability to the state DOI as the determiner of whether the sale was age appropriate. I think the evidence would be introduced that the age limit was set with no regard to the competence of the purchaser and should not be used as a bright line test which says any sale to any person under the age of 85 is ok.
If this case boils down to a factual argument over whether Schuber was competent at the time the annuity was sold, then I think the appeal loses. Where is the reversible error? Are we arguing that there was NO evidence to support a finding by the jury that she was not competent to understand the sale? That seems to be a loser. Better, I think, to argue that even though there were facts available to Neasham that Schuber was not in complete intellectual control of her mental facilities, the sale of the annuity to her in those facts was not a "theft or embezzlement."
3. I agree with the brief summary in section 3(a) and (b) of the draft outline. But I don't see how that issue is relevant to a finding that the trial judge committed a reversible error. It seems to have more relevance to a charge that 368(d) is a hard standard to which producers must be held. I don't think that argument even rises to a challenge to the constitutionality of 368(d). It may be a bad law or a hard law but there are lots of such laws that are constitutional. Suppose the appellate court agrees that requiring a higher level of analysis of an applicant's mental condition (by the producer or by the company) has a chilling effect on sales of annuities. So what? The court isn't going to reverse the conviction or overturn the law simply because the law makes it harder to sell annuities. The Clean Water Act makes it harder to mine coal and comply with the law but the resolution is not that the law is unconstitutional, the coal companies are trying to get the law changed legislatively. I would not encourage a constitutional challenge to 368(d). That's a harder task.
4. I am not an expert in appellate law but it seems to me that the first thing we must establish is that the court made a reversible error. What did the court do wrong?
Please support us in hiring the right attorney to WIN this case.
ANBC - Glenn Neasham Appellate Trust Fund
Arthur Rudnick
Guru
- 1,652
What happened to attorney#2?
- 15,041
Whichever one is more advantageous to me at the time.
- 446
Jesus....so apparently from the few pages that i've read....the guy was arrested and is in jail.
And is now fighting to appeal?
Dayum....i was thinking of selling annuities...abut after this story i don't know...(sigh).
And is now fighting to appeal?
Dayum....i was thinking of selling annuities...abut after this story i don't know...(sigh).
- 325
He's publicly appointed. Mark Geragos and other attornies feel we can have a better shot with the right guy during the oral argument.The "ORAL ARGUMENT" is a "BIG" part of the appeal process.
Last edited:
- 8,707
TonyC said:
Just don't sell them in California. Also my understanding is he is not currently in jail pending appeal.
- 325
