Spanier Nov2016 Mtns Binder2

Case 3:16-cr-01545-BEN Document 54 Filed 11/01/16 Page 1 of 2
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TIMOTHY A. SCOTT
California Bar No. 215074
LAW OFFICES OF TIMOTHY A. SCOTT, APC
1350 Columbia Street, Suite 600
San Diego, California 92101
Telephone: (619) 794-0451
Facsimile: (619) 652-9964
email: tscott@timscottlaw.com
Attorneys for Jeffrey Spanier
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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HONORABLE ROGER T. BENITEZ
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United States of America,
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Plaintiff,
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vs.
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Jeffrey Spanier,
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Defendant.
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Case No.: 16cr1545-BEN

Date: November 4, 2016
Time: 10:00 a.m.
Notice of Motions and Motions to:
1. Dismiss the superseding indictment
as time-barred and not relating back to a
timely original indictment.
2. Dismiss Count 2 for duplicity and
failure to allege a distinct crime within
the limitations period.
3. Incorporate motions attacking
original indictment.
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On Friday October 30th, the government returned a superseding indictment
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alleging six new overt actsan apparent bid to extend the governments case into
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the applicable limitations period. Because the original indictment is time-barred,
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as is the superseding indictment that relies upon it, he asks that the Court dismiss
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the counts in both indictments.
Case 3:16-cr-01545-BEN Document 54 Filed 11/01/16 Page 2 of 2
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Dated: November 1, 2016

Respectfully Submitted,
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S/ Timothy A. Scott
____________________________
TIMOTHY A. SCOTT
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Law Offices of
Timothy A. Scott, APC
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Case 3:16-cr-01545-BEN Document 54-1 Filed 11/01/16 Page 1 of 13
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TIMOTHY A. SCOTT
California Bar No. 215074
LAW OFFICES OF TIMOTHY A. SCOTT, APC
1350 Columbia Street, Suite 600
San Diego, California 92101
Telephone: (619) 794-0451
Facsimile: (619) 652-9964
email: tscott@timscottlaw.com
Attorneys for Jeffrey Spanier
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SOUTHERN DISTRICT OF CALIFORNIA
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HONORABLE ROGER T. BENITEZ
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United States of America,
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Plaintiff,
vs.
Jeffrey Spanier,
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Defendant.
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Case No.: 16cr1545-BEN

Date: November 4, 2016
Time: 10:00 a.m.
Memorandum in Support of Motions to
Dismiss
Introduction and Issues Presented
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I.
Statute of limitations, Counts 1 and 2.

For conspiracy charges, the statute of limitations is measured from the date
of the latest overt act alleged in the indictment. The July 1 indictment failed to
allege any overt act within the preceding five years, thus it was untimely. The
government has now filed a superseding indictment, but that indictment also fails
to allege an overt act within five years of its filing. This new indictment does not
relate back to the original indictment either. This is so because: 1) the
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superseding indictment relies on a charging document that was itself time-barred;
and 2) it impermissibly broadens the original indictment. Dismissal of all charges
in both indictments should result.
II.
Statute of limitations, Count 2 only.

Count 2 charges securities fraud. Securities fraud is supposed to be a
discrete offense, criminalizing particular stock transactions. It is simply not a
continuing offense under Ninth Circuit law. As a result, it is impermissible to have
a single count in the indictment charge a vague and wide-ranging course of
conduct that could conceivably encompass hundreds of potential criminal acts.
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These duplicity and vagueness problems are exacerbated by the fact that no
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securities fraud transactions appear to have occurred within the applicable statute
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of limitations. This count should be dismissed accordingly.
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Statement of Facts
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In February of 2016, the Ninth Circuit dismissed the underlying case United
States v. Spanier, 12cr918. The government re-indicted the following July. 1 In
response to a defense motion to dismiss, this Court found that the government did
not re-indict within 60 days of dismissal, thus the tolling provisions set forth in 18
U.S.C. 3299 and 3289 did not apply. Because the indictment was returned on
July 1, 2016, the applicable statute of limitations serves to bar any offense that was
completed before July 1, 2011, and Counts 2-18 were dismissed accordingly.
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Docket at 1. A copy of the original indictment is attached as Exhibit A for

the Courts reference.
But the remaining counts of that indictmentCounts 1 and 19also fail to
allege any overt act occurred within the limitations period. The last alleged overt
act was in May of 2011, two months before the cut-off of July 1, 2011. 2
On October 30th, a Friday afternoon nine days before trial, the government
returned a superseding indictment. 3 That indictment did not allege any overt acts
occurring after October 30, 2011. But it did add six overt acts that allegedly
occurred after July 1, 2011. 4 Presumably the government believes that these six
overt acts relate back to the July 1 indictment, and somehow save the indictment
from being time-barred. That premise is the focus of the first part of these
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motions.
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But Count 2 of the indictment suffers from its own problems. Count 2, the
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securities-fraud charge, does not allege that a specific crime was committed on a
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date certain. It instead alleges that [b]eginning in or around February 2003, and
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continuing up to at least March 14, 2012, Mr. Spanier committed securities fraud
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under 15 U.S.C. 78j(b) and 78ff. Count 2 also incorporates paragraphs 1-7 and
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11-12 by reference, but it does not say which (if any) of these are the actual count
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The indictment did allege that the conspiracy described in Count 1 and the
securities fraud alleged in Count 19 continued up to and including October 25,
2013. Exhibit at 3. This is just the date of the superseding indictment in the
underlying casemonths after one alleged co-conspirator was convicted at trial
and the other co-conspirator had committed suicide. As described infra, it is the
overt acts alleged that matter in this context, not obviously untrue allegations that a
conspiracy was continuing in October of 2013.
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See Exhibit B.
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See Id. at 8, overt acts (t)-(y). These acts all relate to a single witness,
Richard Sellers. Mr. Sellerss stock had already been conveyed before July 1,
2011. The overt acts all pertain to after-the-fact conversations with Mr. Sellers
most if not all of which were after the F.B.I. was publicly investigating the case.
alleged. Securities fraud is not a continuing offense, and the indictment does not
specify how a securities offense occurred within the limitations period.

These motions follow.
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Discussion
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I.
The Superseding Indictment and the original Indictment that it relies

upon are both barred by the statute of limitations.
A five-year statute of limitations applies to Counts 1 and 2 under 18 U.S.C.
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3282. Because the present indictment was returned on October 30, 2016, the
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charges would ordinarily be time-barred unless the government can prove that the
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crimes alleged occurred after October 30, 2011. The government has tried to draft
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its way around its statute-of-limitations problem by ostensibly relating back to
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the July 1, 2016 indictment, and then alleging some overt acts that occurred after
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July 1, 2011.
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This gambit fails. The rule is that [a] superseding indictment brought after
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the statute of limitations has expired is valid so long as the original indictment is
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still pending and was timely and the superseding indictment does not broaden or
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substantially amend the original charges. United States v. Italiano, 894 F.2d
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1280, 1282 (11th Cir. 1990). But this rule does not save the government here for
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two reasons: 1) the original indictment was itself not timely, thus it cannot
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support a superseding indictment; and 2) even if the original indictment was
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somehow timely, the superseding indictment substantially amends and broadens it
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by adding new critical facts, theories, and a distinct alleged conspiracy. For these
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reasons, the superseding indictment was not tolled by the July 1 indictment.
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A.
The superseding indictment is time-barred because it rests on an

original indictment that is itself barred by the statute of
limitations.
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To toll the statute of limitations, the relation-back doctrine requires a
timely underlying indictment. See Italiano, 894 F.2d at 1282 (original
indictments tolling applies as long as that indictment is still pending and was
timely) (emphasis provided). See also United States v. Friedman, 649 F.2d 199,
204 (3d Cir. 1981) (a superseding indictment returned while the original
indictment is validly pending is not barred by the statute of limitations if it does not
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expand the charges made in the initial indictment) (emphasis provided); United
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States v. Grady, 544 F.2d 598, 601-02 (2d Cir. 1976) (a superseding indictment
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[is not time-barred if] the first indictment is still validly pending, [and] if and only
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if it does not broaden the charges made in the first indictment) (emphasis
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provided).
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The original indictment was not timely. In its Order dismissing Counts 2-
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traditional rule used in computing periods of limitation in conspiracy cases, the
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Court wrote, is the statute of limitations starts to run on the date of the last overt
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act alleged to have caused the complainant injury. Order, docket at 34, page 2
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(citing United States v. Charnay, 537 F.2d 341, 354 (9th Cir. 1976)). This has been
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Supreme Court law for over 100 years: the period of limitation must be computed
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from the date of the overt act rather than the formation of the conspiracy. And
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where during the existence of the conspiracy there are successive overt acts, the
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period of limitation must be computed from the date of the last of them of which
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there is appropriate allegation and proof. Brown v. Elliott, 225 U.S. 392, 401
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(1912) (emphasis provided). The same is true of the Ninth Circuit. See Hedderly
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v. United States, 193 F. 561 (9th Cir. 1912) (prosecution is not barred by the
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statute of limitations until three years after the commission of the last overt act
alleged and proved.) (emphasis provided).

When the government fails to allege an overt act within the statutory
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limitation period, the indictment is invalid and must be dismissed. See United
States v. Ben Zvi, 242 F.3d 89, 97 (2d Cir. 2001) (Ben Zvi argues that the wire
fraud conspiracy as charged in the First Indictment was time barred because none
of the alleged overt acts occurred within five years of the indictment's return. We
agree.). Even if evidence of overt acts might be proven to fall within the
limitations period, they must be included within the indictment to save it from
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being time-barred. Put differently, charging a timely overt act in the indictment is
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mandatory; proof at trial does not save an indictment missing this key element.
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See United States v. Davis, 533 F.2d 921, 929 (5th Cir. 1976) (rejecting
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government argument to the contrary, holding that for purposes of the statute of
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limitations the overt acts alleged in the indictment and proved at trial mark the
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duration of the conspiracy) (emphasis provided); Id. at 929 n.11 (describing our
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repeated holdings that proof of a conspiracy must be based on allegation and proof
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of both the criminal agreement and of the commission by one of the conspirators of
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an overt act in furtherance of the conspiracy) (emphasis in original). 5
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The government cannot draft its way around these problems by simply
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alleging an ongoing conspiracy without factual support. See e.g. Fiswick v. United
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States, 329 U.S. 211, 216 (1944) (end of conspiracy measured from date of last
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overt act described in the indictment, even though indictment generally alleged a
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Mr. Spanier recently became aware of this case law through research in
response to the governments superseding indictmentand in particular the
addition of six overt acts nine days before trial. He expressly disavows any
suggestion in prior briefing that merely alleging a continuing offense in the
limitations period (without any overt acts supporting the allegation) is sufficient to
avoid being time-barred.
conspiracy continuing until the date of the indictment itself). See also Bridges v.
United States, 346 U.S. 209, 222-23 (1953) (The embellishment of the indictment
does not lengthen the time for prosecution. It is the statutory definition of the
offense that determines whether or not the statute of limitations has been
violated.). 6
The remaining counts of the original indictment, then, must be measured by
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their last overt act. The latest overt act described in Count 1 of the original
indictment is May 11, 2011almost two months outside of the July 1, 2001 cut-
off. Count 19 simply incorporated the same allegations by reference, thus it is
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time-barred too. Because an indictment must allege an overt act within the
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limitations period, and because the original indictment failed to do so, it was and is
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untimely. The superseding indictment that relies on it to be valid and timely thus
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also fails. Dismissal should result.
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B.
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Even if the original indictment was timely, the superseding

indictment does not relate back for statute of limitations purposes
because it substantially amended and broadened the original
indictment.
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Even if an original indictment is timely, a superseding indictment does not
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relate back to it if it broadens or substantially amends the charges in the original
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indictment. United States v. Sears, Roebuck & Co., 785 F.2d 777, 778-79 (9th Cir.
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1986). See also United States v. Hickey, 580 F.3d 922, 929 (9th Cir. 2009)
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(finding relation back because the superseding indictment did not broaden or
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substantially amend the original indictment). To determine whether the
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superseding indictment impermissibly changed the charges in the original
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indictment it is necessary to examine the two indictments carefully. Sears,
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See supra, at n.4.

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Roebuck, 785 F.2d at 779. See United States v. Liu, 731 F.3d 982, 996-97 (9th Cir.
2013) (To determine whether a superseding indictment substantially broadens or
amends a pending timely indictment, . . . it is appropriate to consider 'whether the
additional pleadings allege violations of a different statute, contain different
elements, rely on different evidence, or expose the defendant to a potentially
greater sentence.).
The superseding indictment adds six crucial overt acts. As the government
well knows, those acts are the difference between a time-barred indictment and a
timely one. And they introduce a new factual matrix as well: the question is no
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longer whether Mr. Spanier knew that Argyll was selling stock to funds loans and
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was making false representations to induce borrowers to pledge stock. Now the
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factual question is whether there was an after-the-fact cover-up; whether there was
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lulling that constitutes an offense within the limitations period, or whether the
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alleged conspiracy had already been completed.
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An entirely different body of law governs these questions, and would subject
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Spanier to a host of new jury instructions and litigation. In Grunewald v. United
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States, 353 U.S. 391, 406 (1957), for example, the government alleged a tax-
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related conspiracy, and the question was whether criminal conduct fell within the
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applicable statute of limitations. First, the Court rejected the argument that an
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agreement to conceal a conspiracy can extend the statute of limitations: after the
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central criminal purposes of a conspiracy have been attained, a subsidiary
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conspiracy to conceal may not be implied from circumstantial evidence showing
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merely that the conspiracy was kept a secret and that the conspirators took care to
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cover up their crime in order to escape detection and punishment. Id. at 401-02
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(citing Krulewitch v. United States, 336 U.S. 440, 444 (1949) (plausible
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arguments could generally be made in conspiracy cases that most out-of-court
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statements offered in evidence tended to shield co-conspirators. We are not
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persuaded to adopt the Government's implicit conspiracy theory which in all
criminal conspiracy cases would create automatically a further breach of the
general rule against the admission of hearsay evidence.)) See also Lutwak v.
United States, 344 U.S. 604, 617 (1953) (same).
Grunewald also held that the district courts instructions to the jury were
erroneous. The Could held that this was so because [t]he jury was never told that
these overt acts of concealment could be taken as furthering the conspiracy only if
the basic criminal aim of the conspiracy was not yet attained [within the limitations
period]. On the charge as given, the jury might easily have concluded that the
petitioners were guilty even though they found merely (1) that the central aim of
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the conspiracy was accomplished in 1949, and (2) that the subsequent acts of
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concealment were motivated exclusively by the conspirators' fear of a conspiracy
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prosecution. 353 U.S. at 414.
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Ninth Circuit law confirms that a defendant is entitled to have the fact-finder
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instructed on a statute-of-limitations defense. In fact, it can be plain error not to do
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so. In United States v. Fuchs, 218 F.3d 957, 961 (9th Cir. 2000), for example, the
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defendant in a conspiracy case moved to dismiss the case on statute-of-limitations
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grounds. But neither the government nor the defense asked the district court to
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include the question of limitations in the jury instructions. Id. The Ninth Circuit
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reversed, holding that the omission was plain error. Considering that a statute of
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limitations instruction is clearly required under established Supreme Court law and
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that the defendants had previously moved to dismiss the indictment [on those
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grounds] the Court held, the trial court's error was plain. Id. at 952.
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All of which is to say that the governments new allegations substantially
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alter and broaden the charges against Mr. Spanier. Simply put, this is much a
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different case than the one the government charged in July. These theories and
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factual questions substantially amend and broaden the July 1st indictment such that
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the superseding indictment does not relate back. The statute of limitations is not
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tolled accordingly, and the superseding indictment must be dismissed in its
entirety.
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II.
Even if the Court does not dismiss Count 1, the substantive securitiesfraud charge in Count 2 is not a continuing offense, it was completed in
2004 at the latest, and thus it should be dismissed as time-barred.
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Count 2 of the superseding indictment charges that beginning in or around
February 2003 and continuing up to and including March 14, 2012, 7 Mr. Spanier
and others did use and employ manipulative and deceptive devices and
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contrivances in connection with the purchase and sale of securities in violation of
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Title 17, Code of Federal Regulations, Section 240.10b-5, by (a) employing
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devices, schemes, and artifices to defraud; (b) making untrue statements of
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material fact and omitting to state facts necessary in order to make the statements
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made, in light of the circumstances under which they were made, not misleading;
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and (c) engaging in acts, practices, and courses of business which operated and
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would operate as a fraud and deceit upon purchasers of securities.

Even if the Court does not dismiss Count 1, this count should be dismissed
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because it does not allege a particular offense, and it certainly does not allege a
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offense within the limitations period.
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A.
Securities fraud is not a continuing offense; it is completedand

the statute begins to runas soon as all of the elements are
present.
By alleging a sweeping course of conduct from 2003 until 2012, the
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government seems to believe that securities fraud is a continuing offense. But it is
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Again, the government continues to tinker with the end-date of the alleged
conspiracy, sometimes claiming that it continued up to October of 2013, and
sometimes alleging that it continued through March of 2012. Thus, even beyond
the legal authority holding that it is the last overt act that matters, the governments
allegations regarding the end-date of any conspiracy are demonstrably arbitrary.
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not, and this misunderstanding wreaks havoc on this count of the indictment. The
seminal case on continuing offenses is United States v. Toussie, 397 U.S. 112
(1970). In Toussie, the Supreme Court held that failing to register for the draft was
not a continuing offense for statute of limitations purposes, even though the
defendant repeated his failure to register every successive day. The Court
explained that the doctrine of continuing offenses should be applied in only
limited circumstances and further relied on the principle that criminal limitations
statutes are to be liberally interpreted in favor of repose. Id. at 115.
The Ninth Circuit applies Toussie faithfully, to the extent that it has
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articulated a presumption against continuing offenses. This court has held that
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there is a presumption against finding continuing violations unless the language of
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the statute compels such a conclusion or the nature of the crime involved is such
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that Congress must assuredly have intended that it be treated as a continuing one.
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United States v. Nash, 115 F.3d 1431, 1441 (9th Cir. 1997). See also United States
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v. Niven, 952 F.2d 289, 291 (9th Cir. 1991). 8
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And under Ninth Circuit law, securities fraud was already not a continuing
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offenseeven before Toussie. In Carroll v. United States, 326 F.2d 72, (9th Cir.
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1963), the government alleged fraud in the sale of securities under 15 U.S.C.
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77q(a). For three of the counts in the indictment, the investors confirmed the stock
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purchase and paid for it outside of the limitations period, but the actual stock
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certificates were mailed inside the limitations period. The question was whether
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Traditional continuing offenses include, for example, escape from federal

custody, kidnapping, and crimes of possession. Id. (citing United States v.
Rodriguez-Moreno, 526 U.S. 275, 281-82 (1999) (kidnapping); United States v.
Bailey, 444 U.S. 394, 413 (1980) (escape from federal custody); United States v.
Waters, 23 F.3d 29, 36 (2d Cir. 1994) (unlawful possession of a firearm)). Each of
these crimes, by their nature, continue after the offense is initially committed. The
same is not true for securities fraud, which is complete as soon as the stock
transaction is consummated.
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the resulting indictmentwhich was returned more than five years after payment
was made but less than five years after the certificates were mailedwas time-
barred. Id. at 86. The Ninth Circuit began with the premise that [t]t is established
law that the statute of limitations begins to run when an offense is completed. It
then observed that substantive mail fraud is deemed completed when the
defendants received the money that was intended to be obtained by their fraud, and
that certain subsequent transactions (banking transactions) were merely incidental
and collateral to it, and not a part of it. Id. It affirmed the same rule for securities
fraud. Accordingly, the Court held that once an offer, acceptance, and payment
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occurred for the stock, then the offense was complete. Id. This was so even
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though victims mailed the actual stock certificates afterwards within the limitations
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period. Id. Accordingly, the Court of Appeals reversed the convictions, holding
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that they were time-barred. 9

Thus, even taking the governments allegations at face value, the crime of
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securities fraud was complete as soon as the first investor was defraudedback in
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2004 or so, according to the governments claims. The allegations twelve years
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later are time-barred.
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For additional authority holding that securities fraud is not a continuing

offense, see United States v. Motz, 652 F. Supp. 2d 284, 294 (E.D.N.Y. 2009)
(securities fraud under 18 U.S.C. 1348 is not a continuing offense); Sanders v.
United States, 415 F.2d 621, 626 (5th Cir. 1969) (under 15 U.S.C. 77q(a), each
fraudulent offer or sale of any security accompanied by mailing or use of any
means or instruments of transportation or communication in interstate commerce is
a separate crime). See also In Finkel v. Stratton Corporation, 962 F.2d 169, 173
(2d Cir. 1992) (holding that statute of limitations begins to run in securities-fraud
case at the moment that the parties become contractually bound to the deal
even if the parties have not yet fully performed on the contract for sale).
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B.
The fact that the government has made the indictment hopelessly
duplicitious should not save it from dismissalespecially
when all of the potential crimes are barred by the statute
of limitations.
The government may respond that the fraud alleged in Count 2 did not end
with the first investor, arguing essentially that there are dozens of incidents within
that count that could support a conviction. But that is the governments problem,
not its solution. Rampant duplicity and vagueness exacerbate rather than cure a
statute of limitations problem. Throwing dozens of potential charges into one
count is the definition of duplicity, many times over. This lack of specificity is
also unconstitutionally vague, and it could create Double Jeopardy problems to the
extent it does not reveal the precise charges that Mr. Spaniers jury will pass upon.
And perhaps most importantly here, it creates the likelihood that the jury could
convict for an act that had long been completed outside of the limitations period.
The law does not permit that result.
For all of these reasons, the Court should dismiss Count 2 of the superseding
indictment for being both time-barred and hopelessly vague and duplicitous.
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Conclusion
For all of these reasons, Mr. Spanier asks that these motions be granted.
Dated: November 1, 2016
Respectfully Submitted,
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S/ Timothy A. Scott
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____________________________
TIMOTHY A. SCOTT
Law Offices of
Timothy A. Scott, APC
Attorneys for Mr. Spanier
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Case
Case3:16-cr-01545-BEN
3:16-cr-01545-BEN Document
Document54-2
1 Filed
Filed07/01/16
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Page1 1ofof1515
--~.
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'201& JUL -I PH 2: 62
SOUTHERN DiSTRiCT Of CAllF{)Rt lA
CLERK US DiSTRICT COUI'!
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7

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SOUTHERN DISTRICT OF
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~LIFORNIA
1
March 2015 Grand Jury

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UNITED STATES OF AMERICA,
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I N D I C T MEN
---r-
Plaintiff,
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JEFFREY R. SPANIER,
Defendant.
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~--------------------------------~
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The Grand Jury charges:
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INTRODUCTORY ALLEGATIONS
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At all times material to this Indictment
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1.
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Title ~8, U.S.C., Sec. 371 Conspiracy; Title 18, U.S.C.,

Sec. 1341 - Mail Fraud; Title 18,
U.S.C., Sec. 1343 - Wire Fraud;
Title 15, U.S.C., Sees. 78j (b) and
78ff - Securities Fraud; Title 18,
U.S.C., Sec. 2 - Aiding and
Abetting; Title 18, U.S.C.,
Sees. 981(a) (1) (C), 984, and
Title 28, U.S.C., Sec. 2461(c) Criminal Forfeiture
v.
15
16CR 154 5 BEN
Case No.
Defendant JEFFREY R. SPANIER was a resident of Delray Beach,
Florida.
25
2.
Amerifund
under
the
Capital
laws
the
State
LLC
26
formed
27
controlled by defendant JEFFREY R. SPANIER.
28
//
MGW:nlv(l) :San Diego
7/1/16
of
Finance,
of
("ACF")
was
Florida
and
a
was
corporation
owned
and
Case
Document54-2
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3.
Amerifund
the
laws
of
Group,
the
LLC
formed
under
Capital
State
of
("ACG")
was
Florida
and
was
ACF and ACG purported to operate a
4.
corporation
owned and
stock lending business
that specialized in originating stock loans for business executives.
Defendant JEFFREY R.
ACG were direct lenders, and also served as the "retail" arm of other
lenders,
Investments,
10
SPANIER,
represented to the public that ACF and
including but not limited to, Argyll Equities, LLC, SW Argyll

LLC, Ayuda Funding,
LLC, and Amerifund Capital Holdings,
LLC.
Argyll Equities, LLC was a corporation formed under the laws
5.
11
12
of
the
State
of
13
California and Savannah, Georgia.
14
(now
15
McClain, Jr., charged elsewhere,
16
Jr.")
deceased)
Texas
(hereinafter
6.
SW Argyll
laws
of
17
the
State
the
19
San Diego,
20
Miceli and McClain, Jr.

7.
California
The Argyll
of
and
to
do
business
in
San Diego,
Its principals were James T. Miceli
referred
to
as
"Miceli")
and
Douglas
(hereinafter referred to as "McClain,
Investments,
18
21
and purported
LLC was
and
Texas
Savannah,
corporation formed under
purported
Georgia.
to
Its
do
business
principals
in
were
entities referred to in paragraphs 5 through 6
22
(hereinafter,
23
to the public by defendant JEFFREY R.
24
institutional lender with significant assets that were in the business
25
of
26
which
27
collateral for the loans ARGYLL made.
28
making
collectively referred to as
loans
would
to
accept
corporate
stock
SPANIER,
executives
(either
"ARGYLL"), were represented
and
restricted
and others,
other
or
to be an
individuals
and
unrestricted)
as
Case
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Count 1
[18 U.S.C. 371]
Conspiracy
8.
are
herein.
9.
The allegations set forth in paragraphs 1
realleged
and
incorporated by
reference
as
if
through 7 above
fully
set
forth
Beginning in at least February 2003 and continuing up to and
including October 2S, 2013, within the Southern District of California
and
elsewhere,
defendant
JEFFREY
R.
SPANIER,
T.
deceased),
II
conspirators,
12
persons
known
13
against
the
14
Title 18,
IS
of Title 18,
16
in violation of Title IS,
17
and Title 17, Code of Federal Regulations, Section 240.10b-S.

10.
knowingly
and
United
conspired
unknown
to
States,
United States Code,
and
the
to
charged elsewhere,
Miceli
10
18
and Douglas McClain, Jr.,
James
agreed
grand
wit:
jury,
mail
Section 1341;
United States Code,
with
to
fraud,
and other co-
each
other,
commit
in
wire fraud,
(now
offenses
violation
of
in violation
Section 1343; and securities fraud,
United States Code,
Sections 78j and 78ff,
It was the purpose and object of the conspiracy to devise a
19
scheme and artifice
20
clients
21
pretenses, representations, promises and omissions of material fact.
to defraud and obtain money from borrowers and
of ACF and ACG by means
of
false,
fraudulent
22
Methods and Means by Which Objects of the
23
Conspiracy Were to be Accomplished
24
11.
2S
thereof,
26
and means, among others:
27
II
28
and
and material
In furtherance of the conspiracy and to effect the obj ects

defendant JEFFREY R.
SPANIER utilized the following methods
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a.
SPANIER,
and others,
would induce
potential borrowers to pledge stock the borrowers owned in publicly
traded securities as collateral for
misleading
substantial independent sources of cash to lend.
representations
ARGYLL,
b.
that
and
SPANIER,
potential borrowers
traded securities as collateral for
misleading
10
loans by false,
fraudulent,
other
lenders,
and others,
and
had
would induce
to pledge stock the borrowers owned in publicly
representations
that
loans by false,
their
stock
fraudulent,
would
be
and
held
in
safekeeping and not be sold unless the borrower defaulted on the loan.
c.
11
SPANIER,
and others,
would induce
12
borrowers to execute documents transferring shares the borrowers owned
13
in publicly traded securities to ARGYLL, and other lenders, by making
14
false,
15
other lenders, would abide by all securities laws,
16
which
17
securities outside of certain guidelines and reporting requirements.
fraudulent,
restricts
d.
18
and
misleading
affiliated
representations
persons
from
that
ARGYLL,
and
including Rule 144
selling
publicly
traded
Defendant JEFFREY R. SPANIER, would induce borrowers to
19
execute documents transferring shares the borrowers owned in publicly
20
traded securities to ARGYLL by falsely representing that he was only
21
receiving as much as
22
receiving substantial incentive fees which exceeded 5%.

e.
23
in
fees,
when,
make
quarterly
in
SPANIER,
interest
truth and
and others,
on
he
was
would induce
loans
ARGYLL
borrowers
25
purportedly made by falsely representing that the stock they pledged
26
as collateral for the loans was safe and would be returned to them as
27
long as they continued to make all of their interest payments timely.

4
payments
fact,
24
28
to
5%
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OVERT ACTS
12.
In
furtherance
the
said
elsewhere:
2003
and
acts,
and
1,
overt
effect
others, were committed within the Southern District of California, and
February
following
to
Between
the
and
accomplish
a.
thereof,
conspiracy
objects
of
January
among
29,
2004,
JEFFREY R. SPANIER negotiated four loan agreements with borrower PB in
which PB pledged 1,250,000 shares of common stock PB held in ATP Oil
and Gas Corporation, a publicly traded company listed on the National
10
Association
11
("NASDAQ"),
12
ARGYLL.
13
of
as
b.
Securities
collateral
On
or
for
before
four
Automated
loans
February
totaling
27,
2004,
from
JEFFREY
R.
SPANIER
in which
GS
pledged
500,000 shares of common stock GS held in ATP Oil and Gas Corporation,
16
17
$1.5 million loan from ARGYLL.

On
c.
or
GS
$3,277,750
15
company
with borrower
System
negotiated a
publicly traded
agreement
Quotation
14
18
loan
Dealers
listed on NASDAQ,
before
April
2004,
loan
20
1.19 million
shares
21
International,
22
NASDAQ, as collateral for a $4.1 million loan from ARGYLL.
23
d.
common
("MSI"),
stock
LP
LP
JEFFREY
negotiated a
of
with borrower
collateral
19
Inc.
agreement
20,
as
R.
in which
held
in
for
SPANIER
LP pledged
Mace
Security
a publicly traded company listed on the
Between June 2004 and December 2005, JEFFREY R. SPANIER
24
facilitated
25
Directivos Servia S.A. de C.V.
26
14,178,193 publicly traded American Depository Receipts of Grupo TMM
27
S.A. de C.V.
28
the
execution
of
14
loan
agreements
with
Servicios
("SDS") in which SDS pledged a total of
("TMM") as collateral for loans totaling $23,157,078.
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e.
On
or
before
December
16,
2008,
JEFFREY
R.
SPANIER
requested that borrower JC payoff a loan that JC obtained from ARGYLL
in the amount of $3,462,500.
On or about May 8,
f.
2009,
JEFFREY
R.
SPANIER sent
an
e-mail to JC in which he assured JC that stock he had pledged for his
loan would be returned to him.
g.
On
a
or
loan
before
agreement
May
2009,
22,
wi th
borrower
JEFFREY
in
RS
which
R.
RS
SPANIER
pledged
negotiated
1,000,000 shares of common stock RS held in Vu1 Corporation ("VUl"),
10
publicly traded company listed on the Over The Counter Bulletin Board
11
("OTCBB"), to Amerifund Capital Holdings, LLC.
12
h.
On
or
about
September
29,
2009,
JEFFREY
R.
SPANIER
13
caused borrower DA to execute a
loan agreement in which DA pledged 1
14
million shares of common stock DA held in Provectus Pharmaceuticals,
15
Inc.
("PVCT").
On
i.
16
loan
before
agreement
December
with
1,
2009,
borrower
SW
JEFFREY
in
which
R.
SPANIER
SW
pledged
17
negotiated
18
700,000 shares of common stock that
19
Realty
20
Exchange ("NYSE"), as collateral for a $4.3 million loan from ARGYLL.
21
or
("DDR"),
j.
On
publicly
or
about
sw
traded
December
owned in Diversified Developers
company
10,
on
2009,
the
New
JEFFREY
York
R.
Stock
SPANIER
22
caused a wire transfer in the amount of $410,977 to be sent to him of
23
which $273,480 was a back end fee that was not disclosed to SW prior
24
to executing the loan agreement with ARGYLL.
25
k.
On
26
negotiated a
27
million shares of
28
or
before
loan agreement
March
4,
2010,
with borrower KY
JEFFREY
R.
SPANIER
in which KY pledged 1
common stock KY held in China Armco Metals,
Inc.
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("CNAM"),
a publicly traded company on the NYSE,
$4.68 million loan from ARGYLL.

1.
On
loan
before
agreement
April
with
22,
2010,
borrower
TP
JEFFREY
in
R.
which
SPANIER
negotiated
500,000 shares of common stock TP held in Searchlight Minerals,
("SM") ,
for a $270,000 loan from ARGYLL.
a publicly traded company listed on the OTCBB,
m.
8
9
or
as collateral for a
negotiated
On
a
or
loan
before
February
agreement
with
18,
2011,
borrower
FB
TP
as
JEFFREY
in
which
pledged
Inc.
collateral
R.
SPANIER
FB
pledged
10
52,246 shares of common stock that FB held in First PacTrust Bancorp,
11
Inc.
12
cOllateral in exchange for a $557,726.05 loan from ARGYLL.
("FPTB"),
13
n.
publicly
On
a
or
loan
traded
before
March
14
negotiated
15
750,000 shares of common stock RS
16
publicly
17
$207,900 loan from ARGYLL.
traded
o.
18
agreement
company
company
with
listed
15,
listed on
2011,
borrower
RS
the
NASDAQ,
JEFFREY
in
which
R.
SPANIER
RS
pledged
held in VU1 Corporation

on
the
OTCBB,
as
as
("VU1"),
collateral
for
a
a
On or about March 30, 2011, JEFFREY R. SPANIER received
19
a wire transfer in the amount of $38,244.07 of which $15,935.03 was a
20
back-end fee
21
executing the loan agreement.
22
p.
for the FB loan which was not disclosed to FB prior to
23
a wire transfer in the amount of $26,895 of which $16,500 was a back-
24
end
25
fee
for
26
27
28
q.
negotiated
the
On
a
loan
RS
or
loan
which
before
agreement
was
April
with
not
1,
disclosed
2011,
borrower
CW
to
JEFFREY
in
which
RS
R.
CW
prior
to
SPANIER
pledged
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1,000,000
shares
Inc. ("QBC") ,
Equities exchange
from ARGYLL.
r.
sv
of
common
publicly
stock
traded
that
CW
company
("NYSE Amex"),
as
held
listed
in
on
collateral for
Cubic
the
NYSE
Amex
$358,000
loan
On or before April 21, 2011, JEFFREY R. SPANIER caused
borrower
to transfer
in
company, as collateral for a $1.9 million loan from ARGYLL.
Elephant
s.
Energy,
Talk
1,300,000 shares of common stock that SV held
Communication,
Inc.
On or about May 11,
("ETAK"),
2011,
JEFFREY R.
publicly
traded
SPANIER received
10
wire transfers in the amount of $158,196 and $65,912 from the sale of
11
ETAK shares pledged by SV.
12
All in violation of Title 18, united States Code, Section 371.
13
Counts 2-7
14
[18 U.S.C. 1341 and 2]
15
Mail Fraud
16
13.
The allegations set forth in paragraphs 1 through 7, and 11
17
through 12 above are realleged and incorporated by reference as
18
fully set forth herein.
19
14.
if
20
including
21
California,
22
Miceli
23
with the intent to defraud, devised and intended to devise, a material
24
scheme
25
property
26
representations,
27
described in paragraphs 11 through 12 of Count 1.
28
October
and
25,
elsewhere,
(now deceased),
to defraud as
by
2013,
means
of
within
defendant
the
Southern
JEFFREY
and Douglas McClain,
to material matters
materially
promises,
or
false
omissions
R.
Jr.,
and to
and
of
District
SPANIER,
James
of
T.
charged elsewhere,
obtain money and
fraudulent
material
pretenses,
facts,
as
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Execution of the Material Scheme by Mail
15.
On or about the dates set forth below,
within the Southern
District of California, defendant JEFFREY R.
(now deceased),
purpose of executing and attempting to execute the aforesaid scheme
caused to be placed in a United States post office or other authorized
depository for mail matter, or private commercial carrier,
delivered by the United States Postal Service or United Parcel Service
according to the directions thereon, as set forth below:
Jr.,
SPANIER,
James T. Miceli
charged elsewhere,
for the
items to be
10
11
12
Count
Date
Sender
Addressee
Item
2/25/2010
SW
Beachwood,
Ohio
ARGYLL
San Diego, CA
Check
8/26/2010
SW
Beachwood,
Ohio
ARGYLL
San Diego, CA
Check
10/7/2010
KY
San Mateo, CA
ARGYLL
San Diego, CA
Check
1/5/2011
KY
San Mateo, CA
ARGYLL
San Diego, CA
Check
2/8/2011
TP
Cottonwood,
AZ
ARGYLL
San Diego, CA
Check
3/28/2011
FB
San Diego, CA
Amerifund
Boca Raton, FL
Promissory
Note
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
All in violation of Title 18, United States Code, Sections 1341 and 2.
9
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Counts 8-18
[Title 18 U.S.C. Sec. 1343 and 2]
Wire Fraud
16.
The allegations
set
forth
in paragraphs 1 through 7,
and
11 through 12 above are realleged and incorporated by reference as if
17.
including
October
California,
and
25,
2013,
elsewhere,
(now deceased),
within
defendant
the
Southern
JEFFREY
James
T.
Miceli
11
devised and intended to devise a material scheme to defraud as
12
material matters and to obtain money from persons by materially false
13
and
14
omissions
15
Count 1.
16
of
pretenses,
fact,
as
representations,
described
in
Jr.,
SPANIER,
of
10
fraudulent
R.
District
charged elsewhere,
promises,
paragraphs
11
or
to
material
through
12
of
Execution of Material Scheme by Wire Communications
17
18.
On or about the dates set forth below, within the Southern
18
District of California,
19
James
20
elsewhere,
for the purpose of executing the aforementioned material
21
scheme
defraud
22
fraudulent
23
cause to be transmitted, in interstate and foreign commerce, by means
24
of wire,
25
signals, pictures, and sounds set forth below:
26
II
27
II
28
T.
to
Miceli
(now deceased),
and
pretenses,
radio,
and elsewhere,
to
defendant JEFFREY R.
and Douglas
obtain money
representations,
and
McClain,
property
promises,
and television communication,
10
did
SPANIER,
Jr.,
by
charged
false
and
transmit
and
the writings,
signs,
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Count
Date
Sender
Addressee
Communication
12/10/2009
SW ARGYLL
BofA Acct. #
0526
San Diego, CA
Amerifund
Iberia Bank Acct.
# 0663
(formerly
Sterling Bank)
Delray Beach, FL
Wire transfer
in the amount
of $410,977.00
4/9/2010
SW ARGYLL
BofA Acct #
3952
San Diego, CA
Amerifund
Iberia Bank Acct
# 0663 (formerly
Sterling Bank)
Delray Beach, FL
Wire transfer
in the amount
of $425,000
10
5/18/2010
SW ARGYLL
BofA Acct #
3952
San Diego, CA
Amerifund
Iberia Bank Acct
(formerly
# 2968
Sterling Bank)
Delray Beach, FL
Wire transfer
in the amount
of $402,892.80
11
6/24/2010
SW ARGYLL
BofA Acct #
3952
San Diego, CA
Amerifund
Iberia Bank Acct
# 2968
(formerly
Sterling Bank)
Delray Beach, FL
Wire transfer
in the amount
of $338,910
12
4/14/2011
SW ARGYLL
BofA Acct #
3952
San Diego, CA
Amerifund
Iberia Bank Acct
# 2968
(formerly
Sterling Bank)
Delray Beach, FL
Wire transfer
in the amount
of $26,250
13
4/15/2011
SW ARGYLL
BofA Acct #
3952
San Diego, CA
Amerifund
Iberia Bank Acct
(formerly
# 2968
Sterling Bank)
Delray Beach, FL
Wire transfer
in the amount
of $43,750
14
4/21/2011
Jeffrey
Spanier
Delray Beach,
FL
SV
Brussels, Belgium
e-mail
communication
regarding
transfer of
ETAK shares
15
5/11/2011
SW ARGYLL
Bank of
America
Acct # 3952
San Diego, CA
Amerifund
Iberia Bank Acct
(formerly
# 2968
Sterling Bank)
Delray Beach, FL
Wire transfer
in the amount
of $65,915
2
3
4
5
6
7
8
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11
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16
5/11/2011
SW ARGYLL
Bank of
America
Acct # 3952
San Diego, CA
Amerifund
Iberia Bank Acct
# 2968
(formerly
Sterling Bank)
Delray Beach, FL
Wire transfer
in the amount
of $158,196.24
17
5/19/2011
Jeffrey
Spanier
Delray Beach,
FL
DD/Goldman Sachs
Chicago, IL
e-mail
communication
re payoff of SW
loan
18
6/15/2011
JEFFREY R.
SPANIER
Delray Beach,
FI
RS
Seattle, WA
e-mail
2
3
4
5
6
7
8
9
10
communication
re return of
stock after FBI
search warrant
11
execution
12
13
All in violation of Title 18, United States Code, Sections 1343 and 2.
Count 19
14
[15 U.S.C. 78j (b), 78ff and 18 USC 2]
15
securities Fraud
16
19.
17
18
19
22
23
24
25
26
27
28
allegations
set
forth
in paragraphs
through
7,
and
11 through 12 above are realleged and incorporated by reference as if

20.
20
21
The
and
Beginning in or around February 2003
including
California
Miceli
and
October
25,
elsewhere,
(now deceased),
2013,
within
defendant
the
JEFFREY
did knowingly and willfully,
and continuing up to
Southern
R.
Jr. ,
District
SPANIER,
James
of
T.
charged elsewhere,
directly and indirectly,
by the use of
the means and instrumentalities of interstate commerce, the mails, and

the
facilities
of
national
securities
exchanges,
use
and
employ
manipulative and deceptive devices and contrivances in connection with
12
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the purchase and sale of securities in violation of Title 17, Code of
Federal
schemes,
material fact and omitting to state facts necessary in order to make
the statements made,
were made,
courses of business which operated and would operate as a
deceit upon purchasers of securities.
All in violation of Title 15, United States Code, Sections 78j(b) and
Regulations,
Section
and artifices
to defraud;
(b)
by
(a)
making
employing
devices,
untrue statements of
in light of the circumstances under which they
not misleading;
Title 17,
240.10b-5,
Code of
and
(c)
engaging in acts,
10
78ff,
Federal Regulations,
'11
Title 18, United States Code, Section 2.
practices,
fraud and
Section 240 .10b-5,
12
Criminal Forfeiture Allegation
13
[Title 18, United States Code, Sections 981(a) (1) (C), 984 and
14
Title 28, United States Code, Section 2461(c)]
15
21.
reference
17
criminal
18
States Code,
19
Code, Section 2461(c).

22.
as
though set
forfeiture
As
forth
pursuant
in full
to
result
of
the
the purpose of
the provisions of
Sections 981(a) (1) (C),
for
984,
Title
and Title 28,
commission
of
the
22
R.
23
real
24
traceable to those offenses, including but not limited to:
United
offenses
defendant JEFFREY
SPANIER shall forfeit to the United States any and all property,
and
personal,
25
28
18,
foregoing
alleged in Counts 1 through 19 of this Indictment,
27
charging
United States
21
26
and
Counts 1 through 19 are realleged and incorporated herein by
16
20
and
which
constitutes
or
is
deri ved
from
proceeds
Real Property
a.
The real property located at located at 16013

D' Alene Drive, Delray Beach, Florida 33446, and
all
appurtenances
affixed
thereto.
The
real
property is more particularly described as:
13
Case
Document54-2
1 Filed
Filed07/01/16
11/01/16 Page
Page1414ofof1515
PROPERTY ID. NO.: 00-42-46-20-16-000-0020
Lot 2, DELRAY TRAINING CENTER P. U. D. - PARCEL B,

according to the map or plat thereof, as recorded
in Plat Book 86, Page 157, of the Public Records
of Palm Beach County, Florida.
Financial Accounts at Wachovia Bank
All monies,
b.
funds and credits in Wachovia Bank Account
xxxxxxxx6242, in the name of Amerifund Capital Finance,
LLC.
c.
All monies,
xxxxxxxxx7113, in the name of Jeffrey Spanier.
10
d.
11
All monies,
xxxxxxxxx6481, in the name of Regina Spanier.
12
13
Financial Accounts at Iberia Bank
e.
14
All monies,
funds and credits in Iberia Bank (formerly
15
Sterling
16
Amerifund Capital Finance, LLC.

All monies,
f.
17
Bank)
Account
xxxxxx0663 ,
Sterling
19
Amerifund Capital Finance LLC.

23.
In
the
or
is
event
Bank)
that
derived
the
name
Account
xxxxxx2968,
any property,
from
proceeds
real
in
or
21
constitutes
22
described in Counts 1 through 19 of this Indictment,
23
any act or omission of the defendant:
traceable
the
name
personal,
to
the
offenses
as a result of
(1)
cannot be located upon the exercise of due diligence;
25
(2)
has
26
27
28
transferred or sold
to,
or
of
which
24
been
of
funds and credits in Iberia Bank (formerly
18
20
in
deposited with,
third parties;
(3)
has been placed beyond the jurisdiction of the courts;

14
Case
Document54-2
1 Filed
Filed07/01/16
11/01/16 Page
Page1515ofof1515
(4)
has been substantially diminished in value; or
(5)
has been co-mingled with other property which cannot be
divided without difficulty; any other property of the defendant, up to
the
pursuant to Title 18, united States Code,
United States Code, Section 853.
All
Sections
value
of
$81,000,000
violation
in
shall
of
981 (a) (1) (C),
984
be
Title
and
forfeited
18,
Title
to
DATED:
united
28,
United
July 1, 2016.
11
A TRUE BILL:
13
Foreperson
14
LAURA E. DUFFY
: ::t'd~
17
t.-
jffciiAEwlm
~7 Assistant U. S. Attorney
18
19
20
21
22
23
24
25
26
27
28
15
United States
Section 982, and Title 21,
9 Section 2461 (c) .

10
the
States
States
Code,
Code,

I
d :.-...
~
atbOCT 28 PM 2: 41
3
4
'i> - - . -"
,,JQ
"'''U----
r. ~~t"P"'t
~.

8
SOUTHERN
DIST~ICT
OF CALIFORNIA
March 2015 Grand Jury
10
11 "UNITED STATES OF AMERICA
12
Plaintiff
Case No. 16CR1545-BEN
v.
13
14 II JEFFREY R. SPANIER
N D I C T MEN T
- (SupersedIng)
Title 18 U,S,C'
Sec. 371
Conspiracy; Title 15 U,S,C'
Secs. 78j (b) and 78ff - Securities
Fraud; Title 18 U.S.C. Sec. 2
Aiding and Abetting; Title 18
U. S . C. Sec s. 981 (a) (1) (C)
984 and
Title 28 1 U,S,C' I Sec. 2461(c)
Criminal Forfeiture
1
Defendant.
15
16
17
18
19 II
The Grand Jury charges:
20 II
INTRODUCTORY ALLEGATIONS
2111
At all times material to this Indictment
22
1.
23
II
2.
II
Defendant JEFFREY R. SPANIER was a resident of Delray Beach
Florida.
24
25
formed
Amerifund
under
the
Capital
laws
of
Finance
the
State
LLC
of
26 II controlled by defendant JEFFREY R. SPANIER.

27
//
28
//
JJO:nlv:San Diego
10/28/16
("ACF")
Florida
was
and
a
was
corporation
owned
and
3.
Amerifund
under
the
LLC
formed

4.
laws
Group,
the
Capital
State
of
("ACG")
was
Florida and
corporation
was
owned
and
ACF and ACG purported to operate a stock lending business that
5 II specialized
originating
stock
loans
for
business
executives.
6 II Defendant JEFFREY R. SPANIER, represented to the public that ACF and ACG
711were direct
lenders,
and also
served as
the
"retail"
arm of other
8 II lenders, including but not limited to, Argyll Equities, LLC, SW Argyll
9 II Investments,
10
LLC, Ayuda Funding, LLC,
and Amerifund Capital Holdings,
LLC.
11
5.
12 II of
Argyll Equities, LLCwas a corporation formed under the laws
the
State of
Texas
and purported
13 II California and Savannah, Georgia.

14 II (now
deceased)
(hereinafter
do bus
in San
Its principals were James T. Miceli
referred
15 II McClain, Jr., charged elsewhere,
to
to
as
"Miceli")
and
Douglas
(hereinafter referred to as "McClain,
161IJr.")
17 II
6.
1811laws
SW Argyll Investments, LLC was a corporation formed under the
of
the
State
of
Texas
and
purported
19 IISan Diego, California and Savannah, Georgia.
to
do
business
in
Its principals were Miceli
20 II and McClain, Jr.

21
referred to in paragraphs 5 through 6
The Argyll ent
7.
22 II (hereinafter,
collectively referred to as "ARGYLL"),
23 II to the public by defendant JEFFREY R.
SPANIER,
were represented
and others,
to be an
24 II institutional lender with significant assets that were in the business

25110f
making
2611which
loans
would
to
accept
corporate
stock
executives
(either
27
collateral for the loans ARGYLL made.
28
//
2
and
restricted
other
or
individuals
and
unrestricted)
as
Count 1
[18 U.S.C. 371]
Conspiracy
8.
The allegations set forth in paragraphs 1 through 7 above are
5 Ilrealleged and incorporated by reference as if fully set forth herein.

6
9.
Beginning in or around February 2003, and continuing up to at
7 II least March 14,
2012,
within the Southern District of California and
8 II elsewhere, defendant JEFFREY R. SPANIER, James T. Miceli (now deceased),

9 II and Douglas McClain,
Jr.,
charged elsewhere,
knowingly and willfully
10 II conspired and agreed with each other, and persons known and unknown to
11 lithe grand jury, to commit offenses against the United States, to wit:
12 II mail fraud,
in violation of Title 18, United States Code, Section 1341;
13 II wire fraud, in violation of Title 18, United States Code, Section 1343i
14 II and securities fraud,
15 II Sections
78j
and
in violation of Title 15,
78ff,
17,
and Title
Code
of
United States Code,

Federal
Regulations (
16 II Section 240.10b-5.
17 II
10.
It was the purpose and object of the conspiracy to devise a
18 II scheme and artifice

19 II clients
to defraud and obtain money from borrowers
of ACF and ACG by means
of
false,
fraudulent
and
and material
20 II pretenses, representations, promises and omissions of material fact.

21 II
Methods and Means by Which Objects of the
22 II
Conspiracy Were to be Accomplished
23 II
11.
In furtherance of the conspiracy and to effect the obj ects
24 II thereof, defendant JEFFREY R. SPANIER and others utilized the following

25 II methods and means, among others:
26 11//
27 II / /
28 11/ /
3
111
a.
SPANIER,
and others, would induce
2 II potential borrowers to pledge stock the borrowers owned in publicly

3 II traded securities as collateral for loans by false,
411misleading
representations
that
ARGYLL,
and
fraudulent,
other
lenders,
and
had
5 II substantial independent sources of cash to lend.

611
b.
SPANIER,
and others, would induce
7 II potential borrowers to pledge stock the borrowers owned in publicly

8 II traded securities as collateral for loans by false,
911 misleading
representations
that
their
stock
fraudulent,
would
be
held
and
in
10 II safekeeping and not be sold unless the borrower defaulted on the loan.
c.
II
SPANIER, and others, would induce
12 II borrowers to execute documents transferring shares the borrowers owned

13 II in publicly traded securities to ARGYLL, and other lenders, by making
14 II false, fraudulent, and misleading representations that ARGYLL, and other
151/1enders, would abide by all securities laws,
including Rule 144 which
1611restricts affiliated persons from selling publicly traded securities

17 II outside of certain guidelines and reporting requirements.
18
19
d.
SPANIER would induce borrowers to
execute documents transferring shares the borrowers owned in publicly
20 II traded securities to ARGYLL by falsely representing that he was only

21 II receiving as much as 5 percent in fees, when, in truth and fact, he was
22 II receiving substantial incentive fees whiCh exceeded
23
24
e.
borrowers
to
make
quarterly
SPANIER,
interest
percent.
and others,
payments
on
would induce
loans
ARGYLL
25 II purportedly made by falsely representing that the stock they pledged as

26 II collateral for the loans was safe and would be returned to them as long
27 lias they continued to make all of their interest payments timely.
2811//
4
l II
OVERT ACTS
2 II
12.
In
furtherance
of
said
3 II accomplish the objects thereof,
411were
committed
within
the
conspiracy
and
to
effect
and
the following overt acts, among others,
Southern
District
of
California,
and
5 II elsewhere:
a.
6 II
Between February I,
2003 and January
29
2004, JEFFREY
711R. SPANIER negotiated four loan agreements with borrower PB in which PB

8 II pledged 1 / 250,000 shares of common stock PB held in ATP Oil and Gas
9 II Corporation,
publicly
traded
company
listed
on
the
National
10 II Association of Securities Dealers Automated Quotation System ("NASDAQII),

llllas collateral for four loans totaling $3 / 277 t 750 from ARGYLL.
1211
b.
13 II negotiated
On
a
or
loan
before
February
agreement
with
27,
2004
borrower
GS
JEFFREY
in
which
R.
SPANIER
GS
pledged
1411500,000 shares of common stock GS held in ATP oil and Gas Corporation,
15 II a
publicly
traded
company
listed
on
NASDAQ,
as
collateral
for
1611$1,500,000 loan from ARGYLL.
18
On
c.
17
negotiated
or
loan
before
April
agreement
wi th
20,
2004
borrower
JEFFREY
LP
in which
R.
SPANIER
LP
pledged
19111,190,000 shares of common stock LP held in Mace Security International t

20 II Inc.
("MSI II )
publicly
traded
company
listed
on
the
NASDAQ,
as
21 II collateral for a $4,100,000 loan from ARGYLL.

22
23
d.
facilitated
Between June 2004 and December 2005, JEFFREY R. SPANIER

the
execution
24 II Directi vos Servia S. A.

25
of
de C. V.
l4
(" SDS tI
loan
)
agreements
with
Servicios
in which SDS pledged a total of
1114,178,193 publicly traded American Depository Receipts of Grupo TMM
261IS.A. de C.V
("TMMII)
as collateral for loans totaling $23,157,078.
27 11/ /
28 11/ /
e.
On
or
before
December
16,
2008,
JEFFREY
R.
SPANIER
requested that borrower JC payoff a loan that JC obtained from ARGYLL
in the amount of $3,462,500.

f.
On or about May 8,
2009,
JEFFREY R.
SPANIER sent an
e-mail to JC in which he assured JC that stock he had pledged for his
loan would be returned to him.

g.
On
22,
with
2009,
borrower
RS
JEFFREY
in
which
R.
RS
SPANIER
1,000,000 shares of common stock RS held in Vu1 Corporation ("VU1"), a
10
publicly traded company listed on the Over The Counter Bulletin Board
pledged
to Amerifund Capital Holdings, LLC.
II
),
h.
12
agreement
May
negotiated
("OTCBB
loan
before
11
or
On
or
about
September
29,
2009,
loan agreement
JEFFREY
R.
SPANIER
13
caused borrower DA to execute a
in which DA pledged
14
1,000,000 shares of common stock DA held in Provectus Pharmaceuticals,
15
Inc.
("PVCT").
16
i.
17 II negotiated
On
a
loan
or
before
agreement
December
with
I,
2009,
borrower
SW
JEFFREY
in
which
R.
SPANIER
SW pledged
1811700,000 shares of common stock that SW owned in Diversified Developers

19 II Realty ("DDR"), a publicly traded company on the New York Stock Exchange
20/1 ("NYSE")
as collateral for a $4,300,000 loan from ARGYLL.

On or about December 10, 2009, JEFFREY R. SPANIER caused
j .
21
22
a wire transfer in the amount of $410,977 to be sent to him of which
23
$273,480 was a
back end fee
that was not disclosed to SW prior to
24 II executing the loan agreement with ARGYLL.
26 II negotiated
27
On
k.
25
11
loan
or
before
agreement
March
with
4,
2010,
borrower
KY
JEFFREY
in
which
R.
KY
SPANIER
pledged
1 ,000,000 shares of common stock KY held in China Armco Metals,
28
6
Inc.
~~-~
..
-------------
1 II
a publicly traded company on the NYSE,
("CNAM"),
as collateral for a
211$4,680,000 loan from ARGYLL.

1.
3
4 II
negotiated
On
loan
or
before
agreement
April
with
22,
JEFFREY
2010,
borrower
TP
in
R.
SPANIER
TP
pledged
which
511500,000 shares of common stock TP held in Searchlight Minerals,
Inc.
6 II ("SM"), a publicly traded company listed on the OTCBB, as collateral for
7 lIa $270,000 loan from ARGYLL.
m.
9 II negotiated
On
a
loan
or
before
agreement
February
with
18,
JEFFREY
2011,
borrower
FB
in
which
R.
SPANIER
FB
pledged
101152,246 shares of common stock that FB held in First PacTrust Bancorp,

11 II
Inc.
{"FPTB"},
publicly traded company
listed on the NASDAQ,
as
12 II collateral in exchange for a $557,726.05 loan from ARGYLL.
n.
13 II
14 II negotiated
On
a
loan
or
before
agreement
March
with
IS,
JEFFREY
2011,
borrower
RS
SPANIER
RS
pledged
in which
1511750,000 shares of common stock that RS held in VU1,

16 II company listed on the OTCBB,
R.
as collateral for a
a publicly traded
loan from
$207,900
17 II ARGYLL.
o.
18
19
a wire transfer in the amount of $38,244.07 of which $15,935.03 was a
20
back-end fee for the FB loan which was not disclosed to FB prior to
21 II executing the loan agreement.
p.
22 II
23
a wire transfer in the amount of $26,895 of which $16,500 was a back
24
end
25
fee
for
26
27 II negotiated
28111,000,000
the
on
q.
loan
shares
RS
or
loan
which
before
agreement
of
common
was
April
wi th
not
1,
disclosed
2011,
borrower
stock
7
that
CW
CW
to
RS
JEFFREY
in
held
which
in
R.
prior
to
SPANIER
CW pledged
Cubic
Energy,
1 II Inc. ("QBCII), a publicly traded company listed on the NYSE Amex Equities
211exchange ("NYSE Amex
3 II
r.
On
ll
),
or
as collateral for a $358,000 loan from ARGYLL.

before
April
21,
2011,
JEFFREY
R.
SPANIER
4 II caused borrower sv to transfer 1,300,000 shares of common stock that SV

5 II held in Elephant Talk Communication,
("ETAK II ), a publicly traded
Inc.
6 II company, as collateral for a $1,900,0000 loan from ARGYLL.

7 II
s.
On or about May 11,
2011,
JEFFREY R.
SPANIER received
811wire transfers in the amounts of $158,196 and $65,912 from the sale of
9 IIETAK shares pledged by SV.
10 II
t.
On or about July 13, 2011, JEFFREY R. SPANIER spoke by
II II telephone with borrower RS where they discussed ARGYLL's return of RS's

1211750,000 shares pledged as collateral for a loan.
13 II
u.
On or about July 18,
2011,
JEFFREY R.
SPANIER emailed
14 II borrower RS concerning RS's return of his stock from ARGYLL.

15 II
v.
On or before August 3, 2011, JEFFREY R. SPANIER spoke by
16 II telephone with borrower RS whereby he informed RS that he had a meeting

17 II with ARGYLL in San Diego, California.
18 II
19 II charged
w.
On
elsewhere,
or
before
spoke
by
August
3,
telephone
2011,
with
Douglas
borrower
McClain,
RS
Jr.,
whereby
he
20 II reassured RS that ARGYLL would honor all loans, was working through all
21 II issues with the government investigation,
and would be able to return
22 IIRS's 750,000 shares within two weeks.

23 II
x.
On or about August 7, 2011, JEFFREY R. SPANIER and Douglas
24 II McClain, Jr., charged elsewhere, caused borrower RS to initiate a wire

25 II transfer in the amount of $3,839.06 to ARGYLL for an interest payment
26 lion an existing stock loan transaction.
27 11/ /
28 II / /
y.
2 /I elsewhere,
On or about August 8, 2011, Douglas McClain, Jr., charged
emailed borrower RS and agreed to delay future
interest
3 II payments with ARGYLL.

411AII in violation of Title 18, United States Code, Section 371.
5
Count 2
[15 U.S.C. 78j (b) and 78ff]
Securities Fraud
8 II
19.
The allegations set forth in paragraphs 1 through 7, and 11
9 II through 12 above are realleged and incorporated by reference as if fully

10
set forth herein.
11
20.
Beginning in or around February 2003, and continuing up to at
12 I/least March 14,
2012,
within the Southern District of California and
13 II elsewhere, defendant JEFFREY R. SPANIER, did knowingly and willfully,

14 II directly and indirectly, by the use of the means and instrumentalities
15 /I of
interstate
commerce,
the
mails,
and
the
facilities
of
national
16 II securities exchanges, use and employ manipulative and deceptive devices

17/1and
contrivances
18 II securities
in
connection
in violation
of
with
Title
17,
the
Code
purchase
of
and
Federal
sale
of
Regulations,
19 II Section 240.10b-5, by (a) employing devices, schemes, and artifices to

20l/defraudi
(b) making
untrue statements of material fact and omitting to
21 II state facts necessary in order to make the statements made, in light of

22 II the
circumstances
under which
they
were
made,
not
misleading i
and
23 II (c) engaging in acts, practices, and courses of business which operated

24 II and would operate as a fraud and deceit upon purchasers of securities.
25
All in violation of Title 15 1 United States Code,
26
78f,
27
Title 18, United States Code, Section 2.
28
//
Title 17,
Code of Federal Regulations,
Sections 78j (b)
and
Section 240.10b-5,
and
Criminal Forfeiture Allegations
[18 U.S.C.
3 "
21.
4 /I reference
Counts
as
981(a) (1) (C), 984, and 28 U.S.C.
and
though
set
are
realleged
forth
in full
and
for
2461(c)]
incorporated
the
purpose
herein
of
by
charging
5 /I criminal forfeiture pursuant to the provisions of Title 18, United States

6 II Code,
Sections
981(a)(1)(C),
984,
and Title 28,
United States Code,
7 II Section 2461(c).
8 II
22.
As a result of the commission of the foregoing offenses alleged
911in Counts 1 and 2 of this Indictment, defendant JEFFREY R. SPANIER shall

10 II forfeit to the United States any and all property,
11 II which
constitutes
or
is
derived
from
proceeds
real and personal,

traceable
to
1211offenses, including but not limited to:

13
Real Property
14
a.
15
The
real
property
located
at
located
at
16013
16
D'Alene Drive, Delray Beach, Florida 33446, and all
17
appurtenances affixed thereto. The real property is
18
more particularly described as:

PROPERTY ID. NO.: 00-42-46 20-16-000-0020
19
20
Lot 2, DELRAY TRAINING CENTER P.U.D.
21
B,
22
recorded in Plat Book 86,
23
Public Records of Palm Beach County, Florida.
according to the map or plat thereof,
24
2511//
26
/ /
27
/ /
PARCEL
28 11/ /
10
Page 157,
as
of the
those
Financial Accounts at Wachovia Bank
b.
All monies,
xxxxxxxx6242, in the name of Amerifund Capital Finance,

4
LLC.
5
c.
All monies,
xxxxxxxxx7113, in the name of Jeffrey Spanier.

7
d.
All monies,
xxxxxxxxx6481, in the name of Regina Spanier.

9
10
Financial Accounts at Iberia Bank
11
e.
12
All monies,
funds and credits in IberiaBsank
13
Sterling
14
Amerifund Capital Finance, LLC.

All monies,
f.
15
Bank)
Account
xxxxxx0663,
Sterling
17
Amerifund Capital Finance LLC.

23.
In
19 II constitutes
the
or
is
event
Bank)
that
derived
the
funds and credits in IberiaBank
16
18 II
in
Account
xxxxxx2968,
any property,
from
proceeds
real
in
or
traceable
the
(formerly
name
(formerly
name
personal,
to
the
of
of
which
offenses
20 II described in Counts 1 and 2 of this Indictment, as a result of any act

21 Ilor omission of the defendants:
22
(I)
cannot be located upon the exercise of due diligence;
23
(2)
has been transferred or sold to, or deposited with, third
25
(3)
has been placed beyond the jurisdiction of the courts;
26
(4)
has been substantially diminished in value; or
24
parties;
271111
28
II11
11
(5)
has been co-mingled with other property which cannot be
2 II divided without difficulty; any other property of the defendant, up to
3 lithe value of $81,000[000 shall be forfeited to the United States pursuant
4 lito Title 28, United States Code [ Section 2461(c}.
5 IIAll in violation of Title 18, United States Code, Sections 981(a) (1) (C) [
611984, and Title 28/ United States Code, Section 2461(c).
7 II
DATED:
October 28, 2016.
A TRUE BILL:
~~
10
11 II
12 ..
13_
II
14
Foreperson
LAURA E. DUFFY
united States Attorney
By:
ORABONA
U.S. Attorney
15
16
17
18
19
20
21
22
23
24
2S
26
27
28
12
CERTIFICATE OF SERVICE
1
2
3
I hereby certify that I am over the age of eighteen and am not a party to this
action. On todays date, I filed a true and correct copy of the attached document
through this Courts Electronic Filing System (ECF), and the system indicated that
the filing had been received successfully. By virtue of the ECF system, the AUSA
assigned to this case and all interested parties were served electronically upon
filing of this document.
9
10
I declare under penalty of perjury that the foregoing is true and correct,
dated: November 1, 2016.
11
12
s/ Timothy A. Scott
13
TIMOTHY A. SCOTT
14
Attorney at Law
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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Case 3:16-cr-01545-BEN Document 54 Filed 11/01/16 Page 1 of 2

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

HONORABLE ROGER T. BENITEZ

United States of America,

Case No.: 16cr1545-BEN

On Friday October 30th, the government returned a superseding indictment

the applicable limitations period. Because the original indictment is time-barred,

the counts in both indictments.

Case 3:16-cr-01545-BEN Document 54 Filed 11/01/16 Page 2 of 2

Dated: November 1, 2016

Case 3:16-cr-01545-BEN Document 54-1 Filed 11/01/16 Page 1 of 13

SOUTHERN DISTRICT OF CALIFORNIA

HONORABLE ROGER T. BENITEZ

United States of America,

Case No.: 16cr1545-BEN

Introduction and Issues Presented

Statute of limitations, Counts 1 and 2.

Case 3:16-cr-01545-BEN Document 54-1 Filed 11/01/16 Page 2 of 13

superseding indictment relies on a charging document that was itself time-barred;

and 2) it impermissibly broadens the original indictment. Dismissal of all charges

in both indictments should result.

Statute of limitations, Count 2 only.

discrete offense, criminalizing particular stock transactions. It is simply not a

continuing offense under Ninth Circuit law. As a result, it is impermissible to have

a single count in the indictment charge a vague and wide-ranging course of

conduct that could conceivably encompass hundreds of potential criminal acts.

of limitations. This count should be dismissed accordingly.

Docket at 1. A copy of the original indictment is attached as Exhibit A for

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But the remaining counts of that indictmentCounts 1 and 19also fail to

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specify how a securities offense occurred within the limitations period.

The Superseding Indictment and the original Indictment that it relies

its way around its statute-of-limitations problem by ostensibly relating back to

support a superseding indictment; and 2) even if the original indictment was

somehow timely, the superseding indictment substantially amends and broadens it

Case 3:16-cr-01545-BEN Document 54-1 Filed 11/01/16 Page 5 of 13

The superseding indictment is time-barred because it rests on an

To toll the statute of limitations, the relation-back doctrine requires a

timely underlying indictment. See Italiano, 894 F.2d at 1282 (original

traditional rule used in computing periods of limitation in conspiracy cases, the

Case 3:16-cr-01545-BEN Document 54-1 Filed 11/01/16 Page 6 of 13

alleged and proved.) (emphasis provided).

an overt act in furtherance of the conspiracy) (emphasis in original). 5

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off. Count 19 simply incorporated the same allegations by reference, thus it is

also fails. Dismissal should result.

Even if the original indictment was timely, the superseding

relate back to it if it broadens or substantially amends the charges in the original

substantially amend the original indictment). To determine whether the

superseding indictment impermissibly changed the charges in the original

indictment it is necessary to examine the two indictments carefully. Sears,

See supra, at n.4.

Case 3:16-cr-01545-BEN Document 54-1 Filed 11/01/16 Page 8 of 13

2013) (To determine whether a superseding indictment substantially broadens or

amends a pending timely indictment, . . . it is appropriate to consider 'whether the

additional pleadings allege violations of a different statute, contain different

elements, rely on different evidence, or expose the defendant to a potentially

alleged conspiracy had already been completed.

Spanier to a host of new jury instructions and litigation. In Grunewald v. United

central criminal purposes of a conspiracy have been attained, a subsidiary

conspiracy to conceal may not be implied from circumstantial evidence showing

arguments could generally be made in conspiracy cases that most out-of-court