Shavin v. Com.

• Decision Date: 09 November 1993
• Docket Number: No. 0801-92-3,0801-92-3
• Citation: Shavin v. Com., 437 S.E.2d 411, 17 Va.App. 256 (Va. App. 1993)
• Parties: , Blue Sky L. Rep. P 73,879 David SHAVIN, s/k/a David M. Shavin v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 411

437 S.E.2d 411

17 Va.App. 256, Blue Sky L. Rep. P 73,879

David SHAVIN, s/k/a David M. Shavin v. COMMONWEALTH of Virginia.

Record No. 0801-92-3.

Court of Appeals of Virginia.

Nov. 9, 1993.

Gerald T. Zerkin, Richmond (Robert Godfrey, Gerald Zerkin & Associates, on briefs), for appellant.

John B. Russell, Jr., Sr. Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Grace M. DiLiberto, Asst. Atty. Gen., on brief), for appellee.

Present: KOONTZ, ELDER and FITZPATRICK, JJ.

ELDER, Judge.

David M. Shavin appeals from his misdemeanor conviction for selling an unregistered security in violation of Code §§ 13.1-507 and 520(B). On appeal, he contends that the trial court erred (1) in holding that the evidence was sufficient to prove that he was a seller or offeror of the instrument and that the instrument was a security; (2) in finding that the security did not fall within the statutory provision exempting sales to corporations and investment companies; (3) in finding that application of the statute and its exemptions did not require it to make findings of fact concerning "the intent of a person who does not really exist"--the undercover officer; (4) in finding that appellant was not entrapped by the undercover officer; and (5) in holding that appellant's statutory and constitutional rights to a speedy trial were not violated. For the reasons set forth below, we affirm appellant's conviction.

In the fall of 1986, Special Agent Larry Burchett was working undercover, using the name Larry Parker, to investigate an organization affiliated with Lyndon LaRouche. In that capacity he had several conversations with Rochelle Ascher, who encouraged him to donate or loan money to the organization to advance its political goals. Although Ascher told Burchett that loans were always paid back on time and offered competitive interest rates, Burchett said he would not consider making such a loan unless he could tour the organization's offices. Ascher then made arrangements for Richard Freeman to take Burchett on a tour of the offices of Caucus Distributors, Inc. (CDI), a LaRouche organization located in Leesburg, Virginia.

Burchett met Freeman on September 18, 1986, for a tour of CDI's offices. During that time, Freeman expounded on many of the same ideals of LaRouche that Ascher had already covered and attempted to get Burchett to purchase several of their publications. Burchett then explained that he did not wish to purchase any more LaRouche literature and "was there at [Rochelle Ascher's] request, to determine whether or not I would consider lending money to their organization after I saw that the organization did, in fact, exist." Freeman then proceeded to explain the loan process, which he said would take the form of a promissory note which "would be filled out and signed by the officers of their corporation and sent to [Burchett] within 2 days." When Burchett told Freeman he did not feel comfortable turning over the check before receiving the note, "Freeman ... stated that he would have a temporary loan agreement typed out stating the conditions of the loan, the amount, and the interest to be paid." Freeman then left the room and returned with a piece of paper entitled "Temporary Loan Agreement," which included the terms of the loan and the signatures of Freeman and David Shavin. Freeman also stated that "they" would rather pay the interest on the note annually, rather than quarterly, to which Burchett agreed. Burchett then presented Freeman with a check for $5,000, drawn on an account in the name of Larry D. Parker, trading as Parker Properties. Burchett had earlier represented to Ascher, Freeman and Haight, another of their associates, that he was a real estate investor and owned a number of companies.

Burchett then received two letters acknowledging his loan. One letter was signed by George Canning, Secretary, with a carbon copy to Richard Freeman. The other letter was signed by David Shavin, for Caucus Distributors, Inc. The letter of indebtedness signed by Canning was one of approximately 5,000 such letters routinely issued by CDI. However, the temporary loan agreement and letter signed by Shavin are believed to be unique. None of these documents were registered with the State Corporation Commission.

Appellant was indicted on February 17, 1987, and subsequently filed various discovery requests and pre-trial motions. Several other employees of CDI and affiliated LaRouche organizations were also indicted. Orally, on June 25, 1987, and in writing, on August 26, 1987, appellant agreed to waive his speedy trial rights under Code § 19.2-243. The parties disagree, however, as to the extent of that waiver. Although the Commonwealth asserts that this was a general waiver, appellant argues that the waiver applied only so long as necessary to resolve his pending pre-trial claims.

All pre-trial motions were disposed of as of April 12, 1989. Appellant agreed to have his trial continued until the completion of the "Billington" trial, which ended on October 24, 1989. In addition, he concurred in the general scheduling process used in this prosecution. On September 15, 1989, his counsel agreed that "the operating premise of all my clients and myself ... was that these cases would be tried alphabetically." ¹ Also at that hearing, the trial court stated that additional judicial resources could be allocated in order to see that the defendants were tried in a timely fashion, but the prosecutor was unable to say whether his office could allocate the necessary prosecutorial resources. Subsequently, upon request of appellant's counsel, the Commonwealth notified him by letter dated November 15, 1989, of the expected order of the remaining trials. Despite the court's direction to counsel to voice any objections to the schedule within two weeks of receiving it, appellant neither objected to the schedule nor asked to be tried earlier. Finally, on more than one occasion, the Commonwealth offered to try appellant jointly with other defendants, but appellant declined. On September 30, 1991, appellant filed an "Assertion and Notice of Speedy Trial Rights." By letter dated December 16, 1991, the Commonwealth notified appellant that it was willing to proceed with appellant's trial beginning as early as January 16, 1992. Appellant's new counsel was unable to proceed at that time, however, and appellant was not tried until March 1992.

It appears from the record that the trial judge thought the defendants' waiver of their right to a speedy trial was a general waiver. In its order of October 31, 1988, it noted the following: "Defense counsel moved the Court to continue all other cases generally pending disposal of the Ascher and Billington cases, which motion was granted, noting that all defendants have waived their rights to speedy trial."

I.

In reviewing the sufficiency of the evidence on appeal,

we [view] the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.

Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987).

A.

Appellant contends first that the evidence was insufficient to show that he was a seller or offeror under Code § 13.1-507. That section makes it unlawful "to offer or sell any security unless the security is registered under this chapter or the security or transaction is exempted by this chapter." Under Code § 13.1-501,

"Offer" includes every attempt or offer to dispose of, or solicitation of an offer to buy a security or interest in a security for value [and] "[s]ale" or "sell" includes every contract of sale of, contract to sell, or disposition of, a security or interest in a security for value.

Appellant argues that the United States Supreme Court interpreted similar language used in the Federal Securities Act in Pinter v. Dahl, 486 U.S. 622, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988), and that this interpretation should be applied to the Virginia Act. Although the provision at issue in Pinter dealt with civil rescission as opposed to criminal penalties, we nevertheless find Pinter instructive. Contrary to appellant's assertions, however, we believe Pinter makes clear that appellant was a seller or offeror of securities under Code § 13.1-507 of the Virginia Act.

At issue in Pinter was the interpretation of 15 U.S.C. § 77l, which states that "Any person who ... offers or sells a security in violation of section 77e of this title [which prohibits use of U.S. mails to sell or deliver an unregistered security] ... shall be liable to the person purchasing such security who may sue ..." subject to certain limitations. The Federal Securities Act defines the terms "offer" and "sell" in essentially the same fashion as the Virginia Act. See 15 U.S.C.A. § 77b(3) (1981). The facts in Pinter were very different from those presented here. Petitioner Pinter, a securities dealer, sold unregistered securities to respondent Dahl, who then gratuitously assisted family and friends in making similar purchases. 486 U.S. at 625-26, 108 S.Ct. at 2067. The issue in Pinter was whether Dahl was a seller or offeror of the securities under the Federal Act. The Court noted that, "[a]t the very least, ... the language of [the Federal Act] contemplates a buyer-seller relationship not unlike traditional contractual privity ... [such that it] imposes liability on the owner who passed title, or other interest in the security, to the buyer for value." Id. at 642, 108 S.Ct. at 2076. Only because "Dahl ... was not a seller in this conventional sense" did the Court find it necessary to determine whether "liability extends to persons other than the person who passes title." Id. As a result, the Court focused the bulk of its discussion...