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JOHN B. BULGOZDY, Cal Bar No. 219897 E-mail: bulgozdyj@sec.gov DAVID J. VAN HAVERMAAT, Cal. Bar No. 175761 E-mail: vanhavermaatd@sec.gov Attorney for Plaintiff Securities and Exchange Commission Rosalind R. Tyson, Regional Director Michele Wein Layne, Associate Regional Director 5670 Wilshire Boulevard, 11th Floor Los Angeles, California 90036 Telephone: (323) 965-3998 Facsimile: (323) 965-3908

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA SECURITIES AND EXCHANGE COMMISSION, Plaintiff, vs. MARCO GLISSON, Defendant Case No. 2:09-cv-00104-LDG-GWF PLAINTIFF SECURITIES AND EXCHANGE COMMISSIONS MOTION IN LIMINE TO ADMIT BANK RECORDS INTO EVIDENCE

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I.

INTRODUCTION Plaintiff Securities and Exchange Commission (Commission) moves in

limine for a ruling that bank records produced by three financial institutions pertaining to four accounts, which are authenticated by proper declarations and certifications, are admitted into evidence for the trial in this matter, scheduled to commence September 14, 2011. The purpose of this motion is to avoid the time and expense of calling as witnesses the custodians of records from three financial institutions: (1) Blackhawk Community Credit Union (Blackhawk); (2) Bank of America (BofA); and (3) Sun Trust Bank (Sun Trust), when the records have been authenticated and certified by appropriate declaration. The Commission moves for the admission of these business records pursuant to Federal Rules of Evidence 803(6) and 902(11), which provide for authentication of business records by declaration of a qualified person. Defendant Marco Glisson objects to the admissibility of these business records in the Joint Pretrial Order, and has stated that the Commission must call custodians from these three financial institutions at trial. Defendant objects on grounds of authenticity, foundation, hearsay. However, the declarations and certifications from the financial institutions authenticate these documents as business records under Rules 803(6) and 902(11), so that defendants objections lack any merit. Moreover, these rules provide a mechanism to admit such records without the waste of Court time, as well as the substantial expense not only for the Commission, but for the financial institutions. The records custodians will have to travel to Nevada from Wisconsin, Florida, and California, solely to gratify the defendants refusal to recognize that the documents have been properly authenticated as business records of the producing financial institutions under the provisions of Rules 803(6) and 902(11).
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Defendant also objects to the relevance of these financial records. However, Glisson admits that he deposited funds from his CMKM transactions into all of these accounts, and his name appears as a joint holder or beneficiary on four of the five accounts. These bank records satisfy the relevance standard set forth in Federal Rule of Evidence 401, so that Glissons relevance objection similarly lacks merit. Interestingly, Glisson produced to the Commission his own copies of certain bank records relating to the Blackhawk accounts, and has objected to the admissibility of exhibits of his own documents on the grounds of authenticity, foundation, hearsay, and relevance. Although Glissons objections to the authenticity of his own documents probably lack merit, those exhibits are not the subject of this motion. Accordingly, the Commission moves in limine for an order overruling defendant Glissons objections and admitting into evidence for the trial in this case the following: financial records produced by Blackhawk, specifically Exhibits 331 to 342, and 353; financial records produced by Bank of America, specifically Exhibits 47 to 55, 58 to 93, and 524; and financial records produced by Sun Trust, specifically Exhibits 134, 406-1 to 406-6, 525, and 526.1 II. FACTUAL BACKGROUND Defendant Glisson bought, sold, and brokered transactions in the deregistered securities of CMKM Diamonds, Inc. (CMKM). During various periods, Glisson admittedly used five bank accounts at three banks to facilitate the

Because this motion is being filed electronically and the exhibits are voluminous and contain personal identifying information of numerous third parties, plaintiff is proffering examples of the exhibits as stated below. If the Court requires copies of all of the exhibits that are the subject of this motion, the Commission would propose to provide them for in camera review. All exhibits have previously been provided to counsel for defendant Glisson.
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financial aspect of these transactions. The three banks are: (1) Blackhawk Community Credit Union (Blackhawk or BCU), (2) Bank of America (BofA), and Sun Trust Bank (Suntrust). The five accounts are: (1) Blackhawk Acct. No. 3788, used from December 2005 t0 May 2006, held in the name of Alma Padilla (Glissons then wife); (2) Blackhawk Acct. No. 8307, used from January 2006 to May 2006, held jointly in the name of Alma Padilla and Marco Glisson; (3) Blackhawk Acct. No. 7650, used from May 2006 to January 2007, held in the name of Marco Glisson; (4) BofA Acct. No. 9145, used from November 2006 to June 2007, originally opened in the name of Thidarat Tungwongsathong, and then changed to add POD Marco Glisson; and (5) Suntrust Acct. No. 8651, used from May to October 2010, held in the name of Thidarat Tungwongsathong, POD Marco Glisson. Plaintiff obtained documents relating to these accounts from the three financial institutions, and the documents have been authenticated by declarations and/or certifications from each of the three financial institutions. During the preparation of the Joint Pretrial Order, Glisson stipulated to the admission of records from the Blackhawk 7650 Account held in his name, and to one exhibit relating to Account 8307, held jointly in the name of Glisson and his then wife, Alma Padilla. However, Glisson objected to all of the other records produced by the financial institutions on the grounds of authenticity, foundation, hearsay, and relevance.

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III.

LEGAL DISCUSSION A. The Federal Rules of Evidence Provide for Authentication of Business Records Based on Sworn Declarations Federal Rules of Evidence 803(6) and 902(11) provide for self-

authentication of certain business records based on sworn declarations from record custodians or other qualified persons. See United States v. Adefehinti, 510 F.3d 319, 324-25 (9th Cir. 2008); United States v. Pang, 362 F.3d 1187 (9th Cir. 2004); United States v. Kahre, 610 F. Supp. 2d 1261, 1262-63 (D. Nev. 2009). Such a procedure is less burdensome on the Court and the parties by mitigating the need to call actual record witnesses during trial. Fed.R.Evid. 803(6) provides: A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term business as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
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(Emphasis added.) The Rule was amended in 2000 to add that, in lieu of live testimony, the foundation for admissibility of a business record may be established by a certification that complies with Rule 902(11). See Kahre, 610 F. Supp. 2d at 1263. Federal Rule of Evidence 902(11) provides, in pertinent part: Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (11) Certified Domestic Records of Regularly Conducted Activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (B) was kept in the course of the regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice. The Advisory Committee Notes explain that Rule 902(11) sets forth a procedure by which parties can authenticate certain records of regularly conducted activity, other than through the testimony of a foundation witness. Fed. R. Evid. 902(11), Advisory Committees Note. The Advisory Committee Notes to the 2000 Amendments to Rule 803 explain that Rule 902(11) provides that the foundation
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requirements of Rule 803(6) can be satisfied under certain circumstances without the expense and inconvenience of producing time-consuming foundation witnesses. Fed. R. Evid. 803(6), Advisory Committees Notes; see also United States v. Kahre, 610 F. Supp. 2d at 1263. B. The Declarations Provided by the Producing Financial Institutions Authenticate the Bank Records as Admissible Business Records 1. The Blackhawk Credit Union Records a. Exhibits of Records from Blackhawk Account 8307

Plaintiff moves for an in limine ruling overruling defendants objections and finding that the following documents are admissible as properly authenticated business records of Blackhawk, pertaining to Blackhawk Account 8307, which was held jointly in the name of Marco Glisson and his then wife, Alma Padilla: Exhibit 337: the signature card for Blackhawk Account 8307 Exhibit 338: monthly account statements for the period October 1, 2005 through May 31, 2006 Exhibits 339, 340: Transaction summaries for Account 8307 Exhibit 341: wire transfer orders for wire transfers from Account 8307 Exhibit 342: money orders purchased from Account 8307 and made payable to 1st Global Stock Transfer Exhibit 353: deposits into Account 8307 The Commission submits in support of this motion the Declaration of David Butz Certifying Records. Mr. Butz is employed as the Director of Risk Management for Blackhawk, and he declared under penalty of perjury that these documents are true copies that were made at or near the time of the occurrence of
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the matters by a person with knowledge; kept in the course of regularly conducted business activity; and made by the regularly conducted business activity. See Declaration of Olivia Carnegie (Carnegie Decl.) submitted in support of this motion, at 4 and Exhibit 1. This declaration from Mr. Butz of Blackhawk is sufficient under Rules 803(6) and 902(11) to authenticate and identify these documents as admissible business records. In an effort to assist the Court in its review of this motion, the Commission is submitting redacted examples of samples of the documents that are the subject of this motion. Even a cursory examination of these documents shows that they are what they purport to be business records of Blackhawk. The Commission submits herewith as examples of the documents that are the subject of this motion: (1) a copy of Exhibit 337 the signature card for this account; (2) an example of a monthly statement included in Exhibit 338; (3) a copy of the transaction summary marked as Exhibit 339; (4) an example of the wire transfer documents included in Exhibit 341; (5) an example of the money orders purchases that constitute Exhibit 342; an (6) an example of deposits into the account that are marked as Exhibit 343. See Carnegie Decl. at 16-21, Exhibits 13-18. These documents have been properly authenticated and identified as business records by the sworn certification of a qualified individual from Blackhawk. There is no basis for defendants objections to these documents on the basis of authenticity, foundation, or hearsay. Pursuant to Federal Rules of Evidence 803(6) and 902(11), the Court should issue an in limine ruling overruling defendants objections and admitting these documents into evidence.

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b.

Exhibits of Records from Blackhawk Account 3788 Plaintiff moves for an in limine ruling that the following documents are

admissible as properly authenticated business records of Blackhawk, pertaining to Blackhawk Account 3788: Exhibit 331: the signature card for Blackhawk Account 3788 Exhibit 332: monthly account statements for the period October 1, 2005 through May 31, 2006 Exhibit 333: Transaction summary for Account 3788 Exhibit 334: checks deposited into Account 3788 Exhibit 335: money order drawn on Account 3788 made payable to 1st Global Stock Transfer Exhibit 336: wire transfers and orders for Account 3788 Again, the Commission has produced the Declaration of David Butz Certifying Records, who properly certified and authenticated these business records of Blackhawk. See Carnegie Decl. at 4 and Exhibit 1. To assist the Court in its determination of this motion, the Commission is also providing examples of the business records from Blackhawk that are included in these exhibits. See Carnegie Decl. at 10-21 and Exhibits 7-18. Again, a cursory examination is sufficient to show that these documents are authentic and are what they purport to be business records of Blackkawk. Accordingly, as there is no basis for defendants objections to the admissibility of these documents on the basis of authentication, foundation, or hearsay, their objections should be overruled. 2. Exhibits of Records of BofA Accounts 3830 and 9145 Plaintiff moves for an in limine ruling that the following documents are admissible as properly authenticated business records of BofA, pertaining to
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accounts 3830 and/or 9145, which were originally opened in the name of Thidarat Tungwongsathong, and to which accounts defendant Glisson was added as a beneficiary: Exhibit 524: the signature card for BofA Accounts 3820 and 9145 Exhibits 47, 48, 49, 51, 57, 68, 75, 79, and 82: monthly account statements for the two accounts 3830 and 9145 Exhibits 52-55: checks drawn on Account 9145 Exhibits 50, 58 to 67, 69 to 74, 76 to 78, 80, 81, 83 to 93: deposit tickets and attachments for deposits into Account 9145. Plaintiff has produced the Declaration of Custodian of Records, Bank of America, signed under penalty of perjury by Franciso A. Valerio, Operations Team Manager, authenticating the documents produced as business records of Bank of America. See Carnegie Decl. at 8 and Exhibit 5. To assist the Court in its determination, plaintiff submits with this motion the signature card, an example of one of the monthly statements, and an example of one of the deposit slips. See Carnegie Decl. at 22-23, 25and Exhibits 19-20, 22. Again, there can be no dispute that these documents appear on their face to be bank records of BofA. Defendants objections on the grounds of authenticity, foundation, and hearsay lack any merit and should be overruled. 3. Exhibits of Records from SunTrust Plaintiff moves for an in limine ruling on the admissibility of bank records produced by Sun Trust, consisting of Exhibits 134, 406-1 through 406-6, and 525 and 526. As with the other financial institution records that are the subject of this motion, plaintiff has produced a Certification, signed under penalties of perjury, from the Custodian of Records of Sun Trust Bank, who certified that the documents produced by Sun Trust, and which have been marked as exhibits by
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plaintiff, are authentic business records of Sun Trust. The records are similar to the Blackhawk and BofA records. In the interest of brevity, the Commission has not provided examples of these exhibits, although will do so if the Court requires the documents to rule on the motion. As with the records produced by the other financial institutions, the documents on their face appear to be that which they purport to be bank records for a bank account held jointly by defendant Glisson and his wife, Ms. Tungwongsathong. The Certification from the custodian of records answers any authenticity, foundation, and hearsay objections, and should be sufficient for the Court to overrule the objections of defendant Glisson. C. Defendants Relevance and Other Objections Lack Merit Defendant also objects to the bank records in the Joint Pretrial Order on the grounds of relevancy, vague and ambiguous, and beyond the scope of the complaint. However, Glisson admits that he deposited proceeds from his CMKM transactions into these accounts, which effectively moots these additional objections. In a motion filed recently with the Court, Glisson stated that Glisson deposited proceeds from the sale of his CMKM stock into bank accounts standing in the name (jointly or individually) of his former and current wife and the ultimate disposition of any such funds. See Defendant Glissons Motion to Bifurcate Liability and Damage Issues for Trial; Motion for Stay; and Motion to Preclude the Introduction, by the Plaintiff, of All Evidence Pertaining to Glissons Post 2007 Activities, filed October 12, 2011, at page 19 lines 3-7. Glisson thus admits that he deposited funds from his CMKM transactions into the accounts that are the subject of this motion in limine. In his motion, Glisson seeks to preclude the Commission, and presumably the Court, from asking why he deposited the proceeds from his CMKM transactions into these various accounts and what happened to the money. The Commission will oppose that
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motion in a timely manner. However, Glisson cannot in good faith argue that these financial records of accounts into which he deposited proceeds from his CMKM transactions are not relevant or are beyond the scope of the complaint. Indeed, Glisson is a joint owner or beneficiary of three of the four accounts that are the subject of this motion. Federal Rule of Evidence 401 states that Relevant evidence means evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. In United States v. Abrego, 141 F.3d 142 (5th Cir. 1998), the Fifth Circuit rejected a similar relevance argument by a defendant that bank accounts opened in his wifes name were not relevant because nothing linked him to the bank accounts, noting that, [a]t most, this is a fact properly considered [by the finder of fact] in determining the weight to give the records regarding this account in determining whether the funds in the account were traceable to the defendant. Id. at 180 n. 29. The Fifth Circuit found that the bank records were relevant and properly admitted. Here, Glissons name is on all the accounts but one the Blackhawk 3788 Account held only in his former wifes name. Here, then, there is a direct link between Glisson and the accounts, which is much more than the evidence in Abrego which was sufficient for the admission of the evidence. Glissons relevance and other objections lack merit and should be overruled. IV. CONCLUSION For all of the foregoing reasons, and to save unnecessary expense and prevent waste of time and resources, the Court should grant the Commissions motion in limine, overrule defendants objections to the business records of Blackhawk, Bank of America, and Sun Trust that have been marked as exhibits
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and are the subject of this motion, and rule that the documents are admissible pursuant to Federal Rules of Evidence 803(6) and 902(11). Date: October 14, 2011 Respectfully submitted, /s/ John B. Bulgozdy John B. Bulgozdy David J. Van Havermaat Attorneys for Plaintiff Securities and Exchange Commission

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PROOF OF SERVICE I am over the age of 18 years and not a party to this action. My business address is: U.S. SECURITIES AND EXCHANGE COMMISSION, 5670 Wilshire Boulevard, 11th Floor, Los Angeles, California 90036-3648 Telephone No. (323) 965-3998; Facsimile No. (323) 965-3908. On October 14, 2011, I caused to be served the document entitled PLAINTIFF SECURITIES AND EXCHANGE COMMISSIONS MOTION IN LIMINE TO ADMIT BANK RECORDS INTO EVIDENCE on all the parties to this action addressed as stated on the attached service list: [ ] OFFICE MAIL: By placing in sealed envelope(s), which I placed for collection and mailing today following ordinary business practices. I am readily familiar with this agencys practice for collection and processing of correspondence for mailing; such correspondence would be deposited with the U.S. Postal Service on the same day in the ordinary course of business. [ ] PERSONAL DEPOSIT IN MAIL: By placing in sealed envelope(s), which I personally deposited with the U.S. Postal Service. Each such envelope was deposited with the U.S. Postal Service at Los Angeles, California, with first class postage thereon fully prepaid. EXPRESS U.S. MAIL: Each such envelope was deposited in a facility regularly maintained at the U.S. Postal Service for receipt of Express Mail at Los Angeles, California, with Express Mail postage paid.

HAND DELIVERY: I caused to be hand delivered each such envelope to the office of the addressee as stated on the attached service list. UNITED PARCEL SERVICE: By placing in sealed envelope(s) designated by United Parcel Service (UPS) with delivery fees paid or provided for, which I deposited in a facility regularly maintained by UPS or delivered to a UPS courier, at Los Angeles, California. ELECTRONIC MAIL: By transmitting the document by electronic mail to the electronic mail address as stated on the attached service list. E-FILING: By causing the document to be electronically filed via the Courts CM/ECF system, which effects electronic service on counsel who are registered with the CM/ECF system. FAX: By transmitting the document by facsimile transmission. The transmission was reported as complete and without error. I declare under penalty of perjury that the foregoing is true and correct.

Date: October 14, 2011

/s/ John B. Bulgozdy John B. Bulgozdy

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SEC v. MARCO GLISSON United States District Court - District of Nevada Case No. 2:09-cv-00104-LDG-GWF (LA-3028) SERVICE LIST Frederick A. Santacroce, Esq. 706 South Eighth Street Las Vegas, NV 89101 Email: fasatty@yahoo.com Attorney for Marco Glisson Robert H. Bretz, Esq. 578 Washington Boulevard, Suite 843 Marina del Rey, CA 90292 Email: Rhbretzpc@aol.com Attorney for Marco Glisson