Opinion
Dаvid 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
Burchett then received two letters acknowledging his loan. One letter was signed by George Canning, Secretary, with a carbon
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 neсessary 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 triеd in a timely fashion, but the prosecutor was unable to say whether his office could allocate the necessary prosecutor ial 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 follоwing: “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,
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 оr 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,
At issue in
Pinter
was the interpretation of 15 U.S.C. § 771, 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 thе same fashion as the Virginia Act.
See
15 U.S.C. § 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.
Clearly, the transfer of full or partial title is a sale under the Act. Although the United States Supreme Court has not considered the issue, we agree with the Second Circuit’s conclusion that a contract for the issuance or transfer of a security also may qualify as a sale under the Act.
Yoder
v.
Orthomolecular Nutrition Inst.,
B.
Appellant also contends that the evidence was insufficient to support his conviction because it does not show that the temporary loan agreement was a security. Clearly, the subsequently issued document—a promissory note signed by George Canning—was a security. Indeed, we reached just such a conclusion in
Ascher v. Commonwealth,
II.
Second, appellant contends that the instrument was exempt from coverage of the Virginia Securities Act under Code § 13.1-514(B)(6) because it was sold to a corporation or investment company. Subsection (C) of that statute provides that “[i]n any proceeding under this chapter, the burden of proving an exemption shall be on the person claiming it.” Code § 13.1-514(C). Appellant asserts that in a criminal proceeding, he had only the burden of production and that once
he satisfied it, the burden then shifted to the Commonwealth to prove beyond a reasonable doubt that the exemption did not apply. However, the cases he cites in support of this assertion are from other jurisdictions, and such an interpretation is entirely at odds with the wording of the statute. Despite appellant’s assertions, the statute places the burdens of production and persuasion on him.
Cf.
Code § 18.2-263 (similar language applied to drug cases). Clearly, such an allocation is constitutionally permissible.
See
1 Paul H. Robinson,
Criminal Law Defenses
§ 5(b), at 48-50 (1984) (citing
Patterson
v.
New York,
Under the evidence in this case, although Burchett “represented that he was in the real estate investment business and had a number of companies” with overlapping boards of directors, the burden remained on appellant to ascertain, prior to entering into the challenged transaction, that Burchett was operating as a corporation or investment company as those terms are used in the Code. The burden of proving this fact remained on appellant at trial. In addition, the statute providеs no exception for situations in which appellant may reasonably have believed that the buyer was operating in this context.
See Stewart
v.
Ragland,
III.
Third, appellant argues that the evidence was insufficient to support his conviction because it required that the court make a finding of intent as to a fictitious person, the Larry Parker portrayed by Agent Burchett. After examining the statutes under which appellant was convicted, we disagree. Code § 13.1-507 makes it unlawful “to offer or sell any security unless the security is registered ... or ex
empt[] [from registration].” Because we concluded earlier in this opinion both that the temporary loan agreement issued to Burchett was an unregistered security and that appellant was a seller or offeror of that security, the evidence clearly supports his conviction. Although appellant argues that the buyer’s intent is relevant to whether the exemption of Code § 13.1-514(B)(6) applies, that subsection gives no such indication. It exempts from certain registration requirements “[a]ny offer or sale to a corporation
In addition, although the buyer’s intent may be used as evidence by the seller in an attempt to show that the note is not a security,
see Ascher,
IV
Fourth, appellant asserts that his conviction is invalid because he was entrapped by Burchett. Critical to this determination are the trial court’s findings of fact, to which we give great deference on appeal.
Schneider
v.
Commonwealth,
V
Lastly, appellant contends that his conviction must be dismissed because his rights to a speedy trial under both the Virginia Code and the Federal Constitution were violated.
A.
Under Code § 19.2-243, appellant was entitled to be tried within nine months of his indictment or arrest, whichever was later. The running of this statute may be tolled, however, for several different reasons, as set forth in the statute, which include the granting of a motion for a continuance made by the accused or his concurrence in such a motion made by the Commonwealth. Appellant admits that he waived his speedy trial rights in writing to the extent necessary to allow the resolution of his pre-trial motions and that, once those motions were resolved, he agreed to a continuance until the completion of the Billington trial on October 24, 1989. However, he argues that the nine-month limitation period began to run unencumbered as of that date and expired long before his trial in March 1992. The Commonwealth argues that appellant’s written waivеr of his speedy trial rights was general such that the nine-month limitation period was tolled until he revoked the waiver by written notice on September 30, 1991. Alternatively, the Commonwealth argues that the nine-month limitation period was tolled under Code § 19.2-243(3), because the delay was due to “the granting of a separate trial at the request of a person indicted jointly with others for a felony.”
We consider next whether appellant’s written waiver was limited to the resolution of his pre-trial motions or constituted a general waiver until revoked. The following exchanges, which took place at the hearing of June 25, 1987, are relevant to this issue. The Commonwealth stated at that , time, “we won’t oppose the [requested] continuance if we get the waiver of speedy trial from all Defendants.” Mr. Clark, counsel for several defendants other than appellant, responded “it’s on our motion . . . and I’ve discussed with my clients waiving the application of 19.2-243 and they are in agreement.” The trial judge then correctly noted, “If it’s on your motion, [the time period] will be excluded [under the terms of] the statute.” Clark replied, “Yes, sir. . . . Absolutely.” On that basis, the trial judge granted “[t]he motion, which I assume you all concur in.” The judge returned to the issue again, however, by asking the prosecutor, “[I]s there to be any problem in getting ... a waiver of sрeedy trial [?] Do you stand on that in light of the fact that the continuance is on the Motion of the accused?” After the prosecutor responded, “We prefer a waiver just to make sure that we don’t run into problems later on,” the trial court directed that a written waiver be obtained from all defendants.
The written waiver, filed August 27, 1987, detailed the defendants’ various pre-trial motions and their agreement with the Commonwealth to waive their speedy trial rights in order to obtain a continuance on their motion under Code § 19.2-243. The actual language of the waiver is as follows:
[T]he Court requested that such waiver as had already been agreed to by counsel following consultation with Defendants herein, be memorialized and filed with this Court, reflecting the fact that each Defendant does waive any such right to a speedy trial as guaranteed under Section 19.2-243, as a result of each Defendant’s preference to have a full and fair hearing and briefing on all their claims including those discussed herein, and accordingly, Defendants herein (including those who stand indicted by misdemeanor), do hereby WAIVE their rights to have their cases commenced within the time limits prescribed by Virginia Code Section 19.2-243.
Although not dispositive, it appears from the record that the trial judge thought the waiver was general. In his order of October 31, 1988, he 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.”
We note first that Code § 19.2-243 is the statutory embodiment of the constitutional right to a speedy trial,
Clark v. Commonwealth, 4
Va. App. 3, 5,
B.
We next examine appellant’s claim that the Commonwealth violated his right to a speedy trial under the Sixth Amendment. In
Barker v. Wingo,
Where the government proceeds “with reasonable diligence,” the “speedy trial claimwould fail. . . as a matter of course however great the delay, so long as [the defendant] could not show specific prejudice to his defense. Where “the Government . . . intentionally [holds] back in its prosecution of him to gain some impermissible advantage at trial, [such] official bad faith in causing delay . . . would present an overwhelming case for dismissal.” Where the government is negligent in pursuing a defendant, prejudice will be presumed and its weight in defendant’s favor will depend on the length of the delay.
United States v. Aguirre,
The length of the delay between arrest and trial was the same here as in Barker—five years.
Barker,
The reason for the delay in this case is questionable, for the trial court made no findings of fact on this issue. Appellant concedes in his brief that “it doеs not appear that the Commonwealth has caused delay deliberately to impair the defense.” We assume arguendo that the Commonwealth was at least negligent in failing to bring appellant to trial sooner, and we apply the middle test as set forth in
Doggett:
prejudice will be presumed and its weight in appellant’s favor will depend on the length of the delay. We note, however, that “such presumptive prejudice [without more] cannot alone carry a Sixth Amendment claim.”
Doggett,
We believe the deciding factor in this case concerns the timing of appellant’s assertion of his speedy trial right. Although a defendant does not forever waive his right to a speedy trial by failing to assert it, it is “one of the [four] factors to be considered in an inquiry into the deprivation of the right.”
Barker,
For the reasons set forth above, we affirm appellant’s conviction.
Affirmed.
Koontz, J., and Fitzpatrick, X, concurred.
Notes
The cases referred to involved others who were indicted for their alleged involvement with the sale of unregistered securities.
This rationale was also implicit in the holding in
Ohio v. O’Brien,
Defendant acknowledges that allowance of this Motion for continuance constitutes a waiver of Defendant’s right to be brought to trial within 90 days of the commencement of this action as provided by [the speedy trial provisions of the Ohio Code] and does, hereby, expressly waive Compliance with [those provisions] in each of the above captioned actions.
O'Brien,
On appeal, the Ohio Supreme Court held that “[t]he waiver given by the defendant. . . was unlimited in duration” and “remained effective throughout the period of delays occasioned by the state”: “[Fjollowing an express written waiver of unlimited duration by an accused of his speedy trial rights[,] the accused is not entitled to a discharge for delay in bringing him to trial unless the accused files a formal written objection to any further continuances and makes a demand for trial.”
Id.
at 221;
see also Ohio
v.
Evans,
Rec. No. 90-A-1501,