OPINION
{1} Defendant appeals his convictions for multiple counts of securities fraud and the sale of unregistered securities, contrary to the New Mexico Securities Act of 1986, NMSA 1978, §§ 58-13B-1 to -57 (1986, as amended through 2004) (Securities Act). On appeal, Defendant raises five issues regarding (1) the district court’s restitution order, (2) double jeopardy, (3) the six-month rule, (4) sufficiency of the evidence, and (5) conflict of interest. Finding no error, we affirm Defendant’s convictions.
BACKGROUND
{2} This is the third appeal to this Court involving Defendant and the criminal and administrative proceedings resulting from Defendant’s osteopathic practice in Alamogordo, New Mexico. See State v. Collins, No. 25,941 slip op. (N.M. Ct.App. April 16, 2007); State v. Kirby,
{3} Defendant and his wife filed for bankruptcy in 1998. The bankruptcy action was challenged by thirty-nine people who had loaned money to fund Defendant’s clinic and who had not been repaid. The debts were eventually discharged by the bankruptcy court. In discharging the debts, the bankruptcy court found that Defendant and his wife did not misrepresent their financial condition to those who had loaned money to the clinic.
{4} Defendant’s actions also became the subject of an investigation and administrative proceeding by the Securities Division of the New Mexico Regulation and Licensing Department, the subject of which constituted the first of Defendant’s appeals before our Court and is discussed in greater detail in Kirby. Defendant was also indicted on criminal charges for his conduct, and he was subsequently convicted on multiple counts of securities fraud and the sale of unregistered securities. His appeal of those convictions is the subject of this opinion.
DISCUSSION
{5} On appeal, Defendant first argues that the criminal proceedings against him were brought as an end-run around the provisions of federal bankruptcy law, which had provided for the discharge of Defendant’s debts. As such, Defendant contends that the district court erred by ordering restitution to the noteholders as part of Defendant’s judgment and sentence. Second, Defendant asserts that his convictions for securities fraud for each issuance of a promissory note and for each renewal or “rollover” of existing promissory notes violated double jeopardy. Defendant’s third issue on appeal is that the district court erred by denying a motion to dismiss the charges against Defendant for violation of the six-month rule under Rule 5-604 NMRA. Fourth, Defendant contends that because promissory notes are not securities or investments in a business, the evidence was insufficient to support his convictions. Lastly, Defendant argues that the district attorney’s office should have been disqualified for conflict of interest and that the district court’s failure to do so necessitates the reversal of his convictions. We address each issue in turn, and we affirm.
Bankruptcy and Restitution
{6} As part of the district court’s judgment and sentence, Defendant was ordered to pay restitution to the victims of his convictions. On appeal, Defendant contends that because the debts in question were previously discharged by a bankruptcy court years earlier, the district court erred by ordering restitution in the present case. We disagree.
{7} It is commonly recognized that “criminal restitution may generally be imposed despite a previous discharge of the underlying debts in bankruptcy!)]” Cabla v. State,
{8} In rejecting the defendant’s contention that the Supremacy Clause barred the criminal proceedings against him, our Court recognized that “[t]he provisions of the Bankruptcy Act are not so intrusive so as to pardon a bankrupt from the consequences of a criminal offense.” Id. at 354,
{9} As such, we reject Defendant’s contention in his brief in chief that the restitution order was barred by the earlier bankruptcy proceeding. Defendant argues, however, that even if the restitution order was permissible, the initiation of criminal proceedings against him and the restitution order imposed by his sentence demonstrate that the State prosecuted Defendant solely to collect upon his debts. As such, Defendant asserts that the restitution order was “nothing more than an attempt to perform an end-run around the purposes of bankruptcy law” and should therefore be reversed.
{10} In support of his contention that the restitution order in the present case was improper, Defendant argues that because violations of the Securities Act do not require a demonstration of actual criminal intent, the State’s only interest in prosecuting Defendant must have been to seek compensation for Defendant’s victims. Moreover, Defendant asserts that the judge’s comments while imposing restitution further demonstrate that the order was merely an end-run around the bankruptcy code. We reject Defendant’s contention.
{11} “The purpose of federal bankruptcy law is to relieve the honest debtor from the weight of oppressive indebtedness and permit him to start afresh free from the obligations and responsibilities consequent upon business misfortunes.” Muzio,
The Securities Act, as a whole, has remedial purpose. It is comprehensive. Its extensive regulatory and administrative provisions are aimed at protecting investors against unfair, deceptive, and fraudulent practices in the sale of securities....
The Act was written “with all encompassing strokes to protect the public,” and to further “the legitimate governmental purpose of protecting the public from the many means promoters may use to separate the unwary from their money.” In enacting the Act, our Legislature undoubtedly shared the legislative intent behind the Securities Exchange Act of 1934, which was “to insure honest securities markets and thereby promote investor confidence ... [and] to substitute a philosophy of full disclosure for the philosophy of caveat emptor and thus to achieve a high standard of business ethics in the securities industry.”
Kirby,
{12} Moreover, criminal penalties under the Act are permitted only where an individual “willfully violates” its provisions. Id. ¶ 32 (citing § 58-13B-39(A)). Thus, the Act also serves to punish an individual for his or her willful or intentional behavior. See Kelly v. Robinson,
{13} Additionally, we reject Defendant’s claim that the district court’s comments during sentencing indicate that the criminal proceedings against Defendant were initiated in an attempt to perform an end-run around the bankruptcy code. At sentencing, the district court ordered Defendant to “make restitution on those ... notes that were identified for which [he] received a conviction.” The district court further stated that it was awarding restitution “knowing that ... restitution is not highly likely.” The court further stated, “I guess I hold out the hope that the [the victims] could receive something, and I think that anything they would receive would help their healing process.”
{14} We fail to see how the district court’s motivation in sentencing Defendant is in any way indicative of the State’s initial decision to prosecute Defendant, even if we were to consider the State’s motivation as a factor in determining the validity of a restitution order. But see Cabla,
{15} Moreover, we do not believe that the district court’s statements indicate an improper purpose behind the decision to order restitution. We observe that
penal goals are accomplished through restitution to the extent that the defendant is forced to focus on the harm that was caused to the victim. Likewise, restitution is a monetary detriment to the defendant and satisfies] society’s demand for meaningful justice, thus serving the punitive objective of the criminal system.
State v. Garnett,
{16} Beyond the district court’s own comments, Defendant does not present any evidence indicating that the State’s primary motivation behind its decision to prosecute Defendant was to frustrate the purposes of the bankruptcy code. In the absence of any actual evidence bearing on the State’s motives, we decline to make such an inquiry on our own. See Muzio,
Promissory Notes
{17} Defendant next contends that his convictions of separate counts of securities fraud for each issuance of a promissory note, as well as each renewal or “rollover” of existing promissory notes, violated double jeopardy. Again, we disagree.
{18} “The Double Jeopardy Clause provides that no one will be ‘twice put in jeopardy for the same crime.” State v. Boergadine,
{19} We analyze unit-of-prosecution cases in two steps. State v. Bernal,
{20} Accordingly, to determine whether Defendant’s charges violated double jeopardy, we must first identify the applicable unit of prosecution under Section 58-13B-30 of the Securities Act. Section 58-13B-30 provides that:
In connection with the offer to sell, sale, offer to purchase or purchase of a security, a person shall not, directly or indirectly:
A. employ any device, scheme or artifice to defraud;
B. make an untrue statement of a material fact or fail to state a necessary material fact where such an omission would be misleading; or
C. engage in an act, practice or course of business which operates or would operate as a fraud or deceit upon a person.
An individual who willfully violates the above provision may be subject to criminal penalties. See § 58-13B-39(A). We observe that the statute’s provisions apply to “the offer to sell, sale, offer to purchase or purchase of a security.” Section 58-13B-30 (emphasis added). Under Section 58-13B-30, the statutory language indicates a legislative intent that each offer to sell or sale of a security constitutes a separate unit of prosecution. See State v. Baca,
{21} When a number of the promissory notes issued by Defendant to his patients became due, Defendant asked the patients to sign their notes “paid by renewal” and to mail the notes back to him. With such requests, Defendant included a new note with a new due date. The renewal notes ostensibly paid the old notes and constituted evidence of a new contract between the parties regarding the payment of Defendant’s debt at a later date. See 10 C.J.S. Bills & Notes § 120 (1995) (“[I]t has been held that the execution of a renewal note constitutes a new contract evidencing the existing debt.” (footnotes omitted)). The noteholders’ actions in deeming the old notes “paid by renewal” and mailing such notes back to Defendant constituted a discharge of Defendant’s obligation to pay the notes. See NMSA1978, § 55-3-604(a) (1992) (“A person entitled to enforce an instrument ... may discharge the obligation of a party to pay the instrument ... by an intentional voluntary act, such as surrender of the instrument to the party ... or the addition of words to the instrument indicating dischargef.]”). The new note or renewal note sent by Defendant thus constituted a new offer to sell or sale of a security, which in some eases was refused by the respective noteholder. Since the sale of an original promissory note and the later offer to sell a new or renewal note seem to constitute separate units of prosecution under the Securities Act, Defendant’s convictions for securities fraud in connection with both notes would not appear to violate double jeopardy.
{22} Even if the statutory language can be construed as ambiguous with respect to the renewal or rollover of promissory notes, we conclude that Defendant’s actions were separated by sufficient indicia of distinctness such that his convictions do not violate double jeopardy. “Such indicia include the timing, location, and sequencing of the acts, the existence of an intervening event, the defendant’s intent as evidenced by his conduct and utterances, and the number of victims.” State v. DeGraff,
Six-Month Rule
{23} Defendant next asserts that the district court improperly granted two three-month extensions of the six-month rule. See Rule 5-604(C). As such, Defendant contends that the district court should have granted his motion to dismiss for violation of Rule 5-604. We hold that Defendant waived the protections of the six-month rule.
{24} “Rule 5-604(B) of the Rules of Criminal Procedure provides that the trial of a criminal case shall begin within six months of the occurrence of the last of several events.” State v. Bennett,
{25} Trial was set for March 22, 2004. On March 5, Defendant filed a motion for continuance and then stipulated to a second Rule 5-604 extension by the district court. By that time, however, the district court could no longer grant extensions under Rule 5-604, as it had previously granted a three-month extension on August 7, 2001. See Rule 5-604(C) (“[T]he time for commencement of trial may be extended by the trial judge provided that the aggregate of all extensions granted by the trial judge may not exceed three (3) months.”). On appeal, Defendant complains that the district court’s second extension was in violation of Rule 5-604 and that his convictions should therefore be reversed.
{26} The underlying purpose of Rule 5-604 is to “assure the prompt trial and disposition of criminal cases.” State v. Flores,
{27} We hold that Defendant’s motion for a continuance and stipulation to the second Rule 5-604 extension erroneously granted by the district court constitutes a waiver by Defendant of the requirements of Rule 5-604. Although the district court had exhausted its extensions and the parties should have sought an extension of the rule with the Supreme Court, we believe that “[t]o allow a defendant to invite error and to subsequently complain about that very error would subvert the orderly and equitable administration of justice.” State v. Handa,
Sufficiency of the Evidence
{28} Pursuant to State v. Franklin,
{29} “When determining the sufficiency of the evidence, the court views the evidence in a light most favorable to the verdict, considering that the State has the burden of proof beyond a reasonable doubt.” State v. Garcia,
{30} Defendant cites no authority in support of his assertion that promissory notes are not securities. Under the Securities Act, the term “security” includes notes. Section 58-13B-2(X). The understanding that “security” includes promissory notes has also been recognized by our courts. See State v. Ramos,
Conflict of Interest
{31} Lastly, Defendant asserts that the district attorney’s office should have been disqualified due to a conflict of interest. According to Defendant’s testimony, an office manager at the district attorney’s office previously worked for an attorney who had allegedly advised Defendant regarding the issuance of promissory notes. Defendant asserts that, because this created an impermissible conflict of interest, fundamental error dictates that his convictions be reversed.
{32} Since Defendant did not preserve this issue below, we apply fundamental error review. State v. Lente,
{33} At trial, Defendant elicited testimony from Kathy Tellez, an office manager at the district attorney’s office, regarding her former employment with an attorney named Albert Rivera. Defendant asserts that Rivera and Tellez helped him prepare the promissory notes at issue in the present case. However, at trial, Rivera testified that he limited his practice to criminal law and workers’ compensation cases and that he referred prospective clients to other attorneys for civil matters. Rivera further testified that he had never practiced banking or securities law. Rivera testified that he did not recognize Defendant’s name and that he did not recognize Defendant sitting in the courtroom. Additionally, Tellez affirmatively stated at trial that Defendant had never been a client of Rivera’s.
{34} Based on our review of the record, we do not find fundamental error in this case. As argued by the State, there is simply no undisputed evidence in the record indicating that Rivera was Defendant’s attorney or that Tellez had any dealings with Defendant while she was employed by Rivera. Defendant’s assertions alone are not sufficient to establish that a conflict of interest existed below. Cf. State v. Foxen,
CONCLUSION
{35} We affirm Defendant’s convictions and sentence.
{36} IT IS SO ORDERED.