Case 1:12-cv-12334-IT Document 158 Filed 11/10/14 Page 1 of 8

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
___________________________________________
)
SECURITIES AND EXCHANGE COMMISSION, )
)
Plaintiff,
)
)
v.
)
)
SPENCER PHARMACEUTICAL INC.,
)
JEAN-FRANOIS AMYOT,
)
IAB MEDIA INC. and
)
HILBROY ADVISORY INC.,
)
)
Defendants.
)
___________________________________________ )

Case No. 1:12-cv-12334-IT

PLAINTIFFS TRIAL BRIEF

Pursuant to Local Rule 16.5 and the Courts September 25, 2014 Procedural Order,
Plaintiff Securities and Exchange Commission (the Commission) hereby submits this trial
brief in connection with the trial scheduled to commence on November 17, 2014.
With this brief, the Commission endeavors to identify and, where appropriate, address the
remaining pre-trial issues in this matter. The issues include:
(i)

the parties stipulation to the dismissal of the Seventh Claim of the Relief;

(ii)

the status of the pending motion for final default against Spencer Pharmaceutical,
Inc. (Spencer), IAB Media Inc. (IAB) and Hilbroy Advisory, Inc.
(Hilbroy);

(iii)

the Commissions request to pre-admit documents to which there is no objection,

as well as documents admitted during the course of deposition testimony;

(iv)

the defendants lack of deposition designations, which were to be filed no later

than November 3, 2014 under the Courts Procedural Order;

Case 1:12-cv-12334-IT Document 158 Filed 11/10/14 Page 2 of 8

(v)

the Commissions objections to the defendants proposed voir dire questions, a

copy of which is attached hereto as Exhibit A.

I.

THE COMMISSIONS SEVENTH CLAIM FOR RELIEF

On November 7, 2014, upon grant of formal authorization, the Commission filed a

Stipulation of Voluntary Dismissal of the Seventh Claim for Relief in the Complaint, which
alleged that Amyot was liable as a control person for Spencers violations of Section 10(b)(5)
and Rule 10b-5 thereunder. [Dkt. # 156.] The Commission intends to proceed on all remaining
claims.
In the Commissions view, the dismissal of the Seventh Claim for Relief will streamline
the presentation of evidence for the jury. The dismissal will not require any changes to the pretrial filings made on November 3, 2014, as none of the pre-trial filings referenced the Seventh
Claim for Relief, including the proposed jury instructions and the succinct and neutral statement
summarizing the parties claims and defenses. 1 The Commission also does not believe the
omission of this claim will alter the length of the trial.
II.

STATUS OF PENDING DEFAULT MOTION

On October 8, 2014, the Commission filed a motion for default judgments against
Spencer, IAB, and Hilbroy (the Spencer Default Motion). [Dkt. #120.]
In light of the stipulation of dismissal of the Seventh Claim for Relief, the Commission
submits that the pending status of the Spencer Default Motion will no longer impact the
upcoming jury trial against defendant Jean-Franois Amyot. Were the Commission to have
proceeded on the Seventh Claim for Relief, the trial would have included the presentation of
1
See Plaintiffs Proposed Jury Instructions and Opening Remarks at 1 [Dkt. #147] (noting that
proposed instructions omit reference to the Seventh Claim for Relief, based on anticipated dismissal of
the claim).

Case 1:12-cv-12334-IT Document 158 Filed 11/10/14 Page 3 of 8

evidence that Spencer violated Section 10(b)(5) of the Exchange Act and Rule 10b-5 thereunder,
in order to prove that defendant Amyot was secondarily liable for those violations as a control
person of Spencer. In light of the stipulation of dismissal, the Commission no longer anticipates
presenting such evidence at trial as to Spencers underlying liability.
III.

PRE-ADMISSION OF DOCUMENTS

As the Court is aware, the Commission has respectfully requested that the Court allow
the pre-admission of trial exhibits to which defendant Amyot has not objected, and further, that
the Court consider ruling on the admissibility of exhibits introduced through deposition
testimony in advance of the trial. To the extent such rulings are feasible for the Court, the
Commission submits that it could streamline the trial and assist in the efficient presentation of
evidence. Should the Court determine in advance of the trial that certain of the exhibits
introduced via deposition testimony appear inadmissible, the Commission would respectfully
request an opportunity to address any admissibility issues identified by the Court or the
defendant in advance of the trial as to those proposed exhibits.
IV.

DEFENDANTS LACK OF DEPOSITION DESIGNATIONS

Pursuant to the Courts Procedural Order dated September 25, 2014, the parties were
required to submit any proposed designations of depositions and any objections thereto by no
later than November 3, 2014. [Dkt. #112.] Prior to the deadline, the parties met and conferred
about the Commissions proposed designations and any objections by the defendant, and the
Commission timely filed those designations. 2 [Dkt. #144.] While defendant Amyot previously

2
In order to further streamline the proof, the Commission is working to identify any portions of the
designated depositions that could be struck in advance of trial. The Commission will promptly advise
defendant Amyot if and/or when any portions of the now-designated testimony will be deleted, should
Amyot have a completeness objection.

Case 1:12-cv-12334-IT Document 158 Filed 11/10/14 Page 4 of 8

advised the Commission, and informed the Court on Wednesday, November 5, that he intends to
designate deposition testimony for trial, 3 he has yet to provide to the Commission or, to the
Commissions knowledge, submit to the Court any such designations.
Given the late date, the Commission objects to the identification and admission of any
deposition designations by the defendant at trial. While the Defendant would be within his rights
to impeach live witnesses with their deposition testimony, or to use it for purposes of refreshing
recollection, pursuant to Federal Rules of Evidence 612 and 613, inter alia, it would be unfairly
prejudicial to the Commissions preparation for trial to permit the defendant to identify
deposition testimony at this late date for introduction at trial. The Commission recognizes and is
mindful of the fact that the defendant is representing himself pro se, and has endeavored to give
him every courtesy and consideration throughout this matter (including, for example, making
multiple filings and submissions on his behalf and providing multiple reminders regarding the
deadlines in the Courts Procedural Order). Nonetheless, having elected to represent himself,
defendant Amyot should not be permitted to simply ignore court-imposed deadlines without
consequences, at the cost of prejudicing the plaintiffs preparation for trial.
V.

DEFENDANTS VOIR DIRE QUESTIONS

The Commission objects to the defendants request for certain voir dire questions 4
specifically, Questions (1), (2), (5), (6), (7), (8), (9), (11) and (12). Those questions are:
(1)

Do you understand that Jean-Francois Amyot starts this trial as an innocent man?

(2)

Do you understand that the burden of proof, latin Maxim simper necessitas

3
During a telephone conference on November 7, 2014, defendant Amyot advised the Commission
staff that he intended to designate portions of deposition testimony by Ian Morrice, Maximilien Arella,
and Rami Ailabouni, but that he had not yet done so. Morrice and Arella are expected to testify at trial as
live witnesses; Ailabouni is not.
4
The Commission has no objection to Amyots proposed Questions (3), (4), (10) and (13).

Case 1:12-cv-12334-IT Document 158 Filed 11/10/14 Page 5 of 8

probandi incumbit ei qui agit of the best translation; the necessity of proof
always lies with the person who lays charges?
(5)

Are you a Sports Fan? (a) Yes. Are you a hockey fan? (i) Are you a Boston
Bruins Fan? (1) Yes, Do you know the Montreal Canadiens as being the biggest
rival? (a) Yes, the fact that the Defendant is from Montreal, would that cause you
to Favor the United States Government?

(6)

If you were the Defendant, would you be completely comfortable having you as a
juror on this case?

(7)

Jean-Francois Amyot is French Canadian, are you sensible of any bias against a
person who is French Canadian?

(8)

Jean-Francois Amyot lived in the Bahamas, a tax free heaven (sic) for a period of
18 months, are you sensible to any bias against living in the Caribbean or not
paying taxes?

(9)

This case is expected to last one week and may extend to the following week,
which is the long weekend of Thanksgiving, Would a trial of this length cause
you undue hardship?

(11)

Do you believe that the fact that Jean-Francois Amyot is representing himself
against the government is evidence of his guilt?

(12)

Do you think that Jean-Francois Amyot must have done something wrong if he is
being pursued by the United States Securities Commission?

The Court has broad discretion in conducting the voir dire process and in making specific
inquiries of the potential jurors. United States v. Misla-Aldarondo, 478 F.3d 52, 60 (1st Cir.
2007); United States v. Brown, 938 F.2d 1482, 1485 (1st Cir. 1991); Real v. Hogan, 828 F.2d 58,
62 (1st Cir. 1987); see also Skilling v. United States, 561 U.S. 358, 362 (2010) (concluding that
jury selection is particularly within the province of the trial judge) (internal citation and
quotation marks omitted). This broad discretion means that there is no hard-and-fast formula
and the voir dire questions are subject only to the essential demands of fairness. Skilling, 561
U.S. at 362; Real, 828 F.2d at 62. The standard of review in this context is the abuse of
discretion. United States v. Sherman, 551 F.3d 45, 49 (1st Cir. 2008); Real, 828 F.2d at 62.
5

Case 1:12-cv-12334-IT Document 158 Filed 11/10/14 Page 6 of 8

With regard to Questions (1) and (2), the Commissions proposed voir dire question on
the burden of proof properly states the law, while Amyots questions do not. See Dkt. #146 at
26 (Plaintiffs Proposed Voir Dire Questions). Similarly, while the Commissions proposed
voir dire questions attempt to elicit possible bias towards or against the litigants, Question (6)
improperly asks prospective jurors to determine whether Amyot himself should be comfortable
with their empanelment. While Amyot has a right to a fair trial, he should not be permitted to
ask the jurors to preemptively engage in jury selection on his behalf. Any assessment of whether
defendant Amyot should be comfortable with a prospective juror is his sole responsibility.
Questions (5) and (7) inquire as to regional and/or ethnic bias against Montreal
specifically and French Canadians more generally. While not an improper topic for jury
selection, Amyots Questions are both inartfully phrased and unlikely to achieve the sought-after
result of identifying fair and impartial jurors. As to Question (5), inquiring about jurors regional
sports loyalties seems unsuitable given the subject matter of this trial, which involves NHL
hockey not at all. While the Commission does not object to asking if jurors would favor the
United States government in a case against Canadian defendants, the Commission submits that
delving into the strength of the jurors allegiance to the Boston Bruins as suggested in Question
(5) would likely would lead to a time-consuming, and ultimately fruitless, side-show.
Moreover, as to Question (7), the trial court retains great latitude in deciding what
questions should be asked on voir dire to uncover racial or ethnic bias. MuMin v. Virginia, 500
U.S. 415, 424, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). See, e.g., United States v. Salameh, 152
F.3d 88, 121 (2nd Cir. 1998) (no abuse of discretion in jury selection where judge elected not to
use defendants proposed questions verbatim, and the inquiry as to religious, ethnic or cultural
bias was proper and thorough). While the Commission does not oppose asking voir dire
6

Case 1:12-cv-12334-IT Document 158 Filed 11/10/14 Page 7 of 8

questions to ferret out possible prejudices, such questions are typically posed during individual
voir dire, given the sensitivity of these topics and the slim likelihood that a prospective juror will
openly admit racial or ethnic bias in a packed courtroom. Given the absence of any evidence that
such biases are likely to influence the jurys decision in this case, the Commission submits that
individual voir dire is wholly unnecessary, as the Court can pose thoughtfully crafted questions 5
to the jury pool that will provide the parties with sufficient information about possible bias.
As to Question (8), this question is flawed in the same fashion as Questions (5) and (7),
in asking whether the jury pool is sensible of any bias against the Caribbean in general, but is
additionally problematic in that it seeks to inquire of jurors about the tax free haven of the
Caribbean and whether the jurors have any bias against not paying taxes. Questions about the
jurors feelings about taxation are entirely irrelevant and unlikely to elicit any probative answers.
Defendant Amyot is not on trial for violating the U.S. tax laws, nor is there likely to be any
evidence adduced at trial about his payment of taxes or lack thereof.
Finally, with regard to Questions (9), (11) and (12), the Commission submits that the
topics addressed (length/scope of the trial and impartiality) are thoroughly addressed by the
Commissions voir dire questions, and that if the Court adopts the Commissions proposed
questions, Amyots Questions (9), (11) and (12) are redundant, and thus unnecessary. 6

5
Among other things, the Commissions proposed voir dire questions put the jurors on notice that
many of the witnesses hail from Canada, and ask about familiarity with the French language. (Dkt. #146
at 7, 23) The Commissions proposed voir dire questions also seek to elicit possible bias in other ways,
inquiring as to religious and philosophical beliefs, feelings about the government, and whether there is
anything in their background or personal circumstances about which the parties should be aware. (Id. at
27, 28, 29)
6
See, e.g., Plaintiffs Proposed Voir Dire Questions at 4 (length of trial and holiday schedule),
8-15 (experience with courts, SEC, law enforcement more generally), 24-29 (fairness and
impartiality). (Dkt. #146)

Case 1:12-cv-12334-IT Document 158 Filed 11/10/14 Page 8 of 8

CONCLUSION
The Commission is prepared to address any of the Courts questions on these topics at the
Final Pre-Trial Conference on November 12, 2014 at 2:30 p.m., or on any other matters related
to the upcoming jury trial. To the extent defendant Amyot raises any further issues of law, or
submits any additional motions prior to November 12, the Commission respectfully requests an
opportunity to address late-raised matters at the final pre-trial conference.

Date: November 10, 2014

SECURITIES AND EXCHANGE COMMISSION

By its attorneys,
/s/ Rua M. Kelly
Rua M. Kelly (Mass. Bar No. 643351)
James R. Drabick (Mass. Bar No. 667460)
33 Arch Street, 23rd Floor
Boston, Massachusetts 02110
Telephone: (617) 573-8941 (Kelly direct)
Facsimile: (617) 573-4590
E-mail: kellyru@sec.gov

CERTIFICATE OF SERVICE
I, Rua M. Kelly, certify that on November 10, 2014, the foregoing Plaintiffs Trial Brief
was filed electronically with the Court and was served upon each party appearing pro se by
electronic means.
/s/ Rua M. Kelly
Rua M. Kelly