Owner
Post by Franko10 ™ on Jun 17, 2005 14:19:59 GMT -5
Mr. Casavant was then called as the SEC's final witness. After being sworn in, Mr. Casavant stated and spelled his full name, Urban Armand Joseph Casavant, for the record.
"What is your occupation?" Ms. Hakala asked.
"Fifth," came the one-word reply from Mr. Casavant.
Gerald Griffin, one of two lawyers representing Mr. Casavant, rose to explain that his client would be asserting his Fifth Amendment privilege to all questions from the SEC.
After a brief discussion, Mr. Casavant was asked to read for the record the Fifth Amendment privilege he was asserting.
"Upon advice of counsel, I respectfully refuse to answer the question pursuant to the Fifth Amendment to the United States Constitution on the grounds that the answer may tend to incriminate me and/or subject me to fine, penalty, and/or forfeiture," Mr. Casavant read the prepared statement.
After a further brief discussion, it was agreed that Mr. Casavant could shorten the response to "Fifth Amendment" for subsequent questions.
"Mr. Casavant, where do you work?" asked Ms. Hakala.
"Fifth Amendment," said Mr. Casavant.
"What is the address there?" came the next question.
"Fifth Amendment," came the reply.
"And what is your role there?" Ms. Hakala asked.
"Fifth Amendment," said Mr. Casavant.
The SEC lawyer then asked Mr. Casavant to look at an exhibit of a Jan. 7, 2003, news release.
When the witness was asked whether he had found the exhibit by both the judge and Ms. Hakala, Mr. Casavant's other lawyer, David Chesnoff, rose.
"I don't want him to answer any questions so -- including that question," Mr. Chesnoff said.
"Fifth Amendment," Mr. Casavant chimed in.
Another discussion ensued, with Mr. Stoecklein raising an objection for the record about harassment.
"The witness has already testified that he's pleading the Fifth," Mr. Stoecklein said. "We need the record to reflect that this is harassment."
Mr. Chesnoff offered some thoughts, too.
"Your Honor, also in addition, just so the record is clear, the Fifth Amendment is a protection," Mr. Chesnoff said. "It's guaranteed to every U.S. citizen and every person within the jurisdiction of the United States.
"It's not any kind of acknowledgement of any kind of guilt or admission of any kind. It's rather a protection against the potential for the government to make accusations whether they're true or not.
"In addition, Your Honor, the Fifth Amendment protection avoids the possibility of the government putting somebody in what's characterized as a perjury trap or accusations that false statements are made.
"And in the history of SEC investigations, that's been a problem for people who have actually wanted to co-operate and find themselves not giving the answers that the SEC wants to hear and then subjecting themselves to prosecutions for false statements.
"So with that in mind, Your Honor, upon the advice of two counsel who are both advising him based on our experience, we're going to ask that he just decline to answer any questions, and most respectfully you, Your Honor, because I've been observing and I'm not trying to be discourteous because you run a great proceeding, but he's not even going to want to answer questions about whether things are in front of him or not."
In further discussion, the lawyers and the judge agreed that Mr. Casavant did have the right to assert the Fifth Amendment privilege in the civil proceeding.
There was also some discussion of the ramifications flowing from a company's chief executive officer asserting the Fifth Amendment privilege in a civil proceeding.
According to the SEC, an adverse inference could be drawn as to the company in that situation. Evidently that was Judge Murray's preliminary understanding, too.
"If the president of the company takes the Fifth Amendment and there's an adverse inference to be drawn, it says if the president of the company answered the questions truthfully, it would damage the company," Judge Murray said. "It would be adverse to the company's position in this case.
"I think now you all lawyers can argue about that on a brief, but that's my understanding, but I'll have to read up on the law. Okay.
"Well, let's just finish with the witness if we can. So you want to make a record that you're asking him specific questions that he's refusing to answer them, so let's hear the question."
With that, Ms. Hakala returned to the Jan. 7, 2003, news release, reading a sentence from it for the record.
"The purpose of the audit is to make sure that every shareholder of record is identified for CMKI's mandatory share and cash dividend policy," Ms. Hakala read out.
"Mr. Casavant, was a shareholder audit ever done?" the SEC attorney queried.
"Fifth Amendment," said Mr. Casavant.
"Was every shareholder of record identified?" the lawyer asked.
"Fifth Amendment," said the witness.
"Is it your intention to assert the Fifth Amendment privilege against self-incrimination as to all questions regarding the shareholder audit?" asked Ms. Hakala.
"Fifth Amendment," said Mr. Casavant.
Ms. Hakala turned next to the minutes of a Jan. 12, 2003, special meeting of the company's board of directors authorizing the issuance of shares.
"Mr. Casavant, did CMKM Diamonds or, as it was formerly known, Casavant Mining Kimberlite International, issue stocks to over 300 shareholders of record on Jan. 12, 2003?" Ms. Hakala asked.
"Fifth Amendment," was the reply.
"Were those shares issued for field work in Canada?" the lawyer asked.
"Fifth Amendment," said Mr. Casavant.
And so it went, with Ms. Hakala posing questions regarding a number of exhibits including press releases and a July 22, 2003, Form 15 filed with the SEC claiming that the company had less than 300 shareholders.
To every question, Mr. Casavant intoned, "Fifth Amendment."
Mr. Casavant asserted the same privilege when asked whether he knew Mr. Williams and when asked about conversations he had with the chief executive officer of U.S. Canadian Minerals.
"Is it your intention to assert the Fifth Amendment privilege against self-incrimination as to all questions regarding steps taken by CMKM Diamonds to prepare periodic reports?" Ms. Hakala asked as she was nearing the end of her direct examination.
"Fifth Amendment," said Mr. Casavant.
"And is it your intention to assert the Fifth Amendment privilege against self-incrimination as to all questions regarding CMKM Diamonds?" Ms. Hakala queried.
"Fifth Amendment," said Mr. Casavant.
That ended Ms. Hakala's examination.
Not surprisingly, neither Mr. Stoecklein nor Mr. Frizzell had any cross-examination.
Before the witness was excused, Judge Murray drew from his lawyers that neither one would be billing CMKM for representing Mr. Casavant.
As Mr. Casavant stepped down, Ms. Hakala told the court that the SEC had concluded its direct presentation in the case.
"What is your occupation?" Ms. Hakala asked.
"Fifth," came the one-word reply from Mr. Casavant.
Gerald Griffin, one of two lawyers representing Mr. Casavant, rose to explain that his client would be asserting his Fifth Amendment privilege to all questions from the SEC.
After a brief discussion, Mr. Casavant was asked to read for the record the Fifth Amendment privilege he was asserting.
"Upon advice of counsel, I respectfully refuse to answer the question pursuant to the Fifth Amendment to the United States Constitution on the grounds that the answer may tend to incriminate me and/or subject me to fine, penalty, and/or forfeiture," Mr. Casavant read the prepared statement.
After a further brief discussion, it was agreed that Mr. Casavant could shorten the response to "Fifth Amendment" for subsequent questions.
"Mr. Casavant, where do you work?" asked Ms. Hakala.
"Fifth Amendment," said Mr. Casavant.
"What is the address there?" came the next question.
"Fifth Amendment," came the reply.
"And what is your role there?" Ms. Hakala asked.
"Fifth Amendment," said Mr. Casavant.
The SEC lawyer then asked Mr. Casavant to look at an exhibit of a Jan. 7, 2003, news release.
When the witness was asked whether he had found the exhibit by both the judge and Ms. Hakala, Mr. Casavant's other lawyer, David Chesnoff, rose.
"I don't want him to answer any questions so -- including that question," Mr. Chesnoff said.
"Fifth Amendment," Mr. Casavant chimed in.
Another discussion ensued, with Mr. Stoecklein raising an objection for the record about harassment.
"The witness has already testified that he's pleading the Fifth," Mr. Stoecklein said. "We need the record to reflect that this is harassment."
Mr. Chesnoff offered some thoughts, too.
"Your Honor, also in addition, just so the record is clear, the Fifth Amendment is a protection," Mr. Chesnoff said. "It's guaranteed to every U.S. citizen and every person within the jurisdiction of the United States.
"It's not any kind of acknowledgement of any kind of guilt or admission of any kind. It's rather a protection against the potential for the government to make accusations whether they're true or not.
"In addition, Your Honor, the Fifth Amendment protection avoids the possibility of the government putting somebody in what's characterized as a perjury trap or accusations that false statements are made.
"And in the history of SEC investigations, that's been a problem for people who have actually wanted to co-operate and find themselves not giving the answers that the SEC wants to hear and then subjecting themselves to prosecutions for false statements.
"So with that in mind, Your Honor, upon the advice of two counsel who are both advising him based on our experience, we're going to ask that he just decline to answer any questions, and most respectfully you, Your Honor, because I've been observing and I'm not trying to be discourteous because you run a great proceeding, but he's not even going to want to answer questions about whether things are in front of him or not."
In further discussion, the lawyers and the judge agreed that Mr. Casavant did have the right to assert the Fifth Amendment privilege in the civil proceeding.
There was also some discussion of the ramifications flowing from a company's chief executive officer asserting the Fifth Amendment privilege in a civil proceeding.
According to the SEC, an adverse inference could be drawn as to the company in that situation. Evidently that was Judge Murray's preliminary understanding, too.
"If the president of the company takes the Fifth Amendment and there's an adverse inference to be drawn, it says if the president of the company answered the questions truthfully, it would damage the company," Judge Murray said. "It would be adverse to the company's position in this case.
"I think now you all lawyers can argue about that on a brief, but that's my understanding, but I'll have to read up on the law. Okay.
"Well, let's just finish with the witness if we can. So you want to make a record that you're asking him specific questions that he's refusing to answer them, so let's hear the question."
With that, Ms. Hakala returned to the Jan. 7, 2003, news release, reading a sentence from it for the record.
"The purpose of the audit is to make sure that every shareholder of record is identified for CMKI's mandatory share and cash dividend policy," Ms. Hakala read out.
"Mr. Casavant, was a shareholder audit ever done?" the SEC attorney queried.
"Fifth Amendment," said Mr. Casavant.
"Was every shareholder of record identified?" the lawyer asked.
"Fifth Amendment," said the witness.
"Is it your intention to assert the Fifth Amendment privilege against self-incrimination as to all questions regarding the shareholder audit?" asked Ms. Hakala.
"Fifth Amendment," said Mr. Casavant.
Ms. Hakala turned next to the minutes of a Jan. 12, 2003, special meeting of the company's board of directors authorizing the issuance of shares.
"Mr. Casavant, did CMKM Diamonds or, as it was formerly known, Casavant Mining Kimberlite International, issue stocks to over 300 shareholders of record on Jan. 12, 2003?" Ms. Hakala asked.
"Fifth Amendment," was the reply.
"Were those shares issued for field work in Canada?" the lawyer asked.
"Fifth Amendment," said Mr. Casavant.
And so it went, with Ms. Hakala posing questions regarding a number of exhibits including press releases and a July 22, 2003, Form 15 filed with the SEC claiming that the company had less than 300 shareholders.
To every question, Mr. Casavant intoned, "Fifth Amendment."
Mr. Casavant asserted the same privilege when asked whether he knew Mr. Williams and when asked about conversations he had with the chief executive officer of U.S. Canadian Minerals.
"Is it your intention to assert the Fifth Amendment privilege against self-incrimination as to all questions regarding steps taken by CMKM Diamonds to prepare periodic reports?" Ms. Hakala asked as she was nearing the end of her direct examination.
"Fifth Amendment," said Mr. Casavant.
"And is it your intention to assert the Fifth Amendment privilege against self-incrimination as to all questions regarding CMKM Diamonds?" Ms. Hakala queried.
"Fifth Amendment," said Mr. Casavant.
That ended Ms. Hakala's examination.
Not surprisingly, neither Mr. Stoecklein nor Mr. Frizzell had any cross-examination.
Before the witness was excused, Judge Murray drew from his lawyers that neither one would be billing CMKM for representing Mr. Casavant.
As Mr. Casavant stepped down, Ms. Hakala told the court that the SEC had concluded its direct presentation in the case.
