UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

SECURITIES AND EXCHANGE COMMISSION

Plaintiff,

v.

JUSTIN W. KEENER D/B/A JMJ FINANCIAL,

Defendant.

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No. 20-cv-21254

Hon. Beth Bloom

PLAINTIFF SECURITIES AND EXCHANGE COMMISSION’S

OMNIBUS MOTION IN LIMINE AND INCORPORATED MEMORANDUM OF LAW

INTRODUCTION 

Plaintiff Securities and Exchange Commission respectfully moves in limine for this Court 

to enter an Order precluding Defendant Justin Keener d/b/a JMJ Financial from offering evidence 

or arguments, or mentioning in any way in the presence of the jury, including in opening and 

closing statements, anything regarding (1) allegations or evidence purporting to relate to due 

process, fair notice and estoppel defenses; (2) non-public communications between the SEC’s 

Office of Interpretation and Guidance (“Guidance Office”) and members of the public; (3) 

advice, involvement or presence of counsel; (4) remedies that the SEC might seek; (5) hardships 

that Defendant allegedly might suffer; and (6) Rule 144 under the Securities Act of 1933 

(“Securities Act”) and any opinions of counsel relating to Rule 144. 

I. Background

The SEC’s single claim is that the Defendant operated as an unregistered dealer in 

violation of Exchange Act Section 15(a). See 15 U.S.C. §78o. Defendant has asserted a number 

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of affirmative defenses, including his assertion that the SEC’s claim should be barred on the 

ground of lack of due process and fair notice (Third Affirmative Defense), estoppel (Fourth 

Affirmative Defense), statute of limitations (Fifth Affirmative Defense), and advice of counsel 

(Sixth Affirmative Defense). Dkt. #30, Answer, Affirmative Defenses 3, 4, 5, and 6. Defendant 

also has asserted affirmative defenses (Seventh through Tenth Affirmative Defenses) that relate 

to the remedies that the SEC might seek in this case. 

The SEC has filed a motion for summary judgment that asks the Court to enter judgment 

in favor of the SEC and against Defendant on the SEC’s claim, and on the Defendant’s Third, 

Fourth, Fifth, and Sixth Affirmative Defenses. 

II. Legal Standards 

“The purpose of a motion in limine is to give the judge notice of a party’s desire to 

prevent the introduction of damaging evidence that may impact the fairness of a trial.” Biscayne 

Cove Condo. Ass'n Inc. v. QBE Ins. Corp., No. 10-23728-CIV, 2013 WL 2646828, at *3 (S.D. 

Fla. June 12, 2013) (italics added) (internal citations omitted). “In order to exclude evidence in 

limine it must be inadmissible on all potential grounds.” Id. (italics added).

The decision to admit or exclude evidence is committed to the broad discretion of the

District Court. City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 556 (11th Cir.

1998); see also Cabello v. Fernandez-Larios, 402 F.3d 1148, 1161 (11th Cir. 2005). The Court 

has wide discretion in determining the relevance of evidence produced at trial. To be admissible, 

evidence must be relevant. Fed. R. Evid. 402. Evidence is relevant only if: (a) it has any 

tendency to make a fact more or less probable than it would be without the evidence; and (b) the 

fact is of consequence in determining the action. Fed. R. Evid. 401. Even if evidence is

relevant, Federal Rule of Evidence 403 allows the Court to exclude the evidence if its probative 

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value is substantially outweighed by a danger of unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. 

Fed. R. Evid. 403. Based upon this standard, the Commission respectfully requests that the 

Court use its discretion to exclude the evidence detailed below.

III. Matters That Should Be Excluded From the Trial1

A. The Court Should Preclude Evidence and Argument to the Jury Regarding 

Defendant’s Due Process, Fair Notice, And Estoppel Defenses, Which Are 

Purely Legal And Will Not Go To The Jury

Even if the Court does not grant the SEC’s motion for summary judgment against the 

Defendant on his Third through Sixth Affirmative Defenses, there still should be no mention to 

the jury of the subject matter of those affirmative defenses or any evidence or allegations 

pertaining to them because they are purely legal issues to be decided by the Court and not the 

jury. As discussed in the SEC’s Motion for Summary Judgment, due process, fair notice, and 

estoppel defenses lodged against the SEC (i.e., Defendant’s Third through Sixth Affirmative 

Defenses) are purely questions of law to be decided by the Court and, in this case, should be 

denied as a matter of law. 

A constitutional Due Process or “fair notice” claim necessarily challenges the language of 

a statute on the basis of vagueness. See Papachristou v. City of Jacksonville, 405 U.S. 156, 162 

(1972). “[T]he issue of whether a [law] is void for vagueness is a question of law for the court to 

determine,” not a jury. United States v. House, 684 F.3d 1173, 1207 (11th Cir. 2012). 

Similarly, Defendant’s claim that the SEC failed to provide adequate guidance to the 

market with respect to the dealer registration statute (Dkt. # 47 at 1-2) is also an issue of law to 

 1 The SEC has moved for summary judgment against Defendant on his Third through 

Tenth Affirmative Defenses. If that motion is granted, then Defendant should be precluded from 

making any reference to the subject matter of those defenses.

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be determined by the Court, not a jury. “The relevant question is not whether [the Defendant] 

had fair notice of the [agency’s] interpretation of the statute, but whether [the Defendant] had fair 

notice of what the statute itself requires.” FTC v. Wyndham, 799 F.3d 236, 253-54 (3d Cir. 

2015) (emphasis added). “The court ... is the ultimate arbiter of the statute’s meaning.” Id., 799 

F.3d at 251; see also House, 684 F.3d at 1207. 

Finally, Defendant’s arguments—that the Commission is estopped from bringing this 

action because “no trader in Mr. Keener’s position has ever been required to register with the 

SEC” (Dkt. #14 at 4) and “the SEC has never interpreted the dealer registration statute to 

encompass the type of conduct at issue in this case” (Dkt. #47 at 2)—are matters of law to be 

determined by the Court, not the jury. “The Commission may not waive the requirements of an 

act of Congress nor may the doctrine of estoppel be invoked against the Commission.” SEC v. 

Culpepper, 270 F.2d 241, 248 (2d Cir. 1959); SEC v. Morgan, Lewis, and Bockius, 209 F.2d 44, 

49 (3d Cir. 1953); SEC v. Badian, 2010 WL 1028256 at *2-3 (S.D.N.Y. 2010) (discovery denied 

into affirmative defenses of estoppel against the SEC); SEC v. Rivlin, No. 99–1455, 1999 WL 

1455758, at *5 (D.D.C. Dec. 20, 1999) (citing Culpepper and granting SEC motion to strike 

defenses based on estoppel and waiver). 

B. The Court Should Exclude All Non-public Communications Between the 

SEC’s Guidance Office and Members of the Public

As part of his Third and Fourth Affirmative Defenses, Defendant asserts that he 

allegedly had no clear notice that his conduct was illegal, asserting that “no trader in Mr, 

Keener’s position has ever been required to register with the SEC;” and “the SEC has never 

interpreted the dealer registration statute to encompass the type of conduct at issue in this case.” 

Defendant also claims that the SEC failed to provide clear guidance with regard to dealer 

registration requirements. Dkt. #14 at 4, 7, 12, and 14; and Dkt. #47 at 2. 

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In support of those assertions, Defendant has pointed to documents including 

communications between the Guidance Office and various members of the public regarding 

dealer registration requirements. See, e.g., Dkt. #47-15, 16, 17. Defendant was not a party to 

such documents, and no basis exists to believe that Defendant ever received or saw them until 

obtaining them in discovery in this litigation. 

If the Court grants the SEC’s summary judgment motion against Defendant on his due

process, fair notice and estoppel defenses, then the non-public communications between the 

Guidance Office and members of the public obviously would be irrelevant to any issue in the 

case and should be excluded. And if the Court grants the SEC’s request (supra) to exclude from 

the jury trial all references to those affirmative defenses, then also the communications would be 

irrelevant to any issue in the trial and thus should be excluded.

But even if the Court does not grant the SEC’s motion for summary judgment and does 

not preclude all reference to those affirmative defenses, the communications between the 

Guidance Office and members of the public still are not probative of the affirmative defenses, 

and thus are irrelevant and should be excluded. 

Non-public communications between staff attorneys in the Guidance Office and 

individual members of the public cannot supplant or change the law applicable to Defendant’s 

conduct. The expressly informal communications staff attorneys had with individuals do nothing 

to alter the unambiguous language of the dealer registration statute (Exchange Act Section 15(a))

[15 U.S.C. §78o], the definition of the term dealer (Exchange Act Section 3(a)(5)(A)) [15 U.S.C. 

§ 78c(a)(5)(A)], or the Eleventh Circuit’s opinion in SEC v. Big Apple Consulting USA, Inc., et 

al., 783 F.3d 786, 809 (11th Cir. 2015). 

Nor do these documents in any way establish that the SEC is estopped from bringing this 

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action. Because these documents fail to support any of Defendant’s challenges to the 

Commission’s charge—but rather uniformly refer the public to the controlling statutes, rules, 

regulations, and case law, and/or advise them to seek the advice of an attorney—they lack any 

probative value and should be excluded from the trial. 

Even if the Court were to determine that estoppel is actionable against the 

Commission—and it is not—the elements required to establish such a defense are that: 1) there 

was a “definite” representation to the party claiming estoppel; 2) the latter “relied on its 

adversary’s conduct in such a manner as to change his position for the worse”; and 3) that the 

reliance was “reasonable.” See Graham v. SEC, 222 F.3d 994, 1008 (D.C. Cir. 2000) (citing

Community Health Servs., 467 U.S. at 59 (1984)).

It is undisputed—and a search for any communications between the Defendant and the 

Guidance Office confirmed—that neither Defendant nor any of his employees ever contacted 

the Guidance Office to request any information about dealer registration. Ex. 1 (Keener Dep. 

254:23 – 255:15) (attached hereto). Moreover, Defendant does not recall being confused about 

the Guide at any point prior to being investigated. Id. at 264:21-265:16. As such, the 

Guidance Office never made any sort of “definite” representation to him about his need to 

register as a dealer. In addition, Defendant has never identified any materials or 

communications authored by the Guidance Office upon which he relied when determining not 

to register as a dealer. 

Because Defendant cannot demonstrate that any information from the Guidance Office

ever reached him during any relevant time period, the office’s communications with other 

members of the public cannot possibly be relevant to his due process, fair notice, or estoppel 

defenses. 

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Moreover, the Guidance Office documents—of which the Commission produced 580—

further lack any probative value because they do not show that the office provided legal advice 

to the public, supplanted the law applicable to dealer registration, or in any way confused the 

public with respect to dealer registration. First, consistent with information contained in the 

SEC’s Guide (Dkt. # 47-4),

2 the Guidance Office staff members are instructed to decline to 

provide legal advice and instead urge questioners to consult an attorney. The staff followed the 

protocol, and none of their responses gave rise to any due process, fair notice, or estoppel

defenses. See Dkt. #47-15,16, 17; SEC-JMJ-OIG-183, 372, 388, and 432 (attached hereto as 

Exhibits 2-5).

Second, the Guidance Office staff did not take any action to supplant the language of 

the statute or the law in the Eleventh Circuit. In fact, the staff routinely referred the public to 

the Guide (which as discussed above admonishes readers to rely on the law) and case law. Id. 

Third, the staff did not confuse the public about the registration requirements. Rather, the 

communications uniformly decline to apply the facts of any particular inquiry to the law, or 

reach any conclusions about registration, such that no confusion was created. Id. 

The following examples from the Guidance Office documents highlight these points 

and are representative of the 580 documents produced by the Commission: 

• In response to a question about the then-pending Almagarby case, the SEC responded, 

in part: 

The Commission staff generally cannot comment on Enforcement 

Actions other than to provide information already made public by 

the Commission. If there is a specific fact pattern you are seeking 

 2 The Guide instructs that “[w]hile the staff attempts to provide guidance by telephone to 

individuals who are making inquiries, the guidance is informal and not binding. Formal 

guidance may be sought through a written inquiry that is consistent with the SEC’s guidelines for 

no-action, interpretive, and exemptive requests.” Id. at 4. The Guide also advises that the “SEC 

staff cannot act as an individual’s or broker-dealer’s lawyer.” Id. 

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guidance on, you may send us a request for a no-action letter. 

Procedures applicable to requests for no-action and interpretive 

letters are available in Securities Act Release No. 6269 

(http://www.sec.gov/rules/other/33-6269.pdf). [Dkt. # 48-4]

• In response to a question about a possible new or gray area of the industry, the SEC 

responded: 

If private counsel determines that the types of activities you/your 

firm intends to engage in fall within a gray area (e.g., because you 

are engaging in some new type of activity or are providing services 

in some unique way), you could seek no action relief based on that 

unique set of circumstances. [Exhibit 2, SEC-JMJ-OIG-372.]

• In response to a question about the “trader exception,” the SEC responded: 

Thus, for a more formal answer to whether you fit the definition of 

the term “dealer” and would need to register with the Commission 

or if you would be able to rely on the “trader” exemption from 

registration, you would need to seek the counsel of an attorney 

familiar with the securities regulations and relevant case law. 

[Exhibit 3, SEC-JMJ-OIG-388.]

As these examples demonstrate, the communications are not probative of Defendant’s 

due process, fair notice, or estoppel defenses. In any case, Defendant never contacted the 

Guidance Office, nor did he review any of these communications during the time period in 

question, much less rely on them to formulate his decision not to register. Ex. 1 (Keener Dep. 

254:23 – 255:15, 264:21 – 265:16) (Defendant did not know anyone who contacted the SEC 

regarding his or their dealer registration status). Critically, the evidence does not in any way 

supplant or confuse the well-established and unambiguous dealer registration statute or the law 

in the Eleventh Circuit. The communications thus should be excluded because they are 

irrelevant. Moreover, introduction of those communications would only “confuse[e] this issues,” 

cause “undue delay,” and “wast[e] time,” and therefore also should be excluded under Fed. R. 

Evid. 403. 

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C. The Court Should Exclude Evidence and Argument Regarding Remedies the 

Commission Seeks Against Defendant in This Case

Because two of Defendant’s three expert reports deal exclusively with the equitable 

remedy of disgorgement, the SEC anticipates that Defendant will seek to introduce to the jury 

evidence pertaining to the SEC’s potential claim for disgorgement. The Court should preclude

Defendant from offering any evidence or making any argument about any potential remedies—

including disgorgement, penalties, and the entry of an injunction or a penny stock bar—the Court 

may impose if the jury finds Defendant liable. 

The jury’s role as trier of fact is to determine whether Defendant violated the federal 

securities laws. The determination of the proper remedies, should the jury find the Defendant 

liable, lies exclusively within the discretion of the Court. 15 U.S.C. § 78u(d)(1), (3), (5), (6), and 

(7). Equitable remedies are to be decided by the court, as opposed to the jury. See James v. CSX 

Transp. Inc., No. 4:15-CV-204(CDL), 2017 WL 2535726, at *2 (M.D. Ga. 2017) (stating, 

“Equitable relief . . . is decided by the judge and not the jury. The jury’s job is to decide any 

factual disputes, and then the judge may fashion an equitable remedy based on those factual 

findings”) (citations omitted); Pals v. Schepel Buick & GMC Truck, Inc., 220 F.3d 495, 500–01 

(7th Cir. 2000); SEC v. Castaldo, No. 08 Civ. 8397(JSR), 2009 WL 2591376, at *1 (S.D.N.Y. 

2009) (acknowledging that equitable remedies and civil monetary penalties are within the 

discretion of the court and not for jury determination). 

It is entirely improper to present any evidence or argument at trial regarding these 

potential remedies. Any discussion or evidence regarding remedies—such as disgorgement, civil 

monetary penalties, injunctive relief, or a penny stock bar—is irrelevant to the jury’s task of 

determining liability. The issue of remedies is solely the domain of the judge and any argument 

or evidence on this issue before the jury would only lead to jury confusion.

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D. The Court Should Exclude Evidence and Argument Regarding Advice, 

Involvement or Presence of Counsel

Defendant should not be permitted to refer to any advice, involvement, or presence of 

counsel with regard to whether he was acting as an unregistered dealer. As shown in the SEC’s 

motion for summary judgment, the SEC’s claim for Section 15(a)(1) of the Exchange Act is a 

strict liability claim that does not require any showing of intent. 

In cases involving other violations for failure to register under the securities laws, courts 

have held that advice of or reliance on counsel defenses are insufficient to avoid liability. See 

SEC v. PV Enterprises, No. 16-20542-Civ-Scola, 2016 WL 8808697, at *4 (S.D. Fla. Jun. 28, 

2016) (in case involving failure to register securities under Section 5 of the Securities Act, 

“neither a good faith belief that the offers or sales in question were legal, nor reliance on the 

advice of counsel, provides a complete defense”) (quoting SEC v. Friendly Power Co., 49 F.

Supp. 2d 1363, 1368 (S.D. Fla. 1999)). Therefore, whether Defendant allegedly relied on advice 

of counsel is irrelevant, and should not be presented to the jury.

But even if advice of counsel was theoretically a viable defense to a Section 15(a)(1)

claim, Defendant does not satisfy the required elements.3

 “To succeed with a defense of good 

faith reliance on the advice of counsel, the defendant must show that 1) he fully disclosed all 

relevant facts to his counsel and 2) he relied in good faith on his counsel’s advice.” United 

States v. Parker, 839 F.2d 1473, 1482 n.6 (11th Cir. 1988); SEC v. Huff, 758 F. Supp. 2d 1288, 

1348-49 (S.D. Fla. 2010) (collecting cases). 

 3 Even if Defendant had actually sought and received advice of counsel (which he did 

not), and could meet the factors to establish the defense, that would only be relevant (if at all) to 

remedies, such as the amount of penalties to be imposed. SEC v. Calmes, No. 09-80524-CIV, 

2010 WL 11505260, at *5 (S.D. Fla. Nov. 19, 2010). That is a question for the Court, not the 

jury.

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Defendant can make neither showing because he did not consult an attorney about his 

potential dealer liability. Defendant has testified that he did not seek or receive attorney advice 

that he was not acting as a dealer and did not need to register as a dealer. Ex. 1 (Keener Dep. 

237:8-11, 246:18-23). Because Defendant plainly does not satisfy the elements of a reliance on 

advice of counsel defense, the Court should exclude any mention of counsel (including any 

attorney opinion letters that he received stating that he complied with SEC Rule 144, discussed 

infra).

Even the mention that counsel were consulted or involved should be excluded because it 

“would likely confuse the jury,” who could “easily believe that the fact that a lawyer is present . . 

. means that he or she must have implicitly or explicitly ‘blessed’ the legality of the defendants’ 

conduct.” SEC v. Tourre, 950 F. Supp. 2d 666, 684 (S.D.N.Y. 2013). Such evidence would 

allow Defendant “all of the essential benefits of an advice of counsel defense without . . . the 

burden of proving any of [its] elements.” Id.; see also SEC v. Kokesh, No. 09-cv-1021, 2014 

WL 11516545, at *3 (D.N.M. July 21, 2014) (finding the “probative value” of such evidence is 

“outweighed by the danger that the jury will be misled and confused”); SEC v. Mapp, No. 16-cv00246, 2017 WL 8780604, at *2 (E.D. Tex. Dec. 4, 2017).

E. The Court Should Preclude Defendant From Referring to Any Alleged 

Hardships Pertaining to This Litigation or Related Investigations

The SEC anticipates that Defendant or his counsel might refer in the presence of the jury 

to allegations about personal hardships that the Defendant allegedly may have suffered or might 

suffer in the future as a result of this litigation, the outcome of the litigation, or the investigations 

that preceded or are related to the litigation. 

Courts consistently have held that testimony about hardships related to litigation or 

investigations is irrelevant and unfairly prejudicial, and therefore have granted motions in limine

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to preclude such testimony. As the court stated in SEC v. Moran, No. 95 CIV. 4472 (BN), 1995 

WL 785953, at *1 (S.D.N.Y. Oct. 31, 1995), “[i]t is well settled that the trier of fact must 

consider only the factual issue of liability without regard to any potential consequences which 

may befall a defendant.” (citing Shannon v. United States, 512 U.S. 573, 579 (1994)).

(“Information regarding the consequences of a verdict is therefore irrelevant to the jury's task.”)).

The prohibition on raising hardships applies to pre- and post-filing difficulties related to 

the litigation and any related pre-filing investigations. As the Court stated in SEC v. Berretini, 

No. 10–cv–1614, 2015 WL 4247776, at *2 (N.D. Ill. Jul. 14, 2015):

The Court agrees with the SEC that such evidence offers little if any 

probative value of the question of Berrettini's liability or non-liability. 

See Fed.R.Evid. 401; SEC v. Steffes, 10–cv–6266 (N.D.Ill.2014), [261] 

at 4; SEC v. Moran, 1995 WL 785953, at *1 (S.D.N.Y. Oct. 31, 1995). 

Furthermore, any probative value that such evidence theoretically may 

have is substantially outweighed by the risk of wasting time, confusing 

the issues, and evoking sympathy—none of which are valid bases for 

offering evidence or testimony. Accordingly, this evidence is 

inadmissible under Rule 403. Fed.R.Evid. 403.

Similarly, in SEC v. Spencer Pharmaceutical Inc., 58 F. Supp. 3d 165, 166 (D. Mass. 2014), the 

court granted the SEC’s motion to exclude evidence of any negative effects arising from the 

investigations by the SEC or a Canadian regulator into the defendant’s alleged violations of law 

or from any possible adverse consequences if the defendant were found liable for violations of 

U.S. securities law. 

And in SEC v. The Nutmeg Group, LLC, No. 09-cv-1775, 2017 WL 3269389, at *7-8 

(N.D. Ill. Aug. 1, 2017), the court excluded evidence of defendants’ “poor financial condition” 

because it “could provoke sympathy by jurors, prompting them potentially to excuse a violation 

of the law because [defendants] did not benefit from their scheme and already have suffered 

financial hardship.” See also SEC v. Jacobs, No. 1:13 CV 1289, 2014 WL 12597832, at *5 

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(N.D. Ohio Feb. 25, 2014) (granting SEC’s motion to exclude any testimony about adverse 

consequences the defendant might suffer if he were found liable, because such evidence “is not 

relevant, and even if such evidence were relevant, it is more prejudicial than probative.”). 

References to Defendant’s purported hardships of any sort, whether personal, emotional, 

financial, or career-related, and whether past, present or future, are irrelevant to any issues in this 

case. References to any such hardships would waste time, confuse the jury, and unfairly evoke 

sympathy—“none of which are valid bases for offering evidence or testimony.” Berretini, 2015 

WL 4247776, at *2; see also FRE 403.

F. The Court Should Exclude All Evidence and Argument Relating to 

Purported Compliance With Rule 144 Under the Securities Act

The SEC anticipates that Defendant will contend that he was not a dealer under Exchange 

Act Section 15(a)(1) [15 U.S.C. § 78o(a)(1)] because he purportedly complied with SEC Rule 

144 [17 C.F.R. § 230.144] promulgated under the Securities Act [15 U.S.C. § 77a et seq.]. Rule 

144 applies to unregistered sales of securities under the Securities Act, not registration of dealers 

under Section 15(a)(1) of the Exchange Act.

Defendant is expected to argue that: (1) he held the securities for the time period set forth 

in SEC Rule 144; and/or (2) received attorney opinion letters that he obtained before selling 

stock from convertible notes that opined that he had properly complied with Rule 144 (which is 

effectively an advice of counsel defense, see supra). 

Any reference to Rule 144 is a red herring because it simply does not pertain to whether 

one has to register as a dealer of securities under the Exchange Act. The question of whether 

compliance with Rule 144 avoids the need to register the securities transaction itself is wholly 

irrelevant to whether one needs to register as a dealer under the Exchange Act.

Therefore, any reference to compliance with regard to Rule 144, or any opinion letters 

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from counsel to that effect, are completely irrelevant to the claim in this case that Defendant 

failed to register as a dealer under Section 15(a)(1) of the Exchange Act. Any references to Rule 

144 or communications with counsel about that should be excluded from the trial. 

The SEC anticipates that Defendant will maintain the position he did at the pleadings 

stage, where he intimated that because he received opinion letters from attorneys opining that, in 

holding securities for six months, he had complied with SEC Rule 144 and that this meant that 

he was not a dealer. 4 But Rule 144, by its own terms does not apply to the question of whether a 

person meets the definition of dealer in the Exchange Act. Indeed, the caption to Rule 144 

makes clear that it is inapposite to the purpose for which Defendant will seek to use it: “Persons 

deemed not to be engaged in a distribution and therefore not underwriters.” The Rule 144 

procedure for selling stock has nothing to do with the registration of dealers under the Exchange 

Act. Instead it relates to statutory underwriting (i.e., acting as a de facto underwriter without 

properly registering the securities to be sold), as the caption of the Rule indicates. See Big 

Apple, 783 F.3d at 807 (discussing Rule 144 in the context of whether defendants were statutory 

 4 In his motion to dismiss, Defendant contended: 

In fact, as the preliminary note to SEC Rule 144 indicates, 

compliance with SEC Rule 144 involves a conclusion that the 

person engaging in the transaction is a person “other than an issuer, 

underwriter, or dealer” under the Securities Act of 1933. 17 C.F.R. 

§ 230.144 (emphasis added) (“A person satisfying the applicable 

conditions of the SEC Rule 144 safe harbor is deemed not to be 

engaged in a distribution of the securities and therefore not an 

underwriter of the securities for purposes of Section 2(a)(11). 

Therefore, such a person is deemed not to be an underwriter when 

determining whether a sale is eligible for the Section 4(1) 

exemption for ‘transactions by any person other than an issuer, 

underwriter, or dealer.’”). 

Dkt.# 14 at 13 n.10

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underwriters). The Rule 144 procedure for selling stock has nothing to do with the registration 

of dealers under the Exchange Act, and the danger of Defendant confusing the jury with 

evidence that (for instance) Defendant received hundreds of Rule 144 opinion letters vastly 

outweighs any arguable relevance. The Court should therefore preclude any mention of Rule 

144 and exclude any attorney opinion letters related to it.

CONCLUSION

The SEC respectfully requests that the Court enter an order in limine that Defendant and 

his counsel shall not, while in the presence of the jury, offer or elicit any testimony or other 

evidence about and shall not mention or make any reference to: (1) allegations or evidence 

purporting to relate to due process, fair notice and estoppel defenses; (2) non-public 

communications between the SEC’s Office of Interpretation and Guidance and members of the 

public; (3) advice, involvement or presence of counsel; (4) remedies that the SEC might seek; (5) 

hardships that Defendant allegedly might suffer; and (6) Rule 144 under the Securities Act and 

any opinions of counsel relating to Rule 144. 

Pursuant to Local Rule 7.1(a)(3), undersigned counsel hereby certifies that on August 12, 

2021, they conferred with counsel for Defendants in a good faith effort to resolve the issues 

presented in this motion by agreement, but counsel were unable to reach an agreement.

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DATE: August 13, 2021 Respectfully submitted, 

By: 

 /s/

 Joshua E. Braunstein

Antony Richard Petrilla

Attorneys for Plaintiff

SECURITIES AND EXCHANGE COMMISSION

100 F Street NE 

Washington, DC 20549

Telephone: (202) 551-8470

Braunsteinj@sec.gov

ATTORNEYS FOR PLAINTIFF 

SECURITIES AND EXCHANGE 

COMMISSION 

Case 1:20-cv-21254-BB Document 64 Entered on FLSD Docket 08/13/2021 Page 16 of 17
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CERTIFICATE OF SERVICE

 

I hereby certify that on August 13, 2021, I filed Plaintiff Securities and Exchange Commission’s

Omnibus Motion In Limine and Incorporated Memorandum of Law through the Court’s 

CM/ECF system, which automatically sends notices to counsel of record in this case. 

 /s/

 Joshua E. Braunstein

ATTORNEY FOR PLAINTIFF 

SECURITIES AND EXCHANGE 

COMMISSION 

Case 1:20-cv-21254-BB Document 64 Entered on FLSD Docket 08/13/2021 Page 17 of 17