Appendix — Jenkins v. New Mexico Securities Division

is Supreme Court, u.s.

Y) PILBD

No. BH e § 26 su 10 1%,

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

SAM S. JENKINS SR.,

Petitioner

vs.

STATE OF NEW MEXICO SECURITIES DIVISION

Respondent

SUPPLEMENTARY APPENDIX TO WRIT

TO THE UNITED STATES COURT OF APPEALS

FOR THE NEW MEXICO COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

SAM S. JENKINS, SR.,

PRO SE APPELLANT

POB 21032

ALBUQUERQUE, N.M. 87154

TELEPHONE: 505-821-7522

November 14, 1995

IN THE COURT OF APPEALS OF THE

STATE OF NEW MEXICO

STATE OF NEW MEXICO SECURITIES DIVISION,

Plaintiff-Appellee

No. 15,836

FILED

vs. 95 MAR 16 AM 8:30

COURT OF APPEALS

STATE OF NEW MEXICO

P.R. WALLACE, CLERK

SAM S. JENKINS, SR.,

Defendant~-Appel lant

ADMINISTRATIVE APPEAL FROM THE

NEW MEXICO SECURITIES DIVISION

Nancy M. Smith, Director

Michael J. Vargon

Santa Fe, New Mexico Deputy Director

New Mexico

Securities

Division

Sam S. Jenkins, Sr.

Albuquerque, New Mexico Pro Se

PIN

ALARID, Judge.

Respondent Sam S. Jenkins, Sr. appeals the

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a

Securities Division order dated August 9, 1994.

This Court's calendar notice proposed to affirm

the order of the Securities Division.

Respondent filed an untimely memorandum in

opposition to this Court's proposed disposition,

due December 13, 1994, but filed on December 20,

1994. Even if we consider the arguments made by

Respondent in the untimely memorandum, however,

we are unpersuaded by them for the' following

reasons. 3

In the calendar notice, we stated that

judicial review of decisions by agencies is

based on the whole record. Cibola Energy Corp.

v. Roselli, 105 N.M. 774, 776, 737, P.2d 555, |

557 (Ct. App. 1987). In order to determine

whether the Securities Division erred in

adopting the recommendations of the hearing

officer, this Court independently examines the

administrative record to determine whether that

decision was arbitrary and capricious, was

supported by substantial evidence, and was

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within the scope of the administrative body's

authority. Anaya v. New Mexico State Personnel

Bd., 107 N.M. 622, 625, 762, P.2d 909, 912 (Ct.

App. )cert. denied, 107 N.M. 673, 763, P.2d 689

(1988). This Court must determine whether, on

balance, the record as a whole contains

substantial evidence to support the Security

Division's findings. Id.; see also In re

Mountain Bell, 109 N.M. 504, 505, 787, P.2d 423,

424 (1990). and In re Apodaca, 108 N.M. 175,

177, 769, P.2d 88, 90 (1989). We must also

determine that the findings made support the

- conclusions of law and that the conclusions of

law are sound.

In Adopting the recommendations of the

hearing officer, the Securities Division

concluded that: (1) the shares in All States

Publishing Inc. offered by Respondent were

"securities" within the meaning of NMSA 1978,

Section 58-13B-2(V) (Repl. Pamp, 1991) of the

Securities Act of 1986 (the "Act"); (2)

Respondent violated

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NMSA 1978, Section 58-13B-20 (Repl. Pamp. 1991)

of the Act by offering to sell securities which

were neither registered nor exempt under the

Act; (3) Respondent violated Section NMSA 1978,

58-13B-3(A) (Repl. Pamp. 1991) of the Act by

offering to sell securities as an unlicensed

sales representative; (4) the Division did not

sustain its burden of proof in showing that

Respondent's conduct violated NMSA 1978, Section

58-13B-5 (Repl. Pamp. 1991) of the Act by acting

as an unlicensed investment advisor; and (5)

given these violations, it was in the public

interest and consistent with the purposes of the

Act to enter a final order. In the Final Order,

the Securities Division ordered the Respondent

to: (1) cease and desist from soliciting,

offering, and selling securities of any kind in

New Mexico without first complying with all

requirements of the Act; and (2) within thirty

days of the receipt of the Order pay a total

civil penalty in the amount of $2,000.00

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pursuant to NMSA 1978, Section 58-13B-37 (Repl.

Pamp. 1991) of the Act.

After reviewing the memorandum in

opposition, we continue to believe that except

for the legal issues discussed below,

Respondent's "Points" on appeal appear to be

matters relating to the conduct of witnesses and

attorneys, the bases of facts, the credibility

and truthfulness of the witnesses involved, and

documents presented at the Securities Division

hearing--all matters for the fact finder rather

than this Court. See Herman v. Miner's Hosp.,

_111N.M.550, 552, 807, P.2d 734, 736, (1991)("to

determine whether a challenged finding is

supported by substantial evidence, we have

always given the deference to the fact finder,

even when we apply... the whole record review").

Moreover, as we stated in the calendar notice,

the existence of conflicting or contradictory

evidence obligates the fact finder to resolve

the conflicts and contradictions. See.

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Mascarenas v. Jaramillo, 111 N.M. 410, 412, 806,

P.2d 59, 61, (1991) (only the trier of fact may

weigh the testimony, determine the credibility

of witnesses, reconcile inconsistent or

contradictory statements of a witness, and

ascertain the truth).

After reviewing the Memorandum, and because

the Securities Division began its investigation

of Respondent prior to learning about the

content of the book Respondent was writing, we

continue to believe that Respondent has provided

this court with essentially conclusory

allegations on appeal of "unsupported evidence";

"fraudulent targeting" and “harassment” in

another case resulting in a "conflict of

interest" in this case; "mis-statements and

deception"; "erroneous" discussion of facts and

"mis-Statements"; and "political persecution".

See Thornton v. Gamble, 101, N.M. 764, 769, 688,

P.2d 1268, 1273, (Ct.App. 1984)(counsel must set

out al) relevant facts in the docketing

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statement).

Accordingly, we affirm the Securities

Division August 9, 1994 order as based on

substantial evidence on the record as a whole

with regard to the points raised by Respondent

relating to the credibility and truthfulness of

the witnesses, integrity of the hearing

officer,and findings of fact made by the

Securities Division.

On the legal issues, we hold that the

Securities Division applied the law correctly.

First, we affirm the Securities Division's

determination that the shares offered by the

Respondent in All States Publishing, Inc. are

"securities." See NMSA 1978, Section 58-13B-2(V)

(Repl.Pamp 1991; see also State v. Sheets, 94

N.M. 356, 360-361, 610 P.2d 760,764-765

(Ct.App.), cert denied, 94 N.M. 675, 615, P.2d

992 (1980).

Second, we are not convinced on the record

before us after review of the relevant statues,

New Mexico case law and the out-of-state case

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law cited by Respondent in the memorandum that

Respondent's offering of securites is exempt

from the registration requirements set forth in

Section 58-13B-20 under NMSA 1978, Section 58-

13B-27(A) (Repl. Pamp. 1991)(exemption for and

isolated non-issuer transaction). Respondent

acted as and unlicensed sales representative of

the issuing company by offering shares of stock

as investment opportunities, hence as

securities, to the public pursuant to a

newspaper advertisement, information sheet

certificate of shares, and purchase agreement,

for the benefit of himself/his company, the

issuer. Whether any sales actually took place

is irrelevant to the determination under Section

58-13B-20, since that statute forbids

unregistered nonexempt offerings or sales of

securities. Moreover, under the current New

Mexico law, the isolated non-issuer transaction

exemption is designed to cover commercial

transactions such as the one time sale of two

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businesses. White v. Solomon 105 N.M. 366, 368,

732, P.2d 1389, 1391 (Ct. App. 1986), cert.

denied 105 N.M. 290, 731 P.2d 1334 (1987).

Finally, Respondent has not given this

Court any facts raised below or legal

authorities which support his assertion that he

was exempt from the sales representative

licensing requirements of Section 58-13B-?(A),

in a situation where the Act places the burden

upon the person claiming an exemption See NMSA

1978, Section 58-13B 28(B) (Repl.Pamp. 1991);see

also Golden Cone Concepts, Inc. v Villa Linda

Mall, 113 N.M. 9, 12, 820, P.2d 1323, 1326

(1991) ("when a party is challenging a legal

conclusion, the standard for review is whether

the law correctly was applied to the facts,

viewing them in a manner most favorable to the

prevailing party, indulging all reasonable

inferences in support of the court's decision,

and disregarding all inferences or evidence to

the contrary").

The bearing officer's findings of fact and

conclusions of law appear to be based on

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substantial evidence on the record as a whole.

The findings support the conclusions and the

conclusions appear to be sound. Accordingly, we

affirm the Securities Division's Findings of

Fact, Conclusions of Law, and Final Order

entered on August 9, 1994.

IT IS SO ORDERED.

A. JOSEPH ALARID, Judge

WE CONCUR:

RUDY S. APODACA, Chief Judge

HARRIS L HARTZ, Judge

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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Monday, April 10, 1995

NO. 22,780

STATE OF NEW MEXICO SECURITIES

DIVISION,

Plaintiff-Respondent

vs.

SAM S. JENKINS, SR.,

Defendant-Petitioner,

ORDER

This matter coming on for consideration by the

Court upon petition for writ of certiorari, and

the Court having considered said petition, and

being sufficiently advised;

NOW, THEREFORE, IT IS ORDERED that petition

for writ of certiorari is denied.

IT IS FURTHER ORDERED that the Record in

Cause No. 15836 is returned to the Clerk of the

Court of Appeals.

ATTEST: A True Copy

KATHLEEN JO GIBSON

CLERK OF THE SUPREME COURT

BY

Chief Deputy

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