Fate of ex-Avon resident charged with investment fraud, theft of $259,000 in hands of jury
Prosecution paints Andrew Thacker as a deceitful ‘shark’ while defense says he was victim to a scam as well
In the final day of the trial of Andrew Thacker, a former Avon resident who allegedly cheated a friend out of $259,000, the prosecution attempted to prove to the jury that Thacker displayed a pattern of deceitful behavior to cut through the defense’s assertions that he is a victim himself.
Thacker, who owns a number of businesses in the renewable energy sector, is charged with securities fraud and theft, both class 3 felonies, for an allegedly fraudulent investment he promoted to Edward Koziol in 2015, according to charging documents.
The defense has attempted to prove that Thacker didn’t return Koziol’s money because he was so desperate to fund his ventures in the renewable energy sector that he himself became entrapped in a scam.
This doesn’t negate the fact that Thacker omitted information and blatantly lied to Koziol to get him to invest more than a quarter of a million dollars of his inheritance money, the prosecutor, Colorado Senior Assistant Attorney General Jason Slothouber, said in his closing argument.
“If you’re a shark like Mr. Thacker and you prey on a fish like Mr. Koziol, watch out because there’s bigger sharks in the ocean,” Slothouber said of Thacker’s own victimization.
The defense claims Koziol gave Thacker a personal loan that Thacker was unable to repay because he fell victim to a “prime bank scheme,” a technique used by high-level scammers in which someone is asked to put up large amounts of money to get in on an exclusive — non-existent — trading platform or banking opportunity.
“(Thacker) is one of the two victims in this case,” Thacker’s defense attorney, Gary Lozow, said in his closing argument Friday.
Personal loan or investment?
All week, the prosecution and the defense danced around a few questions that will be central to the jury’s deliberation over Thacker’s guilt or lack thereof.
The first is whether the inheritance money that Koziol gave Thacker in the summer of 2015 was a personal loan or an investment. This will determine whether the transaction is protected by the anti-fraud provision of the Colorado Securities Act, which considers investments as “securities,” but not loans.
When questioned by the prosecution Friday, Thacker maintained that he considered the money as a loan and had described it to Koziol as such.
In a sampling of email correspondences between Thacker and Koziol presented by the prosecution, Thacker referred to the money as an “investment.” Koziol testified that it was always communicated to him as an investment opportunity to enter a deal orchestrated by Thacker, who he said was his best friend at the time, to get on to the elite “Tier One” trading platform which, of course, turned out to be a scam.
Thacker admitted he was not aware of a single email among the more than 8,000 subpoenaed as evidence by the attorney general’s office in which he referred to the transaction as a loan or personal loan.
He said he used different language when speaking to Koziol in person or on the phone and that, when he said investment, he meant “an investment in me.”
Thacker testified that he needed a personal loan from Koziol to secure a bank guaranty that his scammers said would allow him to pool money with big-time investors and gain access to “Tier One,” where he could double his money in just a few months. He admitted that he didn’t tell Koziol about the bank guaranty and lied about what he really did with most of the money.
The state uses a four-pronged test called the “Howey Test” to determine if a transaction is an investment or not, said Gerald Rome, a former Colorado securities commissioner and expert witness called by the prosecution.
For something to be considered an investment, there must, of course, be an investment of money, that investment must be made into a “common enterprise” that includes at least the investor and the seller, and there must be an expectation to earn a profit.
Finally, that profit must be achieved through successful managerial effort demonstrated by the enterprise which, in this case, would be Thacker, said Sarah Domke, another prosecutor on the case.
The prosecution argued that the transaction satisfied every aspect of this test. Koziol gave Thacker a sum of money in checks to Avra Energy, Thacker’s business, and was under the impression that it would be invested in a trading platform which would turn a profit in three to four months’ time. The arrival of this profit was dependent upon the management of the funds by Thacker, prosecutors said.
To back up these assertions, the prosecution highlighted an email in which Thacker referred to the money Koziol was supposed to make on the transaction as “profit” and another where he said he never should have “brought him in” on the “deal.” This, they said, is not language typically used around loans.
The defense, on the other hand, said the transaction was clearly a loan agreement and, given Thacker’s certifications in the world of securities, he was well aware of the difference.
If the jury determines that the transaction was indeed an investment, jurors will then have to decide whether Thacker’s handling of the investment violated the anti-fraud provision of the Colorado Securities Act, which is triggered when the seller of an investment omits or misrepresents “material facts” associated with the investment.
Material facts include the risks involved with the investment, the financial condition of the enterprise and how the investor’s funds will be used, among other things.
The money trail
In his closing argument, Slothouber told jurors that the only thing they needed to look at in deciding Thacker’s guilt are the lies he told Koziol around how he used his $259,000.
Some of the money went to Thacker’s business partner in Mexico, Abdel Rodriguez Lizarraga, according to copies of Thacker’s bank statements produced by the prosecution. Thacker thought Lizarraga was coordinating with him to get the bank guaranty for the deal but, in reality, he was in on the prime bank scheme Thacker was ensnared in.
But Thacker spent the rest of Koziol’s money on personal expenditures completely unrelated to the deal — a brand-new Audi, paying off credit card debt and legal fees, and stops at King Soopers and Taco Bell.
Koziol wrote the last of six checks to Thacker in August of 2015 and all $259,000 was gone by the end of September, the prosecution said.
Thacker said buying a new Audi was a necessary “marketing” measure meant to impress a potential investor in his renewable energy business who was visiting him in Vail.
Not only did Thacker “willfully deceive” Koziol about using his money to purchase the car, but it was purchased to mislead other potential investors about the extent of his personal wealth and success in the hopes of securing an investment, Slothouber said.
“I thought I had full authority (to purchase the car) because it was a personal loan,” Thacker said.
Slothouber said that, if Thacker believed this to be true, he could have said this to Koziol but, according to email evidence, he did not. Instead, he told Koziol that the car was purchased using funds from his 401K and his wife’s individual retirement account.
This wasn’t the only time that Thacker willfully mislead someone, the prosecution said.
Slothouber produced evidence that Thacker lied on an employment reference letter in 2015 to help a man named James Dunsing get an apartment. He also produced emails where Thacker talks about doing “the two-step” to delay telling a real estate agent he was working with that he didn’t have the funds for a $3 million home that he had entered into contract negotiations to purchase.
This brings forward the second question jurors must answer as they deliberate Friday evening: Did Thacker act in “good faith” or did he willfully mislead Koziol about the opportunity leading up to his investment in 2015?
Lozow, Thacker’s attorney, said Thacker acted in “good faith” because he unwittingly passed on false information about the deal to Koziol that his scammers were feeding him.
The prosecution, on the other hand, said Thacker still omitted information about the bank guaranty and lied about his intentions to use much of Koziol’s money to cover his own personal expenses.
Slothouber said Thacker has never had any intention of paying back Koziol even to this day. Thacker refuted this, saying that he had taken a position as the chief operating officer and now chief executive officer of a company in Texas — where he now lives — in order to pay Koziol back.
Slothouber asked Thacker, if that was the case, why he hadn’t repaid Koziol. After all, Thacker testified that he had an estimated $800,000 in artwork, was making payments on a $340,000 condo in Texas and was making over $200,000 annually in his new role, Slothouber said.
Thacker hinted at having offered Koziol a settlement through his lawyer after charges were brought against him, but said he had not paid back any of what he owed to Koziol directly.
Thacker’s fate was placed in the hands of the jury members just after 4:30 p.m. Friday afternoon.
Email Kelli Duncan at firstname.lastname@example.org