Miscarriage of Justice?

By Warren S. Hersch

April 23, 2012 at 11:11 AM

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Four years ago, Glenn Neasham met with Fran Schuber and her long-time companion to close the sale of a fixed indexed annuity that would assure the 83-year-old senior of a guaranteed income for the remainder of her retirement years. Except for Schuber's designation of the annuity's contingent beneficiary, Neasham viewed the transaction as straightforward—one of many the veteran life insurance agent had carried out of a popular product since it became widely available the same year.

The sale turned out to be anything but routine. Neasham, 52, now stands guilty of felony theft under California's financial elder abuse statute. The crime: selling an annuity to a woman suffering from dementia. Stripped of his insurance license and dependent on financial assistance from family members, the once-successful producer now is free on bail pending the appeal of an October 21 sentence that had called for him to serve 300 days in prison, which was later reduced to only 90 days.

The life insurance community, like Neasham, awaits the case's outcome with trepidation. If the conviction is upheld, sources tell National Underwriter, it could require producers to show greater due diligence in annuity sales. When judging product suitability, not only will agents have to evaluate prospects' financial situation but also, observers fear, their competency to proceed with the sale. And many producers may be averse to so delicate an undertaking.

"There may be no way, other than by the agent asking the question, as to whether the annuity applicant is suffering from some form of cognitive impairment," says Mike Rosaasen, vice president of Centennial, Colo.-based Triumph Marketing, the field marketing organization that serviced Neasham's sales of Allianz and other carrier products. "They may not want to do this extra fact-finding. Agents are already facing enough obstacles that hinder sales."

The Start of a Nightmare Neasham's current difficulties are the result of a four-year train of events dating to 2008. In January of that year, Louis Jochim, a long-time client, contacted Neasham to arrange for the purchase of an Allianz Life MasterDex 10 fixed indexed annuity to Jochim's companion of many years, Fran Schuber.

Himself the owner of an Allianz Life fixed indexed annuity, Jochim saw it as ideal for Schuber. The product provides downside protection against market slides, and like other fixed indexed annuities, it captures a portion of market gains through a passive investment strategy that increases the annuity's value in tandem with positive changes in one of several recognized market indexes.

Factoring in also the annuity's tax-deferred growth and its track-record—since 1994, Neasham says, the MasterDex 10 has enjoyed an average 8% rate of return in equity options and between 3% and 3.5% annual interest on its fixed account—Schuber stood to earn more on her retirement nest egg than she was then generating on the paltry interest paid on the $239,000 she had invested in a bank CD.

The product, says Neasham, offered other advantages that fit Schuber's financial situation. Among them: a 10% bonus paid on premiums added during the first five years of the contract; a guaranteed monthly income paid for 10 years or longer after the initial 5-year deferral/surrender charge period; free withdrawals of up to 10% annually of the annuity's account value (accelerated distributions in the event the policyholder enters a nursing home, as transpired with Schuber); plus flexible income options, including traditional annuity payments or lifetime income withdrawals. "If there were a better product on the market, I would have sold it to her," says Neasham. "The MasterDex 10 was a very safe solution, underwritten by a financially strong company—Allianz Life, the 3rd biggest money manager and the 15th biggest corporation in the world."

The sale clinched in February of '08, Neasham invested all ($175,000) but $100,000 of Schuber's retirement savings in the annuity. And per Schuber's request, he designated Jochim as the product beneficiary in the event of her death.

Neasham voiced concern, however, about Schuber's stated preference for the contingent beneficiary: Betty Koenig, Jochim's daughter, rather than Schuber's son Ted, from whom she had been estranged for many years.

This issue—not the product's suitability or Schuber's competence to agree to the transaction—was the sole complication that Neasham thought might invite scrutiny from Allianz or the State of California Insurance Dept. And so, Neasham says, he had Schuber sign a "CYA" letter confirming her choice of beneficiary. The letter also states that she purchased the annuity of her "own free will," in part to secure the product's tax-favored treatment.

Neasham adds that, the day after the sale, he invited the son to a client appreciation dinner that Schuber was scheduled to attend. But the son declined; thus was lost an opportunity to patch up relations with his mother and get himself named as the annuity's contingent beneficiary.

"During a follow-up phone conversation on February 6th, two days after the sale, Ted said he was concerned about his mom's overall health, but at no time did he mention that she had dementia or Alzheimer's Disease," says Neasham. "If he had done so, I would immediately have stopped the transaction from going through.

"The policy wasn't even issued yet and [Schuber] had a 30-day free-look period," he adds. "If I had had any inkling of a mental health issue, I would immediately have called Allianz and asked them and my FMO [Triumph Marketing] what to do in this situation. I would also have contacted the client and asked further questions about her mental health."

The first sign of trouble arose even before the ink on the annuity contract was dry. When Jochim accompanied Schuber to her bank on February 4 to withdraw the $175,000, he called Neasham to say the bank was "giving them problems in reference to moving the money."

The reason: Jochim's purported "influence" over Schuber who—the prosecutor later argued at Neasham's trial—was confused about the reason for the withdrawal. (The bank rep who handled the request, Neasham insists, mentioned nothing about Schuber's comportment at the time.)

Neasham's intervention helped to facilitate the withdrawal, but the legitimacy of the transaction was again thrown into doubt when the bank alerted the California Dept. of Insurance to the withdrawal. In December, DOI Investigator Kristian Schriber began questioning the parties to the sale. For Neasham, the CYA letter he had drafted for his protection had become a bone of contention; Schriber contended, despite Neasham's protestations to the contrary, that he had Schuber sign the February letter because he "knew something was wrong" with her. Something was indeed wrong by this point, as Neasham understood only too clearly. The DOI was an investigating a sale that, if shown to be unsuitable and in contravention of California law, could lead to a suspension or revocation of his life insurance license. And, if the violation were brought to criminal court and judged a felony, he could also be hit with jail time.

Schuber's mental health, an issue that had not arisen in discussions with Schuber and Jochim leading up to the February sale, was now front-and-center. Neasham says he asked Jochim after learning of the DOI investigation in December if Schuber had ever been diagnosed with Alzheimer's disease or other form of dementia.

Jochim said 'no'. He repeated the denial three days after Neasham's arrest in December 17, 2010. Neasham adds that Jochim's 2008 and 2010 statements dovetailed with the personal observations of Penny Patrick in September 2009, then a part-time assistant of Neasham who accompanied him that year at Schuber's annual client review.

"Penny, who is now a medical assistant, has worked with many people who have dementia and she noticed nothing wrong with Fran during our September 2009 meeting," says Neasham. "I haven't seen Fran since, other than the two times at the court house during my trial. She is remarkably different today than in 2008 and 2009."

Jochim agrees, adding that Schuber was only diagnosed with Alzheimer's Disease in August of 2011. It is true that Schuber exhibited dementia-like symptoms as early as 2003. But, Jochim and Neasham insist, her condition was only definitively identified long after the sale. And, in any case, Neasham says, he did not know about Schuber's medical history.

The jury at Neasham's trial evidently decided otherwise, which judged him guilty on October 21 of one of the charges the Lake County District Attorney's office filed against him in December of 2010: theft from an elder, a felony. He was acquitted of two other special allegations, one of which stipulates that the theft exceeded $100,000.

Deciphering the Jury's Logic The reasoning by which the 12-person panel arrived at this verdict remains a mystery, and not only for Neasham. Others interviewed by National Underwriter for this article—two long-time clients of Neasham who were due to testify at trial, a senior executive at Neasham's field marketing organization, Jochim and, significantly, one of the jurors on the panel—questioned the jury's ruling on the facts of the case.

Topping the list: the conviction of theft against a senior. As sources repeatedly pointed out, Schuber's initial investment grew—to the tune of $42,000 over the three years and seven months that she held the annuity.

The gains reinforced Schuber's expressed sentiment about the product at the time of sale and during the subsequent months. As Jochim points out, she was "very happy that she made money."

Of course, Neasham also made money on the sale. But, he notes, the commission was about average for the industry—between 8% and 9%. Given the product's consistent performance over the years, the up-front commission hardly seems like extortion, much less theft, he adds. "The attorneys I've spoken to about the case believe the trial verdict will be overturned," he says. "This wasn't theft—she made $42,000 on the product. All I did was take the application and initial premium check and send them to Allianz Life."

"Clearly, no theft was involved," adds Triumph Marketing's Rosaasen. "There have been cases where agents sold an annuity and made themselves the beneficiary or the annuitant. That's theft—not what Neasham did.

Sources point to other facts that would seem to bolster the case for acquittal on the theft charge. First, the sale was nothing out ordinary for Neasham: By his estimate, some 80% of his clients own the product, among them many who share Schuber's client profile (her mental state notwithstanding).

Second, Schuber, at her companion's urging, approached Neasham to buy the annuity—he simply fulfilled a purchasing decision the couple had decided on. Third, Neasham satisfied the $77,250 liquidity requirement under California's financial elder abuse statute (Welfare and Institutions Code Section 15610.30) to proceed with the sale, as Schuber retained more than $100,000 in banks savings outside of the annuity.

Procedural Issues None of these points made a lasting impression on the jury at trial. And a key reason, a member the panel contends, is the bias that several members of the panel held against Neasham, and to an extent, the life insurance industry.

That member, Robert O'Briant, contends that two of the jurors had decided at the start of trial that Neasham was guilty based on reporting of the case in a local newspaper. Three jurors, he adds, were prejudiced in their views because they all had elderly family members who suffered from dementia. One of the three, in O'Briant's retelling, "wanted to send a message to the industry" because it was inappropriately encouraging the sale of annuities to elderly seniors.

O'Briant says he alerted the judge to the jurors' alleged bias during sentencing, but to no effect. Why did O'Briant himself side with his colleagues in rendering a unanimous verdict when he was not convinced of Neasham's guilt?

"Three of us on the jury initially favored acquittal for Neasham," he says. "One by one, the other two dropped out. On the last day of the trial, I was the only one holding out, and so felt compelled to switch my vote. I felt really bad about my decision."

Others on the panel had no such qualms about the verdict. Their conviction as to Neasham's alleged moral turpitude, sources say, rested in large measure on a videotape presented into evidence showing a cognitively impaired Fran Schuber in August of 2011 turning to, and being directed by, Jochim when an insurance investigator asked her questions.

"You could tell how controlling the boyfriend [Jochim] was during the questioning," says O'Briant. "In the videotape, she answered few questions and mostly looked to her boyfriend for answers. He cared for her, but he was overprotective."

"When the jury saw the videotape, I was toast," adds Neasham. "That recording sealed my conviction."

Perhaps. But it didn't help that evidence which might have bolstered Neasham's defense didn't make it to trial or was compromised because of the timing and quality. Case in point: Neasham's character witnesses. Four long-time clients of his, including two interviewed for this article—Ed Robey, a now retired district supervisor for Lake County; and Roy Parmentier, a city council member for Lakeport, the Lake County seat—were never called to testify on Neasham's behalf. By all accounts, that is because the criminal defense attorney, Mitchell Hauptman, seemingly confident that an acquittal was in the offing, dismissed them as they were waiting outside the courtroom.

"I had hoped to testify that Glenn has always conducted himself in a very businesslike and professional way with me," he says, echoing a sentiment expressed by Robey. "As to the Masterdex 10, I bought the annuity because it's a great product—and I'm not senile."

"I don't understand the attorney's decision," he adds. "While I was sitting on a bench with Glenn's other clients, he came out and said, 'we don't think we'll need you guys. You can all go home'."

Hauptman did not respond to National Underwriter's request for comment.

Also disconcerting, observers say, is Hauptman's recommendation to not play back for the jury an audiotape recording of Schuber under questioning from a California DOI investigator in 2008. Initially, says Neasham, the prosecutor claimed that he did not have an audiotape of the 2008 meeting.

The recording was ultimately "found," but Hauptman advised withholding the recording to strengthen the case on appeal. (O'Briant, alone among the jurors, did hear the audiotape during Neasham's motion for a new trial.)

If, as Neasham and O'Briant suggest, the recording had been presented into evidence in conjunction with the 2011 videotape, the jury might have more easily compared and discerned the marked difference in Schuber's mental condition between 2008 and 2011. And what they would have heard is 6.5 minutes of a coherent and lucid Schuber attesting to Neasham's accounting of the sale, including her CYA statement that she had purchased the product of her own free will.

The Case Going Forward In preparation for appeal, Neasham says he's established a legal fund to hire an experienced appellate court attorney—he cites San Francisco-based Dennis Riordan, a renowned appellate litigator, as his first choice—to represent him in place of a public defender. But the total raised at press time, $7,250, remains short of the estimated $50,000 Neasham and his supporters believe he'll need to pay for an adequate defense.

With or without Riordan, sources say, Neasham has a solid foundation for appeal. While the legal strategy remains to be decided, his case will likely revolve around four claims Hauptman identified following the trial. These include: (1) lack of evidence sufficient to support the verdict; (2) prosecutorial error in failing to produce the audio recording of Schuber in a timely manner; (3) additional errors relating to the admission of evidence and instructions for jurors; and (4) juror misconduct in respect to the allegations of bias on the panel.

The Lake County District Attorney's office did not respond to repeated requests from NU for comment on these points of appeal and the prosecution's view of the case generally.

Neasham says he's confident that he will prevail on appeal. But his tone turns bitter and poignant when asked about the financial and emotional toll of the four-year-long ordeal.

"The case has been trying on my family and me personally—we've lost everything and we're struggling," he says. "We're surviving on my wife's income, food stamps and generous gifts from my folks and my sister's family. If it weren't for them, we'd be in worse shape.

"I just want to renew my license and get back to work," he adds. "If and when I do, I'll have to rebuild my assets and business from scratch. It'll be a tall order."

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