The expressions "deception" and "fraud" are defined in section 414 of the Penal Law as follows:
"Davar - Real Estate, Movables, Right and Benefit"
"'Fraud' - a claim of fact in a matter in the past, present or future, which is made in writing, orally or in conduct, and which the person who claims it knows that it is not true or does not believe that it is true; and 'to cheat' - to deceive a person to commit an act or omission."
Section 438 of the Penal Law further defines the expression "receipt of something" as follows:
"Whether the ownership of the thing passed to the receiver or not, whether the matter was accepted for the person who did the act or for another, whether by the one who did the act or by another; and giving something - whether to the one who does the deed or to another."
- The factual element required for the consolidation of the offense consists of the presentation of a false representation as well as the receipt of something. We are concerned with a consequential offense and the consequential component finds expression in the acceptance of the "thing" (Criminal Appeal 2329/21 Tapiro v. State of Israel, para. 126 (September 19, 2021) (hereinafter: the Tapiro case)). In addition, a causal connection is required between the false representation and the outcome, i.e., acceptance of the matter (Criminal Appeal 6201/18 Tubul v. State of Israel, paragraph 47 of the judgment of Judge (as he was then called) Amit (October 28, 2019) (hereinafter: the Tubul case); Criminal Appeal 4603/17 Edri v. State of Israel, paragraph 99 of the judgment of Judge (as he was then called) Fogelman (July 16, 2019) (hereinafter: the Edri case)).
- The false representation can be presented to the other in an "active" manner, but this representation can also be created by silence and concealment of facts that according to the circumstances there is a duty to disclose (Criminal Appeal 752/90 Barzel v. State of Israel, IsrSC 46(2) 539, 577 (1992) (hereinafter: the Barzel case)). The duty of disclosure may arise by virtue of the circumstances or the provisions of the law, and the breach of the duty may amount to a false representation (ibid.; Y. Kedmi, Criminal Law - Penal Law 1008 (2013) (hereinafter: Kedmi-Criminal)). Moreover, the representation may even relate to a future intention (Criminal Appeal 5734/91 State of Israel v. Leumi & Co. Investment Bank Ltd., IsrSC 49(2) 4, 22 (1995) (hereinafter: Bank Leumi case)).
- The mental element required for the consolidation of the offense is awareness of the existence of the factual elements, i.e., the fact that the representation is false, the awareness of the possibility of the occurrence of the outcome, and the existence of a causal connection between the representation and the result (Tubul, para. 7; The Edri case, paragraph 99 of the judgment of Justice (as he was then called) Sohlberg; Bank Leumi, p. 22). In addition, criminal thought is required, at least of a reckless kind, for the possibility of the outcome occurring (Kedmi-Criminal, pp. 1041-1049). As a result, no intention is required in the sense of the will of the controllers of occurrence (Bank Leumi case, at p. 22). It should be clarified that even with regard to the mental element, the result is not that damage was caused to the fraudster, but rather that the result was caused, which is part of the elements of the offense, i.e., that the matter was fraudulently removed from his possession - while violating the freedom of consideration and decision that should be reserved for him - and was accepted by the fraudster (Kedami-Criminal, pp. 1035-1040).
Discussion
- As stated, I have reached the conclusion that the elements of the offense have been proven, and we will detail the evidence that led to this conclusion below.
- There is no dispute that the defendant had contact with eight people, namely the clients of the prosecution witnesses who testified at the trial - Prosecution Witness 1, Mr. Harel Levy (hereinafter: Harel); Prosecution Witness 2, Mr. Ze'ev Khoury (hereinafter: Khoury); Prosecution Witness 3, Mr. Shalom Buchnik (hereinafter: Buchnik); Prosecution Witness 4, Mr. Nimrod Assa (hereinafter: Asa); Prosecution Witness 7, Mr. Yechiel Cohen (hereinafter: Yechiel); Prosecution Witness 9: Mr. Elyakim Kovacs (hereinafter: Kovacs); Prosecution Witness 10, Mr. Avraham Kehat (hereinafter: Kehat); Prosecution Witness 11, Mr. Ziv Asher Buskila (hereinafter: Buskila). At the beginning of the relationship, each of the clients opened an account in Pepperstone, after the defendant offered him to invest in the platform. The evidence shows that the customers did open accounts, and some even opened more than one account (P. 2.2023, pp. 190, 8-17; P/84; p. 211, s. 26, pp. 212, 1-8; P. 283, paras. 24-36; P/93; P/94; P. 284, paras. 1-15; P. 8.3.2023, p. 298, paras. 9-19; P. 299, paras. 9-11; P. 300, paras. 15-29; pp. 332-333; P. June 22, 2023, p. 353, paras. 26-38; P. 354, paras. 20-36; P. 358, S. 1-12; P/64, p. 13; P. p. 360, paras. 25-38; P/66). In the account that was opened, the defendant installed a "robot" - about which we will tell you later.
- The defendant claimed in his summaries that "the most important point in the case" is that "the prosecution did not prove 'fundraising.'" According to him, the prosecution claimed that he "as if he collected their money" for him, held it and controlled it. However, this is not what the indictment claims. The indictment alleges that "the defendant recruited the customers" and that he obtained their consent "to trade in the funds they deposited in the trading arena" (paragraph 14 of the indictment). The argument in the indictment is not that the defendant took the clients' money into his pocket, but that he raised it after fraudulently obtaining their consent. For the offense of fraudulent receipt, there is no need for the defendant to control the clients' money. It should be noted that this claim of the defendant was also made in the context of the additional offense attributed to him under the Counseling Law, and we will address this below.
- The representations made by the defendant were made in a number of ways. One way was through online means. The defendant advertised the service he offered through targeted marketing on social networks (P/2, pp. 56, 150-151, 266; F. 9.2025, p. 394, paras. 23-32). The publication included a number of videos in which the defendant promoted and marketed the service he offered and gave various "explanations" regarding the trade. As we will detail below, the videos became widely known and the customers were exposed to them. The evidence includes a number of videos: a collection of videos - P/11 to P/16 - videos posted on the YouTube channel; and another collection - P/17 to P/32 - which was published on the defendant's Facebook page.
Another means in the entirety of the online presentations was a "landing page" that the defendant made (P/10). A landing page is an online page that the user reaches via a link or other reference from an advertisement, which includes a summary of the data related to the publication and contact details. The landing page also included representations, which we will refer to below.