It should be emphasized that the Advisory Law explicitly states in section 3a1 that notwithstanding the aforementioned "exemption", a person who engages in management or advice under conditions of exemption will be subject to Chapter C of the Advice Law, which deals with "the duties of trust and care of an investment advisor, an investment marketer and a portfolio manager", as well as Chapter D, which deals with "special rules for the methods of operation of a portfolio manager". Moreover, section 3(a1) states that a person who engages in management or advice under an exemption "shall inform the client, for whom he provides advice or for whom he manages an investment portfolio, prior to the engagement with him, that he is not a licensee, and if he was a licensee in the past, he shall also state the circumstances under which he ceased to be a licensee, and shall also state in his notice whether he is insured by insurance as required of a license holder under the provisions of this law."
- In section 18 of the indictment, it is claimed that in the "managed account" track, the defendant traded in CFDs for 35 clients, hence the defendant cannot benefit from the exemption set forth in section 3(a)(3) of the Consulting Law. On the other hand, the defendant claimed that the prosecution testified only 8 customers, and therefore there was no proof of trafficking for the number of customers alleged in the indictment. In fact, the defendant claimed that this was a "small number that is close to an exemption", since in any case even according to his claim, the exemption did not apply.
- The evidence clearly and beyond any doubt shows that the exemption does not apply, because the accuser proved that the defendant traded at least for the clients who were witnesses in the trial, which exceeded the threshold set by law, even according to the defendant's approach.
- The matter is not limited to this, since there are other ways to prove the number of clients for whom the defendant traded, and it is not necessary for the clients themselves to testify in court. The evidence presented by the accuser is sufficient to prove her claim that the defendant traded for at least 35 customers. During his interrogation at the NAA, the defendant was presented with a list of names prepared by the investigating authority on the basis of names that emerged from the various investigative materials collected (P/52; and see Lieberman's testimony, March 2, 2023, p. 76, paras. 25-77; pp. 117-118; p. 121, paras. 13-16; p. 124, paras. 6-19). The list was presented to the defendant during his (second) interrogation with the Authority, andhe was asked to refer to the names and to take notes in his own handwriting, and even signed at the end of each page (P/51). In the document one can find four groups: one group for which the defendant did not remember details and next to each name he wrote "I do not remember"; a group of people who purchased a "course" from the defendant; a group of names who carried out a dummy activity and next to it a "demo" was recorded; and 50 people with a V next to their names that symbolizes that the defendant has maintained accounts for them. The defendant's comments in that document were recorded during his interrogation and the process was documented from beginning to end (P/4, pp. 64-75). The names confirmed by the defendant, who are part of the latter group, are people who, according to the defendant's testimony, traded at the scene using the robot called "Kingfag." Document P/51 was presented to the defendant in his cross-examination in court, but the defendant refused to address it and claimed that it was invalid investigative material (P. 9.2025, p. 421, paras. 1-35). There is no basis for the claim that this is improper evidence, it is a confession of the defendant that was given as part of his interrogation at the NAA.
As is well known, the weight of an external confession is examined in two tests - internal and external. As is well known, the internal test ("self-weight") examines the confession according to the signs of truth that arise from it, such as its internal logic or irrationality, the arrangement or confusion of the details given in it, and the like, signs of common sense that lead a reasonable person to relate to the words of others in training. The external test (something else) examines the confession according to signs of truth that are external to the confession and which, according to the tests of common sense, are capable of shedding light on the truthsof the confession (Criminal Appeal 774/78 Levy v. State of Israel, IsrSC 33(3) 228 (1979)); Criminal Appeal 3880/17 Ziadat v. State of Israel, para. 16 (December 31, 2019); Criminal Appeal 4609/14 Best v. State of Israel, para. 21 (March 1, 2015); Criminal Appeal 3140/10 Anonymous v. State of Israel, para. 7 (November 25, 2012)).