The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A former Nassau broker/dealer is demanding that Supreme Court depositions given by his former Bahamian executives be barred from evidence at trial because they are “unfair” and unreliable”.

Guy Gentile, head of the now-defunct Mintbroker International, in May 17, 2024, legal filings asserted that the testimony given by his ex-employees creates “considerable fairness concerns” and US federal regulators should not be permitted to employ it against him. 

In particular, he is arguing that his Bahamian attorney, Philip McKenzie KC of Davis & Co, was not given a proper opportunity by the Supreme Court to cross-examine and question former members of Mintbroker’s management team. All were deposed following the Securities & Exchange Commission’s (SEC) request for judicial assistance from The Bahamas to aid its case against Mr Gentile.

Bahamas-based witnesses and evidence are central to the Florida courtroom battle, with the federal securities regulator accusing the former Bay Street-based broker/dealer and its principal of breaching US law by actively - and directly - soliciting American clients when not registered with the SEC.

Mr Gentile has placed great emphasis on trying to strike out, or have dismissed, much of this Bahamian evidence and the south Florida federal court has yet to rule on his demands to block the former employees’ testimony from being entered into evidence. The SEC, in its rebuttal, said whether Mr McKenzie chose to cross-examine the witnesses or not was up to him and “should not be given any weight”.

However Mr Gentile, who plans to testify in his defence during the trial, argued that the transcripts detailing his former employees’ testimonies should be “excluded” from trial evidence as there was no proof that the SEC had sought to secure their in-person attendance. And, even if it was proven that the Bahamian staff are unavailable, he added the transcripts “raise numerous issues as to their reliability and fairness”.

“The transcripts obtained to date from depositions in The Bahamas raise considerable fairness concerns. Those concerns weigh in favour of exclusion and adhering to the rule against hearsay,” Mr Gentile and his US attorneys allege. “Several of the deposition transcripts indicate no or minimal ‘opportunity’ for cross-examination by Gentile’s Bahamian counsel or otherwise suggest that certain testimony is missing.

“The transcripts also suggest that no witness was shown a single piece of documentary evidence - a far cry from the traditional practice in the US federal courts.” The SEC, with assistance from the Attorney General’s Office and the Bahamian court system, sought witness testimony from five former Bahamian management executives at Mintbroker.

They included Edward Cooper, the broker/dealer’s former chief compliance officer; Antonio Collie, the now-defunct broker/dealer’s ex-chief financial officer; Stephen Darville, its former IT chief; Janay Symonette-Pyfrom, then-chief marketing officer; and Drameko Moore, described as an affiliates professional.

To back his arguments that Mr McKenzie was given little chance to question the witnesses on his behalf, Mr Gentile asserted: “At the deposition of Janay Pyfrom, when Gentile’s Bahamian counsel asked whether he could have a short adjournment to confer with Gentile before cross-examination, the court observed: ‘We are on borrowed time at this moment. As you can see, the Prosecutor is sitting at the back of the courtroom’.

“Gentile’s Bahamian counsel asked Pyfrom only four questions. Similarly, Gentile’s Bahamian counsel asked Stephen Darville a total of four questions. And it appears that additional testimony from Mr Darville may not be included in the transcript..... US-based counsel for Gentile do not know what questions were put to the witness prior to the beginning of the transcript.

“The transcript of Drameko Moore’s deposition indicates that Gentile’s Bahamian counsel would have the opportunity for cross examination ‘after lunch’, but the transcript concludes with: ‘THE COURT: It is 11:42am. We will break and we will begin again at 2pm, and no cross-examination of Moore appears in the transcript.

“The SEC’s designations of Mr Moore’s testimony should not be admitted into evidence at all, but they certainly should not be admitted without the cross-examination of Gentile’s Bahamian counsel assuming a record of such examination exists.” Mr Gentile also complained that one day of Mr Cooper’s deposition was missing, while the entire transcript for Mr Collie has “not yet been made available”.

“These imprecise, incomplete transcripts - which reveal no meaningful cross-examination by Gentile’s Bahamian counsel - should not be read into evidence at trial in this court,” Mr Gentile concluded. This, though, was swiftly rebutted by the SEC which defended the judicial assistance request and evidence gathered by the Bahamian courts.

“The testimony from the Bahamas witnesses was taken through the letters rogatory process by a court registrar of The Bahamas pursuant to an Order from the Supreme Court of the Bahamas. The testimony transcripts were also provided by the court registrar and not a private court reporter per the court’s official process,” the US federal regulator said.

“Guy Gentile attended some of this testimony and Gentile’s Bahamian counsel, Philip McKenzie, was present for all the testimony and was given opportunity to cross-examine all the witnesses. Whether Gentile’s counsel chose to avail himself of that opportunity was a strategic choice on his part and should not be given any weight as to whether the testimony should be deemed admissible.

“Gentile’s counsel was given the opportunity for cross-examination and to object to the testimony - that is all that is required. Nor is there any requirement that witnesses be shown exhibits or that their testimony be videotaped for a deposition to be admissible. Indeed, traditionally, depositions in the US are not videotaped and many depositions are taken without the use of exhibits,” the SEC added.

“Moreover, videotaping of court proceedings such as the Letters Rogatory testimony is generally not permitted in either the US federal courts or The Bahamas. For Gentile to imply that either is a factor in whether testimony taken in a legal proceeding before a court is to be deemed admissible is simply unsupported by law or fact.”

Tribune Business previously reported how some of this testimony conflicted. Mr Moore, now employed by Deltec Bank & Trust’s digital assets affiliate, Delchain, gave evidence suggesting it exploited promotional agreements with “marketing affiliates” to gain access to US trading clients in such a way that it could argue there was no direct solicitation.

He disclosed he had discussed the potential ramifications of using these deals to attract American clients with other senior Mintbroker executives, but was told this strategy was “a way to get access to more US clients without there being any direct solicitation”.

However, Ms Pyfrom-Symonette, Mintbroker’s former chief marketing officer who is now also employed by Deltec, testified that she was ordered “at all times” not to advertise its services directly to US clients. Mr Cooper, meanwhile, testified that he was swiftly appointed Mintbroker’s chief compliance officer to replace the previous incumbent due to an impending Securities Commission of The Bahamas audit.

His predecessor, Philip Dorsett, is one of the ‘whistleblowers’ against Mr Gentile who has provided the SEC with 11,000 e-mails. “Mr Dorsett left the company in July 2017,” Mr Cooper said. “The Securities Commission had to come in and do an audit within the company, and I could not give a response to the Securities Commission.

“So they needed, they have a chief compliance officer to to them. So the company had to do a resolution appointing me...... They had to have me registered to them as chief to be able to respond to them. That’s what I’m saying.”