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CODY — Documents filed recently in connection with the ProDril federal securities trial mentioned two defendants, William D. "Dan" Elsom and David A, Nall, but not a third, Justin C. Nall.

Previous filings on matters related to the trial scheduled July 31 have listed all three men still charged in the case. But proposed jury instructions and jury selection questions filed by prosecutors last week did not mention Justin C. Nall.

A court document filed in connection with the case Tuesday, but unavailable for public viewing, was listed as a plea agreement.

A similar document was filed in February, prior to a hearing at which ProDril Founder Harry "Hal" Curlett pleaded guilty to a single count of conspiracy to sell unregistered securities.

The filings might fuel speculation about a possible plea agreement by Justin C. Nall. But John Powell, a spokesman with the U.S. Attorney's Office in Cheyenne, declined to comment in detail, saying he was unsure if such an agreement had yet been filed.

A federal grand jury indictment on Sept. 22 alleged that Curlett, Elsom and the Nalls induced at least 400 people in Wyoming and Texas to buy shares of ProDril stock worth $6.4 million without registering the shares with the Securities and Exchange Commission.

Curlett is expected to cooperate in the prosecution of the remaining defendants, who have pleaded not guilty to all charges.

Nearly 80 pages of jury instructions proposed by the prosecution outline the key points that prosecutors will probably have to prove in order to gain a conviction.

To prove a conspiracy to sell unregistered securities, they are likely to have to show there was an agreement to violate the law, that defendants knew the essential objectives of the alleged conspiracy, they knowingly and voluntarily participated, and there was interdependence between defendants.

To prove that a defendant sold unregistered securities, a separate count of the indictments against David A. Nall and Elsom, prosecutors must probably demonstrate that the securities weren't registered, they were not exempt from registration, and that defendants used the mail or phone to assist in selling the shares.

In a preview of a likely defense strategy, the jury instructions refer to what is expected to be an effort by defense attorneys to show that sales of ProDril shares were exempt, qualifying as a private offering.

Under that argument, federal registration requirements would not apply to "transactions by an issuer not involving any public offering."

Such a private offering would typically require the sale of shares to sophisticated investors and might also require a fair degree of disclosure to investors, possibly including an audited financial statement or balance sheet.

The jury instructions have been proposed by prosecutors only, and not agreed to by defense attorneys or approved by the judge.

In a separate motion, Sam Rowland, attorney for David A. Nall, has sought to withdraw from the case, substituting James Fitzgerald as counsel. He cited poor health following a recent hospitalization,

A letter from his doctor said Rowland had recently been treated for heart disease and advised that "he should not engage in active trial work for the foreseeable future."

Contact Ruffin Prevost at rprevost@billingsgazette.com or (307) 527-7250.

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