MAPLETON BUSINESSMAN HAS NO DESIRE TO CELEBRATE DESPITE 30 ACQUITTALS

David R. Nemelka's three-year battle with federal prosecutors ended with his acquittal this summer on all 30 charges against him. But the Mapleton businessman says he's feeling no joy or desire to celebrate.

He has, however, emerged from his legal battle with a greater respect for America and the justice system."No, we are not bitter. We are thankful. In other countries I may have just disappeared or been shot," Nemelka wrote recently in a letter to friends and the media.

In January 1993, a Colorado grand jury indicted Nemelka and three others on 18 counts of mail fraud and 12 counts of money laundering. The indictment alleged that the four schemed to defraud clients of Powers Securities Corp., a company specializing in the sale of penny stocks.

The indictment accused Nemel-ka of paying more than $2 million in kickbacks to Richard T. Mar-chese and Orville L. Sandberg to sell the securities he controlled. In addition, it alleged that Nemelka and Marchese set up companies to conceal the payments.

A federal judge dismissed the charges in 1994, ruling there were no victims because prosecutors failed to prove anyone lost money. The charges were reinstated, however, when the 10th Circuit Court of Appeals ruled that the government only had to show money was obtained through false representations.

But following a lengthy trial in Denver, U.S. District Judge Lewis T. Babcock ruled in April that Nemelka and the other defendants were not guilty of all charges. He said prosecutors never proved the defendants concocted a scheme to defraud.

However, the judge did say that Nemelka probably paid money under the table to Marchese to market stocks he controlled but that the government must show more than a defendant is probably guilty.

"Because in our system guilt must be proven beyond a reasonable doubt, and the more-probable-than-not standard isn't that standard," Babcock said.

The judge went further than finding Nemelka not guilty. He called many of the government's witnesses liars, many of whom are former associates of Nemelka who accepted plea bargains. He also chastised prosecutors for filing charges on allegations that don't even violate securities laws.

"If one complies with the securities laws as highly regulated as they are, that should be sufficient to satisfy the broader goals of the mail fraud statute," the judge said.

The verdict marks the second time that Nemelka has overcome criminal charges. In 1991, Utah prosecutors charged him with 19 counts of securities fraud for his dealings with Sweet Thanks International Inc., a Woods Cross candy company shut down by securities investigators.

The charges were dropped after a Provo judge ruled documents were illegally seized from Nemelka's home and office. Nemelka later filed a lawsuit against the state and was awarded $2 million.

Now that he's been found not guilty a second time, Nemelka said he's emotionally relieved and optimistic that his family's best years lie ahead.

"We hopefully learned many important lessons from this experience, including using better judgment of who we do business with," he said.

However, Nemelka has not always shown such a forgiving attitude. He's accused state and federal prosecutors of misconduct many times over the past several years. Babcock even threatened to throw Nemelka "in the slammer" after repeated confrontations with federal prosecutors in the hallways outside the Denver courtroom.