Monthly Archives: October 2015

Three Defendants Convicted of Conspiring to Illegally Export Controlled Technology to the Russian Military

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Earlier today, after a month-long trial, Alexander Posobilov, Shavkat Abdullaev and Anastasia Diatlova were convicted of all counts, including conspiring to export, and illegally exporting, controlled microelectronics to Russia.  Posobilov was also convicted of money laundering conspiracy.  These defendants, all of whom worked at Arc Electronics Inc. (Arc), a Houston-based corporation, and eight other individuals were originally charged in October 2012.  Five members of the conspiracy, including Arc owner Alexander Fishenko, previously pleaded guilty to related charges.

The convictions were announced by Assistant Attorney General for National Security John P. Carlin, U.S. Attorney Robert L. Capers of the Eastern District of New York, Assistant Director Randall C. Coleman of the FBI’s Counterintelligence Division and Director Douglas Hassebrock of the Department of Commerce’s Office of Export Enforcement.

“Alexander Posobilov, Shavkat Abdullaev and Anastasia Diatlova evaded U.S. export laws to illegally send sophisticated microelectronics to Russia,” said Assistant Attorney General Carlin.  “By purposefully circumventing U.S. law, including the International Emergency Economic Powers Act and the Arms Export Control Act, the defendants jeopardized our national security.”

“These defendants were key players in a sprawling scheme to illegally export sophisticated technology to Russia,” said U.S. Attorney Capers.  “Through lies and deceit, the defendants and their co-conspirators sold over $30 million of microchips, much of which was destined for Russian military and intelligence agencies.”

“By putting a halt to this conspiracy, and stopping the flow of these dual-use components to the Russian military and intelligence services, this verdict represents a clear victory for our national security,” said Assistant Director Coleman.

“Today’s convictions send a strong message to those who willfully evade export control laws and jeopardize the national security of the United States,” said Director Hassebrock.  “This case is the result of outstanding collaborative investigative work by the Justice Department, the Commerce Department and the FBI to break up a network whose aim was to illegally ship sophisticated U.S.-origin technology to Russia.”

The evidence at trial established that between approximately October 2008 and October 2012, these defendants and their co-conspirators obtained advanced, technologically cutting-edge microelectronics from manufacturers and suppliers located within the United States and exported those high-tech goods to Russia, while carefully evading the government licensing system set up to control such exports.  The microelectronics shipped to Russia included analog-to-digital converters, static random access memory chips, microcontrollers and microprocessors.  These commodities have applications, and are frequently used, in a wide range of military systems, including radar and surveillance systems, missile guidance systems and detonation triggers.  Russia does not produce many of these sophisticated goods domestically.

Posobilov was the Procurement Director of Arc, Abduallev was the Shipping Manager and Diatlova was a salesperson.  To induce manufacturers and suppliers to sell them these high-tech goods, and to evade applicable export controls, the defendants and their co-conspirators often provided false end user information in connection with the purchase of the goods, concealed the fact that they were resellers and falsely classified the goods they exported on export records submitted to the Department of Commerce.  For example, Arc falsely claimed to be a traffic light manufacturer on its website.  In fact, Arc manufactured no goods and operated exclusively as an exporter.

Despite this subterfuge, the evidence established that the defendants were supplying Russian government agencies with sophisticated microelectronics.  For example, the investigation uncovered a letter sent by a specialized electronics laboratory of Russia’s Federal Security Service (FSB), Russia’s primary domestic intelligence agency, to an Arc customer regarding certain microchips obtained for the FSB by Arc.  The letter stated that the microchips were faulty and demanded that the defendants supply replacement parts.

Shortly before trial, Arc President Alexander Fishenko pleaded guilty to all charges against him, including acting as an agent of the Russian government without prior notification to the Attorney General, as well as conspiring to export, and illegally exporting, microelectronics to Russia, money laundering conspiracy and obstruction of justice.  Fishenko is currently awaiting sentencing.

When sentenced by U.S. District Judge Sterling Johnson Jr. of the Eastern District of New York, defendants Posobilov, Abdullaev and Diatlova face up to five years in prison for the conspiracy conviction, and up to 20 years in prison for each violation of the International Emergency Economic Powers Act (IEEPA) and the Arms Export Control Act (AECA).  Posobilov also faces up to 20 years in prison for money laundering conspiracy.

The case is being prosecuted by Assistant U.S. Attorneys Daniel Silver, Una Dean, Richard Tucker and Claire Kedeshian of the Eastern District of New York, as well as Trial Attorney David Recker of the National Security Division’s Counterintelligence and Export Control Section.

CCC’s: Welcome Ai Deng, Phd. (Bates White)–Guest Post

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I am pleased to welcome Ai Deng, Phd., to Cartel Capers as a guest poster.  Ai is an economist with Bates White Economic Consulting.  I met Ai at some of the antitrust conferences that Bates White sponsors and I’ve always enjoyed his economist’s insight on various cartel related issues.  Ai’s first post is below.

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Competition authorities and regulatory bodies are resolute in encouraging companies to beef up their corporate compliance programs. As an example, in the LIBOR investigation, the DOJ required Barclay’s and other banks to “maintain or develop monitoring systems or electronic exception reporting systems that identify possible improper or unsubstantiated submissions.” [1]Similar agreements were reached between various banks and the CFTC. Good compliance effort by the corporation apparently also pays—in the recent FOREX investigation, the DOJ took notice of Barclay’s efforts and stated in its plea agreement: “The parties further agree that the Recommended Sentence is sufficient, . . . , in considering, among other factors, the substantial improvements to the defendant’s compliance and remediation program to prevent recurrence of the charged offense.”

To better detect various forms of market manipulation, corporate compliance officials can employ a data analytic technique called an “empirical screen.” This technique has already been used by antitrust authorities all over the world, and it is getting increased attention in recent academic literature. An empirical screen is a metric that is based on data and a pre-specified formulation. The value of the metric changes as the likelihood of market manipulation increases or decreases. When the value crosses a certain threshold, a “red flag” for suspicious activity goes up. When this occurs, additional investigation of the causes may be warranted.

“Detection” techniques similar to empirical screens are widely used in the credit card and telecommunications industries for fraud detection purposes. AT&T Labs’ researchers Becker, Volinsky, and Wilks (2010) noted that AT&T implemented its fraud detection system (the Global Fraud Management System) nearly 20 years ago, in 1998.[2] AT&T’s team of data experts continuously analyzes data and devises new techniques to detect fraud. Credit card companies also invest significantly in fraud detection efforts. Organizations that are contemplating establishing or strengthening their compliance programs can also benefit from adopting screening and detection analytics. In the recent Law360 article “What Compliance Officials Must Know About Market Screening” available here, I focus on two important practical issues that have not yet been adequately addressed but which are crucial for a successful deployment of empirical screen techniques.  If you don’t have access to Law 360 and would like a copy of my article, please contact me at [email protected].

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1.      Deferred Prosecution Agreement at § vi (“Monitoring and Auditing”), United States v. Royal Bank of Scotland (D. Conn. Feb. 5, 2013), available athttp://www.justice.gov/iso/opa/resources/28201326133127414481.pdf.

2.    Richard A. Becker, ChrisVolinsky, and Allan R. Wilks, “Fraud Detection in Telecommunications: History and Lessons Learned,” Technometrics 52, no. 1 (2010): 20–33.

Federal Government Contractor Pleads Guilty to Accepting Kickbacks and Tax Evasion

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An Enterprise, Alabama, resident pleaded guilty today in U.S. District Court for the Southern District of Florida to accepting unlawful kickbacks and tax evasion, announced Acting Assistant Attorney General Caroline D. Ciraolo of the Justice Department’s Tax Division.

According to court documents and statements made in open court, Victor Villalobos, 47, worked for a federal prime contractor at Fort Rucker in Alabama.  In 2009, Villalobos approached a subcontractor for this company and solicited illegal kickbacks on the federal subcontracts the subcontractor held in connection with the federal prime contractor.  Villalobos agreed that in exchange for kickback payments he would refrain from conduct that would unfavorably affect the subcontractor’s business relationship with the federal prime contractor and help ensure that the subcontractor obtained additional business.

As part of his plea, Villalobos admitted that from June 2009 to December 2014, he received approximately 57 separate wire transfers totaling more than $1.9 million in kickback payments from various foreign and domestic bank accounts controlled by the subcontractor.  At two separate meetings in 2015, Villalobos met with the subcontractor and accepted an envelope containing $5,000 in cash and a bag containing $55,000 in cash as kickback payments.  Between June 2009 and February 2015, Villalobos attempted to conceal his receipt of the kickbacks by incorporating nominee entities and opening nominee bank accounts.  Villalobos also admitted that he attempted to evade income taxes on the kickback payments by causing false federal income tax returns to be filed.

Villalobos faces a statutory maximum sentence of 10 years in prison for accepting the kickbacks and a statutory maximum sentence of five years in prison for tax evasion.  He could also be fined up to $500,000 or twice the gain from his crimes.

Acting Assistant Attorney General Ciraolo commended special agents of IRS-Criminal Investigation, the U.S. Air Force’s Office of Special Investigations and the Department of Defense’s Office of the Inspector General, who investigated this case, and Trial Attorneys Charles M. Edgar Jr. and Jason H. Poole of the Tax Division, who are prosecuting this case.  Ciraolo also thanked the U.S. Attorney’s Office of the Southern District of Florida for their substantial assistance.

Retired Air Force Master Sergeant Pleads Guilty to Disclosing Confidential Bid Information for Government Contracts and Tax Fraud

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A retired U.S. Air Force Master Sergeant pleaded guilty today in U.S. District Court for the Southern District of Florida to unlawfully disclosing confidential procurement information and filing a false tax return, announced Acting Assistant Attorney General Caroline D. Ciraolo of the Justice Department’s Tax Division.

Trevor Smith retired from the U.S. Air Force in December 2012, according to court documents and statements made in open court.  From February 2009 through February 2010, Smith was deployed to Afghanistan, where he served as Supply Non-Commissioned Officer-In-Charge for the Operation Enduring Freedom/Combined Security Transition Command-Afghanistan NATO Training Mission.  In that capacity, Smith met a Fort Lauderdale, Florida-based government contractor and agreed to disclose confidential bid information on government contracts to the contractor in exchange for bribe payments.  Smith and the contractor agreed that Smith would receive two percent of all revenues on contracts that the contractor received as a result of Smith’s assistance.

In January 2010, the contractor wired $42,853.29 to Smith.  The two agreed to wait until Smith returned to the United States for more payments.  After returning to the United States, Smith set up a shell corporation called T Star Air Inc. to receive 23 additional payments totaling $220,600.  Smith also created and submitted phony invoices to conceal the scheme.  For tax years 2010 through 2012, Smith filed corporate tax returns for T Star Air that falsely claimed inflated expenses and deductions.

At his Jan. 5, 2016 sentencing, Smith faces a statutory maximum penalty of five years in prison for disclosing confidential procurement information and three years in prison for filing a false tax return.  He could also be fined up to $500,000 or twice the gain from his crimes.

Acting Assistant Attorney General Ciraolo commended special agents of Internal Revenue Service-Criminal Investigation, the U.S. Air Force’s Office of Special Investigations and the U.S. Department of Defense’s Office of the Inspector General, who investigated this case and Trial Attorneys Charles M. Edgar Jr. and Jason H. Poole of the Tax Division, who are prosecuting this case.  Acting Assistant Attorney General Ciraolo also thanked the U.S. Attorney’s Office of the Southern District of Florida for their substantial assistance.

Twenty-Five Individuals Indicted for Wire Fraud

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Defendants Defrauded the U.S. Army National Guard Recruiting Assistance Program

Twenty-five individuals have been charged in 14 separate indictments for their alleged participation in a conspiracy to defraud the United States and the National Guard Bureau of money and property, wire fraud and aggravated identity theft, announced U.S. Attorney Rosa Emilia Rodríguez-Vélez of the District of Puerto Rico.  The U.S. Secret Service is in charge of the investigation, with the collaboration of the U.S. Army Criminal Investigation Command, the U.S. Postal Service Office of Inspector General, the Department of Defense-Defense Criminal Investigative Service and the Puerto Rico Police Department.  The indictments were unsealed today upon the arrest of the defendants.

A federal grand jury in the District of Puerto Rico returned the indictments yesterday, Oct. 21, 2015, which include the following individuals: recruiters Cristobal Colón-Colón, Ángel D. Rivera-Rodríguez, Enrique Costas-Torres, Gregorio Quiñones-Pacheco, Guillermo Cruz-García, Edwin Izquierdo-Montañez, Luis De Jesús-Negrón, Gabriel González-Franco, Gilberto Rivera-Quiñones, Juan Rivera-Rivera and Héctor Rodríguez-Colón; and recruiter assistants Axel Aponte-García, Gilberto Gierbolini-Emanuelli, Freddie García-Ruiz, Félix González-Rodríguez, Radamés Robles-Meléndez, Emilio Rivera-Maldonado, Carlos Meléndez-González, Natalio Soto-Rivera, José Rivera-Pereles, Félix Lasen-Nieves, Ángel Perales-Muñoz, Alexis Betancourt-Jiménez, José Velázquez-Lugo and Garby Ruiz-Rosado.

These charges stem from a scheme utilized by the defendants from 2007 through 2011.  In or about September 2005, the National Guard Bureau, located in Arlington, Virginia, entered into a contract with Document and Packaging Broker Inc. (Docupak), located in Pelham, Alabama, to administer the Guard Recruiting Assistance Program (G-RAP).  The G-RAP was a recruiting program designed to offer referral bonus payments to Army National Guard soldiers to recruit civilians to serve in the Army National Guard.  As part of the G-RAP, the National Guard Bureau reimbursed Docupak for the recruiting referral bonus payments that Docupak paid to participating soldiers.  The National Guard Bureau also paid Docupak an administrative fee for disbursing each of the referral bonus payments.

The program had two primary participants: recruiters, whose job it was to assist the Docupak subcontractors in enlisting new members into the Army National Guard; and recruiter assistants, who were Docupak subcontractors, whose job it was to identify and assist recruit new potential members into the Army National Guard and assist recruiters with other related duties.  Under the contract specifications of the program, only recruiter assistants were eligible for recruiting referral bonuses.

The program required recruiter assistants to establish an online account in their name to record their referral and recruitment efforts.  The recruiter assistant would input the personal identifying information of each recruit into the account.  A recruiter assistant could receive a bonus between $500 and $1,000 for every referred soldier that enlisted in the Army National Guard, and an additional bonus between $500 and $1,000 once the referred soldier was sent to basic training.  If the referred soldier had previously served in a different military branch, did not need to attend basic training or joined the Army National Guard as an officer, the recruiter assistant could receive a bonus between $2,000 and $8,500.  The recruiter assistant could receive the referral bonus payments either through direct deposit in a bank account or a VISA account.

It was the goal of the conspiracy for the recruiters to unlawfully enrich themselves by defrauding the United States and performing acts in violation of their official duties, in exchange for things of value.  The recruiter assistants provided things of value to the recruiters in exchange for their assistance in defrauding the U.S. National Guard.

The defendants’ scheme knowingly caused the transfer, possession and use without lawful authority of a means of identification of another person, which contained the name, date of birth and social security number of potential soldiers; and by submitting the personal identifying information (PII) for unauthorized purposes, they generated a fraudulent referral bonus of the G-RAP program that would then create an interstate wire transfer to the co-conspirator’s different bank accounts.

An example of the scheme, as alleged in one of the indictments, is as follows: the defendants allegedly cheated the program, known as G-RAP, by having the recruiter assistants create a G-RAP account and or allow the recruiters to use the recruiter assistants’ G-RAP account to enter all information necessary to claim recruiting bonuses that the recruiter assistants had not earned.  The defendants applied for the G-RAP bonuses using PII given to the recruiters by enlistees who would go to the recruitment office seeking orientation to enlist in the Puerto Rico Army National Guard (PRANG).  The recruiters would obtain the PII in their official capacity as a recruiter and would use the recruiter assistants’ G-RAP accounts to apply for fraudulent recruiting bonuses.  The recruiter assistants were paid bonuses that would be deposited by Docupak in their personal bank accounts or a VISA Card that was given to them by Docupak, based on the misrepresentations made by the defendants of the recruitment process.  Some recruiter assistants withdrew a cash amount from each bonus and paid a kickback of approximately half of the bonus to the recruiters, and in some cases the recruiters kept the bonuses for themselves.

“These charges clearly demonstrate that we will take firm action against those who choose to exploit our military system for personal and criminal gain,” said U.S. Attorney Rodríguez-Vélez.  “We remain committed to investigating and apprehending those who cheat the system for personal gain, and will continue to work towards the eradication of this type of fraud in Puerto Rico.”

“The U.S. Secret Service will continue to aggressively pursue those that commit fraud and identity theft for their own enrichment,” said Resident Agent in Charge Carlos Colón of the U.S. Secret Service Office in Puerto Rico.  “These crimes remain a top investigative priority for our agency.”

“We should expect honesty and integrity from our military personnel,” said Special Agent in Charge John F. Khin of the Defense Criminal Investigative Service.  “This case demonstrates the commitment of DCIS, along with our investigative partners, to relentlessly pursue and bring to justice those who commit fraud and violate positions of trust for personal enrichment.”

“The conduct alleged in the criminal Indictments is beyond disgraceful,” said Special Agent in Charge Eileen Neff of the USPS Office of Inspector General (OIG).  “The USPS-OIG, along with our law enforcement partners, will continue to aggressively investigate those who seek to defraud our government programs.”

If found guilty, the defendants face a maximum penalty of 10 years in prison for the conspiracy, 20 years in prison for wire fraud and a mandatory two-year consecutive term in prison for aggravated identity theft.

The case is being investigated by the U.S. Secret Service.  The case is being prosecuted by Assistant U.S. Attorney Olga B. Castellón-Miranda and Special Assistant U.S. Attorney Amanda C. Soto-Ortega of the District of Puerto Rico.

Indictments contain only charges and are not evidence of guilt.  The defendants are presumed to be innocent unless and until proven guilty.  The investigation is ongoing.

Wealthy Max Limited Files Motion to Dismiss Civil Forfeiture Case in U.S. District Court in NJ

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NEWARK, N.J., Oct. 20, 2015 /PRNewswire/ — The Wealthy Max Limited legal defense team filed a motion to dismiss the civil forfeiture case brought by the US Attorney for the District of New Jersey. The motion is filed with the US District Court in New Jersey and seeks the immediate release of $2,388,091.18 that the company is owed by the US Treasury for coins submitted to the US Mint’s Mutilated Coin Redemption Program.  The original complaint was filed in March 2015 and claimed that Wealthy Max and its Foshan, China based affiliate that administers its quality assurance program, ( hereinafter “Wealthy Max”), and several other recycling companies, had attempted to pass counterfeit US coins through the US Mint’s program.

The motion to dismiss cites multiple inconsistencies in the original complaint and the fact that there has been no direct proof of counterfeiting, or of a conscious attempt to cheat the US government. The original complaint expressed doubts that Wealthy Max and other recycling companies with links to China could source the number of coins claimed through scrap metal exported from the US to China.  This demonstrates a lack of understanding of the scale and organization of the Chinese metal recycling industry.

“We are filing the motion to dismiss on behalf of Wealthy Max because we believe the complaint brought by the US Attorney’s Office has a number of errors relating both to points of law as well as to misunderstandings about our client’s business,” said Bradford L. Geyer of GeyerGorey LLP.  “In our opinion we do not believe that many of the points in the government’s complaint could be substantiated as they are either speculative or based on incorrect assumptions about the industry in question.  The original complaint and the amended complaint, regrettably, also contain incorrect information.  For instance, the amended complaint in paragraph 35 claims that pennies have never been submitted through the Mutilated Coin Redemption Program and only small parts of shipments have contained nickels.  In actuality, from 2002 through 2006, Wealthy Max submitted to the U.S. Mint, and the U.S. Mint accepted 178 metric tons of pennies and from 2002 through 2009, Wealthy Max submitted to the U.S. Mint, and the U.S. Mint accepted, 31 metric tons of nickels.

“Under the circumstances, I am mystified how allegations in paragraph 35 and other questionable allegations found throughout the complaint could still remain in the government’s pleadings.  The reason the U.S. Mint has seen fewer nickels or no pennies in recent years is because redemption rates do not allow those coins to be redeemed profitably.  This economically rational behavior and many other reasonable actions are presented in the complaint as if they part of some nefarious scheme,” added Geyer.

The scrap reclamation operations in question process millions of tons of non-ferrous scrap metal each year.  The irony is that since this investigation has effectively shut down the Mutilated Coin Redemption Program, hundreds, perhaps thousands of tons of clad U.S. coins have been accumulating at scrap reclamation facilities in China that continue to find coins as a by-product of aluminum scrap reclamation.  According to Geyer, “We have advised scrap reclamation facilities in China to keep the faith and to stockpile and secure their mutilated coins.  We will soon determine whether the United States Department of Justice and the Department of Homeland Security intend to kill the program.  As a practical matter, we probably have a 30-90 day time window before the scrap reclamation companies in China have to give up on the U.S. Mint giving full faith and credit to its coinage, and simply send the coins to local smelters.

“You could never guess from the complaint that Wealthy Max has an unblemished past performance record that spans 13 years with over 150 shipments accepted by the U.S. Mint and converted into coin roll.  What we have as a matter of public record is one alleged non-conforming shipment awash in a 13 year sea of conforming shipments from a responsive government contractor with an unblemished past performance record,” said Geyer.

“The shipment in question was accepted and converted into coin roll by the U.S. Mint in June 2014 and the government provides notice that its payment was confiscated almost 11 months later?  I am not sure how far the government can stretch civil forfeiture rules, but its conduct in this investigation strikes me as unacceptable.  For these and other reasons and, in the interest of fairness, we believe that this case should be dismissed and our client’s funds unfrozen as quickly as possible,” concluded Geyer.

The US Mint’s Mutilated Coin Redemption Program was established in 1911 and allows individuals and organizations to return damaged US coins to the Mint and be paid on the basis of the weight of the coins returned.  The Mint then melts the coins down and uses the resulting metals in the production of new coins.  Americans may be surprised to learn that coins jingling in their pockets today could actually be manufactured from coins minted by the U.S. Mint in prior centuries.

Wealthy Max Limited is a Hong Kong based company.  The company is involved in recovering mutilated coins that are a by-product of the metal recycling business, and its operations in China collect, sort, wash and visually inspect coins it receives from scrap aluminum processors who process millions of tons of aluminum scrap materials.  The aluminum comes from multiple sources including scrapped automobiles and other consumer and industrial goods.  Before being melted down, the scrap metal is hand sorted to remove any non-aluminum items including copper wire, glass, plastic and coins.  This sorting is done by well-trained individuals who further sort the coins by country and denomination.  The exponential growth of the Chinese scrap industry, extensively documented in other forums and contexts, has enabled millions of tons of waste to be sorted in this manner (obviating the need for extensive use of water or electricity and substantially reducing carbon emissions) which results in purer, more efficient smelting.

SOURCE GeyerGorey

 

Further information attached

20151020 Memo of Law in Support of MTD Exhibit A Internal Advice Request – Entry requirements of mutilated coins – FinCen Form 105 Exhibit B 20150821 letter to AUSA’s Wealthy Max (1) WM MTD PROPOSED ORDER WM MTD

SCCE Compliance and Ethics Conference–Las Vegas

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Emtrain

I had a great time at the SCCE Compliance and Ethics Conference in Las Vegas.  I am an Antitrust Expert for Emtrain, a leading producer of online compliance and ethics training material.  Emtrain had a booth in the vendor Exhibit Hall and I was able to spend some time with Janine Yancey and the rest of the Emtrain staff.

I also co-presented a panel with Barbara Sicalides, a partner at Pepper Hamilton.  Barbara and I have known each other for many years.  I was the Chief of the Antitrust Division field office in Philadelphia so I have had a great deal of experience as an antitrust prosecutor.  Ms. Sicalides is leading attorney in defending antitrust cases, providing antitrust counseling and compliance and ethics training to corporations.  Our presentation was titled:  “CEO’s (and salespeople too) Say The Darndest Things: How an Ill- Advised Statement or Email Can Start an Antitrust Investigation or Lawsuit”  The program was a caution that while every CEO and salesperson would like to “crush the competition” and “dominate the market,” it is not always wise to say this publicly or in an email.  We both had numerous examples about how poorly worded statements and emails caused a mountain of litigation.  We also discussed how training can sensitize employees to how certain statements (antitrust buzz words) can be misconstrued.  Barbara and I have an article coming out soon in the SCCE magazine that is basically a recap of the program. The  PowerPoint is also available on the SCCE website, or let me know and I can send you a copy.

This was my second SCCE Compliance and Ethics conference and like the first, it was exciting to meet new people and attend a few programs. It also is a very visual reminder of the enormous resources that companies are putting into their compliance and ethics programs.  Barbara and I both hope to see you in Chicago next year.

Two Former Swisher Hygiene Inc. Executives Indicted on Securities Fraud and Obstruction of Justice Charges

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Former Senior Level Corporate Employee to Plead Guilty to Securities Fraud Conspiracy

A federal grand jury in Charlotte, North Carolina, has indicted two former executives of Swisher Hygiene Inc. (Swisher) on securities fraud and obstruction of justice charges, announced U.S. Attorney Jill Westmoreland Rose of the Western District of North Carolina.  Joining in today’s announcement is Special Agent in Charge John A. Strong of the FBI’s Charlotte Division.

Swisher’s former chief financial officer, Michael Kipp, 61, of Charlotte, and certified public accountant and Swisher’s former director of external reporting, Joanne Viard, 36, of Santa Rosa Beach, Florida, have been charged in connection with a securities fraud conspiracy allegedly carried out at Swisher throughout fiscal year 2011 and a subsequent obstruction of justice scheme in 2012.  The federal indictment was returned late afternoon and Kipp and Viard are scheduled to make their initial appearances in federal court on Tuesday, Oct. 20, 2015.

“My office has a long record of holding corporate executives accountable for their criminal conduct,” said U.S. Attorney Rose.  “Today’s charges continue to make clear that regardless of title or position, my office will prosecute corporate executives who engage in financial fraud schemes that defraud the investing public and undermine the integrity of our financial markets.  We will work diligently to uncover such fraud, no matter how pernicious the cover-up.”

“As alleged in the indictment, these corporate executives were entrusted to fairly and accurately report the earnings of their employer; instead, they manipulated and falsified the numbers putting the hard earned money of shareholders at risk and undermining the laws in place to protect our financial markets,” said Special Agent in Charge Strong.  “The FBI will root out corporate fraud wherever it exists and ensure those who engage in such practices are held accountable.”

Today’s charges follow the Oct.7, 2015, announcement that Swisher had entered into a deferred prosecution agreement with the United States, in which Swisher accepted and acknowledged responsibility for the conduct of its former employees and agreed to pay a $2 million penalty.  Formal charges were also filed on Oct. 7, 2015, against Swisher’s former senior-level accounting employee, John Pierrard, who is scheduled to enter his guilty plea on Tuesday, Oct. 20, 2015, for his role in the alleged accounting fraud conspiracy.

According to allegations contained in the indictment and documents filed in related cases:

Throughout fiscal year 2011, Kipp, Viard and their conspirators engaged in an accounting fraud scheme to ensure that Swisher’s reported earnings had met or exceeded executive management’s forecasts, and to conceal the existence of the fraud from Swisher’s auditors, Wells Fargo, the investing public and others.  Some of the fraudulent methods  Kipp, Viard and their conspirators used to manipulate Swisher’s books and records to fraudulently increase the company’s income included reducing expenses by moving them from the company’s profit and loss statement to its balance sheet as well as engaging in what is commonly referred to as “cookie jar” accounting.

The accounting fraud scheme began to unravel when Swisher’s then-controller pushed back on making a fraudulent entry during the year end close.  The controller wrote in an email, “I’ll run it by BDO [Swisher’s auditors] so we’re on the same page,” to which Kipp responded, “You’ll run it by me since I’m the chief accounting officer. I’m out of patience with this.”  The controller persisted in his refusal to book the fraudulent entry and Kipp fired him.  Swisher’s audit committee learned of the controller’s allegations and promptly commissioned an independent internal investigation.  After the allegations of fraud were reported, Kipp and Viard almost immediately began to engage in misleading conduct to conceal the accounting fraud conspiracy and to obstruct justice by lying to the investigators hired by the audit committee.

Approximately 11 months following the announcement of the investigation, Swisher filed restated financial reports for the first three quarters of 2011 and filed its Form 10-K for the 2011 year.  The restatement reflected, among other things, that Swisher had substantially overstated its earnings and significantly understated its losses during the relevant time period.

The indictment charges Kipp and Viard each with one count of conspiracy to commit securities fraud, to falsify books, records and accounts of Swisher, and to make misleading statements to Swisher’s auditors and accountants; one count of securities fraud; one count of wire fraud; and one count of obstruction of justice.  Kipp is also charged with one count of bank fraud.  The conspiracy charge carries a maximum prison term of five years.  The securities fraud, wire fraud and obstruction offenses each carry a maximum prison term of 20 years.  The bank fraud charge carries a maximum prison term of 30 years.

The details contained in the indictment are allegations.  The defendants are presumed innocent unless and until proven guilty beyond a reasonable doubt in a court of law.

U.S. Attorney Rose praised the FBI for its outstanding work in leading the ongoing investigation that resulted in the filing of these charges.  Rose also thanked the U.S. Securities and Exchange Commission for their assistance in the investigation.

Assistant U.S. Attorneys Mark T. Odulio and Maria K. Vento of the U.S. Attorney’s Office in Charlotte are assigned to this case.

Second Former Arrow Trucking Executive Sentenced in Multi-Million Dollar Fraud Scheme

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A Waxahachi, Texas, resident and former chief financial officer (CFO) of Arrow Trucking Company was sentenced today to serve 35 months in prison for conspiracy to commit bank fraud and to defraud the United States, announced Acting Assistant Attorney General Caroline D. Ciraolo of the Justice Department’s Tax Division and U. S. Attorney Danny C. Williams Sr. of the Northern District of Oklahoma.

Jonathan Leland Moore, 38, pleaded guilty on Dec. 4, 2014, to an information charging him with one count of a dual-object conspiracy to defraud the United States and to commit bank fraud.  Moore conspired with James Douglas Pielsticker, 47, a resident of Dallas, and former CEO and president of Arrow Trucking Company, to defraud the United States by failing to account for and pay federal withholding taxes on behalf of Arrow Trucking Company and by making payments to Pielsticker outside the payroll system.

Moore cooperated with the criminal investigation, including testifying on behalf of the government during Pielsticker’s sentencing hearing last week.  On Oct. 9, Pielsticker was sentenced to serve seven and one-half years in prison and ordered to pay $21,026,682.03 in restitution for his role in the conspiracy and for attempting to evade his individual income taxes.

Chief U.S. District Court Judge Gregory K. Frizzell of the Northern District of Oklahoma also sentenced Moore to serve three years of supervised release following his prison term and ordered him to pay $21,026,682.03 in restitution to the Internal Revenue Service (IRS) and the Transportation Alliance Bank (TAB).

According to the plea agreement and other court records, in 2009, Moore, Pielsticker and others withheld Arrow Trucking Company employees’ federal income tax withholdings, Medicare and social security taxes, but did not report or pay over these taxes to the IRS, despite knowing that they had a duty to do so.  The conspirators paid for Pielsticker’s personal expenses with money from Arrow Trucking Company and submitted fraudulent invoices to TAB to induce the bank to pay funds to Arrow Trucking Company that were not warranted.  In total, the conspiracy caused a loss to the United States totaling more than $9.562 million.

Acting Assistant Attorney General Ciraolo and U.S. Attorney Williams commended the special agents of the IRS-CI and FBI, who investigated this case, and Assistant U.S. Attorneys Jeffrey A. Gallant and Catherine Depew of the Northern District of Oklahoma and Special Assistant U.S. Attorney and Tax Division Trial Attorney Charles A. O’Reilly, who prosecuted the case on behalf of the United States.

Additional information about the Tax Division and its enforcement efforts may be found on the division’s website.

Boeing Pays $18 Million to Settle False Claims Act Allegations

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The Boeing Company has paid the United States $18 million to settle allegations that the company submitted false claims for labor charges on maintenance contracts with the U.S. Air Force for the C-17 Globemaster aircraft, the Justice Department announced today.  Boeing, an aerospace and defense industry giant, is headquartered in Chicago.

“Defense contractors are required to obey the rules when billing for work performed on government contracts,” said Principal Deputy Assistant Attorney General Benjamin C. Mizer, head of the Justice Department’s Civil Division.  “Today’s settlement demonstrates that the Justice Department will ensure that government contractors meet their obligations and charge the government appropriately.”

The government alleged that Boeing improperly charged labor costs under contracts with the Air Force for the maintenance and repair of C-17 Globemaster aircraft at Boeing’s Long Beach Depot Center in Long Beach, California.  The C-17 Globemaster aircraft, which is both manufactured and maintained by Boeing, is one of the military’s major systems for transporting troops and cargo throughout the world.  The government alleged that the company knowingly charged the United States for time its mechanics spent on extended breaks and lunch hours, and not on maintenance and repair work properly chargeable to the contracts.

The allegations resolved by the settlement announced today were originally brought by former Boeing employee James Thomas Webb under the qui tam, or whistleblower, provisions of the False Claims Act.  The act permits private individuals to sue on behalf of the government those who falsely claim federal funds, and to share in the recovery.  Mr. Webb’s share of the settlement has not yet been determined.

The case was handled by the Civil Division’s Commercial Litigation Branch, the Defense Criminal Investigative Service, the Air Force Office of Special Investigations, the Defense Contract Audit Agency and the Defense Contract Management Agency.

The False Claims Act lawsuit is captioned United States ex rel. Webb v. The Boeing Company, CV13-000694 (C.D. Cal.).  The claims resolved by today’s civil settlement are allegations only; there has been no determination of liability.