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July 29, 2010 - 2:26 pm
Daniel Fisher is a senior editor at Forbes.
The Sixth Circuit Court of Appeals made it more difficult for federal prosecutors to use one of their favorite tools to convict white-collar criminals, or pry more lengthy sentences out of them in plea negotiations: Money laundering. A decision yesterday by the conservative federal appeals court threw out money-laundering convictions against Donald Ayers and Roger Faulkenberry, masterminds of the $2.5 billion National Century Financial fraud that unraveled in 2002.
The court didn't exactly sympathize with the defendants, who are serving lengthy prison terms for fraud in addition to money laundering. "What is not seriously disputed in this appeal is that National Century Financial Enterprises (NCFE) defrauded its investors of more than $2.4 billion," the judges state in the opening sentence. But the court did set out tougher standards for prosecutors who want to add the catch-all money-laundering charge to white-collar indictments, said Brian E. Dickerson, a partner with Roetzel & Andress in Naples, Fla., who represents Ayers.
"This will help future officers and directors who may not know exactly what the rest of the corporation is doing," said Dickerson, whose client is two years into a 15-year sentence. "It can't just be assumed any more."
National Century ran a scheme in which it attracted money from investors under the premise that it was loaning it to hospitals and other medical enterprises against the collateral of short-term receivables. In fact the company was lending the money with no collateral at all, and using the proceeds of new bond offerings to pay interest to existing investors. All that was proven in court, the appeals court said.
What the feds didn't prove -- partly because under the law as understood at the time, they didn't have to -- was that when the executives transferred new investor money into improper accounts they were doing so as part of a scheme to conceal the source of the money. The Supreme Court heightened the standard of proof required under the money-laundering statute in a 2008 decision, Cuellar v. U.S., involving an alleged drug courier found with $81,000 concealed in his car. Prosecutors had to prove not just that the money was concealed, but that the purpose of moving it around was to conceal its source, location or ownership.
Dickerson said money-laundering charges are tacked on to 90% of all fraud indictments and such financial celebrities as Jeffrey Skilling and Richard Scrushy have been convicted. The federal statute also provided for stiffer sentences than wire fraud he said, providing a heavy cudgel in plea-bargain negotiations.
Under the previous regime, he said, "if you can negotiate money laundering out of the plea agreement you're doing good, because it hurts your client so bad." Now defense lawyers can focus on the crux of a fraud: lying to investors to get their money.