Bosnian Army Guard Convicted of War Crimes Pleads Guilty to Fraudulent 2002 U.S. Citizenship

Posted: 12:03 am ET

Via USDOJ:  Former Bosnian Army Prison Guard Pleads Guilty to Fraudulently Procuring U.S. Citizenship

A Jacksonville, Florida, man pleaded guilty today for unlawfully procuring U.S. citizenship by failing to disclose during his naturalization process his membership in the Bosnian Army and crimes that he committed in Bosnia and Herzegovina during the Bosnian Conflict in the 1990s, announced Assistant Attorney General Leslie R. Caldwell of the Justice Department’s Criminal Division and U.S. Attorney A. Lee Bentley III of the Middle District of Florida.

Slobo Maric, 56, pleaded guilty before U.S. Magistrate Judge James R. Klindt of the Middle District of Florida.  Sentencing has not yet been scheduled.

According to the plea agreement, in 1993, Maric served as a shift leader, the second in command to the warden, of a detention facility in Bosnia that housed captured Bosnian-Croat soldiers.  Many of the guards in the facility routinely subjected detainees to serious physical abuse and humiliation, including by referring to them with ethnic slurs and spitting on them.  According to the plea agreement, Maric selected detainees for other guards to abuse; directly participated in abusing several prisoners; and sent prisoners on dangerous and deadly work details on the front line of the conflict.  The Bosnian government charged Maric for his criminal conduct and, after Maric immigrated to the United States, Bosnia indicted and convicted Maric in absentia for war crimes against prisoners.  According to the plea agreement, Maric knew about the Bosnian court proceedings, yet he failed to disclose the proceedings and lied about his conduct on his application for U.S. citizenship.  Maric became a naturalized U.S. citizen on Oct. 31, 2002.

U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) Jacksonville Field Office investigated the case under the supervision of the HSI Tampa Field Office with support from ICE’s Human Rights Violators and War Crimes Center.

Trial Attorneys Clayton O’Connor, Sasha Rutizer and Christina Giffin and Historian David Rich of the Criminal Division’s Human Rights and Special Prosecutions Section and Assistant U.S. Attorney Dale Campion of the Middle District of Florida are prosecuting the case.

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Fraudsters in Costa Rica VOIP Scheme Plead Guilty to $9 million “Sweepstakes Fraud”

Posted: 1:29 am ET

 

Via USDOJ: Owner of Costa Rican Call Center and Two Others Plead Guilty to Defrauding Elderly through Offshore Sweepstakes Scheme

Two U.S. citizens and a Canadian citizen have pleaded guilty for their roles in a $9 million “sweepstakes fraud” scheme to defraud hundreds of U.S. residents, many of them elderly, announced Assistant Attorney General Leslie R. Caldwell of the Justice Department’s Criminal Division and U.S. Attorney Jill Westmoreland Rose of the Western District of North Carolina.

Jeffrey Robert Bonner, 37, of Sacramento, California; Cody Trevor Burgsteiner, 33, of Houston; and Darra Lee Shephard, 57, of Calgary, Alberta, pleaded guilty this week before U.S. Magistrate Judge David Keesler of the Western District of North Carolina to various counts of conspiracy to commit wire fraud and mail fraud, wire fraud, conspiracy to commit money laundering and international money laundering, all in connection with a Costa Rican telemarketing fraud scheme.  Sentencing dates have not been set.

As part of their guilty pleas, Bonner, Burgsteiner and Shephard each admitted that from approximately 2007 through November 2012, they worked in a call center located in Costa Rica, which Bonner owned, where they placed telephone calls to U.S. residents, falsely informing them that they had won a substantial cash prize in a “sweepstakes.”  The victims, many of whom were elderly, were told that in order to receive the prize, they had to pay for a purported “refundable insurance fee,” the defendants admitted.  Bonner, Burgsteiner and Shephard admitted that once they received the money, they contacted the victims again to tell them that their prize amount had increased, due to either a clerical error or because other winners had been disqualified.  The victims were then told to send additional money to pay for new purported fees, duties and insurance to receive the now larger sweepstakes prize, the defendants admitted.  The defendants further admitted that they and their co-conspirators continued their attempts to collect additional money from the victims until an individual either ran out of money or discovered the fraudulent nature of the scheme.  To mask that they were calling from Costa Rica, the conspirators utilized voice over internet protocol (VoIP) phones that displayed a 202 area code, giving the false impression that they were calling from Washington, D.C., they admitted.  According to admissions made in connections with their pleas, the defendants and their co-conspirators often falsely claimed that they were calling on behalf of a U.S. federal agency to lure victims into a false sense of security.

Bonner, Burgsteiner, Shephard and their co-conspirators were responsible for causing approximately $9 million in losses to hundreds of U.S. citizens.

The U.S. Postal Inspection Service, FBI, Internal Revenue Service-Criminal Investigation, Federal Trade Commission and Department of Homeland Security investigated the case, and the Criminal Division’s Fraud Section supervised the investigation.  Senior Litigation Counsel Patrick Donley and Trial Attorneys William Bowne and Gustav Eyler of the Fraud Section are prosecuting the case.

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United States v. DynCorp: Suit Alleges Submission of False Claims in Iraqi Police Force Contract

Posted: 2:42 am ET

Via USDOJ:

United States Files Suit against DynCorp International Alleging Submission of False Claims under State Department Contract

The United States filed a False Claims Act complaint against DynCorp International Inc. (DynCorp) alleging that it knowingly submitted inflated claims in connection with a State Department contract to train Iraqi police forces (CIVPOL contract), the Department of Justice announced today.  The United States filed the complaint in the U.S. District Court for the District of Columbia.  DynCorp, which is headquartered in McLean, Virginia, is a wholly-owned subsidiary of Delta Tucker Holdings Inc.

In April 2004, the State Department’s Bureau for International Narcotics and Law Enforcement Affairs awarded the CIVPOL contract to DynCorp to provide training for civilian police forces in Iraq and other services needed to support that effort, such as trainers, guards, translators, vehicles and living quarters for contractor personnel.  In its complaint, the United States alleges that DynCorp knowingly allowed one of its main CIVPOL subcontractors to charge excessive and unsubstantiated rates for hotel lodging, translator, security guard and driving services and overhead expenses, and included these charges in the claims it submitted under the CIVPOL contract to the State Department.  The complaint also alleges that DynCorp added its own markup to its subcontractor’s excessive charges, thereby further inflating the claims it submitted to the government.

“Companies that contract with the United States have an obligation to deal fairly and openly with the government,” said Principal Deputy Assistant Attorney General Benjamin C. Mizer, head of the Justice Department’s Civil Division.  “Attempting to take advantage of the American taxpayers in times of war is a shameful abuse of this responsibility.”

“The United States relies on its contractors to be forthcoming with accurate information and to act responsibly in return for receiving the taxpayers’ money,” said U.S. Attorney Channing D. Phillips of the District of Columbia.  “Our office is committed to recovering funds from those who fail to adhere to those responsibilities and obligations.”

The civil complaint in this action is the result of an investigation by the Civil Division’s Commercial Litigation Branch, the U.S. Attorney’s Office for the District of Columbia and the State Department’s Office of Inspector General.

The case is captioned United States v. DynCorp International, Inc., No. 1:16-cv-01473 (D.D.C.).  The claims asserted in the complaint are allegations only, and there has been no determination of liability.

 

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Contractors Settle False Claims Allegations Related to USAID Food Aid Storage/Redelivery For $1.075M

Posted: 3:55 am ET

Via USDOJ:

Jacintoport International LLC and Seaboard Marine Ltd Agree to Settle False Claims Allegations Related to Delivery of Humanitarian Food Aid

The Justice Department announced today that Jacintoport International LLC (Jacintoport) and Seaboard Marine Ltd. (Seaboard Marine) have agreed to pay $1.075 million to settle a lawsuit alleging that the companies violated the False Claims Act in connection with a warehousing and logistics contract for the storage and redelivery of humanitarian food aid. Jacintoport is a cargo handling and stevedoring firm headquartered in Houston, Texas, and Seaboard Marine, an affiliate of Jacintoport, is an ocean transportation company headquartered in Miami, Florida.

In its lawsuit, the United States alleged that Jacintoport executed in 2007 a warehousing and logistics contract with the United States Agency for International Development (USAID) for the storage and redelivery of emergency humanitarian food aid. This contract contained explicit caps on the rates Jacintoport could charge ocean carriers to load humanitarian food aid onto ships (referred to as “stevedoring” charges) bound for crisis areas around the world. The complaint alleges that beginning around January 2008 and continuing through at least October 2009, Jacintoport, under the supervision and control of Seaboard, charged ocean carriers more for stevedoring than permitted to load over 50,000 tons of humanitarian food aid. These inflated stevedoring charges were subsequently lumped into other costs for delivering humanitarian food aid and passed on to the United States.

“USAID’s humanitarian food aid program provides critical assistance to starving people all over the world,” said Principal Deputy Assistant Attorney General Benjamin C. Mizer, head of the Justice Department’s Civil Division. “The Justice Department will hold accountable those who seek to abuse this important program.” ‪

“It is unacceptable for companies that do business with the federal government to inflate their costs,” said U.S. Attorney Channing D. Phillips for the District of Columbia. “This settlement demonstrates our determination to protect the taxpayers’ dollars – and humanitarian programs – from abuse.”

The allegations resolved by this settlement were initially brought in a lawsuit filed under the qui tam or whistleblower provisions of the False Claims Act by John Raggio, a shipping contractor who allegedly received an invoice from Jacintoport that contained the excessive stevedoring charge. Under the Act’s qui tam provisions, a private citizen, known as a “relator,” can sue on behalf of the United States and share in any recovery. The United States is permitted to intervene in the lawsuit, as it did here. Raggio will receive $215,000. Earlier today, the government requested that the case be dismissed.

This matter was handled by the Civil Division’s Commercial Litigation Branch and the U.S. Attorney’s Office for the District of Columbia, with assistance from the USAID Office of the Inspector General. The claims resolved by this settlement are allegations only and there has been no determination of liability. The case is United States ex. rel. Raggio v. Jacintoport International, LLC, et al. Case No. 1:10-cv-01908 (D.D.C.).

 

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McDonnell v. United States: OGE Issues Advisory on Supreme Court Decision to Ethics Officials

Posted: 12:09 am ET

Last month, the Office of Government Ethics (OGE) issued a legal advisory related to the SCOTUS ruling on bribery charges against former Virginia Governor Robert F. McDonnell.  To recap, the former governor, and his wife, Maureen McDonnell, were indicted by the Federal Government on “honest services fraud and Hobbs Act extortion charges related to their acceptance of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams, while Governor McDonnell was in office. Williams was the chief executive officer of Star Scientific, a Virginia-based company that had developed Anatabloc, a nutritional supplement made from anatabine, a compound found in tobacco. Star Scientific hoped that Virginia’s public universities would perform research studies on anatabine, and Williams wanted Governor McDonnell’s assistance in obtaining those studies.”  According to court filings, to convict the McDonnells, the Government was required to show that Governor McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts.  The case was argued in the Supreme Court in April 2016, and SCOTUS decided on the case in June 2016 (see SCOTUS case here in PDF).

Excerpt from the OGE memo:

On June 27, 2016, the U.S. Supreme Court issued its opinion in McDonnell v. United States, 579 U.S. ___, 195 L. Ed. 2d 639 (2016), which vacated the lower courts’ conviction of former Virginia Governor Robert F. McDonnell on bribery charges. The U.S. Office of Government Ethics (OGE) is issuing this legal advisory to emphasize that the Supreme Court’s holding in McDonnell does not affect other applicable prohibitions on Federal employees’ solicitation or acceptance of gifts, including 5 U.S.C. § 7353 and 5 C.F.R. § 2635.202(a).

The advisory notes the following:

5 U.S.C. § 7353 prohibits an executive branch employee from soliciting and accepting gifts from any prohibited source, unless an exception promulgated by regulation applies. Likewise, the Standards of Ethical Conduct for Employees of the Executive Branch, at 5 C.F.R. § 2635.202(a), prohibit an employee from soliciting or accepting any gift, directly or indirectly, if the gift is given because of the employee’s official position or the person offering the gift is a prohibited source. There is no requirement for the gift to be made in connection with any “official act” for these prohibitions to apply. These prohibitions apply to anything having monetary value unless the item is excluded from the definition of “gift” under 5 C.F.R § 2635.203(b) or qualifies for one of the narrowly tailored exceptions set forth in 5 C.F.R. § 2635.204.

OGE also says that “The Court’s opinion did not address the application of 5 U.S.C. § 7353, 5 C.F.R.§ 2635.202, or any other ethics law; rather, the Court opined solely on the construction of 18 U.S.C. § 201(a)(3). Consequently, the McDonnell opinion also does not affect OGE’s legal interpretation of the criminal conflict of interest statutes at 18 U.S.C. §§ 202-209 or OGE’s interpretation of the gift prohibitions at 5 U.S.C. § 7353 or 5 C.F.R. § 2635.202(a).”

Read the full advisory below:

Related items:

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USAID Reconstruction Contracts in Afghanistan and Iraq Bites Former Louis Berger Executives

Posted: 4:05 am ET

 

In May 2015,  the former president, chief executive officer, and chairman of the board of USAID contractor Louis Berger Group Inc. (LBG) was  sentenced to 12 months of home confinement and fined $4.5 million for conspiring to defraud the U.S. Agency for International Development (USAID) with respect to billions of dollars in contracts over a nearly 20-year period.  See Conspired to Defraud Uncle Sam? Be Very Afraid. We’re Gonna Put You in Home Confinement! Last week, USDOJ announced that it has filed a lawsuit under the False Claims Act against the former LBG CEO Derish M. Wolff  and former CFO Salvatore J. Pepe “for conspiring to overbill the U.S. Agency for International Development (USAID) and other government agencies for costs incurred performing reconstruction contracts in Afghanistan, Iraq, and other countries.”

Via USDOJ: United States Sues Former Executives of Government Contractor for Making False Claims in Connection with Reconstruction Contracts in Afghanistan and Iraq

The Justice Department announced today that the government has filed suit under the False Claims Act against Derish M. Wolff and Salvatore J. Pepe, respectively the former CEO and CFO of Louis Berger Group Inc. (LBG), for conspiring to overbill the U.S. Agency for International Development (USAID) and other government agencies for costs incurred performing reconstruction contracts in Afghanistan, Iraq, and other countries, the Justice Department announced today.  LBG is based in East Orange, New Jersey.

“Those who do business with the U.S. government should expect appropriate consequences if they do not deal fairly,” said Principal Deputy Assistant Attorney General Benjamin C. Mizer, head of the Justice Department’s Civil Division.  “As this case demonstrates, the government will hold both corporate entities and individuals accountable if they misuse taxpayer funds.”

The government’s complaint alleges that Wolff and Pepe designed and directed various accounting schemes that resulted in LBG billing the government for indirect overhead costs at inflated rates.  According to the complaint, for example, Wolff and Pepe shifted portions of salaries of LBG executives and accounting personnel from contracts paid for by foreign and state governments and private entities to contracts paid for by the United States.  Wolff and Pepe allegedly certified the false rates and submitted them to the government in annual financial reports.

The United States resolved criminal and civil claims against LBG arising from this conduct on Nov. 5, 2010.  At that time, LBG entered into a Deferred Prosecution Agreement and paid $50.6 million to resolve False Claims Act allegations.  Pepe pleaded guilty on that date to a charge of conspiracy to defraud the government and was later sentenced to one year probation.  Wolff pleaded guilty to the same charge on Dec. 12, 2014, and was later sentencedto 12 months of home confinement and required to pay a $4.5 million fine for his role in the scheme.  The complaint filed today asserts civil claims against Wolff and Pepe.

The United States filed its complaint in a lawsuit originally brought under the qui tam, or whistleblower, provisions of the False Claims Act, by Harold Salomon, an LBG accountant from March 2002 to October 2005.  Under the Act, a private citizen can sue on behalf of the United States and share in any recovery.  The United States is also entitled to intervene in the lawsuit, as it has done in this case.

This matter is being handled by the Civil Division’s Commercial Litigation Branch and the U.S. Attorney’s Office for the District of Maryland, with investigative support from the FBI, USAID’s Office of Inspector General, the Defense Criminal Investigative Service and the Defense Contract Audit Agency.

“I applaud the dedication of USAID-OIG special agents, along with special agents of the FBI and the Defense Criminal Investigative Service,” said USAID Inspector General Ann Calvaresi Barr.  “Their joint investigative work has helped the Justice Department take action against those responsible and signals our continuing commitment to protecting public funds from fraud, waste, and abuse.”

The case is United States ex rel. Harold Salomon v. Derish M. Wolff & Salvatore J. Pepe, Civ. No. RWT-06-1970 (D. Md.).  The claims asserted against Wolff and Pepe are allegations only to the extent not admitted in their criminal pleas, and there has been no determination of civil liability.

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Yemen Non-Evacuation: Court Refuses to Second-Guess Discretionary Foreign Policy Decisions

Posted: 4:38 am ET

The State Department’s Yemen Crisis page notes that due to deteriorating situation, it suspended embassy operations on February 11, 2015, and U.S. Embassy Sana’a American staff were relocated out of the country.  “All consular services, routine and emergency, continue to be suspended until further notice. The Department notified the public of this move, and its impact on consular services, and urged U.S. citizens in Yemen to depart while commercial transportation was available.”

The U.S. Embassy in Sanaa went on mandatory evacuation in May 2011 (see US Embassy Yemen Now on Ordered Departure), and again in August 2013 (see US Embassy Yemen Now on Ordered Departure) and November 2014 (see US Embassy Yemen on Ordered Departure Once Again). In July 2014, the State Department issued a Travel Warning, see New Travel Warning for Yemen — Don’t Come; If In Country, Leave! But Some Can’t Leave).

See our other posts:

The case below was filed on April 9, 2015 by a Nora Ali Mobarez, a United States citizen residing in Yemen.  She was joined by “25 other people, all of whom are U.S. citizens or permanent residents with Yemeni connections” in filing a cases against the Secretaries of State and Defense and seeking a court order to “compel Defendants to comply with an alleged duty of the Executive Branch to provide a means of evacuation from Yemen for them or their relatives.”

Excerpt from the Memorandum of Opinion dated May 17, 2016 by Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia:

Plaintiff Nora Ali Mobarez, a United States citizen, is currently residing in the war-torn and conflict-ridden Republic of Yemen. (See Compl., ECF No. 2, ¶¶ 4, 55– 59.) Mobarez has joined with 25 other people, all of whom are U.S. citizens or permanent residents with Yemeni connections, to file the instant official-capacity complaint against the Secretary of the Department of State (“State”) and the Secretary of the Department of Defense (“DOD” and, collectively, “Defendants”). These plaintiffs seek a court order to compel Defendants to comply with an alleged duty of the Executive Branch to provide a means of evacuation from Yemen for them or their relatives. (See id. ¶¶ 3–24, 29–77.) Specifically, their complaint asserts that the United States has closed its embassy in Sana’a, Yemen, has evacuated embassy staff, and has removed Marines from the country, but that the U.S. government has yet to execute any plan to secure the safe removal of private American citizens. (See id. ¶¶ 34–36, 77.) According to Plaintiffs, Defendants’ forbearance violates the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–06, insofar as Defendants “have failed to provide through direct military assistance or contracting with commercial entities the necessary equipment, ships, airplanes, and other items that are available to Defendants to [e]nsure the security, safety, and well-being of United States citizens[,]” and have therefore “unlawfully withheld and/or unreasonably delayed agency action to which the Plaintiffs are entitled” and/or “have taken action that is arbitrary and capricious and an abuse of discretion and not in accordance with law[.]” (Id. ¶ 81.)

Before this Court at present is Defendants’ Motion to Dismiss the instant complaint. (See Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), ECF No. 8.) Defendants contend that Plaintiffs are wrong about the existence of any duty to evacuate them. (See Defs.’ Reply in Supp. of Defs.’ Mot. (“Reply”), ECF No. 12, at 6–8.)1 Furthermore, as a threshold matter, Defendants insist that legal claims such as the ones Plaintiffs bring here require the judiciary to second-guess the discretionary foreign- policy decisions of the Executive Branch, and thus, are nonjusticiable under the political-question doctrine. (See Defs.’ Mem. in Supp. of Defs.’ Mot. (“Defs.’ Mem.”), ECF No. 8-1, at 12–14.)

On March 31, 2016, this Court issued an order GRANTING Defendants’ Motion to Dismiss Plaintiffs’ complaint. (See Order, ECF No. 13.) The instant Memorandum Opinion explains the Court’s reasons for that order. In short, the Court agrees with Defendants’ justiciability argument, and has therefore concluded that it lacks jurisdiction to entertain Plaintiffs’ complaint.
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Plaintiffs have asked this Court, in no uncertain terms, to issue an order that compels the Executive Branch to conduct an evacuation of American citizens in Yemen. Not surprisingly, Defendants insist that any such order would impermissibly encroach upon the discretion that the Constitution affords to the political branches to conduct foreign affairs; therefore, prior to considering Defendants’ contention that Plaintiffs’ complaint fails to state a claim under the APA, this Court must first determine whether or not it has the authority to traverse the thicket of thorny foreign-policy issues that encompasses Plaintiffs’ allegations. Precedent in this area makes it crystal clear that federal courts cannot answer “political questions” that are presented to them in the guise of legal issues, see infra Part III.A., but identifying which claims qualify as nonjusticiable political questions—and which do not—can sometimes be a substantially less lucid endeavor. Not so here: as explained below, after considering the parties’ arguments and the applicable law regarding the boundaries of the political-question doctrine, this Court is confident that Plaintiffs’ claims fit well within the scope of the nonjusticiability principles that the Supreme Court and D.C. Circuit have long articulated. Accordingly, in its Order of March 31, 2016, the Court granted Defendants’ motion and dismissed Plaintiffs’ case.
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It cannot be seriously disputed that “decision-making in the fields of foreign policy and national security is textually committed to the political branches of government.” Schneider, 412 F.3d at 194; see also id. at 194–95 (collecting the various explicit “[d]irect allocation[s]” in the Constitution of those responsibilities to the legislative and executive branches). And, indeed, Plaintiffs seek to have this Court question the Executive Branch’s discretionary decision to refrain from using military force to implement an evacuation under the circumstances described in the complaint, despite the fact that, per the Constitution, it is the President who, as head of the Executive Branch and “Commander in Chief[,]” U.S. Const. Art. II, § 2, decides whether and when to deploy military forces, not this Court. See El-Shifa, 607 F.3d at 842 (explaining that a claim “requiring [the court] to decide whether taking military action was wise” is a nonjusticiable “policy choice[] and value determination[]” (second and third alterations in original) (internal quotation marks and citation omitted)).

Plaintiffs’ suggestion that the court-ordered remedy they seek could very well stop short of a direct mandate for military intervention (see Pls.’ Opp’n at 15 (asserting that “[t]his Court can order Defendants to [effectuate the evacuation] by simply directing the evacuation to happen and leaving it to Defendants to determine the means”)) makes no difference, as far as the political-question doctrine is concerned. Regardless, the clear basis for the complaint’s assertion that Plaintiffs are entitled to any relief at all is the contention that the Executive Branch has abused its discretion— in APA terms—in refusing to evacuate U.S. citizens from Yemen thus far (see, e.g., Compl. ¶ 81), and the Court’s evaluation of that contention would necessarily involve second-guessing the “wisdom” of these agencies’ discretionary determinations.
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[T]he “strategic choices directing the nation’s foreign affairs are constitutionally committed to the political branches[,]” and once it becomes clear that a plaintiff wishes the courts to “reconsider the wisdom of discretionary foreign policy decisions[,]” the judicial inquiry must end.

Read the Memorandum of Opinion here (PDF) or read below:

 

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EEOC Case: FS Candidate Wins Disability Discrimination Case, Sinks For Selective Service Registration Fail

Posted: 4:32 am ET

Via eeoc.gov:

On March 9, 2004, Complainant filed a formal complaint alleging that he was subjected to disability discrimination when he was denied an appointment to a Junior Officer position with the Foreign Service.  After an investigation, the Agency issued a final decision finding no discrimination, and Complainant appealed.  In our prior decision, we found the Agency discriminated against him when it failed to grant him a medical clearance based on its “worldwide availability” requirement.  Bitsas v. U.S. Department of State, EEOC Appeal No. 0120051657 (Sept. 30, 2009).  As relief, we ordered the Agency to retroactively offer Complainant a Junior Officer position, and to tender back pay and promotions from the date Complainant would have encumbered his position, absent discrimination, until the date he either enters on duty or is denied a medical or security clearance.  We further ordered the Agency to undertake a supplemental investigation into complainant’s entitlement to compensatory damages, provide training, consider taking disciplinary action, and post a notice of the finding of discrimination.  Id.

Pursuant to our order, on November 10, 2009, the Agency sent Complainant a Conditional Offer of Appointment to a Junior Officer position, contingent on the satisfactory completion of the security, medical, and suitability clearance processes.  On January 1, 2010, Complainant received a Class 1 Medical Clearance.  However, on July 16, 2010, the Agency’s Final Review Panel (FRP) terminated Complainant’s candidacy based on suitability grounds.

The FRP concluded that, pursuant to 5 U.S.C. § 3328, Complainant was ineligible for federal Executive branch employment because he failed to register with the Selective Service System (SSS).  The Panel also concluded that there were several instances of misconduct in Complainant’s prior employment which rendered him ineligible for employment with the Foreign Service.  Complainant appealed this decision, but on December 8, 2010, the Office of Personnel Management (OPM) determined that Complainant’s failure to register with the SSS was knowing and/or willful; thus, he was ineligible for appointment to an Executive Agency.  Complainant sought a request for reconsideration with the OPM, which was denied.

In the meantime, Complainant sent the Agency information regarding his entitlement to compensatory damages.  On April 11, 2012, the Agency issued a final decision denying compensatory damages, reasoning that the FRP’s suitability finding would have resulted in the withdrawal of his conditional offer of employment, even if he had been granted a medical clearance for worldwide availability.  Accordingly, the Agency determined complainant was not entitled to any compensatory damages.
[…]

The Agency is ordered to take the following remedial action:

1. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501, no later than one hundred and twenty (120) calendar days after the date this decision becomes final.  The back pay period shall be from September 23, 2003 until the date the Agency discovered Complainant had not registered with the SSS, approximately July 16, 2010.  The Complainant shall cooperate in the Agency’s efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency.  If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to the Complainant for the undisputed amount within sixty (60) calendar days of the date the Agency determines the amount it believes to be due.  The Complainant may petition for enforcement or clarification of the amount in dispute.  The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled “Implementation of the Commission’s Decision.”

2. Within one hundred and twenty (120) calendar days, the Agency shall undertake a supplemental investigation to determine Complainant’s entitlement to compensatory damages under Title VII. The Agency shall give Complainant notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) and request objective evidence from Complainant in support of his request for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency’s notice.  No later than ninety (90) calendar days after the date that this decision becomes final, the Agency shall issue a final Agency decision addressing the issue of compensatory damages.  The final decision shall contain appeal rights to the Commission. The Agency shall submit a copy of the final decision to the Compliance Officer at the address set forth below.

3. The Agency shall pay Complainant’s reasonable attorney fees in accordance with the paragraph below.

4. The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.”  The report shall include supporting documentation of the Agency’s calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented.

See why. Read Harvey D. v. Department of State, EEOC Appeal No.0120122385 (Oct. 22, 2015) http://www.eeoc.gov/decisions/0120122385.txt

Under current law, all male U.S. citizens between 18–25 years are required to register with Selective Service within 30 days of their 18th birthday. Non-U.S.-citizen males between the ages of 18 and 25 (inclusive) living in the United States must also register. See the Who Must Register chart here.

 

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Ex-Fox News Commentator/CIA Impostor Sentenced to 33 Months in Prison For Fraud

Posted: 3:27 am ET

We’ve previously posted about this case here: Ex-Fox News Commentator Pleads Guilty to Fraud, Dents Benghazi Cottage Industry. On July 15, USDOJ announced that Wayne Shelby Simmons was sentenced  to 33 months in prison “for major fraud against the government, wire fraud, and a firearms offense.” The sentence also includes three years of supervised release, forfeiture of two firearms and $175,612 in criminal proceeds, and restitution to his victims.

Via USDOJ | CIA Imposter Sentenced to Prison for Fraud

ALEXANDRIA, Va. – Wayne Shelby Simmons, 62, of Annapolis, Maryland, a former Fox News commentator who has falsely claimed he spent 27 years working for the Central Intelligence Agency (CIA), was sentenced today to 33 months in prison for major fraud against the government, wire fraud, and a firearms offense.  Simmons was also ordered to serve three years of supervised release, to forfeit two firearms and $175,612 in criminal proceeds, and to pay restitution to his victims.

“Wayne Simmons is a fraud,” said Dana J. Boente, U.S. Attorney for the Eastern District of Virginia. “Simmons has no military or intelligence background, or any skills relevant to the positions he attained through his frauds.  He is quite simply a criminal and a con man, and his fraud had the potential to endanger national security and put American lives at risk in Afghanistan.   I want to thank the agents and prosecutors for their efforts on this complicated case.”

“With this sentencing, Simmons now faces the consequences of his criminal activity, deceit, and dishonesty,” said Paul M. Abbate, Assistant Director in Charge of the FBI’s Washington Field Office.  “He fraudulently obtained positions with the U.S. government by lying about his previous employment and history, and further, defrauded a victim through a bogus real estate investment scheme. Simmons abused people’s trust for his own selfish gain, and in doing so placed lives at risk and jeopardized national security.”

“Mr. Simmons never worked at CIA and we are pleased that justice was served in this case,” said Dean Boyd, Director of CIA’s Office of Public Affairs.

Simmons pleaded guilty on April 29.  According to court documents, Simmons defrauded the government in 2008 when he obtained work as a team leader in the U.S. Army’s Human Terrain Systems program, in 2009 when he attempted to obtain work with the State Department’s Worldwide Protective Service, and again in 2010 when he was deployed to Afghanistan as a senior intelligence advisor on the International Security Assistance Force’s Counterinsurgency Advisory and Assistance Team (CAAT).  To obtain these positions and the security clearances they required, Simmons made false statements about his financial, employment, and criminal history, including that he had worked for the CIA, that he had previously possessed a top secret security clearance, and that his prior criminal convictions related to his supposed clandestine work.  In order to obtain the CAAT position, Simmons also lied about the nature of the work he had done just a year earlier with the Human Terrain Systems program, a program from which he had been forced to resign prior to deployment.  The government’s investigation determined that Simmons was never associated with the CIA in any capacity and that during the years he claims to have worked for the agency, he was instead working in a variety of capacities and having various run-ins with the law.  His work activities from 1973-2000 include: defensive back for the New Orleans Saints NFL team, nightclub doorman, manager at a rent-by-the-hour hot tub business, bookie, operator of a limousine business and an AIDS-testing business, mortgage broker, and employment at an anti-graffiti business.  During that time, the defendant was also convicted of state firearms, assault, and gambling charges and federal firearms charges.

Simmons also defrauded an individual victim, identified as E.L., out of $125,000 in connection with a bogus real estate investment.  As part of the fraud, Simmons sent E.L. promised monthly disbursements to make it appear as if her funds had been invested as promised and repeatedly lied to her about the whereabouts of her money in order to perpetuate the fraud.  There was never any actual real estate investment project, and Simmons simply spent the funds.

Finally, when Simmons was arrested in this case, he was found to be in possession of two firearms, which he was prohibited from possessing on account of his prior felony convictions.

Dana J. Boente, U.S. Attorney for the Eastern District of Virginia; and Paul M. Abbate, Assistant Director in Charge of the FBI’s Washington Field Office, made the announcement after sentencing by U.S. District Judge T. S. Ellis, III.  Assistant U.S. Attorneys Paul J. Nathanson and James L. Trump prosecuted the case.

A copy of this press release may be found on the website of the U.S. Attorney’s Office for the Eastern District of Virginia.  Related court documents and information may be found on the website of the District Court for the Eastern District of Virginia or on PACER by searching for Case No. 1: 15-cr-293.

Click file to read the indictment (PDF) via USDOJ/USAO/Eastern District of Virginia.

This is a guy who was part of the Pentagon’s Retired Military Analysts program whose members, the um… “message force multipliers” were given regular briefings from Donald Rumsfeld, then the secretary of defense. Read the wild story on how this con unraveled: The Plot to Take Down a Fox News Analyst via NYT mag.

 

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NY Couple Pays $1 Million Penalty in Immigration Fraud Scheme Involving Philippine H-1B Nurses

Posted: 3:01 am ET

Via USDOJ/Vermont:

New York Lawyer and Wife Pay $1 Million Following Conviction on Immigration Fraud Scheme

The Office of the United States Attorney for the District of Vermont announced today that Loreto Kudera, age 45, and Hazel Kudera, age 43, a married couple from New York, New York, who have pleaded guilty to an immigration fraud scheme, have paid the final installment of their $1 million forfeiture penalty representing ill-gotten gains from the scheme.

On June 9, 2016, the Kuderas pleaded guilty to charges that they conspired to commit immigration fraud. According to the public record, Hazel Kudera owns several medical staffing agencies in New York specializing in providing nursing professionals to hospitals, outpatient and skilled nursing facilities. She and her husband, Loreto Kudera, then a lawyer at the Law Offices of Barry Silberzweig, in New York, New York, provided false and fraudulent information to the U.S. Citizenship and Immigration Services in St. Albans, Vermont when applying for  for foreign nurses.

The H-1B visa program permits an employer to petition on a behalf of a foreign national beneficiary to enter the United States for the specific purpose of working for the employer in a specialty occupation. There are a limited number of H-1B visas available each year, and the purpose of the program is to ensure that these visas go to legitimate beneficiaries to fill specialty positions from a qualified work force. Working as a general RN or LPN is not considered a specialty occupation by the U.S. Citizenship and Immigration Service. Knowing this, Hazel Kudera and Loreta Kudera falsely stated that these foreign nurses, mostly from the Philippines, would be working in specialty occupations at prevailing wage rates when, in fact, they were going to work as LPNs or RNs at much lower rates, mostly at nursing homes. Hazel Kudera and Loreto Kudera profited from this scheme from the filing fees they collected from the beneficiaries as well as from the health care facilities which were paying fees to the medical staffing agencies owned by Hazel Kudera. The Kuderas admitted that they submitted 100 or more fraudulent petitions as part of their scheme. As a result of their convictions, the Kuderas agreed to forfeit $1,000,000 in illegal proceeds to the United States.

The Kuderas are scheduled to be sentenced on September 28, 2016. The maximum penalties for their conviction are five years of imprisonment, three years of supervised release, or a fine of $250,000 or twice the amount of gross gain, whichever is greater. The sentence will be advised by the United States Sentencing Guidelines.

The United States Attorney commended the investigative efforts of the United States Department of State, Diplomatic Security Service, the United States Department of Labor Office of Inspector General, Office of Labor Racketeering and Fraud, and the United States Department of Homeland Security, Homeland Security Investigations, in Boston, Massachusetts, who jointly spearheaded the investigation. The United States Attorney also wishes to thank the United States Citizenship and Immigration Service, Security Fraud Division, at the Vermont Service Center in St. Albans, Vermont for their assistance with the investigation.

The original announcement is available here.

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