Former @StateDept Employee Pleads Guilty To Honest Services Fraud Scheme

 

This is a follow-up to the June 2, 2021 post we did — SDNY Charges @StateDept Contractor in Multimillion-Dollar Fraud Schemes, Then There’s “Insider-1” at OBO.

On September 20, 2021, the Justice Department announced that May Salehi, a former State Department employee, pled guilty today to conspiracy to commit honest services fraud.  See U.S. v. May Salehi.
Below is the USDOJ announcement: Former State Department Employee Pleads Guilty To Honest Services Fraud Scheme

May Salehi Provided Confidential Bidding Information to a Bidder and Received Lucrative Kickback Payments in Return

Audrey Strauss, the United States Attorney for the Southern District of New York, Michael Speckhardt, the Special Agent in Charge of the U.S. Department of State, Office of Inspector General (“State Department OIG”), and Thomas Fattorusso, Acting Special Agent in Charge of the Internal Revenue Service, Criminal Investigation, New York Field Office (“IRS-CI”), announced that MAY SALEHI, a former State Department employee, pled guilty today to conspiracy to commit honest services fraud.  SALEHI was a longtime State Department employee who was involved in evaluating bids for critical overseas government construction projects such as U.S. embassies and consulates.  SALEHI gave confidential inside bidding information to a bidder, and received $60,000 in kickback payments in return.  SALEHI surrendered today and pled guilty before United States Magistrate Judge James L. Cott.  SALEHI’s case is assigned to United States District Judge P. Kevin Castel.

Manhattan U.S. Attorney Audrey Strauss said: “As a State Department employee, May Salehi was entrusted to serve the public.  Instead, she abused her position of trust to line her own pockets, as she admitted today.  Salehi revealed, and traded on, confidential information – corrupting the bidding process and receiving lucrative kickbacks in return.  Together with our law enforcement partners, this Office is committed to rooting out corruption.”

State Department OIG Special Agent in Charge Michael Speckhardt said: “The State Department OIG is dedicated to preserving the integrity of the Department’s programs and processes.  As government employees, we are entrusted to carry out our responsibilities with integrity and support an equitable process.  May Salehi did just the opposite.  She used her position of public trust to selfishly obtain a personal financial advantage by selling proprietary contracting information for profit.  Today’s plea, the culmination of extensive investigative and prosecutorial efforts, demonstrates that those who violate the public’s trust will be held accountable for their actions.”

IRS-CI Acting Special Agent in Charge Thomas Fattorusso said: “May Salehi violated the trust of the American taxpayer by putting her personal financial gain over her responsibilities to safeguard confidential information and government resources. Today’s guilty plea shows IRS-Criminal Investigation will continually work with our law enforcement partners to protect the American taxpayer from this type of abuse.”

According to the allegations in the Information, court filings, and statements made in court:

From 1991 until mid-2021, MAY SALEHI was a State Department employee.  For many years, SALEHI worked as an engineer in the State Department’s Overseas Building Operations division (“OBO”), which directs the worldwide overseas building program for the State Department and the U.S. Government community serving abroad.

In 2016, the State Department solicited bids for a multimillion-dollar construction project known as a compound security upgrade to be performed at the U.S. Consulate in Bermuda (the “Bermuda Project”).  The bidding process involved the submission of blind, sealed bids from various bidders.  Six companies submitted sealed bids, one of which was named Montage, Inc. (“Montage”).

SALEHI was involved in the Bermuda Project in several respects.  Among other things, SALEHI served as the Chair of the Technical Evaluation Panel (“TEP”) – a panel of experts that evaluates the technical aspects of bids, including whether they meet the State Department’s structural and security needs.  In connection with the Bermuda Project, the TEP disqualified one bidder, but determined that the other five bids (including Montage’s bid) were technically acceptable.

In September 2016, the State Department’s employees who evaluate the cost of bids gave the remaining five bidders (including Montage) the opportunity to re-bid, if they wished to do so.  Montage had two days to decide whether to submit a re-bid.  During that two-day window, Montage’s principal, Sina Moayedi, spoke with SALEHI by phone and sought confidential inside bidding information about the relationship between Montage’s bid and those of its competitors, which SALEHI supplied.  SALEHI knew that this information was confidential, and that it was unlawful to provide it to a prospective bidder.  After Moayedi received this inside information from SALEHI, Montage immediately increased its bid by $917,820.  In its revised submission to the State Department, Moayedi and Montage lied as to the reason it had increased its bid by nearly $1 million, falsely claiming that it had discovered “an arithmetic error” in its estimates.  Montage was ultimately awarded the Bermuda Project with a revised bid of $6.3 million.

In the months that followed, Moayedi paid SALEHI a total of $60,000 in kickbacks, which he paid in three installments.  In making these kickback payments, Moayedi used intermediaries to obscure the link between him and SALEHI.  To conceal the true purpose of the kickback payments, SALEHI also gave one of the intermediaries a Persian rug.  SALEHI did not report the $60,000 kickback payments on her State Department financial disclosure form.

* * *

SALEHI, 66, of Washington, D.C., pled guilty to one count of conspiracy to commit honest services fraud, which carries a maximum sentence of five years in prison.  The maximum potential sentence in this case is prescribed by Congress and is provided here for informational purposes only, as SALEHI’s sentence will be determined by Judge Castel.

Sina Moayedi was arrested on May 28, 2021, on three charges contained in a criminal Complaint: wire fraud, conspiracy to commit wire fraud, and bribery of a public official.  The charges against Moayedi are pending.

Ms. Strauss praised the outstanding investigative work of the State Department OIG, Special Agents from the United States Attorney’s Office for the Southern District of New York, and IRS‑CI.  She also thanked Special Agents from the United States Attorney’s Office for the District of Columbia and the Montgomery County, Maryland, Police Department.

The Office’s Complex Frauds and Cybercrime Unit is handling this criminal case.  Assistant U.S. Attorneys Michael D. Neff and Louis A. Pellegrino are in charge of the prosecution.

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DOJ: Jury Convicts Foreign Service Officer and Former Spouse for Obtaining U.S. Citizenship by Fraud

 

Via USDOJ/September 13, 2021
Jury Convicts Foreign Service Officer and Former Spouse for Obtaining U.S. Citizenship by Fraud
ALEXANDRIA, Va. – A federal jury convicted a California woman and Russian-born man on Friday on charges of conspiracy and obtaining U.S. citizenship by fraud.
According to court records and evidence presented at trial, Laura Gallagher, 32, a Foreign Service Officer with the U.S. Department of State, and Andrey Kalugin, 36, originally of Russia, conspired together to obtain lawful permanent residence and U.S. citizenship for Kalugin through his marriage to Gallagher. 
“The jury’s verdict holds these two defendants accountable for orchestrating a scheme to defraud the United States and obtain unlawful citizenship and passports,” said Raj Parekh, Acting U.S. Attorney for the Eastern District of Virginia. “Gallagher disregarded her responsibilities to the public as a federal government employee and licensed attorney when she engaged in this fraudulent scheme with Kalugin. Thanks to the dedication of the trial team and our partners at the State Department, these defendants have been brought to justice.”
Evidence presented at trial demonstrated that the defendants met in law school in 2013. Kalugin was in the United States on a student visa that was due to expire in July 2015. The defendants married in June 2015 and submitted applications for Kalugin to obtain his “green card.” The defendants moved from California to Virginia in March 2016, but split up soon thereafter. However, they continued with the immigration process.
“The Diplomatic Security Service is firmly committed to working with the U.S. Attorney’s Office to investigate allegations of crime related to naturalization fraud and to bring those who commit these crimes to justice,” said Jessica Moore, Chief of the Criminal Investigations Division of the U.S. Department of State’s Diplomatic Security Service. “When a Department employee in a position of trust is alleged to have committed a federal felony involving naturalization fraud by exploiting their status, we vigorously investigate claims of corruption.” 
Gallagher, who is also a California-licensed attorney, then prepared for Kalugin an application for 319(b) expeditious naturalization, which is a benefit available to spouses of citizens who are regularly stationed abroad for their employment. The defendants provided materially false responses in the application, including that Kalugin was still in a good-faith marriage and intended to reside with Gallagher abroad and return with her to the United States. Kalugin appeared for an interview on Feb. 5, 2018 with U.S. Citizenship and Immigration Services (USCIS) in Fairfax, where he repeated the false statements to the adjudicating officer. After USCIS approved the application and he received his citizenship, Kalugin fraudulently obtained U.S. Diplomatic and tourist passports. Shortly thereafter, Gallagher filed for divorce.
Gallagher and Kalugin each face a maximum penalty of 10 years in prison when sentenced on Feb. 4, 2022. Actual sentences for federal crimes are typically less than the maximum penalties. Kalugin additionally faces mandatory revocation of his U.S. citizenship. A federal district court judge will determine any sentence after taking into account the U.S. Sentencing Guidelines and other statutory factors.
Raj Parekh, Acting U.S. Attorney for the Eastern District of Virginia, and Jessica Moore, Chief of the Criminal Investigations Division of the U.S. Department of State’s Diplomatic Security Service, made the announcement after Senior U.S. District Judge T. S. Ellis, III accepted the verdict.
Assistant U.S. Attorneys Raizza K. Ty and Morris R. Parker, Jr. are prosecuting the case.
A copy of this press release is located on the website of the U.S. Attorney’s Office for the Eastern District of Virginia. Related court documents and information are located on the website of the District Court for the Eastern District of Virginia or on PACER by searching for Case No. 1:21-cr-43.

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McNeil v.USA: U.S. Passport Rejection For Delinquent Taxpayer Status

 

 

Via DC District Court/Civil Action No. 20-329 (JDB) :
This case has evolved out of a Freedom of Information Act (“FOIA”) request that the plaintiff, Robert McNeil, filed with the U.S. Department of State (“State”) seeking documentation substantiating State’s rejection of his passport application based on his apparent delinquent taxpayer status. After both parties moved for summary judgment on a FOIA claim that McNeil filed against State, McNeil requested and obtained several documents from the Internal Revenue Service (“IRS”) responsive to the request at issue in his case against State. Based on those documents, McNeil then amended his complaint with leave of the Court to add the IRS as a defendant and to add claims challenging the IRS’s determination and certification to State that he had “seriously delinquent tax debt.” The Court recently resolved cross-motions for summary judgment on McNeil’s FOIA claim in State’s favor. This ruling left only his claims against the IRS. The Government has now moved to dismiss the remainder of the amended complaint. For the reasons explained below, the Court will grant that motion.
Excerpt:

This case concerns State’s denial of McNeil’s passport application pursuant to § 7345 of the Internal Revenue Code. 26 U.S.C. § 7345. That provision governs the “[r]evocation or denial of [a] passport in case of certain tax delinquencies.” Id. Subsection (a) provides that “[i]f the Secretary [of the Treasury] receives certification by the Commissioner of [the IRS] that an individual has a seriously delinquent tax debt, the Secretary shall transmit such certification to the Secretary of State” to deny, revoke, or limit the debtor’s passport. Id. § 7345(a). Subsection (b) defines “seriously delinquent tax debt,” and subsection (c) explains how the reversal of a certification might come about. Id. § 7345(b)–(c). Subsection (d) requires the IRS Commissioner to “contemporaneously notify an individual of any certification under subsection (a), or any reversal of certification under subsection (c).” Id. § 7345(d). Subsection (e), which provides McNeil’s cause of action, concerns judicial review of certification and reads in full:

(1)In general. After the Commissioner notifies an individual under subsection (d), the taxpayer may bring a civil action against the United States in a district court of the United States, or against the Commissioner in the Tax Court, to determine whether the certification was erroneous or whether the Commissioner has failed to reverse the certification. For purposes of the preceding sentence, the court first acquiring jurisdiction over such an action shall have sole jurisdiction.

(2) Determination. If the court determines that such certification was erroneous, then the court may order the Secretary [of the Treasury] to notify the Secretary of State that such certification was erroneous.

[…]
Even if McNeil is able to prove that he never received these Notices, though, it would not  mean that the IRS’s certification was erroneous. As the Government observes, § 7345 does not say that a flawed or failed notice renders a certification erroneous. Reply at 3–4. Subsections (a) and (b) describe when the the Secretary of the Treasury must transmit certification to the Secretary of State and identify which debts qualify as “seriously delinquent tax debt.” 26 U.S.C. § 7345(a)–(b). Neither subsection says that proper notice is an element of or a prerequisite to a proper certification by the IRS of a seriously delinquent tax debt. In fact, subsection (d) says that notice to the taxpayer should be “contemporaneous[]” with certification to State, so it logically cannot be a prerequisite to that certification. 26 U.S.C. § 7345(d). Further, because subsection (e) includes no statute of limitations, there is no reason why improper notice under subsection (d) would prejudice a taxpayer who, like McNeil, does not learn about the certification of his debt in a sufficiently timely manner. See id. § 7345(e). The text of the statute suggests that the purpose of the notice requirement is to inform the debtor “in simple and nontechnical terms of the right to bring a civil action under subsection (e).”5 Id. Therefore, McNeil’s argument concerning the notice requirement fails because even if notice was not effected here, it would not mean that the  IRS’s certification of his debt to the State Department was erroneous.
[…]
The Court finds no support in § 7345 or anywhere else in the tax code for the notion that Congress wanted § 7345(e) to become a vehicle for challenging IRS procedures and tax assessments that cannot otherwise be challenged. Because the Court finds that Congress did not
intend for McNeil’s argument about the Forms 1040 and 1040A to be the basis for a claim under § 7345(e), and because he cannot argue that the IRS’s certification was erroneous based on a flawed notice, he has failed to state a claim upon which the Court could grant him relief under § 7345(e)(2).

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USAID’s Tresja Denysenko Dies Unexpectedly While Serving With DART in Haiti Earthquake Response

 

USAID Administrator Samantha Power released a statement on Tresja Denysenko’s unexpected passing while serving with the Disaster Assistance Response Team (DART) in Haiti. Excerpt below:

It is with great sadness that on behalf of the USAID family I relay the passing of Tresja Denysenko, a tireless disaster response expert with our Bureau for Humanitarian Assistance. Tresja passed away unexpectedly on August 19, 2021, while serving on USAID’s Disaster Assistance Response Team (DART) responding to the devastating earthquake in Haiti. I want to express my heartfelt condolences to Tresja’s family, friends, and colleagues.

Tresja first joined USAID in 2005, and during her career she responded to many humanitarian emergencies, including the 2010 Haiti earthquake, the West Africa Ebola outbreak, the Venezuela regional crisis, and the conflicts in South Sudan and the Tigray region of Ethiopia. In all of her postings, she played a critical role in providing aid to the world’s most deprived and marginalized people. In addition to her work on disaster responses, Tresja was instrumental in establishing and refining the USAID Bureau for Humanitarian Assistance’s processes for delivering aid into the hands of those most in need. Tresja was also an inspiring mentor, training staff across the Bureau on how to deliver aid quickly and appropriately to save lives in some of the world’s most complex and dire humanitarian crises. Tresja’s legacy will live on in USAID through the work of the many colleagues who learned from her and who now occupy a wide range of roles across the Agency.

Originally from Minnesota, Tresja is survived by her husband and daughter, as well as her mother and stepfather. She is remembered as a beloved wife, mother, daughter, and dear friend. Tresja’s kindness and heartfelt passion for providing humanitarian assistance and improving the lives of people in need touched many communities around the world and here at home.

@StateDept Provides Updates on Afghanistan Evacuation: 42,000 Relocated Since End of July

 

It has been over a week since the fall of Kabul. The State Department continues its evacuation from the capital city of Afghanistan. Since the end of July, approximately 42,000 people reportedly been evacuated and relocated. As of this writing, the State Department has not released the number of Americans evacuated from Afghanistan supposedly “in part because that number changes all the time.” This evacuation may be chaotic, but one thing consular folks would definitely track is the Amcit status of evacuees.
How many Americans are in Afghanistan? Estimates vary from 10,000 to 15,000 U.S. citizens in Taliban-controlled Afghanistan according to Reuters. The report also cited Pentagon Spokesman John Kirby who put the number between 5,000 and 10,000 for U.S. citizens  believed to be in the Kabul area. On August 24, NBC News quoted the Pentagon spox saying: “As of today, August 24, we have evacuated approximately 4,000 American passport holders plus their families. We expect that number to continue to grow in the coming days.”
The State Department’s  F-77 report would have an estimate of the number of Americans in the country prior to fall of Kabul.  The report submitted annually provides an estimation of the number of private American citizens in a country, based in part on traveler registration, and is used by State and DOD in planning for and conducting evacuations of American citizens. Of course, reporting a U.S. citizen’s presence overseas at a US Embassy is not mandatory. Dual national may not also report their presence, and could not be counted. While the F-77 data is not perfect, it will have an approximate number of how many Americans post’s believe would need support in an evacuation.
Via the State Department Press Briefing, August 23, 2021:

— …From 3:00 a.m. on August 22nd to 3:00 a.m. on August 23rd, 28 U.S. military flights evacuated approximately 10,400 people from Kabul.

—  Since August 14th, the U.S. has evacuated and facilitated the evacuation of approximately 37,000 people.

— Since the end of last month, the end of July, we have relocated approximately 42,000 people.

— … officers from the U.S. missions in Mexico, Canada, Brazil, and India are assisting, as well as many consular staff from this building and from throughout the Washington, D.C. region.

— The United States wants to sincerely thank the governments of Qatar, Kuwait, Bahrain, the United Arab Emirates, Germany, Italy, and Spain for their help in our efforts to safely transit U.S. citizens, at-risk Afghans, and other evacuees from Afghanistan.

— The temporary transit locations we have established at U.S. or joint bases in Germany, Italy, and Spain have capacity to process at least 15,000 people on a rolling basis, significantly expanding our ability to facilitate the relocation of U.S. citizens and at-risk Afghans from Afghanistan.

Doubled Consular presence on the ground. How many?

QUESTION: Okay. Secondly, also really briefly, are you guys still sending consular and other people to Kabul to work at the airport, or has that now – have you now reached the – what you need?

MR PRICE: Well, so we are always evaluating the situation on the ground to determine that we have the right staffing posture to accommodate the tasks that we need to take on. We talked about this last week, but as of late last week we had doubled the number of consular officers on the ground in Kabul. We had sent additional consular officers to some of those initial transit sites in the Gulf, including to Qatar, to Kuwait, and the UAE. But the broader point I would make is that we have been able to take advantage of consular officers throughout this building and around the world.

QUESTION: Okay. But I’m not interested in the broader point. I’m just interested in an answer to the question. Are you still sending people there?

MR PRICE: If —

QUESTION: And if you’re not – which is fine if you are or not, I just want to know if you’re still ramping up. And then on the opposite end of that is that we are approaching the 31st, and if there is no extension in this, you guys are going to have to start thinking, and I want to know have you already started thinking about drawing them back down again if, in fact, they are going to leave, or if you guys think that maybe you can go back to the embassy.

MR PRICE: Well, we are always evaluating what we have on the ground compared with our needs. If we need more people on the ground, we won’t hesitate to do it. We came to that conclusion last week. That’s why we doubled the presence of consular officers on the ground.

Has the Secretary spoken with anyone?

QUESTION: Okay, last one. Yesterday – and I didn’t see this interview; I saw the first one, I didn’t see the second one – in the CBS interview, the Secretary, according to the transcript that you guys put out, misspoke and said that he had spoken to President Karzai. And I’m less interested in his misspeaking and more interested in knowing whether or not there has been any discussion between the Secretary or anyone else, like Zal or anyone, between the U.S. and former President Karzai, or Abdullah Abdullah, or the others who are now in discussions with the Taliban leadership.

MR PRICE: Absolutely. So, as you know, Matt, there continues to be dialogue between the Afghans – that is to say, representatives of Islamic Republic – and the Taliban. For our part, we have been in touch with relevant and key stakeholders, individuals who are taking part in intra-Afghan discussions with the Taliban. We’re not in a position to read those calls out. This has been primarily on the part of our team in Doha, our team on the ground in Afghanistan, to make sure that we have a regular line in to those Afghan stakeholders.

QUESTION: So the Secretary has not been in touch with —

MR PRICE: No.

Local Staff Questions

QUESTION: Ned, my colleague reported that on Saturday a cable came here – a memo was sent to Afghan staff at the embassy on Wednesday inviting them to head to the airport and that it was so difficult for them to – the physical situation was simply impossible, and that some staff reported being separated from children. They said, quote, “It would be better to die under the Taliban’s bullet than face the crowds again.” One staff member said they felt betrayed, that it was – it undermined their sense of dignity, their loyalty. This is embassy staff who should have been presumably prioritized, but they were left behind when the evacuation took place, basically.

MR PRICE: …. We have an obligation to these individuals, a sacrosanct obligation. They have served the United States. They have not only worked for us, they have worked with us. Our embassies around the world could not function without locally engaged staff. That is as true in Paris or London as it is in a place like Kabul. So we absolutely have a responsibility to these individuals who have worked with our colleagues on the ground in Kabul and, in some cases, over years or even longer. They are absolutely a priority in terms of our evacuation and relocation planning.

As you know, Andrea, we are now in a position to offer tailored, personalized advice to those we are relocating from Afghanistan, to those we are evacuating from Afghanistan. We’ve been doing that, of course, to American citizens. We’ve been doing that to Special Immigrant Visa applicants. We’ve been doing that to other Afghans at risk. But our locally engaged staff, they are absolutely a priority, they are absolutely part of our plans, and that commitment to them, to their safety and security, is something that is in no way diminished.

QUESTION: Well, couldn’t they – why weren’t they on the original evacuation from the embassy?

MR PRICE: So when the embassy was evacuated and our personnel started to make the way from the embassy in Kabul to the secure facility on the airport compound, many of, if not all of, our locally engaged staff were not present on the embassy compound at that time. They were working remotely given the volatile security situation. Many of them were at home, were not at work. I can tell you that we have been able to relocate members of our locally engaged staff, but they were not brought to the airport compound with the American direct hires at that time just because they weren’t at the embassy compound by and large that day.

Vetting evacuees

QUESTION: But I’m asking you a different question. Surging resources doesn’t answer the question as to why not do this at the third country – surge them there and get them out of Kabul, where they can have better facilities, sanitation, food, et cetera.

MR PRICE: Well, that vetting by and large is taking place at these third countries. When it comes to SIVs, again, all of those who have received instructions to come to the airport have already completed certain stages of the security vetting process. So that initial vet on these individuals has been completed. In many cases, they’re then taken to a third country, where they will undergo more rigorous vetting if it hasn’t yet been completed.

But that is very much the point of the network of transit countries and partner countries throughout the Middle East, throughout Europe, the rest of the world – more than 26 countries across four continents. It is in part a system that will allow us to provide safe haven to these individuals who in some cases – well, in all cases before they come to the United States, but in some cases still need to complete part of that rigorous vetting process.

Number of Americans evacuated –  no precise figure

QUESTION: Hi, thanks. A couple of questions. One, the National Security Advisor in his briefing at the White House earlier today was asked for the number of American citizens who have been evacuated. He indicated he would give that number out; he just didn’t have it at hand. Do you have that number?

MR PRICE: I don’t have a precise figure to give you, in part because that number changes all the time. Just within the past 24 hours, again, more than 10,400 people. We are evacuating thousands upon thousands of people per day, so I just don’t have that figure to provide right now.

What happens after August 31st?

QUESTION: One final quick point. When you say the Taliban has made commitments, does the Taliban understand that given the U.S.’s commitment to its citizens, to SIV applicants, and to others in that pool, that if this operation needs to go beyond August 31st the Taliban must allow that operation to continue?

MR PRICE: Look, this is a decision that only one person will be able to make. That person is not in Afghanistan. That person is not in this building. That person sits in an office without corners in the White House. President Biden will ultimately have to decide when this operation will come to a close. I can tell you that it is our goal to move as quickly as we can and as efficiently as we can to bring to safety as many people as we can. And I think you are seeing in the metrics in recent days and certainly over the past 24 hours that we are making good progress on that.

It is not our goal to be there one day, one hour, one minute longer than is absolutely necessary, but not going to get ahead of that.

 

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EEOC: Sexual Harassment Compensatory Damage Award After a 7-Year Saga

 

 

Via EEOC Nancey D. v. Dep’t of Justice, EEOC Appeal 2019005600:
Commission Increased AJ’s Compensatory Damage Award to $100,000.
The AJ found that Complainant’s supervisor subjected her to sexual harassment, including instances of unwanted touching, inappropriate comments, and requests for dates and sex.  As relief, the AJ, among other things, awarded Complainant $80,000 in nonpecuniary compensatory damages.  The Commission increased the award to $100,000 on appeal, noting that amount was more consistent with amounts awarded in similar cases.  The record showed that Complainant was diagnosed with PTSD and Severe Depression as a result of her supervisor’s sexual harassment over a three-year period.  Complainant underwent treatment for these conditions including medication and counseling.  Complainant testified that she suffered humiliation, anger, panic attacks, withdrawal, weight fluctuation, migraines, erratic sleeping patterns, and frequent crying spells.   The Commission concurred with the  AJ that the weight of the evidence adequately tied the harm directly to the harassment.  The Commission affirmed the AJ’s award of $2,877 in past pecuniary damages, and $2,500 in future pecuniary damages.  Nancey D. v. Dep’t of Justice, EEOC Appeal 2019005600 (Sept. 14, 2020).
This is a DOJ/Bureau of Prisons sexual harassment case. We are highlighting it here to point out that a 7-year saga awarded a $100,000 in compensation amounts to $39 a day in damages.
That’s $91.32 day for each day in the 3-year period the individual was subjected to harassment by her supervisor.

This case was originally filed on June 21, 2013, when Complainant filed a formal EEO complaint claiming that she was repeatedly harassed on the bases of her race (African-American), sex (female), and in reprisal for prior protected EEO activity when she was subjected to sexual comments, gestures, and emails, as well as rumors of a sexual nature.

On August 7, 2019, the Agency issued a final order fully adopting the AJ’s decision and award of remedies.

On appeal, Complainant, through counsel, requests an increase in the damage awards. Specifically, Complainant requests $34,854.36 in past pecuniary damages (covering past prescriptions and counseling) and $16,000 in future pecuniary damages (covering future counseling sessions). Complainant reasons that her award for past pecuniary and future pecuniary damages should have included the full price for the medical expenses and not limited to the co-payments for the medical expenses. Regarding her request for an increase in non-pecuniary damages, Complainant reasons that the AJ’s $80,000 award should be increased to $100,000 to conform with the Commission’s prior damages decisions at the present-day value. Alternatively, Complainant argues that her nonpecuniary damages award should be increased to $190,000 to compensate for sexual harassment she endured from 1998 to 2010 during the period that she and AW were co-workers. Therefore, Complainant argues that the AJ incorrectly limited her sexual harassment claims to the period that AW was her supervisor and did not account for AW’s sexually-charged conduct that occurred twelve years before 2010.

 

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United States Sends Help After 7.2. Earthquake in Haiti

 

 

Related news:

 

 

“Long COVID” as a Disability Under the Americans with Disabilities Act, Section 504, and Section 1557

 

 

Late last month, HHS/Office of Civil Rights and DOJ/Civil Rights Division Disability Rights Section released its guidance for “long COVID” or “long haulers”.

Although many people with COVID-19 get better within weeks, some people continue to experience symptoms that can last months after first being infected, or may have new or recurring symptoms at a later time.1 This can happen to anyone who has had COVID-19, even if the initial illness was mild. People with this condition are sometimes called “long-haulers.” This condition is known as “long COVID.”2

The new guidance explains that long COVID can be a disability under the ADA, Section 504 of the Rehabilitation Act of 1973, and Section 1557 of the Affordable Care Act, and explains how these laws may apply. Each of these federal laws protects people with disabilities from discrimination.

1. What is long COVID and what are its symptoms?

According to the Centers for Disease Control and Prevention (CDC), people with long COVID have a range of new or ongoing symptoms that can last weeks or months after they are infected with the virus that causes COVID-19 and that can worsen with physical or mental activity.8 Examples of common symptoms of long COVID include:

Tiredness or fatigue

Difficulty thinking or concentrating (sometimes called “brain fog”)

Shortness of breath or difficulty breathing

Headache

Dizziness on standing

Fast-beating or pounding heart (known as heart palpitations)

Chest pain

Cough

Joint or muscle pain

Depression or anxiety

Fever

Loss of taste or smell


This list is not exhaustive. Some people also experience damage to multiple organs
including the heart, lungs, kidneys, skin, and brain.

2. Can long COVID be a disability under the ADA, Section 504, and Section 1557?

Yes, long COVID can be a disability under the ADA, Section 504, and Section 1557 if it substantially limits one or more major life activities.9 These laws and their related rules define a person with a disability as an individual with a physical or mental impairment that substantially limits one or more of the major life activities of such individual (“actual disability”); a person with a record of such an impairment (“record of”); or a person who is regarded as having such an impairment (“regarded as”).10 A person with long COVID has a disability if the person’s condition or any of its symptoms is a “physical or mental” impairment that “substantially limits” one or more major life activities. This guidance addresses the “actual disability” part of the disability definition. The definition also covers individuals with a “record of” a substantially limiting impairment or those “regarded as” having a physical impairment (whether substantially limiting or not). This document does not address the “record of” or “regarded as” parts of the disability definition, which may also be relevant to claims regarding long COVID.

a. Long COVID is a physical or mental impairment

A physical impairment includes any physiological disorder or condition affecting one or more body systems, including, among others, the neurological, respiratory, cardiovascular, and circulatory systems. A mental impairment includes any mental or psychological disorder, such as an emotional or mental illness.11 Long COVID is a physiological condition affecting one or more body systems. For example, some people with long COVID experience:

Lung damage

Heart damage, including inflammation of the heart muscle

Kidney damage

Neurological damage

Damage to the circulatory system resulting in poor blood flow

Lingering emotional illness and other mental health conditions

Accordingly, long COVID is a physical or mental impairment under the ADA, Section 504, and Section 1557.12

b. Long COVID can substantially limit one or more major life activities

“Major life activities” include a wide range of activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working. The term also includes the operation of a major bodily function, such as the functions of the immune system,
cardiovascular system, neurological system, circulatory system, or the operation of an organ.
The term “substantially limits” is construed broadly under these laws and should not demand extensive analysis. The impairment does not need to prevent or significantly restrict an individual from performing a major life activity, and the limitations do not need to be severe, permanent, or long-term. Whether an individual with long COVID is substantially limited in a major bodily function or other major life activity is determined without the benefit of any medication, treatment, or other measures used by the individual to lessen or compensate for symptoms. Even if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active. Long COVID can substantially limit a major life activity. The situations in which an individual with long COVID might be substantially limited in a major life activity are diverse. Among possible examples, some include:

• A person with long COVID who has lung damage that causes shortness of breath, fatigue, and related effects is substantially limited in respiratory function, among other major life activities.

• A person with long COVID who has symptoms of intestinal pain, vomiting, and nausea that have lingered for months is substantially limited in gastrointestinal function, among other major life activities.

• A person with long COVID who experiences memory lapses and “brain fog” is substantially limited in brain function, concentrating, and/or thinking.

Read more here.

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@StateDept Releases Tijuana Accountability Review Board (ARB) Fact Sheet

 

On July 26, the State Department released a Tijuana Accountability Review Board Fact Sheet. A notice dated March 9, 2021 posted on regulations.gov announced the convening of ARB-Tijuana (see Convening of an Accountability Review Board to Investigate the Murder of an Animal and Plant Health Inspection Service Locally Employed Staff member in Tijuana, Mexico).

Related posts:

As best we could tell, the Tijuana ARB report has not been released publicly.  Below via the State Department Fact Sheet:

On January 4, 2021, former Secretary of State Pompeo convened an independent Accountability Review Board (ARB) to review the facts and circumstance surrounding the murder of Mr. Edgar Flores Santos, a U.S. Department of Agriculture Animal and Plant Health Inspection Service (USDA/APHIS) Locally Employed (LE) Staff member in Tijuana, Mexico that occurred on September 30, 2020.  The body was discovered on October 1, 2020. The Tijuana ARB, as well as local and American law enforcement officials, concluded this unfortunate incident was a case of Mr. Flores being in the wrong place at the wrong time. 

The ARB’s mandate was to determine the extent to which the incident was security related; whether security systems and procedures were adequate; whether those systems and procedures were properly implemented; the impact of intelligence and information availability; and other factors and circumstances which may be relevant to appropriate security management of U.S. missions abroad.

The ARB first met on February 23, 2021.  Former Ambassador George M. Staples served as Chair of the Board.  Board members included Ambassador Janice Jacobs, former USAID Mission Director Dirk Dijkerman, former Diplomatic Security Service Special Agents John Eustace, and Kimber Davidson.  On April 23, 2021, the Board submitted a report of its findings and recommendations to Secretary of State Blinken.  The Department of State appreciates the judgment and insight contained in the report and is grateful for the service of the Board.  Pursuant to law, the Secretary submitted a report to Congress on July 22, 2020, outlining the ARB’s recommendations and actions taken in response.

The United States Department of State, the USDA APHIS operations, and many other U.S. government agencies have a broad presence and role in Mexico.  The United States is Mexico’s largest agricultural trading partner and the growing agricultural ties between the United States and Mexico have created a vital role for the USDA’s APHIS in ensuring that existing trade between the two economies flows smoothly.  In particular, APHIS provides critical safeguarding of U.S. agriculture, helping to prevent the spread of animal and plant pests and diseases. 

Advancing U.S. foreign policy objectives inherently involves diverse types of risk, and the Department recognizes that taking considered risks is often essential to achieving U.S. government objectives abroad.  Working in dangerous locations such as Mexico’s northern border area is critical to maintaining the safety, security, prosperity, and welfare of Americans.  The work accomplished by Mr. Flores and his USDA APHIS colleagues is vital to the agricultural security of the United States; the Department of State is grateful for their service.   

In the Tijuana operating environment, the Board found that the Department’s security systems and procedures were overall adequate and properly implemented, though the Board identified a few challenges in communication and information sharing that were immediately rectified following this incident.  Moreover, the Board did not find any U.S. government employee engaged in misconduct or perform unsatisfactorily in a way that contributed to this incident. 

The ARB issued 11 recommendations that focus on security systems and procedures and security management.

Security Systems and Procedures:  The ARB found that by all accounts, Mexican law enforcement and U.S. law enforcement agencies at the embassy responded quickly to the incident and shared available information and assisted the Regional Security Officer (RSO) in response to this incident.  However, the Board recommended that APHIS and the RSO take steps to ensure closer monitoring of security-related incidents, information sharing and integration of that intelligence into APHIS’s operational decisions.  The Department of State in coordination with USDA/APHIS will review policies and procedures to strengthen the security of APHIS personnel overseas.  U.S. Embassy Mexico City and all posts with an APHIS presence in their district will engage in robust publicity efforts to raise public awareness about what APHIS does, how it works, and how the work benefits Mexico.

Security Management:  The Board also made several recommendations that USDA and State will take to improve the safety of field inspectors related to their roles and responsibilities; program requirements considering threats and vulnerabilities; and enrolling USDA/APHIS locally employed staff in the Department of State’s worldwide standardized emergency notification system.

 

 

 

 

Ex-USG Employee Pleads Guilty: 24 Women, Six Countries, 487 Videos/Images in a 14 Year Crime Spree

 

In October 2020, we blogged about the notorious case involving ex-USG employee Brian Jeffrey Raymond (see Ex-USG Employee Brian Jeffrey Raymond, Called an “Experienced Sexual Predator,” Ordered Removed to D.C. Oct 28. 2020).  We did a follow-up post in March 2021 (USA v. Raymond: Court Issues Protective Order Pertaining to Classified Information). Court records do not identify Raymond’s agency employer, and no agency has claimed him! Public records only say that he was an employee of the U.S. government.
On July 23, USDOJ announced that “a California man pleaded guilty today to sexual abuse and admitted to the abusive sexual contact of numerous women, as well as photographing and recording dozens of nude and partially nude women without their consent during his career as a U.S. government employee.”
According to court records, Raymond accepted a plea deal on May 27, 2021, one day before the plea offer was set to expire.  The plea agreement was entered into court on July 23, 2021. Also on July 23, Raymond waived his right to trial by jury. The USG and Raymond also agreed to a Statement of Offense:

“These facts do not constitute all of the facts known to the parties concerning the charged offense; they are being submitted to demonstrate that sufficient facts exist that the defendant committed the offenses to which he is pleading guilty: Sexual Abuse of AV-7 and AV-9, in violation of 18 U.S.C. § 2242(2), and transportation of obscene material, in violation of 18 U.S.C. § 1462.

Some notable items in the Statement of Offense:

#1. Between on or about August 21, 2018 and June 1, 2020, Raymond, now 45 years old, was a U.S. government employee working at the U.S. Embassy in Mexico City, Mexico. During that time, Raymond lived in an apartment assigned to him by the U.S. government. Raymond’s residence in Mexico City has been leased by the U.S. government since April 2013 for use by U.S. personnel assigned to diplomatic, consular, military, and other U.S. government missions in Mexico City. The U.S. government currently maintains a nine-year lease of the property. This residence falls within the Special Maritime and Territorial Jurisdiction (““SMTJ”) of the United States, pursuant to 18 U.S.C. § 7(9).

2. On May 31, 2020, there was an incident at Raymond’s embassy-leased residence in Mexico City.During an interview with law enforcement on June 2, 2020, Raymond stated that he had sexual intercourse with an adult woman, hereinafter referred to as AV-1, on May 31 and that it was consensual. AV-1 was interviewed and reported that she has no memory of the incident and did not consent to sexual intercourse with Raymond. After the May 31, 2020 incident, law enforcement executed several premises and device search warrants, including but not limited to search warrants for Raymond’s phones, laptops, tablets, thumb drives, and memory cards, Raymond’s Mexico City residence, his parents’ residence in La Mesa, California, Tinder and other social media accounts, email accounts, and his iCloud account.

4, Agents found approximately 487 videos and images of unconscious women in various states of undress on multiple devices belonging to Raymond and in his iCloud account.

6. Through its investigation, law enforcement learned that from 2006 to 2020, while working as a U.S. government employee, Raymond recorded and/or photographed at least 24 unconscious nude or partially nude women (AV-2 through AV-25).

7.  Raymond discussed having sex with AV-7 with a friend via text message the following day.

9. In March 2020, approximately two months before his interaction with AV-7, Raymond also texted the same friend mentioned above about having sexual intercourse with AV-9. AV-9 is a resident of Mexico and primarily a Spanish speaker. He texted the same friend that he had to pay for an Uber for AV-9 and expressed that it was annoying but ultimately worthwhile because he was able to have sex with her. 

Item #11 in the Statement of Offense includes a chart that depicts the victims, the number of photos/videos, locations, dates, and example of the obscene depiction of victims.  In addition to victims AV-7 and AV-9, the list of victims include 18 other individuals. Locations include California, Virginia, Maryland, Washington, D.C., as well as Mexico and “Countries 3, 4, 5, and 6 [are] known to the government and to the defendant.”
Item #14 in the Statement of Offense notes:

“Raymond stipulates and agrees that from 2006 until 2020, including on the dates listed on the chart above, he recorded and/or photographed at least 24 unconscious and nude or partially nude women, some of whom are not mentioned in this plea agreement or statement of facts, and that during the same time frame, he touched the breasts, buttocks, groin area, and/or genitalia of numerous women, some of whom he recorded and/or photographed and some of whom are mentioned in this agreement. Raymond engaged in this conduct while the women were incapable of appraising the nature of the conduct. The women who have been interviewed reported commonalities in their contact with Raymond, including Raymond’s provision and/or preparation of alcoholic beverages and their subsequent memory loss. None of the women consented to being touched while unconscious and/or asleep, and none of them consented to Raymond’s photographing and recording of them in that state.”

The Plea Agreement says:

” …a violation of 18 U.S.C. § 2242(2) carries a maximum sentence of life imprisonment; a fine of $250,000; a term of supervised release of at least 5 years but not more than life, pursuant to 18 U.S.C. § 3583(k); mandatory restitution under 18 U.S.C. § 3663A; and an obligation to pay any applicable interest or penalties on fines and restitution not timely made.

Your client understands that a violation of of 18 U.S.C. § 1462 carries a maximum sentence of five years’ imprisonment; a fine of $250,000; a term of supervised release of at least one year but not more than three years, pursuant to 18 U.S.C. § 3559; restitution under 18 U.S.C.§ 3663; and an obligation to pay any applicable interest or penalties on fines and restitution not timely made.

Your client also understands that the court shall impose mandatory restitution pursuant to 18 U.S.C. § 2248, which restitution amount shall reflect the defendant’s relative role in the causal process that underlies the victims’ losses.”

Under Additional Charges:

“In consideration of your client’s guilty plea to the above offense(s), your client will not be further prosecuted criminally by this Office or the Human Rights and Special Prosecutions Section for the conduct relating to victims AV-1 through AV-26 that is described in the Statement of Offense. This office has consulted with the U.S. Attorney’s Office for the Eastern District of Virginia and understands that it will also not bring charges for that conduct. Additionally, if your client’s guilty plea to Counts One, Two, and Three of the Information is accepted by the Court, and provided the plea is not later withdrawn, no charges related to the inducement and/or transportation of AV-15 or the transportation of obscene material will be brought against the defendant by the United States Attorney’s Office for the District of Maryland.

Moreover, provided the plea is accepted and not later withdrawn to Counts One, Two, and Three, no charges relating to the inducement of AV-2 or the transportation of obscene material will be brought by the United States Attorney’s Office for the Southern District of California, and no charges relating to the inducement of AV-17 or the transportation of obscene material will be brought by the Northern District of Illinois. This agreement does not preclude any U.S. Attorney’s Office for bringing charges against your client for criminal conduct that is distinct from that set forth in the Statement of Facts. For example, if the investigation later revealed that your client had been engaged in sexual activity with a minor and/or involved in commercial sex acts or money laundering, this agreement would not preclude a prosecution for those crimes.”

Under Restitution:

“Your client understands that the Court has an obligation to determine whether, and in what amount, mandatory restitution applies in this case under 18 U.S.C. § 3663A and 18 U.S.C. § 2248 at the time of sentencing.

The Court shall order restitution to every identifiable victim of your client’s offenses. Your client agrees to pay restitution in the amount of $10,000 per victim to AV-1 through AV- 26, provided they are identified at or before the time of sentencing. Furthermore, your client
agrees that, for purposes of this plea, AV-1 through AV-26 are all victims of the offense and are entitled to the same rights as victims so designated under the Crime Victims’ Rights Act (“CVRA”), to include the right to be reasonably heard at the sentencing hearing and the right to full and timely restitution. See 18 U.S.C. § 3771. By agreeing to this, your client is not acknowledging that each of these victims would be a victim of a federal offense, nor is your client agreeing that these victims would be so designated should this case go to trial. Similarly,
by agreeing to the terms of this plea, the Government does not concede that federal offenses do not exist for these victims, nor does it concede that the victims would not be victims under the CVRA should this case go to trial. In addition, your client agrees to pay restitution to any other victim that he recorded/photographed nude while that victim was unconscious, provided that victim is identified at or before the time of sentencing, and further agrees that they are crime victims in this case and entitled to the rights as victims so designated under the CVRA. Your client understands that these victims still maintain a right to request a larger amount of restitution from the Court, and that the agreed upon payment to each victim is the minimum amount due.”

The Plea Agreement includes a sex offender registration requirement for the remainder of Raymond’s life “…. client is required to register as a sex offender for the remainder of his life, and to keep the registration current in jurisdictions where your client resides, where your client is employed and where your client is a student.”
The Plea Agreement notes that the Government’s proposed estimated Sentencing Guidelines range is 262-327 months (the “Estimated Guidelines Range’). The Defendant’s proposed estimated Sentencing Guidelines range is 135-168 months.  So potentially anywhere between 11 years and 27 years.
A similar case to this in 2011 involved Andrew Warren, 43, a former official with the Central Intelligence Agency (CIA).  That case involved charges of abusive sexual contact and unlawful use of cocaine while possessing a firearm. The sexual assault occurred at a US Embassy property in Algeria, and involved one victim. Warren was sentenced to 65 months in prison and 10 years of supervised release following his prison term (see Former CIA Station Chief to Algeria Gets 65 Months for Sexual Assault on Embassy Property).
Via USDOJ: If you believe you have been a victim, have information about Raymond or know of someone who may have information about Raymond, the FBI requests that you fill out this secure, online questionnaire, email FBI at ReportingBJR@fbi.gov or call 1-800-CALL-FBI.

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