I had another post all set to go for today until I read on the internet the NY Times lead story. Having been a prosecutor for over 20 years I thought what I read was quite disturbing.
Over 300 prosecutor’s offices have teamed up with collection agencies and big businesses to go after people who have written bad checks. The collection agencies are given permission by a district attorney to use their stationery. The letters suggest that unless the person pay the money they will be prosecuted for a crime. Also, the letters tell the person to avoid prosecution they must enroll in some type of money management class that’ll cost them $150.00
One woman who bounced a $47.95 check to Wal-Mart received a letter on district attorney stationery stating that she had to pay $280.05 or she could be jailed for up to a year. None of these bad checks incidents have been looked at by the district attorneys who claim they are too busy to do that. The letter itself misrepresents the identity of the sender since it is sent by a collection agency without any input from the district attorney as to that person. It deceives the recipient by stating :“you have been accused of violating California Penal Code 476a” when in fact that never happened. No one accused anyone of violating that law. All that has happened is the businesses routinely send their lists of bad checks to the collection agency. No business told the district attorney’s that the writer intended to defraud them.
The California law reads: “Any person who . . . willfully, with intent to defraud, [gives a check] . . . knowing at the time of making . . . [the person] had not sufficient funds [to pay the check] . . . ” It is difficult to show an “intent to defraud.” Many people bounce checks believing they have the funds to cover them. It is also a serious matter to tell a person he or she has been accused of a crime when that has not occurred.
The letter also deceives a person into what is necessary to straighten out the problem here the $47.95 check was increased by an item fee of $2.10, and administration fee of $50.00 and a financial accounting class fee of $180.00. The district attorneys without any right on their own behalf to impose punishment for crimes, that is a judicial function, allow collection agencies to do so in their names.
In effect we have district attorneys and collections agencies and big businesses like Wal-Mart entering into a conspiracy to defraud people. They tell people the district attorney is considering charging them with a crime even though the person may be innocent (when the DA’s office knows nothing about the case) and the only way to escape punishment (county jail or prison) is to pay an extortionate amount which is not determined by any court but by a collection agency. These basic misrepresentations are sent through the mail to fool and scare hundreds of thousands of people.
I thought the job of a prosecutor was to protect people from being ripped off. It is only the legitimate people who are frightened by the thought of being accused of a crime who will be affected by these letters. The real criminal will throw them in the trash. Everyone knows this. This is an attempt to threaten criminal action against those least able to help themselves. The most vulnerable. And to make it worse, prosecutors are participating in it and receiving a kick back. The correct process to collect on most debts is in civil court, not through the misuse of the criminal system.
You’ve all heard me talk about how Whitey Bulger, Stevie Flemmi, John Connolly and others were charged with Racketeering Conspiracy which I call the RICO statute. The penalty for violating RICO is twenty years under 18 USC § 1963. It was originally designed to go after the organized criminal types.
In March of this year John J. O’Brien, Elizabeth V. Taveres and William H. Burke, III were charged with a RICO offense. They are alleged to have combined together to violate Title 18, USC § 1341 and 1342. What those sections refer to are using the Postal Services to send letters out making material misrepresentations. In this case they sent rejection letters out to people who were unsuccessful candidates for probation jobs stating that they hired another person rather than that candidate. The U.S. Attorney, in this case Fred Wyshak, decided that they did not hire the most qualified candidates so they are facing 20 years in prison.
The district attorney/collection agency/big business scheme is shown in another example from the NY Times article. “A letter signed by the Santa Clara County district attorney . . . informed Kathy Pepper that the “bad check restitution program” would allow her to avoid “the possibility of further action against the accused by the District Attorney’s Office.” Petrified, Ms. Pepper agreed to pay $170 for a class and another $25 to reschedule the class last year after accidentally writing a $68 check in the midst of a divorce last year that upended her finances.”
Is this what we want our prosecutors to do? Do we like it when the people who accidentally write a bad check are petrified? It seems to me that if these probation officers can be charged with RICO violation for using the mails to tell people they didn’t get a job, the district attorneys, collection agencies and big businesses who are using the mails pretending the district attorney is telling them they are accused of a crime when it never happened and demanding the people pay a sum of money far beyond what they owe or they’ll go to jail puts them in the same boat as the probation officers.
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Skimmed Profits From Norwood Asbestos Company And Lied To The IRS
June 3, 2010
BOSTON, MA – Two businessmen were sentenced late yesterday in federal court with filing false tax returns that hid the profits of a Norwood-based asbestos removal company.
United States Attorney Carmen M. Ortiz and Susan Dukes, Special Agent in Charge of the Internal Revenue Service, Criminal Investigation – Boston Field Office, announced that DARRELL W. MACLEAN, 48, of Falmouth and CHARLES R. SMITH, JR., 44, of Sharon, were sentenced by the Honorable Nathaniel M. Gorton to 6 months incarceration based on charges that they filed false tax returns in connection with a cash skimming scheme in which they attempted to hide the profits of Suburban Middlesex Insulation (“SMI”), an asbestos removal company they co-own, from the Internal Revenue Service.
The charges arose out of MACLEAN and SMITH’s operation of SMI, which used teams of trained laborers that were supplied by temporary employment agencies to perform asbestos abatement work in public buildings in New Bedford, Brockton and elsewhere. One of the temporary employment agencies was owned by James Espinola, whom SMI paid by check usually each week in an amount based on the number of hours worked by his employees. Espinola ordinarily picked up these checks at SMI’s Norwood office.
From 2001 to 2005, with Espinola’s assistance, MACLEAN and SMITH engaged in a scheme to evade income tax payments by having Espinola cash checks for them and by declaring those checks as business expenses on SMI’s tax returns. Each week, either MACLEAN or SMITH would hand Espinola a second, larger check made payable either to Espinola or his company. These checks ranged in amount from $5,000 to $15,000, and purported to be in payment for temporary employment services. Espinola deposited the checks into his bank account, later withdrew the funds in cash. He then delivered the cash, minus a cut for himself, to MACLEAN and SMITH at their office.
On SMI’s tax returns, MACLEAN and SMITH characterized all of the checks to Espinola as business expenses instead of as income to themselves personally, even though they knew that the funds in the second set of checks were returned to them by Espinola. For the years 2001 to 2005, MACLEAN and SMITH willfully omitted to report their respective shares of the cash from Espinola on their personal tax returns as taxable income. MACLEAN and SMITH also mischaracterized large personal expenditures, including renovations to their homes, as business expenses, and intentionally omitted to report such expenditures on their personal income tax returns as income.
For the tax years 2001 to 2005, MACLEAN and SMITH deprived the United States Treasury of approximately $981,880 and $538,571 in tax payments, respectively. Espinola was charged separately, and awaits sentencing.
The case was investigated by the Internal Revenue Service – Criminal Investigation. It was prosecuted by Assistant U.S. Attorney Jonathan F. Mitchell.
MY NOTES : 1. Can you believe no fine was imposed? If he evaded $985,00.00 in taxes, how much did he make??
2. I don’t beleve he (Mackean) served any time
3. The building inspector took 4 grand in Bribes AFTER this guy was arrested…they did not interrupt an ongoing conspiracy…this whole thing was ginned up by the USAO and their old mate to give deep pockets an out. The old guy was sentenced to a year and a day….life ruined. Asbestos guys….not so much. Sometimes crime does pay, unfortunately.
Wasn’t sure where to post this, this is as good a plc a as any. I’m fascinated by if the irony of The Boston USAO charging the probation department with racketeering due to preferential hiring practices. There is no question that Carmen Ortiz was hired strictly due to her qualifications after a nation wide search. Just a coincidence that she was a donor to democratic politicians. Also a coincidence that the roster of toadies she brought with her and promoted are proud democrats. Just to stay bi-partisan, I think it was the same search committee that found Michael Sullivan, who many people have said didn’t know which side of the court room to stand on during his brief, unremarkable foray in the private sector (true?). The fact that competent, dedicated prosecutors get forced out in droves after every regime change is very different from the probation for one simple reason…they are above the law!
How elso do you explain using a witness in one case and vouching for his truthfulness while someone FROM THE SAME OFFICE will attack the credibility of the person during a civil trial in the same building?
What about The ausa’s that leave the office mysteriously being hired by six figure paying clients months after they leave office, hired by clients who have been indicted by their good pals who remain in the office. A particularly egregious example of this involves a HUGE contractor who was indicted for a massive fraud and tax evasion case. He, just by coincidence, hired a recently departed ( and very mediocre) member ( may have been head) of the public corruption unit, and paid a retainer that I’m told was close to 250k. The case, again, coincidently, was being prosecuted by a former underling. Surprisingly, the former AUSA was able to make a deal that involved little or no prison time. Bear in mind, this man evade MILLIONS in taxes. How did he do it? He traded down, the hallmark of this office. He wore a wire and bribed the poor old building inspector in Brockton, who I believe received the princely sum of $4000.00…. You read that right…and received more jail time than the contractor with the mediocre but well connected and well paid former AUSA…feel free to research this… Google Vassapolo Brockton building inspector and work backwards
Am I right in thinking this smells worse than hiring your friends cousin from BC?
Good post. But you don’t have to go back to far to the time when “Harold Brown, a landlord who owns more residential and commercial space than any other in the city, was indicted on September 18, 1985 on Federal charges of bribing a city building inspector and lying to a Federal grand jury about it.” His holdings were estimated between $500 million and a billion dollars. He was accused of paying $1,000 to Paul Folkins a Boston City Inspector. (Yes, this is the same Harold Brown who alleged that Tom Finnerty – Bulger’s partner – extorted him up for $500,000. Brown was very happy to pay Finnerty hoping to grease the rails for his project. Once he got the approvals he tried to cheat him out of the money he owed him.) According to the Wall Street Journal “he also got tangled up (the new word for being indicted) in a city scandal and he pleaded guilty in 1986 to a charge of paying a $1,000 bribe to a Boston city official for a permit. Mr. Brown says he paid a $25,000 fine and did community service working with hospitals to help them get grants.” No bad – a billionaire bribing an inspector and committing perjury paying a $25,000 fine. Catherine Greig hangs around with her boyfriend Whitey for sixteen years and gets eight years.
The absurdity of the federal charges against the probation officers is that it alleged they were not picking the most qualified candidates. The feds are going to tell us who they think are the most qualified. That’s not their function. As you point out neither Michael Sullivan nor Carmen Ortiz were the most qualified candidates and I dare say many of the people they hired were not the most qualified candidates for their jobs. Michael Sullivan had no real courtroom experience before getting the Plymouth DA job. The American system of government is for the victorious candidates to bring in people they know and are comfortable with to work with them. They also hire people who they feel best fit into their scheme of things, often bringing in to the low level jobs people with some type of connections since there are hundreds that can fill the qualifications needed for the job they give the jobs to people who may be recommended by old time friends. The feds have now criminalized that practice for everyone except themselves.
You make good points. I have to look into what you noted. You know as well as I do why the probation people were indicted: the Boston Globe is looking for a Pulitzer and when the Globe speaks the U.S. Attorney’s Office listens.
The Probation officials committed no crime. The people who framed them violated the law. If that isn’t a case of malicious prosecution then there isn’t one. A special counsel is needed to investigate this abuse.2 Don’t believe what you read in newspapers. They are not very reliable. Connolly is an American citizen and has a right to remain silent. His constitutional assertion of that right should not be questioned. Nor should any other person asserting a right.
You are right about the probation people. They got caught up in the Boston Globe’s pursuit of a Pulitzer Prize. Here’s an interesting project for you. Go back to the school busing days and come forward. See how often the federal government launches investigations and indicts people because the Boston Globe demands that they do it. I bet you’d be surprised to see how closely the DOJ and FBI work hand in had with the Globe.
No one is questioning Connolly’s right to remain silent. I’m just saying if you remain silent it’s not a good idea if you have something worthwhile to say. If someone presents one side of an issue and you don’t rebut it I’d say that someone will win most of the time. How is the issue of Connolly saying he was doing his job going to be heard if he won’t go under oath and tell his side of the story? We’ve seen where Connolly’s exercise of his right has landed him. He couldn’t have been any worse off if he stood tall and defended himself which I suggest he should have if he believed he was doing the job he was supposed to do. I think he has a valid defense but he has never presented it.