United States v. Bollin

264 F.3d 391 (4th Cir. 2001)

 

RULE:

A district court may issue a restraining order to preserve the availability of the assets for forfeiture, based on a finding of probable cause to believe that the assets are forfeitable. 21 U.S.C. § 853(e). The probable cause found by the grand jury satisfies the government's burden of proving the allegations of the indictment. The pretrial restraint provision of the Racketeering Influenced and Corrupt Organizations (RICO) forfeiture statute, 18 U.S.C.S. § 1963(d), permits the restraint of substitute assets under 18 U.S.C.S. § 1963(m) pending resolution of the defendant's case.

FACTS:

In mid-1995, David Raimer and Oles began offering investment programs under the name "Exodus International." The programs involved supposed trading of European "prime bank" debentures and promised very high rates of return with little or no risk to investors. According to the Exodus literature that they distributed, the programs were available on a limited basis to groups of investors whose money would be pooled and delivered to a "prime" bank. Appellant, Gary Bollin, learned about Exodus International Program 39 in May 1995. At Oles' suggestion, Bollin discussed the program with Gormley. Gormley explained to Bollin how the program worked and drew a sketch for him showing how funds would move through the program. Gormley told Bollin that debenture trading programs work "if they're handled right" and that "once they start paying, they pay forever." After Bollin gave Gormley literature about Program 39, Gormley told him that the program looked "pretty good." Thereafter, Gormley told about the program to several of his friends; however, as it turned out, the debenture trading programs were complete frauds. The Government's expert explained that investment programs involving the trading of debentures or other financial instruments issued by so-called "prime banks" do not exist. Instead of placing the money into bank debentures, Oles transferred the money from the BCI Corporation account to the Exodus International account in Orlando. David Raimer withdrew funds from the account and sent cash to Oles upon request. Oles used these funds for himself, and Raimer also kept large sums. Consequently, those who were involved in the fraudulent scheme were convicted and sentenced.

ISSUE:

Did the district court err in convicting the defendants in their alleged participation in the fraudulent scheme?

ANSWER:

No.

CONCLUSION:

The court found sufficient evidence to support one defendant's wire fraud, money laundering, conspiracy, and perjury convictions. Alleged violations of the attorney-client privilege and improper admissions of grand jury testimony were likewise found to lack merit. The appellate court found that pursuant to the Supremacy Clause, federal forfeiture law superseded the garnishment protections that Georgia state law provided for funds in one of the defendant's individual retirement account. Accordingly, the district court's order denying the defendant permission to spend funds from his individual retirement account was affirmed pending the outcome of his case.

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