United States v. James Dierker

417 F. App'x 515
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 1, 2011
Docket08-3994, 09-4124
StatusUnpublished
Cited by7 cases

This text of 417 F. App'x 515 (United States v. James Dierker) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. James Dierker, 417 F. App'x 515 (6th Cir. 2011).

Opinion

OPINION

HELENE N. WHITE, Circuit Judge.

Defendant James E. Dierker was convicted of one count of conspiracy to commit securities and wire fraud, 18 U.S.C. § 371, one count of conspiracy to commit money laundering, 18 U.S.C. § 1956, and two counts of concealment money laundering, 18 U.S.C. § 1956(a)(1)(B)©. He was sentenced to serve concurrent terms of sixty months for each conviction, and ordered to pay $7,885,000.00 in restitution and forfeit $47,572,373.63. Dierker appeals his conviction and sentence, as well as the district court’s restitution and forfeiture orders. We affirm in part and reverse in part.

I.

The facts surrounding this case are described in detail in United States v. Faulkenberry, 614 F.3d 573 (6th Cir.2010), an appeal by one of Dierker’s co-defendants. We include them here only as necessary to review Dierker’s arguments.

National Century Financial Enterprises (NCFE) purchased healthcare providers’ accounts receivable at a discount and pooled those receivables to secure bonds that it sold to institutional investors to raise capital for the purchase of the receivables. NCFE also collected program fees from the healthcare providers. The investors earned interest and were repaid through collections on the receivables. Providers, meanwhile, were paid almost immediately for services, rather than having to wait for insurers to process and pay claims. This business model was, in theory, a sound one.

*517 NCFE operated primarily through two subsidiaries, NPF VI and NPF XII. These entities issued the actual bonds. Another NCFE subsidiary, National Premier Financial Services (NPFS), was responsible for performing the day-to-day services necessary to purchase the receivables, administer the accounts, and manage the collection of the receivables. A Master Indenture Agreement detailed the legal obligations among the bond issuers, NPFS, and the banks that served as trustees of the NPF programs’ accounts. NPFS was responsible for determining which receivables were eligible for purchase and the trustee banks were required to monitor the programs on behalf of the bondholders. The notes issued to bond-holders contained written terms that restricted the use of the funds invested to the purchase of eligible receivables. The notes also detailed credit enhancements, including overcollateralization, credit reserves, and other means of ensuring that the principal owed on the notes would be secure.

Although its business model was outwardly strong, the actual practices of NCFE varied drastically from what investors were promised. Rather than being used only to fund the purchase of eligible receivables, much of the funding brought in from the sale of bonds was used to advance money to healthcare providers without the purchase of receivables. Several of these providers had no realistic ability to repay the advances and lacked adequate receivables to support the amounts advanced. The improper advances, some of which were made to companies in which NCFE principals held ownership stakes, severely depleted the cash reserves that NPF VI and NPF XII were required to maintain to protect bondholders. To cover the losses, NCFE issued more notes. NCFE executives also falsified data presented to investors. Additionally, NCFE moved funds between various accounts within and across NPF VI and NPF XII to meet minimum funding requirements on reporting dates. The reporting dates for the two programs were staggered so that the same funds could be counted separately by each program to meet investor requirements.

Eventually, the scheme became unsustainable. At the end of September 2002, one of the trustee banks blocked a transfer between NPF VI and NPF XII, triggering an event of default. In November 2002, NCFE filed for bankruptcy, resulting in investor losses of approximately $2.4 billion. On November 12, 2002, the FBI raided NCFE’s headquarters, seizing its files and documents. The ensuing investigation revealed substantial financial irregularities.

In 2006, the government secured indictments against seven of NCFE’s executives on charges of conspiracy, securities fraud, wire fraud, mail fraud, and money laundering. 1 Dierker was charged based on his authorization of advances to California Psychiatric Management Services (CPMS), a healthcare company in which NCFE held a 49.9% ownership interest, and which received funds from NPF XII. In June 2000, CPMS filed a Chapter 11 bankruptcy petition. NPF X, an NCFE entity responsible for non-investor funds, was appointed as CPMS’s post-petition financing party. Millions of dollars’ worth of credit was extended to CPMS from NPF XII, instead of NPF X. Dierker was in charge of the CPMS account during the relevant time period.

Five of the seven executives, including Dierker, were jointly tried. After a six-week trial and two days of deliberation, *518 Dierker was convicted of one count of conspiracy to commit securities and wire fraud, one count of conspiracy to commit money laundering, and two counts of concealment money laundering. Dierker moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 at the close of the government’s case-in-chief and again at the close of trial. The district court denied both motions, as well as Dierker’s renewed motion made following his convictions, stating:

The trial in this case lasted for six weeks. The twenty-two volume trial transcript shows that Defendants had considerable opportunities to, and in fact did, attack the Government’s evidence against them by putting on their own defenses and by extensively cross-examining the Government’s witnesses and challenging its documentary evidence. The record also shows that the evidence against Defendants was substantial. Six former National Century employees testified and three of these — Jon Beacham, Sherry Gibson, and Jessica Bily — were senior executives with intimate knowledge of the company’s operations and how it perpetrated investor fraud. Each of these executives admitted to engaging in criminal conduct and they all implicated Defendants in the criminal conspiracy. Besides National Century insiders, the Government put on witness testimony from the investors whose money, unbeknownst to them, was improperly used to make unsecured loans to healthcare providers. The Government also called to the stand representatives of the healthcare providers, who confirmed that they asked for, and received, hundreds of millions of dollars in National Century loans that the providers had little ability to pay back.

Dierker appeals, claiming that the evidence was insufficient to support his convictions, that the government’s failure to disclose potentially exculpatory evidence warrants a new trial, and that the district court erred in calculating restitution and forfeiture.

II.

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Bluebook (online)
417 F. App'x 515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-james-dierker-ca6-2011.