International Financial Law Prof Blog

Editor: William Byrnes
Texas A&M University
School of Law

Tuesday, July 5, 2016

Protecting Older Americans from Financial Exploitation

International Coordination and Mail-based Fraud Schemes

Many frauds targeting the elderly in the United States originate overseas.  Combatting such schemes often requires close collaboration with our international partners.  To this end, we are committed to expanding our engagement with law enforcement agencies in the countries in which many of these frauds originate.

As a key component of these efforts, the department co-chairs the International Mass-Marketing Fraud Working Group.  This group includes the FBI, as well as other U.S. investigative Judiciary-committee-image-650x237 and regulatory agencies, such as the FTC, USPIS, U.S. Secret Service, and ICE-HSI.  It also includes law enforcement and regulatory personnel from Australia, Belgium, Canada, the Netherlands, Nigeria, Norway, Spain and the United Kingdom.  The members of the group meet to confer on cooperative measures to improve the sharing of law enforcement intelligence, disrupt mass-marketing schemes, enhance public education and prevention measures and increase the effectiveness of criminal and civil enforcement actions directed against mass-marketing fraud.

The success of such cooperation is illustrated by the recent Dutch matter that is now pending in Brooklyn.  (See www.justice.gov/opa/pr/justice-department-and-dutch-authorities-announce-simultaneous-enforcement-actions-against).  The complaint filed by the United States alleges that U.S. residents received fraudulent direct mail solicitations that falsely claimed that the individual recipient had won, or would soon win, cash or valuable prizes or otherwise come into a great fortune.   The recipient need only send some money for processing fees or taxes.  Victims sent payments through the U.S. and international mail systems to defendants that were located, owned and operated in the Netherlands.  Through its action, the United States is seeking an injunction under the Anti-Fraud Injunction Statute to immediately shut down the defendants’ role in the fraudulent schemes and to protect U.S. victims from further harm.  The injunction sought by the United States would enjoin the defendants from using the U.S. mail, or causing the U.S. mail to be used, to distribute the fraudulent solicitations or to collect victim payments, and from selling lists of American victims who have responded to the solicitations.  If granted, a permanent injunction would allow the USPIS to intercept mail heading to the defendants and return that mail—along with any money being sent to the defendants—to U.S. victims.

At the same time that the department took its enforcement action in this matter, Dutch law enforcement agents executed search warrants at the business address used by the Dutch companies and the home address of the individual defendant.  The Dutch authorities also took control of the Dutch post office boxes used by the defendants to receive victim funds.  The coordinated U.S. and Dutch enforcement actions seek to immediately prevent the defendants from benefitting from their scheme and thus to shut down their continuing efforts to victimize the elderly.

Another example of the department’s active efforts to combat elder financial exploitation is its successful action to shut down a large scale “psychic” mail fraud scheme.  In an amended complaint filed in November 2015, the United States alleged that certain defendants operated a mail fraud scheme in which they sent letters through the U.S. mail to American consumers, purporting to be written by psychics claiming that they had a specific, personalized vision or psychic reading revealing that the recipient of the letter had the opportunity to achieve great wealth, including winning millions in the lottery.  The solicitations urged victims to purchase various products and services to ensure that their predicted good fortune would come to pass.  In reality, the solicitations were identical, mass-produced form letters sent every month to tens of thousands of recipients throughout the United States.  Many of the citizens who received the solicitations were vulnerable victims, including the financially desperate, the elderly and the infirm.  Over one million individual victims were defrauded out of over $180 million by this scheme. 

As a result of the department’s efforts, in May 2016, the U.S. District Court for the Eastern District of New York entered a consent decree that permanently barred eight individuals and entities from operating this psychic mail fraud scheme.  In particular, the consent decree barred the defendants from using the U.S. mail to distribute any advertisements, solicitations or promotional materials on behalf of any psychics, clairvoyants or astrologers.  Moreover, the consent decree enjoined the defendants from using the U.S. mail to distribute materials representing that services or items offered for purchase would increase the recipient’s odds of winning a lottery, would bring the recipient good luck or would entitle the recipient to receive an inheritance.

Other successful examples of international partnerships include Project Jamaican Operations Linked to Telemarketing, or Project JOLT.  As part of this project, U.S. and Jamaican law enforcement worked together to combat fraudulent lottery schemes from Jamaica preying on elderly citizens in this country.  In 2015, the department, working with ICE-HSI and the USPIS in Miami and with the government of Jamaica, successfully extradited the first Jamaican citizen to be prosecuted in this country for conspiracy to commit wire fraud in connection with a lottery scheme.  He was ultimately convicted in federal court and was sentenced to 46 months in prison.  Moreover, since 2009, department attorneys have prosecuted or are prosecuting nearly 100 individual defendants linked to Jamaican-related lottery schemes.  The approximately 40 defendants who have been convicted and sentenced thus far have been sentenced, collectively, to more than 145 years in prison.

Telephone-Based Fraud Schemes

In addition to mail-based fraud schemes, the department has pursued telemarketing schemes that targeted the elderly.  For example, a common telemarketing scheme involves the purported resale of timeshare interests.  The fraudsters, who target elderly victims who own timeshare interests, falsely claim to have buyers for victims’ timeshare interests and express the need to move quickly on the deals.  They solicit fees from the victims of up to several thousand dollars, claiming they are for pre-paid closing costs and related expenses and such fees will be refunded at the time of closing.  The sales never occur and the fraudsters pocket the money for their own personal gain. 

On July 10, 2014, Peter Massimino was sentenced for conspiracy to commit mail fraud and wire fraud in connection with a scheme to defraud elderly individuals who owned timeshares.  The U.S. Attorney’s Office for the Southern District of Illinois, working with investigators from the FTC and the USPIS used the Senior Citizens Against Marketing Scams (SCAMS Act) – which requires courts to sentence defendants to an additional five years’ imprisonment for telemarketing-related crimes against victims over the age of 55. 

Specifically, Massimino solicited fees (purported to be pre-paid closing costs and related expenses, some of which would be returned at closing) from the victims of up to several thousand dollars and claimed that he would use marketing firms to advertise the timeshares.  The sales did not take place, closings were not scheduled as claimed and Massimino did not sell any of the victims’ timeshare interests as promised. 

While this case involved one defendant and 68 victims, the matter was part of a multiple-victim timeshare resale scam operating from Florida that led to the victimization of 25,500 people and total losses of $35 million.  Massimino was ultimately convicted and sentenced in July 2014 to 87 months in prison.

More recently, on Feb. 2, the U.S. Attorney’s Office for the Northern District of Illinois worked closely with investigators from the FTC and USPIS to successfully prosecute Gilbert Freeman for a timeshare scheme in which the majority of victims were elderly.  Freeman defrauded more than 1,400 owners out of $4.8 million by falsely promising that he would sell their Mexico timeshares to corporate buyers.  Freeman and others collected payments from the owners for fictitious fees and taxes that he claimed were required to complete Mexican real estate deals and that he promised would be refunded upon closing.  In reality, Freeman had no intention of selling the timeshares or reimbursing the owners.  Freeman was sentenced to 20 years in prison for his role in this scheme. 

Embezzlement and Ponzi Schemes

While combatting larger scale international and domestic fraud schemes targeting the elderly, the department has prosecuted those who have abused their fiduciary responsibilities to exploit the elderly.  

For example, in April, the U.S. Attorney’s Office for the Northern District of California charged a Santa Clara insurance broker with mail and wire fraud in connection with an alleged attempt to steal more than $1 million dollars from a client widow’s trust account.  The indictment alleges that although the defendant had a fiduciary duty to manage and oversee his client’s account, he allegedly withdrew almost $1.5 million from that account and deposited it into an account that he controlled and used for his own personal benefit.  See www.justice.gov/‌usaousao-ndca/pr/santa-clara-insurance-broker-charged-wire-fraud-and-mail-fraud-alleged-theft-widow-s.

Likewise, in February 2015, in the District of Maryland, Travis Wetzel, a branch operations manager for an investment advisory firm, was sentenced to 42 months in prison for embezzling over $1 million from an elderly client’s annuity account.  Over a two-year period, as a FBI investigation revealed, Wetzel took money from his client’s account without the client’s knowledge and used the money for his own personal benefit.  He also laundered a portion of the money by transferring it to other bank accounts he controlled.  Wetzel knew his client was elderly and was able to repeatedly embezzle the funds due to his client’s age and physical condition.  In particular, the victim was isolated and potentially suffering from cognitive impairments.  In addition to incarceration, the court also ordered Wetzel to forfeit and pay restitution of $1,282,224.

Additionally, in January 2015, in the Middle District of Florida, Donald Ray Babb and Ralph Victor Ruth were sentenced to 121 months in prison for their role in a scheme to defraud elderly investors from 2006 to 2013 out of $18 million.  In that matter, an FBI investigation revealed that Babb and Ruth falsely represented that their businesses were licensed financial institutions whose deposits were insured by the FDIC.  They advertised risk-free certificates of deposit (CD) investment opportunities which yielded high rates of return.  However, neither Babb nor Ruth ever purchased a CD for an investor.  Instead, they used the money to make payments to earlier investors in the scheme, and to purchase real estate and other luxury items for themselves.  As a part of their sentences, the court also ordered the forfeiture of their interests in various pieces of real property, which were traceable to proceeds of the offense, and restitution in the amount of $9.7 million.

Tracking Financial Fraud Schemes

The department is taking a number of steps to both highlight its efforts to the public and to bolster efforts to track elder financial fraud nationwide.  With regard to better tracking of its prosecutorial activity, the department has taken steps to collect press releases issued by the department and the U.S. Attorneys’ Offices regarding federal actions against elder fraud exploitation and to display that information on the Elder Justice Website.  Those press releases can currently be found at https://www.justice.gov/elderjustice/press.

In order to develop a more comprehensive and timely picture of evolving elder financial fraud and scams nationwide, the department’s Civil Division is working closely with the FTC to improve its Consumer Sentinel Network (CSN).  The CSN is a secure online database of millions of consumer complaints available only to law enforcement.  In addition to receiving complaints from the FTC, the CSN includes complaints from state consumer affairs agencies, state Attorneys General, the Consumer Financial Protection Bureau, the Internet Crime Complaint Center, Better Business Bureaus, MoneyGram and Western Union.  Moreover, the CSN accepts complaints on a wide range of issues, including identity theft, debt collection, credit reports, mortgage assistance scams, Do Not Call violations, imposter scams, telephone and mobile services, prizes and sweepstakes, Internet services, job scams, privacy/data security, auto-related scams and a variety of other frauds.

Although the CSN is the most robust repository of scam-related data, to date, CSN has had limited ability to inform users of repeat offenders or offenders targeting elderly victims.  As such, the department has been assisting the FTC to implement improvements to the CSN in order to help identify those bad actors and types of crimes more easily.  The modified CSN will better allow users to identify frauds targeting the elderly in a manner that should enhance the ability of investigators, prosecutors and civil enforcement attorneys at the federal, state and local levels to stop them more quickly.  At the same time, the department is currently working with several federal agencies to develop a resource locator to help direct victims to available federal resources and complainants to the appropriate federal agency to report allegations of financial abuse.  By making this resource locator available to the public, the department hopes to channel complaints to the right place, including the FTC’s CSN, and hopefully provide as comprehensive a view as possible of elder financial exploitation on the federal level.   

Failure of Care Cases

In addition to the financial scam cases described above, the department has also dedicated significant resources to pursuing nursing homes that failed to provide Medicare and Medicaid beneficiaries with the health care services to which they were entitled and for which those programs paid.  In May 2015, for example, the department resolved a matter against the owners and operators of two nursing homes in Watsonville, California.  In that matter, the department alleged in its complaint that, between 2007 and 2012, the nursing facilities persistently overmedicated elderly and vulnerable residents, thereby causing infection, sepsis, malnutrition, dehydration, falls, fractures, pressure ulcers and for some residents, premature death.  In addition to paying $3.8 million, the facilities entered into a five-year Corporate Integrity Agreement (CIA) with the Office of Inspector General of the Department of Health and Human Services (HHS/OIG).  

Similarly, in October 2014, the department reached a $38 million settlement with Extendicare Health Services, one of the nation’s largest nursing home chains, to resolve False Claims Act allegations that the company had billed Medicare and Medicaid for grossly substandard services.  The department led that nationwide investigation and worked closely with Medicaid Fraud Control Units and HHS-OIG, which negotiated a five-year CIA with that chain. 

Finally, a criminal prosecution in my own district broke new ground in 2012 by successfully convicting a nursing home operator of criminal health care fraud on a “failure of care” theory.  This defendant, George Houser, accepted $32.9 million in Medicare and Medicaid funds while the operation of his three nursing homes exhibited a long term pattern and practice of inhumane living conditions for the residents—who often went without food, medical care and other needed services.  Indeed, the judge at sentencing described the conditions at the nursing home as “barbaric, inhumane and uncivilized,” and sentenced Houser to 20 years in prison.

Building off this model of federal-state coordination, on March 30, the department launched 10 regional Elder Justice Task Forces.  These multidisciplinary teams, which were chosen primarily based on their expertise on nursing home cases, will bring together federal, state and local prosecutors, law enforcement, victim service agencies and others in order to more quickly and effectively intercede against nursing homes that are failing to meet their obligations.  In addition to my office in Atlanta, Elder Justice Task Forces were launched in the Northern District of California, Northern District of Georgia, Northern District of Iowa, District of Kansas, Western District of Kentucky, District of Maryland, Southern District of Ohio, Eastern District of Pennsylvania, Middle District of Tennessee and the Western District of Washington.

In addition to focusing on nursing home cases, Elder Justice Task Forces will pursue allegations of elder financial exploitation and other, related elder issues that may arise within the respective districts.  The Elder Justice Task Force for the Northern District of Iowa, for example, will be continuing to combat elder financial fraud, like lottery and sweepstakes scams, as well as investigating allegations of nursing home providing grossly substandard care to their residents.  See http://www.kcrg.com/content/news/Elder-Justice-Task-Force-formed-to-protect-elderly-Iowans-from-financial-fraud-383662701.html[external link].

Training, Outreach and Deterrence

While pursuing elder financial exploitation cases that fall within its jurisdiction, the department has devoted significant resources to training and enhancing the capacity of state and local prosecutors and law enforcement to detect and respond to elder financial exploitation. 

Since 2006, the Office on Violence Against Women (OVW) has provided grant funding to over 60 communities through its Enhanced Training and Services to End Abuse in Later Life Program.  Through this program, OVW has supported the development of national curricula for law enforcement, prosecutors and courts to enhance their ability to recognize, address, investigate and prosecute cases of elder abuse, neglect and financial exploitation. 

To further enhance prosecution, the department established in 2013 the National Institute on Prosecuting Elder Abuse.  This Institute puts on an intensive four-day training that covers the essential elements of bringing an elder abuse or financial exploitation case, including working with older victims, capacity issues, working with medical and financial evidence, charging decisions and coordinated community responses.  Since 2013, the department has trained state and local prosecutors from 26 states and the District of Columbia.  In order to ensure that every state has prosecutors trained to effectively prosecute elder abuse and financial exploitation, the department has committed to enrolling and training prosecutors from the remaining 24 states by 2017.

For those prosecutors unable to attend the in-person training, the department is working with the National Clearinghouse on Abuse in Later Life and state and local prosecutors from around the country to develop a video series on the key elements of an elder abuse prosecution.  This video series, which will cover topics ranging from investigations and charging decisions to working with experts and older victims, will be made available on the Elder Justice Website in the fall of this year.    

Over the past decade, the department has also supported the development of national curricula for criminal justice professionals and others to enhance their ability to recognize, address, investigate and prosecute cases of elder abuse, neglect, and financial exploitation.  During that time, the department has provided grant funding to 77 communities in 37 states and the District of Columbia to provide in-person training to over 8,000 law enforcement officers on elder abuse and financial exploitation.  Because not all law enforcement officers can attend these in-person training sessions, the department has been collaborating with national law enforcement organizations such as the International Association of Chiefs of Police and National Sheriffs’ Association to develop Internet-accessible training materials and resources that will be available to state and local law enforcement officers nationwide.  

In addition to supporting the training of law enforcement and prosecutors, the department has focused on enhancing the capacity of civil legal assistance programs to support victims of elder abuse.  In 2014, the department’s Office for Victims of Crime, in collaboration with the department’s Office for Access to Justice and the Elder Justice Initiative, developed a series of free, online elder abuse training for legal services providers.  The elder abuse training consists of four modules, including:

  • What Every Lawyer Needs to Know About Elder Abuse;
  • Practical and Ethical Strategies;
  • Domestic Violence and Sexual Assault in Later Life; and
  • Financial Fraud and Exploitation.

In 2015, there were more than 3,400 completions of these four online trainings, including 711 completions of the Financial Fraud and Exploitation online training module.  More recently, on June 14, the department and the Corporation for National and Community Service announced the launch of its Elder Justice Americorps program to provide civil legal assistance and support to victims of elder abuse, neglect, and financial exploitation.  This program will provide grants to support 300 Americorps members over the next two years.  AmeriCorps members will serve more than 4,000 older adults each year by providing screenings for abuse, neglect or financial exploitation; referrals to support services associated to abuse or neglect; and high-quality legal services.  These Americorps members will work in Alaska, California, Colorado, Florida, Georgia, Illinois, Iowa, Louisiana, Massachusetts, Montana, New York, North Carolina, Oregon, Texas, Virginia and Washington, D.C. 

Community outreach is also an important part of the department’s strategy to combat elder abuse.  Educating seniors about how they can protect themselves helps prevent further victimization.  Every year, the department participates in the Rocky Mountain Fraud Summit in Denver.  This summit is a collaborative effort among the U.S. Attorney’s Office, the AARP, the SEC, the Colorado Attorney General’s Office and other federal, state, and local regulators across the Rocky Mountain region.  The summit, which is often held at an assisted living facility, consists of interactive presentations about investment frauds that target our communities, including our senior communities. 

While investigating and prosecuting matters such as those I have discussed is one component of an effective strategy to combat elder fraud, preventing these crimes from happening at all is similarly a priority.  To this end, the department hosts community outreach events across the country.  For example, in April 2015, during National Crime Victims’ Rights Week, the U.S. Attorney’s Office for the District of Minnesota partnered with assisted living facilities in St. Paul, St. Cloud and Duluth to educate seniors on ways to protect themselves against investment fraud.  The presentations informed seniors about identifying red flags, how to report suspicious conduct and other tips for dealing with investment fraud.  We will continue to reach out to elders in all communities to help ensure that they are well informed.

Research to Advance Practice

The National Institute of Justice (NIJ), the department’s research and evaluation component, operates an active research portfolio related to elder mistreatment.  The goals of the research are to improve knowledge and understanding of elder abuse, neglect and exploitation through science.  From 2005 to 2015, NIJ awarded more than 20 grants totaling over $9 million that examine diverse elder mistreatment issues.  While much of NIJ’s elder mistreatment research focuses on violence and victimization, NIJ also has funded projects that explore the factors that contribute to or are associated with the financial abuse of the elderly as well as the factors that promote reporting and facilitate investigation of scams and abuse.  This includes research projects in the following areas:

  • Financial exploitation of the elderly in a consumer context;
  • Elder financial exploitation victimization: identifying unique risk factors to enhance detection, prevention, and intervention;
  • Identifying risk and preventative factors for elder financial exploitation; and
  • Integrating improved assessments of financial judgment: conceptual and measurement advances.

Elder Justice Website

Lastly, the department’s Elder Justice Website is a critical piece to its efforts to combat elder financial exploitation.   

The department launched the Elder Justice Website (www.usdoj.gov/elderjustice) in September 2014.  The website is a “one-stop shop” for prosecutors, researchers, practitioners, victims and families looking for resources to identify, report and prosecute elder abuse and financial exploitation, including common fraud schemes perpetrated against seniors.  For prosecutors, the Elder Justice Website identifies relevant state laws and provides sample materials and pleadings (e.g.,indictments, civil complaints, and trial pleadings).  For elder abuse researchers and academics, the website provides an innovative search tool specifically designed to help identify relevant articles and scientific literature pertaining to elder abuse, neglect, and financial exploitation.  For victims and their families, the website provides a wealth of information, including an interactive map which allows users to identify potential additional resources and assistance by zip code. 

With regard to elder financial exploitation, the website contains information on where to report elder financial exploitation, common scenarios and examples of elder financial exploitation and training resources.  Moreover, the financial exploitation section of the website contains an extensive discussion of what the latest research shows regarding elder financial exploitation, including but not limited to victim risk factors, where it occurs and its consequences.  The department is currently working on a number of improvements to this section, including materials and resources on how seniors can better protect themselves against fraud schemes.

Excerpted from U.S. Attorney John H. Horn Delivers Testimony Before the U.S. Senate Judiciary Committee

http://lawprofessors.typepad.com/intfinlaw/2016/07/protecting-older-americans-from-financial-exploitation.html

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