Non-Official Cover (NOC) government intelligence agents are sinking independent foreign currency and investment houses using fraud to drive people back to domestic institutions. Offshore capital flight has reached epic proportions and is now considered a threat to national security. NOC agents, with hidden ties to government, operate with impunity committing frauds causing people to lose foreign investments. Where the lost monies end-up is a big secret because its funding NOC agent operations for the governments. Here's how:

Spies Use IMF Fraud Overseas
by, ShoreLines


March 17, 2006


Non-Official Cover (NOC) government intelligence agents are sinking independent foreign currency and investment houses using fraud to drive people back to domestic institutions. Offshore capital flight has reached epic proportions and is now considered a threat to national security. NOC agents, with hidden ties to government, operate with impunity committing frauds causing people to lose foreign investments. Where the lost monies end-up is a big secret because its funding NOC agent operations for the governments. Here's how:


On August 8, 2004 the Sunday Tribune (Dublin, Ireland) interviewed a Non-Official Cover (NOC) foreign government intelligence agent named Gabriel Francis MacEnroe who claimed the United States F.B.I. Portland, Oregon (USA) field office called him (early-2000) to contact executives at an independent offshore bank, in The Caribbean, identified as First International Bank of Grenada Limited (FIBG LTD.). MacEnroe’s first meeting bank founder Van A. Brink (fka) Gilbert A. Ziegler began with a jolt, "You're Mr. Ziegler, not Mr. Brink.” According to the Tribune MacEnroe said Brink took exception and claimed MacEnroe worked for the CIA. “I don't work for anyone,” he shot back, which appears as the first of many lies sending an estimated $105-million of the bank depositor’s monies straight into a ditch.


For the Tribune MacEnroe’s story began with, "At the same time, I was called by the FBI's Oregon office, which had found out that I was in Grenada, and asked if I could give them details of the bank. I did and so the agency was able to prosecute Ziegler."


MacEnroe’s tune changed though for FIBG LTD. bank CEO Mark Kennedy with something to the effect that he arranged IMF loams and that the bank could become a project bank for the International Monetary Fund (IMF), and if not he knew of others who might assist the bank depending on what the bank had to offer besides its 10,000-carat hand-carved ruby statue depicting a boy on a water buffalo valued at $20-million some say the bank was originally capitalized with to procure its Grenada bank license.

What else did the bank have for assets? For starters, it had a joint venture contract agreement tying Indonesian legacy heritance certificates of deposit drawn on the UNION BANK OF SWITZERLAND (UBS) valued at $8.7-Billion dollars, which itemized precious bullion metals of gold and platinum in estate holdings of former Indonesia Premier Ir. Soekarno. MacEnroe claimed the bank had no title of it, however records prove the bank indeed held entitlement to receive 50% of trading profits for a period of two (2) years from the estate holder who signed over his Power Of Attorney along with an Irrevocable Deed Of Assignment, Safe-Keeping Receipt, and more.


The Sunday Tribune reported MacEnroe refuted claims he had not divested FIBG LTD. bank of its assets nor was he arranging for a group of European investors to take over the bank.


In January 2006, evidence surfaced revealing that in 2000 those high-value asset instruments connected to FIBG LTD. bank were ‘heritance certificates of deposits’ and ‘heritance bank guarantees’ for billions in precious metal bullion linked to the Premier Ir. Soekarno Estate and within his friend Mr. A. G. Pringgodigdo estate holdings identified at the UNION BANK OF SWITZERLAND (UBS) placed under a Mandate With Power of Attorney [UBS code: A.101.M.1] administered by a man named Muchamad Muchlan Buchori.


When Mr. Buchori died in 1984, his son named Muhamad Burhan (Jakarta, Indonesia) tried taking control of all Administration books, but his late-father Muchamad Muchlan Buchori had arranged that they ‘not’ pass to ‘his successor’ son Muhamad Burhan, but instead UBS saw an entity named PT GALAXY INDONESIA TRUST with two (2) men named through Premier Ir. Soekarno’s Last Will and Testament that would control the assets. One man was named Dr. Halim (Switzerland) and the other Dr. Edison Damanik (Jakarta, Indonesia), the latter of whom saw to distributing those UBS ‘heritance certificates’ to be handled under very specific instructions on their use. It was at that time when these high-value instrument certificates began surfacing around the World.


After Dr. Damanik passed-away, control over those valuable instrument holdings passed to another party (names in files).


It is believed all Estate holdings were placed under the control of one ‘committee’ for family members named in a ‘collective leader board’. Further, that Estate funds appear to have not been touched by the appropriate Administrator for the past 35-years because that particular person has not yet claimed the position to do so.


In the meantime a lot of dangerous games appear to have been played regarding these heritance certificates as “worthless”, “fraudulent”, etc. by certain banks including that of ABN-AMRO and UBS alongside Mr. Burhan who ‘had’ access to e-Banking linked to UBS for the Estates. It is believed the heritance committee decided to block his PIN code access as of 2003 due to curious financial business activities.


Mr. Burhan is a close friend of Endang Darmawan, appearing to act as front-runner alongside Ir. Gunardjo, Paimo (aka) F. Danarasa, Halim Dharmakusuma, M. Damanik, Kho Hian Sui, and Prebon Marshall Yamane.


A group believed to hold committee interest claims Mr. Burhan has been curiously protected by the U.S. National Security Agency (NSA) based on accounts tied to a man named Fredrick J. Robinson (Wichita Falls, Texas, USA), believed to be an oil consultant for 15-years working out of Bangkok, Thailand.


In early-2000, MacEnroe tried convincing FIBG LTD. bank Board of Director executives the assets they held were worthless, however behind the scenes and out of their view he consorted with FIBG LTD. bank CEO Mark Kennedy to convert one $8.7-billion asset into ‘another’ $8.7-billion asset he then saw labeled as the takeover bank “new asset” planned for re-injection support but under his European client group, which made no promises of providing any returns to former FIBG LTD. bank depositors.


Van A. Brink had drawn the FIBG LTD. bank controlling shareholder’s attention to the facts surrounding the mysterious MacEnroe deal.


Holding what appeared to be a key-position for the FIBG LTD. bank Board of Directors as whether to go with the FBI directed MacEnroe plan to steal the bank just as one $8.7-billion asset had already been done and crush all hope of depositors ever seeing their monies again or not was up to Cynthia Joy (Tai”) Hastey.


Hastey refused to give-in after what she was made aware of MacEnroe’s weeks of broken promises to the bank, which she viewed as an ‘economic threat’ forced by unreasonable demands on the bank with no guarantee for bank depositors, vendors, and staff just so the MacEnroe plan takeover group could also avail themselves of the other high-value assets already placed in trade from Brazil, trading profits that once returned would clear-up the bank.


Her counter-offer letter tendered to MacEnroe through FIBG LTD. bank CEO Kennedy appears to have never even been passed on to MacEnroe at all. Instead, Kennedy resigned within 24-hours on July 4, 2000.


On July 5th, 2000 the Board entered negotiations with a London, UK barrister Lawrence A. Jones to take over the FIBG LTD. bank CEO position, which saw him formally accept before the Board on July 8th, 2000.


Although the MacEnroe deal was rejected, he never saw to returning the FIBG LTD. bank $8.7-billion dollar placed asset instruments from the Soekarno and Pringgodigdo Estates, which had originally been seen injected into FIBG LTD. bank by a man named Robert Earl Palm (Canada).


After Van A. Brink resigned as FIBG LTD. bank CEO on October 1, 1999 his successor CEO Mark Kennedy immediately met in Grenada with an international oil consultant named Michael K. Gabriel who had co-authored a global economic report with Van Brink earlier. After CEO Kennedy resigned and Lawrence Jones took over as CEO for a brief interim, Michael K. Gabriel became CEO of FIBG LTD. bank and immediately contacted former CEO Mark Kennedy in an effort to resurrect the MacEnroe takeover plan once again.


In a 27-page letter written () by former FIBG LTD. bank CEO Michael K. Gabriel to former FIBG LTD. bank CEO Lawrence A. Jones, CEO Gabriel describes the MacEnroe takeover plan in detail, mentioning the FIBG LTD. bank $8.7-billion Indonesian asset instruments from UNION BANK of SWITZERLAND (UBS), which MacEnroe saw to having reconstituted (re-built) in Jakarta, Indonesia with others (named in my files) in-conjunction with three (3) Swiss banks (i.e. UNION BANK of SWITZERLAND (UBS), its client-bank CREDIT SUISSE, and BANK for INTERNATIONAL SETTLEMENTS (BIS) so the asset instruments would be re-designed in such a way so as to ‘appear different’ and break the link having been previously connected to FIBG LTD. bank joint venture contract agreements, thereafter leaving FIBG LTD. bank unable to lay any legal claim that it was once in joint control over those Indonesian heritance asset instruments. Henceforth, the $8.7-billion asset having been transformed via FBI-MacEnroe directions, indistinguishable and thereby un-linked to FIBG LTD. bank history showing such asset instruments tied-in to its past, could then be ‘technically spoken-of’ as a “new asset”, which MacEnroe then led FIBG LTD. bank Board of Directors to believe via its mouthpiece CEO Mark Kennedy.


And ‘if’ such a European takeover group ever existed, which MacEnroe later claimed on August 8, 2004 that “there was no European consortium”, then MacEnroe’s fraudulent statements and those of his recruited de facto deputy agent CEO Kennedy were both in furtherance of criminal deception used against FIBG LTD. bank that served to disrupt and cause monetary depositor losses, according to what the U.S. government indictment states against former executives of FIBG LTD. bank – federal criminal defendants, now in Portland, Oregon – that “either the assets were fraudulent or never existed”, but behind-the-scenes - out of public purview - at the helm were U.S. government Non-Official Cover (NOC) foreign agents set-upon FIBG LTD. bank, according to the statement of MacEnroe, one of the agents involved in the scheme to put in-play a clever scheme to defraud and deprive FIBG LTD. bank of assets purposely designed via joint venture contract agreements to re-pay its bank depositors within the framework of its ‘scheduled high-yield interest’ as seen on its own “rate sheet”.


In short, not only did FIBG LTD. bank depositors lose their monies, but also FBI-MacEnroe and CIA-Palm led plans served to enhance the appearance of outrageous fraudulent behavior as what the U.S. government indictment appears as today. It’s only obvious, the former FIBG LTD. bank executives and their corporate counsel were conned by U.S. government Non-Official Cover (NOC) intelligence agents, one (1) of whom was placed ‘on loan’ to the Portland, Oregon field office of the F.B.I. according to his latter (08AUG04) statements revealing who called him to send him in on FIBG LTD. bank in Grenada.


Non-Official Cover (NOC) U.S. Government Agents

10-Step Trading Plan: How It Works


For decades, the U.S. government has used NOC agents where it wishes to deny its foreign actions as was revealed in headline stories in 2006 involving recently linked NOC agents to The White House. The use of NOC agents is nothing new, except to the general public.


U.S. government involvement is kept secret through a cleverly devised chain of attornies who act as ‘cut-outs’ between government intelligence plans and NOC agents sent-in to do government dirty work. Often times, NOC agents appear to be Teflon-coated, where they are excused of any wrong doing and allowed to get away with whatever monies they can scam out of targets during these highly secretive government operations.


In the case of FIBG LTD. bank, its network of other banks, and depositor victims the NOC agent government operation is quite simple yet deviously clever to ensure reduction, re-direction, and stemming-of Western country domestic-based capital flight from recognized and controlled ‘domestic registered banks’ and ‘domestic insurance company pension plans’ to stop unrecognized and uncontrolled foreign-based ‘independent off-shore banks’ and ‘independent off-shore insurance companies’. These latter groups, a threat perception recognized by Western intelligence agencies pose a ‘grave threat’ to ‘existing balances of economic national security’ when ‘independent offshore financial institutions network’, then-significant as an independent – yet networked - uncontrollable sources of money flow movements internationally in directions, contrary to what Central Banks and the U.S. Federal Reserve System (FED) would otherwise see controlled whereby this ‘wobble effect’ counter-balances the existing World banking ‘system’.


The ‘system’ or World banking system as it exists today, has its basis conceived on ‘fractional reserve banking’ and its seemingly never-ending expansion of fiat paper currency money supply it uses to float loans, trade, etc. with history dating back to 1928 up through present day proving Western intelligence agencies have protected that well-entrenched heritance / traditional World bank system’ working concept anywhere an independent international banking system pops-up a commodity-based (e.g. independent banks planning to tie themselves to precious metals, such as a network of gold-based banks) utilizing ‘inverse leverage’ as the anti-thesis of the traditional ‘fractional reserve’ and ‘fiat currencies’ for float. Western intelligence protection is the ‘action arm’ of Foreign Policy directive edicts seen from Executive Branch Level governments (i.e. Presidents, Prime Ministers, Premiers, Kings, Queens, and other potentates.


Texas Two-Step


The U.S. government foreign policy intelligence plan became operationalized upon Non-Official Cover (NOC) foreign agents being sent-in to initially ‘inject evidence’ of high-value asset instruments and later ‘withdraw evidence’ tied to FIBG LTD. bank and its network of IBC and satellite constellation of sub-banks pooling depositor monies lost across that spectrum into black-hole trading programs claimed by both NOC agents. The plan was nicknamed, “Texas Two-Step”.


High-Value Asset Instrument Distribution


In 1984, specific high-value asset instruments were sent by Southeast Asia and South Pacific interests to Europe and from there to India where they were turned around and sent to the Far East.


In 1986, these same high-value asset instruments appeared from Europe in the Middle East.


Crime History Of High-Value Asset Instruments


In July 1991, these same high-value asset instruments along with ‘others’ (e.g. 88 certificates from Japan (alone), other foreign and domestic country transaction obligations, to include: one (1) $278-Billion dollar certificate, $45-Billion dollar certificate, etc., etc.) were confiscated in Texas (USA). See, e.g. U.S. District Court (Austin, Texas) USA vs. Edison Damanik, CASE NO.: A-91-200-M and CASE NO.: A-91-CR-00107 (aka) 1:91-CR-107; and, U.S. District Court (Dallas, Texas) USA vs. Tommy Lee Buckley, Lewis Wilborn Driver (Giddings, Texas), et al.


On April 1, 1992 AUSA Price requested - on behalf of the U.S. government - all federal criminal charges ‘dismissed’ against Dr. Edison Damanik (Indonesia) eleven (11) days after a mysterious lawyer named Barry E. Burke (Chicago, Illinois) came out of retirement, was added as co-counsel to Stephen M. Orr, Esq. in the defense of Dr. Damanik defense case.


With more than five (5) federal felony arrests - made by U.S. Secret Service agents in at least two (2) Texas cities (Dallas and Austin) - the high-value asset instruments case was dismissed by the U.S. government after 9-months. Who was that mystery lawyer from Chicago, Illinois who - without so much as ever having made one (1) pleading - saw this huge federal criminal case dismissed on a Motion by the U.S. government out of the clear blue sky?


Just after the Damanik federal case was dismissed in 1992, the former Soviet Union KGB identified a man named Robert Earl Palm as a U.S. government Non-Official Cover (NOC) foreign agent involved in a currency exchange fraud where he was seen putting ‘high-value asset instruments’ into play.


The KGB provided official Russia, Ukraine, Poland, Finland, and US documents faxed by Robert Palm, now available on the internet, linking him to a $15-billion dollar (USD) trading program named “YOKAMURA” in a case involving COLE-TAYLOR BANK (Chicago, Illinois), WINDOW TRADING LTD., CARTESA FINANCE (Switzerland, Liechtenstein, and Brazil), and others involved. Today, the Russian government claims Robert Palm spurred into action Russia’s capital flight problem over a 5-year period that saw to removing nearly $1-Trillion - in U.S. dollar value terms - where later upon Russian request, the U.S. government called-in a firm named KROLL ASSOCIATES to assist the Russian government in tracking down ‘where their money went’. KROLL was never able to locate or recovery any of Russia’s missing Trillion dollars. According to The Wall Street Journal (23JUL93) report, Robert Earl Palm claimed in 1991 that he was the representative of UNITED NATIONAL REPUBLIC BANK (UNRB) of Russia holding assets of $1.895-Trillion dollars in (USD) value. The Russian government indicated their records showed no bank ‘by that name’ registered ‘in Russia’ at ‘that time’.


In 1994, two (2) years after the Dr. Edison Damanik case saw his high-value asset instruments ‘checked out of’ the Austin, Texas U.S. District Court evidence safe - based on a special request by AUSA Price on behalf of the U.S. government, some of them re-appeared ‘again’ in a Sydney, Australia federal criminal case naming Anthony Hamod with $78-billion+ in (USD) high-value asset instruments. As in the Damanik case, Anthony Hamod was arrested and federal criminal charges against him dismissed months later. But, the Australian federal court evidence points to Anthony Hamod claiming he met with Dr. Edison Damanik in Switzerland and that the instruments came from a Damanik controlled Indonesia company named PT GALAXY INDONESIA. The Australian federal court ordered that those high-value asset instruments be released back to Anthony Hamod in 1996, however the record is unclear as to whether Hamod ever received those instruments over Australian federal law enforcement objections.


In 1998, two (2) years after the Anthony Hamod case in Australia, Robert Earl Palm shows up with his high-value asset instruments again, but this time in Canada where they were sent down to the Caribbean for injection into the First International Bank of Grenada Ltd. (FIBG LTD.) bank asset structure through joint venture contract agreements with international business companies, which included SHERWOOD INVESTMENTS (BAHAMAS) LTD. tied to Robert Earl Palm.


In an interview with FIBG LTD. bank founder and first CEO, Van A. Brink, he met Robert Earl Palm in-person and for several days in Victoria, British Columbia, Canada. Palm tried schooling Brink on how those high-value asset instruments might be used.


Brink said, “Palm’s assistant [Jason Matthew Walsh (aka) Matt Walsh] wheeled a small file cabinet over to Palm, who removed a ‘few’ billion worth of asset instruments and threw them in my lap saying, ‘If the bank does well with these, I’ve $2-Trillion (USD) more right here’.”


How The Odds Work: Two-Steps to 10-Steps


While the Texas Two-Step may be all that’s seen inside Fanx I at Maryland (USA), NOC agent field operations identify at least ten (10) stages for their operation to have any success at all.


A list of basics, understood to work most small independent offshore banks, see:


Convincing Target Banks


First (1st): send-in the first (1st) Non-Official Cover (NOC) foreign agent who sees to injecting – without signing anything dealing with - high-value asset instruments that read (on the face of the instruments) in (USD) values worth billions ‘each’. Announce to the small independent offshore bank executives that the instruments can be verified by bank corporate counsel using due diligence. That after the bank is satisfied, placement of those asset instruments into special / secret trading programs will net the banks incredibly high rates of return to the tune of hundreds if not thousands of percentage points in returned trading profits for them. Claim the assets as well as trading programs are known only to government central banks or incredibly huge organizations kept secret for decades so typical retail and commercial banks never really know how much profit in the billions are actually being made on pooling depositor’s monies in such trading programs where the minimum entrant fees start at $100-million and go up. Show support documentation that tends to lend credence demonstrating asset instrument legitimacy where even heads of state appear signed verifying such as true.


Suggesting IBC Account Conduits


Second (2nd): the NOC agent arranges with the banks to receive depositor’s millions for ‘broker transaction fees’ by suggesting to banks they “network” together, and for the bank to successfully participate it should consider linking-up with other independent offshore banks by banding together as a network of satellite banks to invest all depositor account monies for these assets to be used in high-yield trading programs. By the banks tying themselves to these asset instruments in joint venture contract agreements with trade representatives of international business companies (IBCs) the bank will automatically be set up to receive its trading profits in a variety of ways, which is basically the foundation each bank established for themselves to be conduits of money being passed through each other. All the banks did was see money compiled from depositor monies for the ‘trading broker (NOC agent) transaction fees’ and the ‘trading program entrant fees’ paid so the banks could begin participation in the planned receipt of what the NOC agent had convinced them to expect, which was high-yield trading profits. Depositor monies were sent into bank-client’s international business company (IBC) accounts, and from there, through a series of the trading broker’s (NOC agent’s) international business company numbered accounts. Meanwhile these targeted banks, now all linked together through bank wire money transfers, were convinced the trading process had begun so, they could see depositors ‘scheduled high-yield interest rates of return based on deposit size’ paid on-time. The banks counted their trading program profit chickens before the asset instrument egg placements into these ‘trading programs saw to hatching profits by the banks funding additional projects in order to scoop-up yet other high-value assets supplied by the NOC agent (trading broker) for placement into yet other high-yield trading programs. The trading program congame on the banks was then in full swing, as were depositor monies flying in the wings based on NOC agent commercial bank paper trading program profit promises to the banks sending money in and out of other banks to accomplish their goals too.


Strategic Delays & Excuses


Third (3rd): as trading program interval times come and go, according to NOC agent (trading broker) claims, banks are provided what appear to be plausible excuses as to why the trading program profit returns to the banks are taking longer as the most common excuse of all is that the trading profits are sent into escrow accounts handled between big banks and lawyers before disbursements can be legitimately realized by the trading broker’s (NOC agent’s) client banks awaiting pay-outs where the infamous word “soon” is often relayed all the way down the line in furtherance of the NOC agent fraud against the bank, which never appears seen by bank customer’s, just what ‘they’ hear coming from the banks where their monies were deposited. If the bank tires of excuses and demands their monies back, simply offer them additional asset instruments in the millions as an incentive to just hang-on a while longer until the trading profits clear escrow accounts in a month or so.


News Tip Bank Distractions


Fourth (4th): simply place a rumor in the financial business world that specific bank(s) are experiencing difficulties returning interest to depositors, which will see the targeted bank(s) desperately scrambling to answer attorney letters as the beginning stages of lawsuits from depositors. In that wake, slip the first (1st) NOC agent out of the picture entirely, making him unavailable (overseas on business but returning “soon”) to return calls to the bank(s).


Changing Of The Guards


Fourth (4th): send-in the second (2nd) NOC agent as a highly-respected trading and/or securities consultant recommended by one of the inside bank consultants, recruited earlier to perform ‘authorized signatory functions’ over the high-value asset instruments structured within joint-venture contract agreements signed by the bank with other IBCs. Offer the bank a potential bailout from an unidentified cash-cow group by stating that it is a secret consortium of European businessmen interested in buying-up independent banks with the help of the trading consultant (NOC agent). Freely consult with the primary bank (for a network of sub-banks) chief executive officer that the bank problems could be why it isn’t receiving trading profits as promised. Caution the executive that they must act fast because if the high-value asset instruments are counterfeit, fraudulent, or in any way worthless by means of perhaps yet an unknown secret secondary assignment the bank may have known nothing about earlier, that the chief executive officer may end-up taking the fall and going to prison for a very long time unless something isn’t done right away to counter it to save the bank(s). Again, freely offer to discreetly check the legitimacy of ‘all high-value instrument documentation’ only to be reviewed by very secret experts in Europe who happen to owe this NOC agent consultant special favors he can call-in.


Fifth (5th), the bank tiring of NOC agent #1 not returning their calls, adverse news publicity, and the first lawsuit filed by a depositor over lost monies, will instantly become a prime target of U.S. government investigative bodies. All NOC agent #2 does is makes his or her self, available to assist the government in any way they possible, meanwhile all the bank(s) asset instruments are in the possession of NOC agent #2.


Cultivating Bank Mules


Sixth (6th), NOC agent #2 calls the bank executive to Europe claiming what he discovered cannot be discussed over the phone. Once the bank officer is in Europe at the designated hotel meeting place, the trading consultant (NOC agent #2) informs the bank executive that ‘he’ (the ‘bank executive’) is in big trouble with the U.S. government and that if he does not fully cooperate with him he’ll eventually be charged with international fraud and money-laundering and then nothing can be done for him or the bank. Once the bank executive is convinced that it’s either the consultant’s (NOC agent’s) way or no way he’ll have been primed and ready for the next stage.


Convince the bank executive that only one (1), possibly two (2) groups of the bank high-value asset instruments can possibly be worked, but only with his dedicated cooperation to see the bank saved as well as himself but that only he (the executive) can guarantee his own success by the level of cooperation he’s willing to extend. Once the bank executive agrees then NOC agent #2 convinces him to sign a ‘personal confidentiality agreement’ with the consultant, which also makes him a part of the secret European consortium answerable to prosecution should he ever decide to breech such a contract in the future.


With the lead bank executive’s cooperation contacting the authorized signatory on behalf of the bank holding the specific high-value asset instruments that are designated by NOC agent #2 as being “workable” the bank executive and NOC agent #2 (consultant) go forward to see to the removal and reconstitution of what had been previously tied to the bank(s) as high-value asset instrument commercial bank paper(s).


Convincing Asset Holders


Seventh (7th): NOC agent #2 contacts the true holder of the high-value asset instruments and calls a meeting with the actual asset holders, explaining that they are about to lose their entire assets behind the unscrupulous financial business deeds of an independent offshore bank currently seen in news reports, under federal investigation, and about to be seized by the tiny government in which it is currently situated. Indicate that having been concerned by what was about to unfold, steps were taken to protect their assets, and that a plan is available to them should they care to act quickly before they lose everything. That the plan can only be successful through their full cooperation and that all NOC agent #2 (consultant) wishes from his work is his usual and customary fee of one percent (1%) on the amount involved where portions of that fee may be spread out over a schedule of cash, monetary instruments, and re-investment into a Trust benefiting all interested parties over a lengthy period of time. That through a careful process of transforming previously held asset instruments with the holding bank and its client bank through another Estate Fund Trust controlled by their own collective Board members that such would alleviate unnecessary publicity and the loss of their assets already in-place at the current time. And, finally that none of their banks need be concerned that it is only a collective Board decision to re-assign assets while allowing existing banks to maintain current governance over the same assets with minimal loss.


Bank in Liechtenstein (BIL) Trust fund accounts for NOC agent #2 and participant Trustee and legal guardians would see immediate benefits to establish all that necessary arrangements for receipt of such a transaction entrusted to them by NOC agent #2.


CIA NOC Agents On-Loan To FBI: Heavy Tippers


Nine (9th), NOC agent #2 notifies his handler (Washington DC metroplex area) that any and/or all traces of the high-value asset instruments have been successfully shielded from view and that the FBI may now proceed with new information as to who specifically are not to become targets of a federal investigation and should be called as cooperative witnesses to testify against who NOC agent #2 identifies as criminal co-conspirators causing depositor’s monies lost based on fraudulent claims to high-value asset instruments bank executives have no proof ever existed, and for the bank executives seeing to the establishment of IBC bank money transfer accounts as nothing more than money-laundering devices.


NOC Agents


1.) Robert Earl Palm, under U.S. government sanction for his planned cooperation, saw to injecting the vast majority of all high-value asset instruments into FIBG LTD. bank via joint venture agreement contracts involving international business companies (IBCs) he controlled - but not necessarily named on - with his vociferous claim to Van A. Brink and others, these assets would be placed into trading programs netting extremely high-yield interest trading profits back to FIBG LTD. bank, in-exchange for which he saw receipt of millions of FIBG LTD. bank and it’s network of sub-banks depositor’s monies going into numbered accounts. Everyone wanted to place money in the banks offering high-yield returns in Robert Earl Palm’s claimed trading program profit pay-offs to these banks; and,


2.) Gabriel Francis MacEnroe, under U.S. government sanction for his planned cooperation, threatened FIBG LTD. bank former CEO Mark Kennedy (Vancouver, British Columbia, Canada) to cooperate in seeing FIBG LTD. bank high-value asset instruments separated from their past with assistance of authorized signatory William Randolph (“Bill”) Davis (Chino Hills, California, USA) and his associate Lewis (“Louis”) Trotta (San Francisco, California) whom met with Alan Eigher in Jakarta, Indonesia for said Indonesian high-value asset instruments conversion process to begin.


The MacEnroe-FBI extortion against FIBG LTD. bank CEO Mark Kennedy worked, as did the transformation, details of which are too lengthy to describe, but enabled MacEnroe to collect his usual and customary one-percent (1%) commission fees by arranging it all.


FIBG LTD. bank Board of Directors were told a so-called “new asset” seen by MacEnroe within his European takeover group was willing to act in an effort to shore-up their bank, however MacEnroe had already instructed FIBG LTD. bank CEO Kennedy to divest itself of that $8.7-billion high-value asset instrument earlier without other members of the Bank Board of Directors knowledge. In-fact, the “new asset” was basically derived from the $8.7-billion FIBG LTD. bank high-value asset instrument linked to Indonesian heritance Estates tied by their Holder’s authorized signatory holding Power Of Attorney at act as was demonstrated in a Joint Venture contract agreement between international business companies (IBCs) GENESIS HOLDINGS CORP. (Grenada) and its director Richard W. Downes who was also Chairman of the Board of Directors for FIBG LTD. bank, SHERWOOD INVESTMENTS (BAHAMAS) LTD. directed by Robert Earl Palm, BURL HOWARD SECURITIES CORP. directed by Robert Earl Palm, et al. and its CEO Alexander Gilbert Baraona, and FIRST INTERNATIONAL BANK OF GRENADA LIMITED bank.


After FIBG LTD. bank first CEO Brink resigned on October 1, 1999 and his successor CEO Kennedy resigned on July 4, 2000 and after his successor Acting CEO Lawrence A. Jones stepped aside, FIBG LTD. bank was seen with CEO Michael K. Gabriel contacted former CEO Kennedy who briefed him on what had transpired with the MacEnroe deal. CEO Gabriel then tried to salvage the MacEnroe deal when he wrote a 27-page letter to Lawrence A. Jones outlining, amongst other things, the MacEnroe deal once again, but on August 11, 2000 the Grenada government stepped-in and took control of FIBG LTD. bank, and went on to appoint two (3) Grenada government assigned Statutory Interim Administrators (Garvey Louison and Errol Thomas) in succession, and then appointed a Liquidator named Marcus A. Wide of PriceWaterhouseCoopers (Nova Scotia, Canada).


The Liquidator presented three (3) Statutory Interim Reports where the last report (July 2003) indicated no evidence existed that FIBG LTD. bank ever held any high-value asset instruments.


In January 2004, three (3) FIBG LTD. bank executives Robert John Skirving, Laurent E. Barnabe, and Rita Brunges Regale were arrested by FBI agents on charges of fraud and money laundering stemming from a federal indictment alleging the bank made fraudulent claims to having had high-value asset instruments where no evidence was found to exist.


On May 28, 2004 two (2) more FIBG LTD. bank executives, whom included Van A. Brink, were also arrested by the FBI agents on charges of fraud and money laundering stemming from a federal indictment alleging the bank made fraudulent claims to having had high-value asset instruments where no evidence was found to exist.


On December 10, 2005 FIBG LTD. bank founder and first CEO Van A. Brink died prior to the group trial set for 2007.


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1990-2006



Several U.S. federal ‘criminal’ and ‘civil’ cases (shown below) name Gabriel Francis MacEnroe who claims he can arrange IMF loans and bail out troubled banks by seeing them turned into IMF project banks - one of several cons he uses to gain his usual and customary fees of approximately one percent (1%) for arranging such transactions. Based on others who highly recommend him, his fees are consistently paid up-front. Even more consistently though, are hundreds of millions lost by independent investors after MacEnroe leaves the stage.


One particular case (further below) details activities from 1990-1992 where the FBI coordinated different roles for its informants, named:


Mercedes Travis, Esq. (exwife of, Robert Chiari);


Gabriel Francis MacEnroe; and,


William (“Bill”) P. Caraluzzi, Esq.


Worked in-concert, this case saw Ms. Travis’ law client John J. Voigt, et al. charged with federal criminal fraud, money-laundering, tax evasion, and criminal forfeiture after client’s investment monies disappeared as Mr. MacEnroe (at an office in Stamford, Connecticut) saw them earmarked for META TRADING AND FINANCIAL INTERNATIONAL (MTFI) placement into a trading program claimed tied to The Holy Roman Catholic Church through the EURO-AMERICAN MONEY FUND TRUST (EAMFT), headquartered in Europe with representative offices in the U.S. The scheme saw the name of the KNIGHTS OF MALTA tossed-about in claims they were participating too.


Over 2-1/2 years on this case alone MacEnroe and others dealing with EAMFT saw loan applicants and investor’s lose approximately $18,500,000 (USD) based on "self-liquidating" loans designed to repay what were supposedly tied to Master Collateral Commitments (MCC) involving high-value asset instruments as commercial bank paper for entry into ‘trading programs’ to net high-yield interest after supposedly poling funds of their investors.


FBI informant Gabriel MacEnroe (as above) has seen many-many U.S. criminal and civil cases involving monetary loss from fraud surrounding his and his named companies financial business deals, named in:


- - - -


1992 – (CIVIL) Dallas, Texas [CASE NO.: 3:92-CV-00033 or 3:92-CV-00331, naming: “GF MacEnroe” and “Abbey Finance & Mortgage Company Limited” (United Kingdom), William P Caraluzzi, Ralph A. Anderskow, et al.; $367,500.00 Fraud];


- - - -


1993 – (CRIMINAL) Trenton, New Jersey [CASE NO.: 3:93-CR-00300-0, naming: Gabriel MacEnroe, William P. Caraluzzi, Ralph A. Anderskow, Mercedes Travis, Solis (“Skip”) Alevy, Donald Anchors, et al.; $18,500,000.00 money-maundering and fraud. See, e.g.  http://vls.law.vill.edu/locator/3d/July1996/96a1344p.txt ]


- - - -


1998 – (CIVIL) Newark, New Jersey [BANKRUPTCY CASE NO.: 98-44940, naming: “Commercial Capital Establishment (Liechtenstein)”, “CCE”, Willy Farah, et al.; In RE: 1995 $60,000,000.00 investment fraud];


- - - -


1998 – (CIVIL) New York, New York [NASD (National Association of Securities Dealers) CASE DATE: 01SEP98, In RE: Bear Stearns & Co. Inc. vs. “Gabriel MacEnroe”, “Commercial Capital Establishment”, “CCE”, et al.];


- - - -


1999 – (CIVIL) Newark, New Jersey [BANKRUPTCY ADVERSARY CASE NO.: 99-3010, naming: “Commercial Capital Establishment”, “CCE”, Willy Farah, et al. (Total Claims: $46,698,723.30];


- - - -


1999 – (CRIMINAL) Ft. Lauderdale, Florida [CASE NO.: 8:00-CR-00027, USA v. Womack, et al.; naming: “Gabriel MacEnroe”, et al.; $56,000,000.00 money-laundering and fraud.];


- - - -


2000 – (CIVIL) Newark, New Jersey [CASE NO.: 2:00-CV-00952, Raymond Keith Richards v. PNC Bank N.A.; naming: “Gabriel MacEnroe” and “Commercial Capital Establishment” (Vaduz, Liechtenstein and St. Gallen, Switzerland), et al.; $60,000,000.00 Diversity Fraud, See, e.g.  http://www.njusao.org/files/fa0420_r.htm ];


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2000 – (CRIMINAL) Greenville, South Carolina [CASE No.: 8:00-CR-00697, naming: “Gabriel MacEnroe”, Joseph R. Silvestri, David Alan Morgenstern, Vernon W. Shiflett, et al.; Charges: conspiracy to defraud the government and aiding and abetting wire fraud $52,000,000.00]; Gabriel Francis MacEnroe status (June 20, 2003) Failure To Appear, Warrant issued, foreign-based U.S. federal fugitive, See e.g.  http://www.savannahnow.com/stories/111002/LOCPonziScheme.shtml ];


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2001 – (CIVIL) San Diego, California [CASE NO.: 8:01-CV-01085, naming “Gabriel MacEnroe”, Ralph King, David Alan Morgenstern, Virgil Womack, Byron Z. Moldo, Robbie Stevens, Dante Orgolini, Peter A. Davidson, Scott J. Rein Esq., Patrick J. Evans Esq., Thomas R. Sestanovich Esq., Rein Evans & Sestanovich LLP, (fka) Dressler Rein Evans & Sestanovich LLP, law partnership and successor to Dressler, Rein, Evans & Sestanovich LLP; Securities Exchange Act];


- - - -


2002 – (CRIMINAL) New Orleans, Louisiana [CASE NO.: (UNDER SEAL), naming: “Gabriel MacEnroe”, et al.; In RE: San Diego, California CASE NO.: 8:01-CV-01085 (above)];


- - - -


2002 – (CRIMINAL) Albuquerque, New Mexico [CASE: USA vs. Powell Onen P’Ojwong (West Nile, Uganda and London, UK), Ian Burns (London, UK and Barcelona, Spain), “Gabriel MacEnroe” (St. Gallen, Switzerland), Ralph King, et al.; See, e.g. U.S. Attorney John Kelly (In RE: $4-million investment trading program, City Of Clovis New Mexico (City Manager, Terri McCully), and LOMORO SECURITIES account at CITIBANK Espana (Spain); Money-Laundering and Wire Fraud]; and,


- - - -


2003 – (CIVIL) Dallas, Texas [CASE NO.: 3:03-CV-01016, naming: “Gabriel MacEnroe” and “Commercial Capital Establishment”, et al. [Judgment: $2,282,287.50 Failure To Pay balance of $10,000,000.00 awarded by NASD (National Association of Securities Dealers) to BEAR STEARNS & CO. INC.; CASE (01SEP98)]


- - - -


Interested parties who encounter Gabriel MacEnroe are encouraged to contact:


U.S. DEPARTMENT OF JUSTICE – Criminal Division
10th and Constitution Avenue North West
Washington, DC 20530
USA
TEL: (202) 616-9871
CONTACT: Mr. James Pavlock


- - - -


Prior to Gabriel MacEnroe having occupied an office in Stamford, Connecticut during the early-1990s, he occupied another office in Beverly Hills, California during the late-1980s that was seen shut down in the wake of missing investor client monies after a complaint spurred an investigation by the U.S. Office Of Thrift Supervision.


MacEnroe is man with at least three (3) passport citizenships who is said to be a prolific writer and record keeper of information on almost everything discussed with him by anyone, which may speak loudly as to why the F.B.I. has used him internationally and in the United States as their financial business informant on more than just one (1) occasion. MacEnroe’s rise to infamy through nefarious financial business activities has built the small fortune he’s been able to amass during 15-years of dedicated but most curious service to governments around the World.


He is what some consider a Non-Official Cover (NOC) government intelligence foreign agent seen claiming to others that he can help provide International Monetary Fund (IMF) loans to banks, can arrange private placement investments for involvement in high-yield trading programs, provide credit enhancements, etc., etc.


In October 2000, MacEnroe saw a U.S. federal criminal indictment (see copy of indictment further below) against him report claims he operates with the following U.S. government agencies, to wit:


U.S. Treasury Department;
Federal Bureau of Investigation (F.B.I.);
Central Intelligence Agency (C.I.A.);
National Security Agency (N.S.A.); and,
Federal Reserve Board (FED).


His criminal indictment also revealed his father (London, UK barrister assigned as Trustee for the now-late John Paul Getty Jr. II) had been a collector of information for the F.B.I. as well.


EAMFT represented it had large sums of money available for private investment lending and this was one means by which The Holy Roman Catholic Church made considerable money from the interest earned on loans for funding some of its operations.


MacEnroe had a number of proposed loans at the time for various projects of people who had been presented to him seeking loans. The people put up ‘advanced fees’ to the EAMFT group, and after due diligence completion, loan documents were entered into. No projects were funded by EAMFT because the group who said it represented EAMFT ran off with the money instead, which was never recovered.


MacEnroe’s 1991 business partner Ralph A. Anderskow and John J. Voigt were arrested, convicted, sentenced to federal prison.


Gabriel Francis MacEnroe, William P. Caraluzzi, and Mercedes Travis walked away free.


The $18,500,000.00 was never recovered.


Ralph A. Anderskow was released from federal prison in 2002.


John J. Voigt has his federal prison release set for 2007.


The F.B.I. Atlantic City, New Jersey field office saw FBI Special Agent Alvin Powell investigate the case and handle its informants.


Powell retired on what was believed to be a disability pension due to a back injury.


Alvin Powell
414 Tryon Avenue [street name, may be: “Tyron”]
Englewood, New Jersey 07631
USA
TEL: (201) 816 - 8290


Highlights (below) of the EURO-AMERICAN MONEY FUND TRUST (EAMFT) and META TRADING AND FINANCIAL INTERNATIONAL (MTFI) federal investigation case from the eyes of the federal Court:


Criminal Docket No.: 3:93-CR-300-0
Original Case No.: 93-CR-00300-ALL
Revised Case No.: 93-CR-00300-GEB
Case Filed: 06/14/93


Case Assigned to: Judge Garrett E. Brown, Jr.


U.S. District Court
District of New Jersey (Trenton, New Jersey)


USA v. VOIGT, et al.


JOHN J. VOIGT (1),
defendant


RALPH A. ANDERSKOW (2),
defendant


Mercedes Travis (3),
defendant


Donald Anchors (4),
defendant


Solis Alevy (aka) Skip Alevy (5),
defendant


. . . [EDITED-OUT FOR BREVITY] . . .


- - - -


Appeal:


UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

______________


No. 95-5093

______________


UNITED STATES OF AMERICA


v.


RALPH A. ANDERSKOW, Appellant

______________


No. 95-5094

______________


UNITED STATES OF AMERICA


v.


DONALD ANCHORS, Appellant


On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Nos. 93-cr-00300-02 & 93-cr-00300-03)

_______________


Argued January 25, 1996


Before: COWEN and SAROKIN, Circuit Judges, and POLLAK, District Judge


(Filed July 9, l996)

_______________


Richard F. X. Regan, Esq. (ARGUED)
Hayden, Perle and Silber
1500 Harbor Boulevard
Weehawken, New Jersey 07087


COUNSEL FOR APPELLANT ANDERSKOW


- - - -


Michael M. Mustokoff, Esq. (ARGUED)
Teresa N, Cavenagh, Esq.
Judith E. Baylinson, Esq.
Duane, Morris & Heckscher
One Liberty Place
Philadelphia, PA 19103


COUNSEL FOR APPELLANT ANCHORS


- - - -


Allan Tananbaum (ARGUED)
Faith Hochberg
United States Attorney
970 Broad Street
Newark, New Jersey 07102


COUNSEL FOR APPELLEE


_______________


OPINION OF THE COURT

_______________


COWEN, Circuit Judge.


Ralph Anderskow and Donald Anchors appeal from judgments of conviction and sentence entered by the District Court for the District of New Jersey. The convictions arise out of their participation, along with several other co-conspirators, in the Euro-American Money Fund Trust (the "Trust"), an entity that was used to perpetrate a pernicious advance-fee scheme. Over a 3-year period, the Trust bilked unsuspecting loan applicants and investors out of over $18-million dollars. Both defendants raise evidentiary and legal sufficiency challenges. We will affirm the judgments of conviction.


I.


John Voigt was the mastermind of a scheme to obtain fees from loan applicants and potential investors for nonexistent loans and investments. At the heart of this scheme was the Trust. Voigt fabricated a fictitious genealogy for the Trust, claiming that it was a long-established European financial institution affiliated with the Catholic Church and the Knights of Malta, and that it had access to billions of dollars. For two and one-half years brokers for the Trust would recount this false genealogy to unsuspecting loan applicants and investors, who would part with substantial fees in return for "self-liquidating" loans (loans that repaid themselves) and "Master Collateral Commitments" ("MCCs"), allegedly a special form of commercial paper available only to banks.


Voigt benefited from the cooperation of several co-conspirators, including Anderskow, a partner at a Chicago law firm who also was a certified public accountant. He was hired as the Trust's lawyer in the Chicago area, and his credentials helped provide the Trust with an appearance of legitimacy, which facilitated its attempts to lure loan applicants and potential investors. Anderskow's primary responsibility was providing guarantees to borrowers on behalf of the Trust and maintaining a client escrow account into which advance fees were deposited. Anderskow would immediately distribute fees that had been deposited into his escrow account according to Voigt's instructions, which violated the terms of contracts entered into with the loan applicants and investors. For his role in the Trust Anderskow received $995,000 in compensation.


In January of 1991 appellant Anchors was hired for the position of "loan oversight officer." Somewhat akin to a customer relations manager, Anchors was primarily responsible for responding to questions and complaints from customers of the Trust. Over time, Anchors devoted much of his time to placating loan applicants who had paid advance fees and were calling with increasing frequency to inquire as to the status of their loans. Anchors eventually responded to several hundred calls each month, assuring disgruntled borrowers that their loans were about to be funded. Eventually, Anchors began to tell some applicants that other loans had been funded, which he knew was untrue. Anchors received $325,000 for his participation in the Trust.


In June of 1993, a federal grand jury issued a 26-count indictment against Anderskow, Anchors, and their 3 co-conspirators - Voigt, Mercedes Travis, and Solis Alevy.


Alevy entered a plea of guilty, and became a government witness.


Subsequently, the grand jury issued a 28-count superseding indictment against the remaining 4 defendants, charging Anderskow and Anchors with conspiracy to commit wire fraud, wire fraud, and money laundering, and bringing criminal money laundering forfeiture allegations against them.


After a 3-month trial, a jury convicted Anderskow on all charges except 2 counts of wire fraud.


Anchors was convicted of conspiracy and 7 counts of wire fraud, but was acquitted of 7 other counts of wire fraud and 2 counts of money laundering.


Anderskow and Anchors were sentenced, respectively, to terms of imprisonment of 78 and 32-months.


This appeal followed.


. . . [EDITED-OUT FOR BREVITY] . . .


IV.


At trial the government had no direct proof of a tacit agreement among Voigt, Alevy, Anderskow and Anchors to engage in an advance-fee scheme. Accordingly, both defendants filed post-trial motions for judgments of acquittal contending that the government had failed to adduce sufficient evidence that they were knowing-participants in a scheme to defraud potential borrowers and/or
investors.


They appeal the district court's denial of those motions.


. . . [EDITED-OUT FOR BREVITY] . . .


A. Anderskow


Anderskow was convicted on ten counts of money laundering arising out of various transfers of funds from his attorney escrow account to Trust members, pursuant to Voigt's instructions, between July and October of 1991. He also was convicted on numerous counts of wire fraud relating to his actions during the same period.


. . . [EDITED-OUT FOR BREVITY] . . .


We think that even if Anderskow were correct that the government failed to establish that he was aware of the Trust's fraudulent nature when he first joined in March of 1990…


. . . [EDITED-OUT FOR BREVITY] . . .


As the government points out, the Trust Anderskow joined in March of 1990 had a "strong aura of unreality." Government's Br. at 77. It purported to sell "self-liquidating" loans; i.e., loans that did not have to be repaid. It also claimed to be a long-established European financial institution affiliated with the Catholic Church and the Knights of Malta, and that it had access to billions of dollars. Furthermore, loan applicants were required to sign bizarre confidentiality agreements that purported to bar customers from disclosing information about the Trust in ‘this life’ and the ‘hereafter’.


Loan applicants also were required to fill out peculiar personal questionnaires that asked if they could hold their breath under water or were flat footed, and they were asked to provide hair samples and blood tests.


Given Anderskow's status as a partner in a Chicago law firm and a certified public accountant, and in light of his initial questioning of Trust brokers as to whether the money was "clean," a rational jury was entitled to find that Anderskow was suspicious from the outset.


Furthermore, a rational jury could have accepted the government's argument that Anderskow's credentials provided the Trust with an appearance of legitimacy.


More significant, however, is that during 1990 no less than seventeen advance fees, which totaled $1.5-million, were deposited into Anderskow's escrow account. Despite the fact that not one loan was funded during that time Anderskow immediately would parcel out the money to the various co-conspirators.


By July of 1991, moreover, seventeen additional borrowers and investors had paid Anderskow advance fees totaling $6.5 million dollars, which Anderskow disbursed to his confederates.


Anderskow himself testified that during 1991 he received approximately twelve complaints per day from anxious loan applicants and investors inquiring about their money. Although he knew that not one loan or MCC had been funded, Anderskow continued to provide a plethora of false excuses intended to lull customers into believing that their money was forthcoming.


Even more damning was Anderskow's admission under cross-examination that by dividing up advance fees among the coconspirators, instead of retaining them in his escrow account, he knew in June of 1991 that he was violating his contractual and ethical duty to hold customers' funds until they had received their loans.


The evidence showed that Anderskow also lied to one borrower in the latter part of 1991, claiming that the Trust had funded loans in the past when, in fact, Anderskow knew that no such funding had occurred. Finally, the evidence of Anderskow's financial motive and willingness to cooperate is not seriously debatable.


In 1990 Anderskow earned $100,000 from the Trust, and in 1991 he received $437,000 that was more than 10 times greater than his 1989 income.


Anderskow mechanically complied with Voigt's directions as to how to disburse the advance fees in his escrow account among the various co-conspirators.


The government presented an overwhelming circumstantial case that by July of 1991 Anderskow had willfully blinded himself to the Trust's fraudulent activities.


. . . [EDITED-OUT FOR BREVITY] . . .


The following (below) was found, at:


 http://vls.law.vill.edu/locator/3d/July1996/96a1346p.txt


UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_______________


No. 95-5092

_______________


UNITED STATES OF AMERICA

v.


JOHN VOIGT, Appellant

_______________


On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 93-cr-00300-1)

_______________


Argued January 25, 1996


Before: COWEN and SAROKIN, Circuit Judges, and POLLAK, District Judge


(Filed July 9, 1996)

_______________


Lawrence S. Lustberg (ARGUED)
Crummy, Del Deo, Dolan, Griffinger & Vecchione
One Riverfront Plaza
Newark, New Jersey 07102-5497


COUNSEL FOR APPELLANT


- - - -


Kevin McNulty
Allan Tananbaum (ARGUED)
Faith Hochberg
Office of United States Attorney
970 Broad Street, Room 502
Newark, New Jersey 07102


COUNSEL FOR APPELLEE


_______________


OPINION OF THE COURT

_______________


COWEN, Circuit Judge.


John Voigt appeals from a judgment of conviction and sentence entered by the District Court for the District of New Jersey. The conviction arises from Voigt's role as the mastermind of a pernicious "advance fee" scheme whereby Voigt, operating under the auspices of the Euro-American Money Fund Trust, would obtain substantial fees in advance from, respectively, unsuspecting loan applicants and potential investors for various loans and investments that never materialized.


Over a 3-year period the Trust took in a total of 18.5-million dollars.


Of Voigt's eight (8) assignments of error, two (2) significant constitutional questions are presented for our review.


The first is whether the government's use of ‘acquitted co-defendant Mercedes Travis’, who Voigt alleges was counsel to the Trust and to him personally, as a confidential informant against him constitutes "outrageous government conduct" in violation of the Fifth Amendment's Due Process Clause.


The second is whether the district court violated Voigt's Sixth Amendment right to counsel of choice when, citing potential conflicts, it disqualified a third (3rd) attorney Voigt sought to add to his defense team without holding a formal evidentiary hearing.


We also confront several questions of first impression in this Circuit pertaining to the money laundering statute, 18 U.S.C. Section 1956(a)(1), and its forfeiture counterpart. Id. Section 982.


We must decide whether those statutes require formal "tracing" where laundered funds have been commingled in a bank account with untainted funds.


We also must determine what is the proper burden of persuasion for forfeiture proceedings under 18 U.S.C. Section 982, a question we have addressed previously in two (2) other contexts. See United States v. Pelullo, 14 F.3d 881 (3d Cir. 1994) (RICO; reasonable doubt); see also United States v. Sandini, 816 F.2d 869 (3d Cir. 1987) (CCE; preponderance).


Finally, Voigt contests the legal sufficiency of his convictions for tax evasion under 26 U.S.C. Section 7201, and challenges the orders of the district court requiring him to make restitution in the amount of $7,040,000 and refusing to grant his motions for severance.


For the reasons we set forth below, we will affirm Voigt's conspiracy, money laundering and tax evasion convictions, along with the order of restitution, in all respects.


We will vacate the judgment insofar as it incorporates an erroneous order of forfeiture and remand for further proceedings consistent with this opinion.


I.


THE FACTS


John Voigt was the mastermind of a scheme to defraud loan applicants and potential investors by inducing them to pay substantial "advance fees" for nonexistent loans and investments.


To implement this scheme, Voigt created two (2) fraudulent entities:


Euro-American Money Fund Trust, and


Meta Trading and Financial International


[hereinafter collectively referred to as "the Trust"].


Voigt fabricated a fictitious genealogy for the Trust, claiming that it was a long-established European financial institution affiliated with the Catholic Church and the Knights of Malta and that it had access to billions of dollars.


Voigt also falsely claimed that the Trust's headquarters was located in Paris, France, and that he was the U.S. Director.


To facilitate the scheme Voigt used various aliases and required loan applicants to fill out bizarre confidentiality agreements that purported to bar customers from disclosing information about the Trust in ‘this life’ and the ‘afterlife’.


The scheme operated from early-1990 until mid-1993.


Brokers for the Trust recounted the false genealogy Voigt had concocted to unsuspecting victims. At first, the Trust marketed only "loans." These multi-million dollar loans were supposedly
self-liquidating, which meant that, in return for a fee that ranged into the hundreds of thousands of dollars, customers would receive a loan that they did not have to repay. As soon as the fees were received they were distributed among the coconspirators.


Eventually, the Trust began to market "Master Collateral Commitments" ("MCCs"), bogus financial instruments that were touted as special promissory notes issued by banks and available only through the Trust.


They were marketed to unsuspecting investors for $3.5-million to $4.5 million dollars with the representation that they eventually would yield hundreds of millions of dollars.


All told, Voigt's 3-year gain from marketing self-liquidating loans and MCCs was approximately 7.5-million dollars.


On December 13, 1993, Voigt and four (4) alleged co-conspirators - Skip Alevy, Mercedes Travis, Ralph Anderskow, and Donald Anchors - were charged in a 28-eight-count superseding
indictment.


The indictment charged Voigt personally with 1 count of conspiracy to commit wire fraud, 15 counts of wire fraud, 4 counts of money laundering, 2 counts of tax evasion, and criminal forfeiture allegations arising out of the money laundering counts.


After a 3-month trial, a jury convicted Voigt of all counts except one count of wire fraud. After a non-jury proceeding at which the district court ordered forfeiture of certain automobiles and pieces of jewelry, the court sentenced Voigt to a term of imprisonment of 188-months (15-1/2 years) and ordered him to make $7,040,000 in restitution.


This appeal followed.


Voigt challenges the judgment against him on 8 grounds. He argues that:


(1) The government's use of his alleged attorney, Mercedes Travis, as an informant violated his Fifth Amendment due process rights and his Sixth Amendment right to effective assistance of counsel;


(2) The district court erred in disqualifying one of his attorneys due to a potential conflict of interest without first making sufficient findings of fact, in violation of his Sixth Amendment right to counsel of choice;


(3) There was insufficient evidence to support his conviction on money- laundering counts 25 and 26;


(4) the forfeiture order should be vacated because the district court failed to require the government to prove beyond a reasonable doubt that the forfeited items were "traceable to" laundered money;


(5) His convictions on the tax evasion counts should be vacated because the government failed to prove an affirmative act of evasion as required by statute;


(6) The district court erred in imposing an order of restitution without making findings of fact regarding his ability to pay;


(7) The district court should have granted his motion for a severance because his co-defendants asserted defenses antagonistic to his own; and


(8) The district court erred in increasing his Guidelines offense level by 2 points for obstruction of justice.


. . . [EDITED-OUT FOR BREVITY] . . .


III.


OUTRAGEOUS GOVERNMENT CONDUCT


Voigt argues that the government infringed his Fifth Amendment right to due process by recruiting his attorney as a government informant "in deliberate and flagrant disregard for the attorney-client relationship." Voigt's Br. at 10.


The premise of this claim is that codefendant Mercedes Travis, with whom the government had extensive investigative contacts, was his personal attorney during the time of the investigation.


The precise nature of Travis' relationship with Voigt and with the government, however, is in dispute.


A.


The relevant facts are as follows.


Mercedes Travis began working for the Trust in August 1990.


Voigt contends that she was engaged as an attorney at that time, and points to an engagement letter that supports his claim.


The government, however, maintains that it justly and reasonably believed that Travis was not and had never been an attorney for the Trust.


In any event, by Travis' own account, she became concerned about the legitimacy of the Trust and feared that she herself was being defrauded. As a result, she left her post in Europe and approached the FBI with her concerns.


In June and July 1991, she met with Special Agent Alvin Powell and voluntarily provided him with a package of relevant documents. Those documents indicated that the Trust was engaged in a fraud.


Over the course of a three-day interview at a New Jersey motel in mid-July of 1991, Travis detailed the fraud for Powell.


Noting that Travis was an attorney, and having seen a letter on Trust letterhead purporting to appoint Travis as attorney for the Trust, Powell asked Travis whether she had acted in a legal capacity for the Trust.


Travis indicated on several occasions that she had not acted as a legal representative for the Trust but, rather, that she had been primarily responsible for initiating and maintaining contacts with banks.


Travis also insisted that the letter purporting to appoint her as an attorney for the Trust was false.


Travis indicated that she went to work for the Trust in 1990, first in the U.S. and later in Europe, believing it to be a bona fide financial institution.


Over time, however, she discovered that, notwithstanding Voigt's contention that the Trust possessed $75-billion in assets, the Trust was simply a shell corporation with few assets.


Travis then related that the Trust was engaged in an advance-fee scheme for loans in which fees were paid but no loan was ever funded.


Based on Travis' allegations, and on Powell's belief that she had not represented the Trust or its members in a legal capacity, Powell enlisted the assistance of Travis.


Powell devised a pretext whereby Travis would re-ingratiate herself with the Trust by falsely informing Voigt that she had negotiated an MCC.


Powell hoped that this would lead Voigt to divulge further information about the Trust's activities.


Powell eventually had Travis officially designated as a "cooperating witness" on the FBI's records. Having enlisted Travis as an informant, Powell asked her to sign a document allowing the consensual recording of her conversations with Trust members, including Voigt. In that document, however, Powell carefully noted that the purpose of the recordings was to corroborate her statements, based on the understanding that she had not acted, and would not act, as an attorney for the Trust or any of its members.


In September of 1991, Travis made 3 supervised calls from the FBI office in New Jersey, although apparently none involved Voigt or his co-conspirators.


In October of 1991, Travis informed Powell that she had been invited to Europe by someone associated with the Trust.


Powell asked her to maintain contact with him, and she called once during her trip to inform Powell that she had met with Voigt, but that they had discussed only personal matters.


When Travis returned from Europe, Powell met her in an Atlantic City hotel, where she provided him with several cassette recordings of conversations, documents obtained during the trip, and information acquired by talking with Voigt.


Travis was still convinced that the Trust was engaged in a fraud.


According to Powell's version of the meeting, Travis indicated that she had not performed legal work for the Trust or Voigt during her trip to Europe.


In February of 1992, Travis informed Powell that she had prepared a tax opinion for Voigt. She claimed it was a "one-shot deal," and that it concerned Voigt and not the Trust, but she did not share the substance of the opinion with Powell.


Powell had no prior knowledge that Travis would be providing legal advice to Voigt.


In March of 1992, Travis advised Powell that she had persuaded Voigt to let her become the Trust's attorney, but that her role would be to facilitate communications between the Trust
and other entities.


Powell became concerned about this latest development because of potential attorney-client privilege problems and because Travis herself might become an active participant in what she had insisted was a fraud.


He therefore instructed Travis to meet with Assistant United States Attorney ("AUSA") Paul Zoubek, who was supervising the investigation.


Travis replied that she would inform Powell if her status changed from facilitating loans
and investments to providing legal advice.


Travis next called Powell on March 10 [1992] to inform him that she indeed had been appointed
as attorney for the Trust.


Powell again warned her about acting in a legal capacity and warned her not to engage in any illegal activity.


He also gave her a firm date for their meeting with AUSA Zoubek.


In another telephone call 2-days later, Powell again instructed Travis not to act as an attorney, and she reassured Powell that the information she was providing raised no issue of privilege.


On March 25, 1992, Travis and Powell met with AUSA Zoubek at the U.S. Attorney's Office in Newark.


After listening to Travis recount her version of the events, AUSA Zoubek pointed out the stark inconsistency between her original allegation that the Trust was a fraud, and her recent decision to rejoin the Trust as its attorney.


Travis indicated that she wanted to determine for herself whether in fact the Trust was legitimate and would inform the government of her findings within 2-weeks.


AUSA Zoubek nevertheless told her that she would be on her own, and that any time spent in Europe working for the Trust would not be as a government informant due to potential privilege problems.


According to Zoubek, as verified by Powell's notes of the meeting, the only way that information otherwise privileged could be provided to the government would be if the crime-fraud exception were deemed to be applicable.


Travis indicated that she understood.


At the same time, however, Powell instructed Travis to report to him as to whether the Trust had sufficient funds to cover its existing loan commitments.


From the time of their last meeting on March 25, 1992, until May 1, 1992, Powell did not hear from Travis, but received information indicating that she was participating in the same type
of fraudulent conduct that originally had motivated her to come forward to the FBI.


On May 1, 1992, Travis made 2 separate calls to Powell from Europe.


Her first call, which Powell maintained was unsolicited, was from a pay phone because, according to Travis, she was afraid her calls were being monitored.


Travis again told Powell that the Trust had no funds to lend, and that she would make her "official" call later that day.


In her 2nd call, Travis indicated that she was representing Voigt in connection with 2 Grand Jury subpoenas for records of the Trust that Powell had served on Voigt.


At trial, however, Travis testified that at that point she was representing only the Trust, and that attorney James Binns was representing the Trust and its directors for purposes of the criminal investigation.


Powell advised Travis that she and Voigt should appear at the FBI office to discuss the matter.


It was not until sometime after this May 1, 1992 call from Travis that Powell had Travis officially taken off the books as a confidential informant.


Travis did not contact the government again until September of 1992, when Travis called AUSA Robert Ernst (who had taken over the investigation) to discuss grand jury subpoenas that
had been served on the Trust in August [1992].


Travis informed Ernst that she was representing the Trust in connection with the subpoenas.


Before any further discussion occurred, Ernst informed Travis that she was a target of the investigation and, given her earlier contacts with the government, that she had a conflict of interest and should withdraw as counsel for the Trust.


AUSA Ernst documented this admonition in a letter sent to Travis 8-days later.


On November 6, 1992, Travis again made an unsolicited call to Powell, warning him that an unsuspecting potential customer was about to transfer $21-million to the Trust and asking him to stop the transaction.


In response to a question by Powell, Travis indicated that she was not represented by counsel.


After reiterating that Travis was a target, Powell asked Travis whether she would appear voluntarily before a Federal Grand Jury. Travis agreed to testify.


After Travis had arrived in Newark, but prior to her grand jury testimony, she met with Powell and AUSA Ernst.


Ernst repeated that Travis was a target, and informed her of her rights. Ernst warned Travis not to disclose any confidences between her and any person affiliated with the Trust because of potential attorney-client privilege issues, and stated that he would not ask any questions that would risk eliciting potentially privileged information.


In fact, when Travis indicated that she had brought Trust documents with her to turn over to the
government, Ernst refused to examine them.


Notwithstanding Travis' insistence that the documents were not privileged because the Trust
did not actually exist, Ernst turned them over to an Assistant U.S. Attorney (AUSA) who was not part of the investigation into the Trust to make an independent privilege determination.


Before the grand jury, Travis again was informed of her rights and that she was a target of the investigation. She was again admonished not to disclose privileged information, and when it appeared that she was about to do so, Ernst instructed her not to answer.


On January 12, 1993 Ernst wrote to Travis informing her once more that she was a target of the grand jury's investigation and invited her to provide additional testimony or evidence in her own behalf, which she did on January 15, 1993.


B.


Contending that the government's reliance on Travis to build a case against him constitutes "outrageous government conduct" in violation of the Fifth Amendment's Due Process Clause, Voigt moved pretrial to dismiss the indictment.


The district court declined to hold an independent evidentiary hearing because it determined that Voigt had failed to make a prima facie showing of outrageousness and the trial would address the issues raised by his motion.


The district court ultimately denied Voigt's renewed post-trial motion to dismiss the indictment:


“[A]s far as outrageous conduct by the Government, I certainly can't find that here. I have had the benefit of seeing Agent Powell testify, I have seen Mercedes Travis testify - and the cross examination of both of them - and I can't find that that was the case.


To the extent there is any conflict between the testimony of Powell and Travis, I credit the testimony of Powell . . . because Powell convinced me that the Government was acting reasonably based upon what Travis had told them when they went forward, even though she was an attorney, that she was not acting as an attorney.


I can't find any outrageous conduct whatsoever here and, of course, we know later, Travis was not a Government agent, [and] was really acting on her own at the time.


I can't see any outrageous conduct whatsoever and I have had the benefit of the full trial hearing on this.”


App. at 1122-23.


Our standard of review is mixed. When the district court decides a constitutional claim based on a developed factual record, we exercise plenary review of the district court's legal conclusion. United States v. Driscoll, 852 F.2d 84, 85 (3d Cir. 1988). We defer to the factual findings supporting that conclusion unless they are clearly erroneous. United States v. Bonanno, 852 F.2d 434, 437 (9th Cir.), cert. denied, 488 U.S. 1016, 109 S. Ct. 812 (1989).


1.


In 1952 the Supreme Court recognized that outrageous
misconduct by law enforcement officers in detecting and obtaining
incriminating evidence could rise to the level of a due process
violation. Rochin v. California, 342 U.S. 165, 72 S. Ct. 205
(1952) (vacating conviction and dismissing indictment where police
had pumped stomach of suspected drug pusher to obtain incriminating
evidence). Since Rochin was decided the Court has discussed the
viability of an outrageous government conduct claim only in the
context of government instigation of and overinvolvement in the
very criminal activity it seeks to punish. See United States v.
Russell, 411 U.S. 423, 93 S. Ct. 1637 (1973); see also Hampton v.
United States, 425 U.S. 484, 96 S. Ct. 1646 (1976) (five Justices
reaffirm viability of due process claim for government
overinvolvement in crime). In United States v. Payner, 447 U.S.
727, 100 S. Ct. 2439 (1980), however, the Court discussed, in
dictum, whether an illegal search of a third party's briefcase
might constitute outrageous government conduct. Id. at 737 n.9,
100 S. Ct. at 2447 n.9. Thus, we have no reason to doubt that the
Court continues to recognize a due process claim premised upon
outrageous law enforcement investigative techniques.


The showing required to establish a due process
violation, though often recited, is by no means pellucid. Writing
for the Court in Rochin, Justice Frankfurter said that "the
proceedings by which this conviction was obtained do more than
offend some fastidious squeamishness or sentimentalism about
combatting crime too energetically. This is conduct that shocks
the conscience." Rochin, 342 U.S. at 172, 72 S. Ct. at 209. In
Russell, the Court elaborated on the standard it had enunciated in
Rochin:


While we may some day be presented with a
situation in which the conduct of law
enforcement agents is so outrageous that due
process principles would absolutely bar the
government from invoking judicial processes to
obtain a conviction, the instant case is
distinctly not of that breed. . . . The law
enforcement conduct here stops far short of
violating that "fundamental fairness, shocking
to the universal sense of justice," mandated
by the Due Process Clause of the Fifth
Amendment.


Russell, 411 U.S. at 431-32, 93 S. Ct. at 1643 (citation omitted).
And in Hampton, the Court's most recent opportunity to visit the
outrageous government conduct issue, Justice Powell, concurring in
the judgment, noted that "[p]olice over-involvement in crime would
have to reach a demonstrable level of outrageousness before it
could bar conviction." Hampton, 425 U.S. at 495 n.7, 96 S. Ct.
1653 n.7 (Powell, J., concurring in the judgment).


We have also noted that the judiciary is extremely
hesitant to find law enforcement conduct so offensive that it
violates the Due Process Clause. In United States v. Janotti, 673
F.2d 578 (3d Cir.) (in banc), cert. denied, 457 U.S. 1106, 102 S.
Ct. 2906 (1982), we observed that "the majority of the Court has
manifestly reserved for the constitutional defense only the most
intolerable government conduct." Id. at 608 (emphasis added).


Relying on well-settled separation-of-powers principles, we cautioned that:


”[w]e must necessarily exercise scrupulous restraint before we denounce law enforcement conduct as constitutionally unacceptable . . . . Unless the behavior of the F.B.I. agents rose to the level of outrageousness which would bar conviction, the conduct of agents of the Executive Branch who must protect the public from crime is more appropriately considered through the political process where divergent views can be expressed in the ballot box.”


Id. at 607, 609.


Subsequent decisions have heeded Janotti's call for
judicial restraint. As a result, the doctrine of outrageous
government misconduct, although often invoked by defendants, is
rarely applied by courts. See United States v. Santana, 6 F.3d 1,
4 (1st Cir. 1993) ("The banner of outrageous misconduct is often
raised but seldom saluted."). Although litigants continue to
assert the doctrine as a defense against conviction, "courts have
rejected its application with almost monotonous regularity." Id.at 4
(collecting cases). Indeed, the doctrine has only once been
applied by a federal appellate court since the Supreme Court's
Hampton decision in 1976: in this court's decision in United States
v. Twigg, 588 F.2d 373 (3d Cir. 1978).


Since Twigg, however, "this court and other appellate courts have . . . exercised extreme caution in finding due process violations in undercover settings." United States v. Gambino, 788 F.2d 938, 945 n.6 (3d Cir.), cert.denied, 479 U.S. 825, 107 S. Ct. 98 (1986). See United States v. DeRewal, 10 F.3d 100, 105 n.3 (3d Cir. 1993), cert. denied, 114 S.
Ct. 1544 (1994).


2.


Bearing in mind the amount of restraint we must exercise
in subjecting law enforcement conduct to judicial review, we must
determine whether, as a matter of law, the conduct that Voigt
alleges occurred in this case raises a cognizable claim of
outrageous government conduct. Despite the paucity of directly
relevant authority, we are not writing on a clean slate. Our
review of the case law demonstrates that a claim of outrageous
government conduct premised upon deliberate intrusion into the
attorney-client relationship will be cognizable where the defendant
can point to actual and substantial prejudice.


In United States v. Ofshe, 817 F.2d 1508 (11th Cir.),
cert. denied, 484 U.S. 963, 108 S. Ct. 451 (1987), for example, the
government used a defense attorney as an informant against the
defendant in a matter unrelated to the subject of the attorney's
representation (a drug prosecution). With the attorney's
permission, the government placed a body bug on him to record
conversations with the defendant. Despite strict instructions to
the attorney not to elicit privileged information, secret defense
strategy concerning Ofshe's drug prosecution was recorded by
government agents. Nevertheless, the Eleventh Circuit concluded
that this government misconduct was not so outrageous as to violate
the Fifth Amendment. Id. at 1516.


This conclusion was based on two (2) findings:


(1) That the attorney's cooperation concerned a different crime from the one for which he was representing the defendant, thus the invasion of the attorney-client relationship did not produce any evidence against the defendant; and,


(2) That the defendant was not prejudiced in his defense because the attorney's co-counsel continued to provide zealous representation to the defendant throughout the trial. Id.


The court noted, however, that "[h]ad there been demonstrable evidence of prejudice, we would
be compelled to reverse." Id. Accord United States ex rel. Shiflet v. Lane, 815 F.2d 457 (7th Cir. 1987) (dismissal not warranted where disclosure of privileged information to police lead to discovery of crucial evidence against defendant because government played no role in the breach of the privilege), cert. denied, 485 U.S. 965, 108 S. Ct. 1234 (1988); cf. United States v.
Levy, 577 F.2d 200 (3d Cir. 1976) (dismissal of indictment on Sixth Amendment grounds warranted where government employs co-defendant as confidential informant in order to obtain and reveal confidential defense strategy).


Only one decision has ordered that an indictment be
dismissed due to pre-indictment intrusion into the attorney-client
relationship so pervasive and prejudicial as to be considered
"outrageous." United States v. Marshank, 777 F. Supp. 1507 (N.D.
Cal. 1991). In Marshank, Ronald Minkin, the attorney for two
cooperating defendants, provided information to the government
leading to the indictment of another one of his clients. Minkin
then encouraged that client to cooperate with the government in
order to secure an indictment against Marshank, with whom Minkin
also had an ongoing attorney-client relationship. The government
never warned the attorney to avoid ethical impropriety, and
affirmatively hid from both the court and the defendants the
attorney's multiple, conflict-ridden representation while acting as
a government informant. Granting Marshank's motion to dismiss the
indictment based on a due process violation for outrageous
preindictment conduct, the district court distinguished between
passive tolerance and active encouragement of impropriety:


[T]he government actively collaborated with
Ron Minkin to build a case against the
defendant, showing a complete lack of respect
for the constitutional rights of the defendant
and Minkin's other clients and an utter
disregard for the government's ethical
obligations. . . . [T]he agents and the
prosecutor here never warned Minkin not to
engage in unethical behavior and in fact
facilitated that behavior by hiding it from
the defendant. Moreover, the government
colluded with Minkin to obtain an indictment
against the defendant, to arrest the
defendant, to ensure that Minkin would
represent the defendant despite his obvious
conflict of interest, and to guarantee the
defendant's cooperation with the government.


Id. at 1524 (second emphasis added).


C.


1.


Voigt claims that, at the very least, the factual disputes raised by his moving papers and the government's response warranted an independent evidentiary hearing prior to trial, and that the district court's determination that he had failed to make out a prima facie showing of "outrageous government conduct" was erroneous. The district court had before it:


(1) Agent Powell's affidavit, to which contemporaneous notes of his contacts with Travis were attached as exhibits;


(2) Voigt's affidavit, in which Voigt claimed that Travis had been the Trust's and his attorney from the summer of 1990 through June of 1993;


(3) Travis' affidavit; and,


(4) Travis' and Powell's grand jury testimony.


Although we agree with Voigt that conducting a hearing prior to trial would have been more prudent and the better practice, a remand is unnecessary under the facts of this case since we find that the record developed at trial, taken together with Voigt's moving papers and the government's response, provided the district court an adequate basis with which to resolve Voigt's constitutional claim.


a.


Rule 12(b)(1) of the Federal Rules of Criminal Procedure
requires that all "defects in the institution of the prosecution"
be raised by pretrial motion. Fed. R. Crim. P. 12(b)(1). Although
Rule 12 does not by its terms specify when such a motion entitles
a defendant to a pretrial evidentiary hearing, we have held that a
defendant's moving papers must demonstrate a "colorable claim" for
relief. United States v. Brink, 39 F.3d 419, 424 (3d Cir. 1994)
(remanding for hearing where Brink alleged facts that, if true,
"could violate a defendant's rights under the Sixth Amendment").
See United States v. Soberon, 929 F.2d 935, 941 (3d Cir.) (if
district court had "reasonable suspicion" of prosecutorial
misconduct proper course was to hold evidentiary hearing), cert.
denied, 502 U.S. 818, 112 S. Ct. 73 (1991). In order to be
"colorable," a defendant's motion must consist of more than mere
bald-faced allegations of misconduct. United States v. Sophie, 900
F.2d 1064, 1071 (7th Cir.) ("A district court does not have to hold
evidentiary hearing on a motion just because a party asks for
one."), cert. denied, 498 U.S. 843, 111 S. Ct. 124 (1990). There
must be issues of fact material to the resolution of the
defendant's constitutional claim. See United States v. Panitz, 907
F.2d 1267, 1273-74 (1st Cir. 1990) (refusal to hold evidentiary
hearing on outrageousness claim proper because material facts were
not in dispute); Sophie, 900 F.2d at 1071 (refusal to hold hearing
proper where defendant's own submissions refuted his claim).


As our survey of the relevant case law indicates, see
supra III.B.2, in order to raise a colorable claim of
outrageousness pertaining to alleged governmental intrusion into
the attorney-client relationship, the defendant's submissions must
demonstrate an issue of fact as to each of the three following
elements: (1) the government's objective awareness of an ongoing,
personal attorney-client relationship between its informant and the
defendant; (2) deliberate intrusion into that relationship; and
(3) actual and substantial prejudice. See Ofshe, 817 F.2d at 1516;
Lane, 815 F.2d at 466; United States v. Santopietro, 809 F. Supp.
1008, 1015 (D. Conn. 1992) (no due process violation where
defendant fails to demonstrate that attorney/informant revealed
client confidences); Marshank, 777 F. Supp. at 1524.


Although the issue is a close one, after comparing
Voigt's motion and Travis' affidavit with the government's
response, we think the district court should have conducted an
evidentiary hearing. Travis' relationship with both Powell and
Voigt was highly disputed. Furthermore, Voigt's moving papers
raised enough of a specter of ethical impropriety on the
government's part to warrant closer scrutiny. Even the district
court, skeptical though it was as to the degree of purposeful
intrusion, believed that whatever factual disputes existed on that
issue would be resolved at trial. This was an acknowledgement by
the court that there were some disputed factual issues raised by
Voigt's motion that needed to be resolved. Since the government
itself notes that suppression of evidence is a more appropriate
remedy than dismissal of the indictment, factual determinations
that can lead to suppression logically should be resolved at an
evidentiary hearing conducted prior to trial.


Conducting a pre-trial evidentiary hearing certainly has
its advantages. The district court is then in a position to
place in the record its findings of facts and conclusions of law,
see Fed. R. Crim. P. 12(e), which greatly facilitates appellate
review. Prieto-Villa, 910 F.2d at 610. This is especially true
where the legal claim, outrageous government conduct, is so highly
fact sensitive. While we are not unmindful of the district court's
strong interest in avoiding duplicative proceedings, judicial
economy is not fostered when substituting trial testimony for a
pretrial hearing generates post-verdict and appellate litigation and
potentially frustrates appellate review.


b.


Nevertheless, any "error" arising from the district court's failure to hold an independent evidentiary hearing in this case is unquestionably harmless.


Most of the factual issues depended for their resolution on assessing Powell's and Travis' credibility.


In our view, their trial testimony, when taken together with Voigt's motion papers and the government's response, provided the district court with a sufficient evidentiary record against which to measure Voigt's outrageousness claim.


At trial, Voigt cross-examined Powell thoroughly about whether he in fact believed that Travis had acted in a legal capacity on behalf of the Trust or Voigt when she first approached the government. Powell also was cross-examined extensively about the degree to which he encouraged Travis to reestablish contact with the Trust and whether it was his understanding that she would do so in her capacity as an attorney.


Travis testified in her own behalf and was cross-examined at length by the government as to her understanding of her relationship with Powell and her role as a confidential informant.


Finally, during the trial the district court ruled on numerous claims of attorney-client privilege, which certainly provided it with insight into the nature and degree of any alleged government intrusion into the attorney-client relationship. Thus, the district court's failure to conduct a hearing, although ill-advised, was at worst harmless error.


2.


Voigt claims, however, that even assuming the record as it now stands is sufficiently developed, and we determine that it is, the district court should have dismissed the indictment because the record unequivocally demonstrates outrageous government conduct.


Relying on the 3-part test we set forth above, supra III.C.1.a, we hold that Voigt's claim of outrageousness fails as a matter of law with respect to the period between July 13, 1991 and May 1, 1992 because:


Voigt failed to establish the first (1st) element - the government's objective awareness of an attorney-client relationship between Travis and Voigt during that time.


We further agree with the district court's implicit determination that there is insufficient evidence in the record on the second (2nd) and third (3rd) elements, purposeful intrusion and prejudice, as to the period thereafter.


a.


Voigt's claim of outrageousness based on the government's contacts with Travis during the period from July 13, 1991 (when Travis first approached the government), to May 1, 1992 (when
Travis first announced that she was representing Voigt in response to the grand jury subpoenas), fails as a matter of law for two (2) reasons.


First (1st), the record is wholly devoid of any evidence that the government was or should have been aware of a personal attorney-client relationship between Travis and Voigt during that time. Voigt argues that the tax opinion Travis prepared for him should have alerted Powell that by February or March of 1992 Travis had an ongoing personal attorney-client relationship with Voigt. According to Powell, however, Travis claimed that it was a "one-shot deal" and did not share the opinion with him. The district court credited Powell's version of the events, and we find nothing in the record to indicate that the district court's finding in this respect was clearly erroneous.


In any event, the record clearly indicates that at about the same time Travis informed Powell of the tax opinion AUSA Zoubek discontinued Travis as a confidential informant.


Voigt also argues inferentially that the government's entire case at trial was based on the premise that the Trust was essentially his "alter ego." Since the Trust was a fictitious entity, Voigt reasons, any legal work Travis performed for the Trust in reality must have been performed for him personally.


In this way Voigt attempts to bootstrap himself into an attorney-client relationship that is essential to the maintenance of his outrageousness claim, at least with respect to the period preceding
May 1, 1992.


Voigt cannot have it both ways.


Having abused the corporate structure such that the Trust, in effect, became his "alter ego," we think that Voigt may not now rely on that abuse as a shield by claiming a personal attorney-client relationship with the attorney for the fraudulent corporate entity. Moreover, far from creating additional protections for officers of fraudulent corporations, the "alter ego" doctrine exists to pierce the corporate veil, thereby stripping those officers of the protections normally associated with the corporate form. See generally Charles Clark, Corporate Law Section 2.4, at 71 (1986).


In any event, even if Travis' status as an attorney for the Trust were relevant to our resolution of the outrageousness issue, the record fully supports the district court's implicit finding that Powell reasonably believed that Travis was not acting as counsel for the Trust during the period between July 13, 1991 and May 1, 1992.


Accordingly, any claim of outrageousness must be premised upon the government's contacts with Travis after May 1, 1992 for that is the day Travis informed the government that she was representing the Trust and Voigt in connection with the very investigation in which she had acted as an informant.


b.


As for Travis' contacts with the government from May 1, 1992 until her indictment, the record falls woefully short of establishing the sort of purposeful intrusion into her attorney-client relationship with Voigt that would rise to the level of outrageousness.


For example, Travis made two (2) phone calls to Powell on May 1 1992.


Contending that these calls were "staged" to maintain Travis' cover, Voigt asserts that they constitute proof of "purposeful intrusion." We are not persuaded.


First, by the time Travis placed these calls to Powell, AUSA Zoubek had affirmatively cut off contact with Travis given her decision to rejoin the Trust as counsel. This demonstrates the government's awareness of and sensitivity to Travis' ethical obligations and belies Voigt's sinister characterization.


Second, Powell asserted that he did nothing to solicit the calls, and the record supports his
contention. Thus, to the extent that Travis disclosed privileged information, and there is no proof that she did, it was not at the behest of government agents.


All of Travis' post-May 1, 1992, contacts with the government were unsolicited except for her appearances before the grand jury.


The government's actions during this period demonstrated sensitivity to potential ethical problems and contradicts Voigt's claim of "purposeful intrusion."


Illustrative of the government's sensitivity was Travis' call to AUSA Ernst in September of 1992. Ernst did not attempt to extract information from Travis. Instead, he informed her that she was a target of the investigation and admonished her to withdraw as counsel given her obvious conflict of interest.


Travis' next contact with the government was her unsolicited call to Powell in November of 1992 to warn him about an impending fraud. To the extent that such information was privileged, it was volunteered and cannot have constituted "deliberate intrusion" on the part of the government.


Similarly, we find no impropriety in Powell's asking Travis to appear before the grand jury. By this time Travis knew she was a target of the investigation and had been warned to withdraw as counsel for Voigt.


Therefore, to the extent Travis continued to provide legal advice to Voigt in connection with the criminal investigation, she was violating her ethical obligation to avoid a conflict of interest.


Finally, AUSA Ernst's efforts to steer clear of privileged information during Travis' grand jury testimony demonstrate that the government was attentive to ethical constraints.


We fail to see any purposeful intrusion on the government's part.


Voigt's alternative claim of purposeful intrusion, which arguably has some merit, might be that the government had an affirmative duty to inform him that Travis had acted as an informant when it discovered that she was representing him in connection with the very criminal investigation in which she had acted as an informant.


At least one court of appeals has speculated as to whether the government, during the investigative phase of a prosecution, may have some affirmative duty to inform a defendant of a potential conflict of interest caused by its prior association with the defendant's lawyer. See, e.g., United States v. Lopez, 71 F.3d 954, 963-64 (1st Cir. 1995) (attorney for defendant had begun grand jury investigation into his client as AUSA before switching sides).


We need not reach that issue, however, because as our discussion in the next subsection indicates, Voigt has made no showing of prejudice.


c.


We find no evidence in the record of significant prejudice--the 3rd element of our outrageous government conduct test.


As the party bearing both the burden of production and persuasion on his outrageousness claim, Voigt has failed to demonstrate that he suffered any ill effects flowing from the government's allegedly improper investigative activity.


For instance, Voigt does not cite even a single occasion on which Travis gave him legal advice that was calculated to damage him to the benefit of the government.


Nor does he claim that Travis intentionally declined to assert the attorney-client privilege in response to the government's grand jury subpoenas or that Travis advised him to pursue a course of conduct she knew to be illegal simply to help the government build its case.


More significantly, however, Voigt failed to demonstrate that any of the information Travis provided the government after May 1, 1992, was in fact privileged.


We think this alone is fatal to his claim of outrageousness.


Voigt contends on appeal that he does not assail the district court's attorney-client privilege rulings because of the lenient standard of review we would apply. But we think if Voigt's assertion that "the evidence introduced both prior to and at the trial included hundreds, if not thousands, of privileged attorney-client communications" (Voigt's Br. at 12) had any merit whatsoever, he would have pointed to at least one document Travis provided the government that was privileged.


By failing to meet his burden to establish the privilege he claims, Voigt has precluded us from finding that an attorney-client relationship between Travis and him ever existed, let alone that it was violated.


Finally, Voigt invokes our decision in Levy, 577 F.2d at 200, along with other similar decisions, in an attempt to have us find that the government's intrusion into his attorney-client relationship, standing alone, is per se prejudicial. Levy, however, is distinguishable on two (2) fronts.


First, Levy was decided under the Sixth Amendment. Second, and more importantly, Levy, like most of the cases that Voigt has cited, concerned the government's deliberate intrusion into a defendant's attorney-client relationship in order to gain access to confidential defense strategy. See, e.g., United States v. Valencia, 541 F.2d 618 (6th Cir. 1976) (dismissal appropriate where government obtains defense strategy).


The record in this case demonstrates that the government was scrupulous in its effort to avoid procuring confidential defense strategy. See generally Ofshe, 817 F.2d at 1516 (no dismissal warranted where inadvertently intercepted defense strategy not used against the defendant).


If any privileged information was disclosed to the government in this case, it concerned the workings of the Trust, not Voigt's legal strategy in responding to the criminal investigation into his
activities.


Voigt's claim of severe prejudice amounts to little more than an argument that "where there's smoke, there must be fire." We find neither.


IV.


RIGHT TO COUNSEL OF CHOICE


Voigt claims that the district court's disqualification of James Binns, a third attorney he sought to add to his defense team, violated his right to counsel of choice under the Sixth Amendment. Voigt seeks per se reversal of his conviction on the theory that the manner in which the district court disqualified Binns was arbitrary.


A.


1.