Episode 76: Criminal Defense Casework | Tracy Coenen & Mary Breslin
This summer while at the ACFE Global Fraud Conference several speakers and friends of the podcast got together to play an escape room. Before and after the escape room adventure, Leah found herself engrossed in stories from investigators around the US and didn’t want the conversation to end. It was these valuable conversations that inspired the format for the next 6 episodes of the podcast. For the remainder of 2022, Leah is joined by investigators to share case stories from investigations worked in a variety of areas.
In this episode, Leah is joined by Tracy Coenen CPA, CFF, MAFF and Mary Breslin, CFE, CIA who discuss cases involving criminal defense.
Data Sleuth: Using Data in Forensic Accounting Engagements and Fraud Investigations by Leah Wietholter, CFE, PI, CPA
When Leah joined the financial investigation industry over 15 years ago, her goal was to work as many cases as possible, but getting those first few cases felt extremely challenging with questions like, “How do I get the casework without the experience? And how do I get the experience without the casework? And when I get the casework, will I know what to do?”
Based on her experience of working over 200 cases in her career, she wrote Data Sleuth® to help others facing this very problem. It is the book she needed so many years ago. In this book, she explains how to start a financial investigation from case planning, to finding best evidence, to incorporating non-financial evidence – like interviews and open source intelligence, and ultimately, how to put it all together for clients or even law enforcement with step by step details and case examples. If you want to gain confidence in financial investigations to build your case experience, you need to read Leah’s book. Data Sleuth® is available on Amazon, Goodreads, or wherever you like to buy books!
Tracy Coenen CPA, CFF, MAFF
Tracy has been investigating fraud for more than 25 years, but she didn’t always want to be a forensic accountant. With a dream of one day being a prison warden, Tracy went to Marquette University in Milwaukee, WI to get a criminology degree. A class on financial crime investigations reminded her how much she loved Encyclopedia Brown books as a kid. She continued her criminology degree, but added accounting and economics courses so she could sit for the CPA exam. Tracy is a Certified Public Accountant and holds the designations Certified in Financial Forensics and Master Analyst in Financial Forensics.
Now, Tracy is finding money in cases of corporate fraud, high net worth divorce, and other financial shenanigans.
Connect with Tracy:
LinkedIn: https://www.linkedin.com/in/tracycoenen/
Website: http://sequenceinc.com/
Mary Breslin, CFE, CIA
Mary Breslin is the Founder of Verracy and an internationally recognized speaker and training facilitator for Internal Audit, Risk and Fraud. When she is not speaking publicly or facilitating trainings, Ms. Breslin conducts fraud investigations and provides management consulting for internal audit and fraud.
Ms. Breslin has over 25 years of experience in Internal Audit, Fraud, Accounting and Management, including working for global companies like Costco, Barclay’s Capital, ConocoPhillips, and Boart Longyear. She has implemented and managed audit programs in more than 50 countries. Additionally, she has led fraud investigations in numerous countries spanning six continents.
Ms. Breslin attended Rutgers University and University of Phoenix. She is a Certified Internal Auditor (CIA) and a Certified Fraud Examiner (CFE).
Connect with Mary:
LinkedIn: https://www.linkedin.com/in/marybreslin/
Website: http://www.verracy.com/
Connect with Workman Forensics
Youtube: @WorkmanForensics
LinkedIn: @workmanforensics
Subscribe and listen to this and more episodes of The Investigation Game on Apple Podcasts, Android, or anywhere you listen.
Transcript:
Leah Wietholter:
Welcome to The Investigation Game Podcast. I'm your host, Leah Wietholter, CEO and founder of Workman Forensics in Tulsa, Oklahoma and the author of Data Sleuth: Using Data in Forensic Accounting Engagements and Fraud Investigations. This summer, while at the ACFE Global Fraud Conference, several speakers and friends of the podcast and I got together to play an escape room. Before and after our escape room adventure, I found myself engrossed in stories from investigators around the US, and I didn't want the conversation to end. It was these valuable conversations that inspired the format for the next series of Investigation Game Podcast episodes. So, for the remainder of 2022 at least, I've invited investigators to join me in sharing case stories from investigations worked in a variety of areas.
In this episode, I'm joined by Tracy Coenen and Mary Breslin to talk about case work involving criminal defense. Tracy Coenen has been investigating fraud for more than 25 years, but she didn't always want to be a forensic accountant. With a dream of one day being a prison warden, Tracy went to Marquette University in Milwaukee, Wisconsin to get a criminology degree. A class on financial crime investigations reminded her how much she loved Encyclopedia Brown books as a kid. She continued her criminology degree, but added accounting and economics courses so she could sit for the CPA exam. Tracy is a certified public accountant and holds the designation "Certified in Financial Forensics" and master analyst in financial forensics. Now, Tracy is finding money in cases of corporate fraud, high-net-worth divorce, and other financial shenanigans.
Mary Breslin is the founder of Verracy and an internationally-recognized speaker and training facilitator for internal audit risk and fraud. When she's not speaking publicly or facilitating trainings, Mary conducts fraud investigations and provides management consulting for internal audit and fraud. Mary has over 25 years of experience in internal audit, fraud, accounting, and management, including working for global companies like Costco, Barclays Capital, and ConocoPhillips. She has implemented and managed audit programs in more than 50 countries. Additionally, she has led fraud investigations in numerous countries spanning six continents. Mary attended Rutgers University and University of Phoenix, and she is a certified internal auditor and a certified fraud examiner.
Welcome to The Investigation Game Podcast. I have Tracy Coenen and Mary Breslin with me today. Today, we're going to be talking about criminal defense cases, working a criminal defense case as a forensic accountant and fraud investigator. Once again, not much intro on this. Let's get started. Tracy, you're up.
Tracy Coenen:
Well, Leah, as you know, criminal defense cases are some of my favorite to work in the field, and that sounds weird to some fraud investigators and forensic accountants because they often think that we should be working for the good guys and not the bad guys. But where it gets so interesting for me is, number one, I feel everyone is entitled to a defense. So if you stole a million dollars, but you're being accused of stealing $2 million, I think you have a right to have someone on your side help you prove that the right number is a million dollars. But it's also interesting just from the standpoint of when I look at a case, I know where the pitfalls are, "We can use this defense, but here's where it's going to fail," and things like that. So the strategy behind it is what really is interesting to me.
So I'm going to tell you about a run-of-the-mill case that I did a couple of years ago, and it involved a hair salon, and my client was... I think she was an assistant manager there. The hair salon had a procedure at the end of the day where whoever was closing would count the money in the till, leave $250 in the register for the next day, and all the rest of the cash goes into an envelope. You label it with the day and the amount, and the envelope goes into a bank bag that's in the safe, and you write down in a deposit log that they had what the date was and how much was collected. Pretty simple procedure, but they had a lot of problems at the salon.
The bank deposits were made about once a week. Sometimes they went as long as two weeks before making a deposit. So all of that money was sitting around for a period of time. The safe was behind the front desk, and every single employee had access to it. Quite frankly, so did every single customer. You could walk in the front door, and if no one was at the front desk, you could've just walked behind there and opened the safe because it was unlocked during the day. There was a key to the safe, but it was kept in a cup that was next to the safe so that if the safe was ever locked, anyone could get into it, and every employee had access to that key.
So what they found was money missing. For a one-year period, there were 38 deposits, bank deposits that came up short. My client was accused of stealing the money. Now, what they did have was they had two instances where the security cameras had her recorded going into the safe after hours and removing something from the safe. So it was pretty clear that she committed a theft on those two days, but there were 36 other days where they had no video evidence, no other proof of any sort. So the victim came up with what they thought was stolen, gave it to the police and the prosecutor who said, "Great. Tracy's client is responsible for this, and we're going to prosecute her for it." We said, "Well, hold on a second. First of all, we need to verify that this money is missing, and we need to prove who stole it."
So my first step was to verify that the funds from those 38 days weren't deposited. They were pretty accurate on that as far as what wasn't deposited compared to what that deposit log said. No one had ever talked about how long is the money sitting around before it's deposited, and so I calculated that was an average of six and a half days that money was on hand before it went to the bank, and I said, "Listen, every single employee had access to those funds. Even customers had access to those funds. The deposit log that you capped was incomplete and didn't match the POS reports every day. So which is correct? Is it the POS reports? Is it the deposit log?"
There was also evidence that people were signing for other people in the deposit log. So there were entries made to that deposit log with my client's initials during weeks when she was actually on vacation. So we know she couldn't have made those entries, and so I used those days and those missing funds as support for, "Listen, they have a problem in their process, their controls." They can't actually prove that my client stole the money on these particular days, so the company... You feel for the victim. I know that the money is missing, but they had really poor controls over the bank deposits. They had no schedule for it. They had no control over who made the deposit. No one ever verified at the time that the deposits matched either the POS system or this deposit log. No one even looked at the bank statements on an ongoing basis to see what was going in there.
The defense for her was, "Well, we know this money is missing. It hasn't been proven that she was the one who stole it." What was really interesting is this was a case where there was huge confirmation bias. Everyone wanted to believe that my client stole the money, and therefore, voila, the evidence showed that my client stole the money in their opinion. All the evidence really showed was that money was missing, and what was even more interesting was that there were allegations that the business owner was actually siphoning money off the business herself and at the end of the day, was trying to hold someone else responsible for it.
There was indications in my work that another employee was stealing as well, and I believe that this employee knew that my client was stealing some money here and there, but knew how poor the controls were and knew that my client would get blamed for it, so she started stealing as well. This case, the way it turned out, my client was charged with a felony for this theft, ultimately ended up pleading to a misdemeanor after my work was done, and instead of the two years in prison that they wanted for her, she got five days in jail with work release. So she did end up being held accountable in some regards for the theft ultimately. Again, the problem with cases, especially with ones involving cash, is how do you prove who stole the money? If the company had had better controls in place, it may not have stopped the theft, but it may have helped them prove who stole it, but they didn't.
Leah Wietholter:
So a few things that I love about what you targeted on this case. I mean, I agree with all of those areas. That's what I would've been looking for as well. But to take two days of video, a sample, and say that this is representative of an entire loss, I mean, mind-blowing because if you have those two days, do you not have other days as well? I would've wanted to know where are all the other recordings.
Tracy Coenen:
The flip side of that is when we were talking with defense counsel about taking this to trial, I said, "You have to understand, think of what a jury thinks when they see those two days. There is a good chance that there will be people on this jury who will believe that that's representative of everything, and our client looks really, really bad. So, at the end of the day, she did steal at least twice, and so you guys need to think about a plea." I like that strategy stuff as I mentioned at the very beginning.
Leah Wietholter:
It is. It's so fascinating, but also, that client relationship is tricky. I won't get into that right now.
Tracy Coenen:
It is.
Leah Wietholter:
But then, also, looking for the records that the victim is using to prove their loss. The fact that the point of sale didn't match the deposit log, I mean, that's what looking for in a criminal defense case. Okay. They're saying that this happened because they're comparing these two things, but their own records show that they can't make this match if they wanted to. They don't actually know how much cash was in that safe anyway.
Tracy Coenen:
Well, that cash was completely exposed to all employees and all customers, not secured in any way. I mean, there's really no way to prove any single day what happened with that money.
Leah Wietholter:
One thing I always end up asking for in criminal defense cases are, "Can we get additional information?" but was there any discussion about, "Can we get the rest of the footage to review it ourselves on the defense team?"
Tracy Coenen:
So, because the theft allegedly went so far back, they had one of those system where it overwrites after 30 or 60 days, whatever it is.
Leah Wietholter:
Yeah, that's what I wondered. Yeah.
Tracy Coenen:
Even still, the fact that it was only two days of available footage was really questionable to me.
Leah Wietholter:
Oh, yeah. For sure.
Mary Breslin:
That's what they said, they only had two days available? It wasn't that, "Here's two days where we see her on camera doing this?"
Tracy Coenen:
It is the latter. It was two days that we see her doing this, but around those same days, there were other days that they're alleging theft, so I didn't know why there wasn't footage of that as well.
Leah Wietholter:
Interesting. Great story, and that is the struggle, I think, from being a professional in this work is when you know your client did something, but they didn't do all of it, and just finding that balance because she still stole some money. So there was some, I guess, penalty for doing that, but not to the extent where the business owner and this other employee could place the blame all on her. I think that's where I find the greatest value. That's where I get, "Okay. Yeah. There's still some sort of punishment for these actions being committed, but at least it's the appropriate punishment."
Tracy Coenen:
I have not had many criminal defense cases where my client has ended up being completely innocent in my professional opinion, so interesting.
Leah Wietholter:
Great story. Great example. I love how you explained what those things were that you look for because that's really, really helpful. When I joined the financial investigation industry over 15 years ago, my goal was to work as many cases as possible, but getting those first few cases felt extremely challenging. For example, how do I get the case work without the experience, and then how do I get the experience without the case work? When I get the case work, will I know what to do? So I wrote Data Sleuth: Using Data in Forensic Accounting Engagements and Fraud Investigations to solve this very problem. It is the book I needed so many years ago.
In this book, I explain how to start a financial investigation from case planning to finding best evidence to incorporating non-financial evidence, like interviews and open-source intelligence, and ultimately, how to put it all together for your client or even law enforcement with step-by-step details and case examples. If you want to gain confidence in financial investigations to build your case experience, you need to read my book. Data Sleuth is available on Amazon, Goodreads, or wherever you like to buy books. All right, Mary. How about you?
Mary Breslin:
Sadly, I'm on the other side of the fence as I'm going to tell you briefly about two things, one that I'm seeing today with cases I'm doing and one interesting experience I had in the past where I had to work very closely with prosecutors because we had to thread the needle because we knew what the defense was going to do. I had a case a couple years back. My former company, we had acquired another organization, and they had purchased it from two guys who had built this company from the ground up, and we had come in, taken a 51% stake in it. Then, after they were doing well, we took it up to 72%. Then, made a deal with them. If they stayed on for two more years, we would buy 100% of the business, and we'd give them $5 million each bonuses for staying that two years if they hit certain financial forecast targets and such. This was a commercial lending. So, give you an idea, and this was overseas. This was in the UK.
That's what happened. They stayed for two years, they hit all their numbers, they got their $5 million bonus, we bought out the rest of the company, and they went on their merry way. Three, four months after they have departed the company and new people are in their positions, my team and I are in the location in the United Kingdom doing our year-end testing for Sarbanes-Oxley. We're a big publicly-traded company. We have to do SOX testing, and I have two or three data analysts with me on this trip. We're trying to wrap things up as quickly as we can, and one of the senior managers from HR comes into the room that we're working in with an operations manager, and this person in operations was in charge of the call centers. They had call centers all over the world: Philippines, India, Ireland. I think they had one in North Carolina. They asked if we could help them with our data... if they could borrow our data analyst, one of them, for a couple hours.
They're like, "We want to understand call flow, and we're having trouble staffing these various call centers correctly." The business was open 24 hours a day, and the calls just got routed to the various ones during the work hours, and they weren't getting the staffing right, and so they said, "If you could do an analysis on flow and give that to us so we see how many calls are coming in at what times in the various 24-hour segment, it will help us staff it." My data analyst is like, "Sure. No problem. It's a single system. I'll pull everything down. I'll have it to you in an hour." Right?
He does. He's a very talented data analyst. He pulls it down, and he comes to me, and he goes, "I think we have a problem." I'm like, "What?" He turns his computer around, and it's got this little tiny wave going like, "Oh, this is the history, the volume, right?" In the middle of this little tiny wave, there is a peak that goes up. It's a straight line that goes up. It's representing thousands upon thousands of transactions, and he's giving me the data volume per minute. So I take one look at it, and I'm like, "We had 8,000 transactions in 30 seconds?" He's like, "According to this, we did." I'm like, "What the..." Long story short, the two owners, the original owners were not meeting their financial forecasts.
This was online lending. This was at the beginning of the online lending world, so it was new technology. That's why we had purchased this company. We were a big financial institution. He had gone in, and he had basically written a virus. He used an algorithm. He went back, and he pulled loans that people had not paid on that were older than two years. Pretty good bet that they're not going to come back at this point. He rewrote all of those loans, new applications state, new origination dates, new funding dates, new due dates, everything. He made them all current, sprinkled them throughout all prior periods so it looked like they were hitting all of their numbers, and that enabled them to get their bonuses, and they were on their merry way, and this is like four months later.
So, one, they didn't deserve the $5 million, and then two, that also made what we actually paid for the rest of the business questionable now because it really wasn't performing as well as it appeared. But what he had done is he had gone in, he had written the code, he had written the virus, he had turned the audit trail off, released it, turned it back on. The audit trail was only off for 18 seconds, and four departments got a report saying that this was off, and everybody thought the same thing, "Oh, glitch, power surge. What can happen in 18 seconds? You can't even enter your codes in 18 seconds." So they got away with a ton of money.
We brought in KPMG Forensic to red team us. They came in behind us. They did the same work. They came up with the same exact numbers as we did, and we went to the prosecutor, and the prosecutor is out there absolutely enthralled by the story and then said, "I can never take this to trial. It's like the defense on this will be so easy," he goes, "because I can't go select people who understand accounting or data analytics, so there's no way." What he actually did was he said, "But they don't know that." He's like, "So let's get them before they get lawyers," and he's like, "I'm going to get a warrant for their arrest, and I'm going to get them in here, and see if we can get them to plead." We did, and they actually got slapped on the wrist. They got a misdemeanor, but they gave restitution. They gave us back the $10 million. So, we got that, but I tell that story because I've had a lot of cases where prosecutors have declined to take the case because it's too complicated. The more complex things are, they're not comfortable being able to explain it themselves, and I've had plenty of cases where the prosecutor just declined. They're like, "We can't do this."
I was an expert witness about... I guess it was right before the pandemic, and I was on in the chair for about four and a half hours as the defense attorney, I was on the prosecutor's side, was trying to just understand what I did. So I've run into these prosecutors a number of times that just say, "We're not going to take this because..." but I will tell you what I'm seeing today around a lot of the government fraud that we've seen with all the CARES, and the PPP, and all of that. I work with a lot of government agencies, and a lot of these folks that committed fraud are going to court at this point. The government auditors, their investigators, they're working hard.
Here's the problem. There were no rules. There's no rules, so how do you prosecute that when there's no criteria? There was no law that was broken. There was no rule that was violated, but what you did was inappropriate. Right? I was sitting with one group of people, and I was playing the devil's advocate. I'm like, "What do you want the resolution to this?" They're like, "We want them to be held accountable," and I go, "But what do you want to hold them accountable to?" They were like, "Well, we..." Bottom line, we went round, and round, and round. Finally, they said, "Common sense," and I said, "Common sense is not legalese. That's not going to hold up in court. I think we need to come up with other ways to approach this."
I'll give you an example. One of the things that came up in that particular conversation... This was a large organization that had received a lot of money, and they had pushed it out within their organization. They didn't receive any rules for spending, and then they didn't provide any rules for spending when they sent it out. One of the largest recipients in the country. Now, they're going back, and they're trying to account for everything, and just one example that I used is one of the things that came up was they had a group that received a 300% pay raise for hazard pay for having to go into the office during the pandemic.
They went into the office for two to three weeks, and then decided, "Oh, they really didn't need to go into the office," but they kept the hazard pay. So I'm like, "Okay. Let's just take that. What is that? Is that waste and abuse? Is it fraud? What are you going to label it?" Because you have to be able to label it, and we have to be able to prove the criteria when we go to prosecutor. Otherwise, the criminal defense is easy, 'They didn't tell me I couldn't.'" Right? If you start paying close attention to the news, you're starting to see that, that that's a common theme right now in criminal defenses with all of this CARES, and PPP, and everything was, "Well, they didn't tell me I couldn't. They didn't tell me," and some of these folks are winning their cases.
Leah Wietholter:
Yeah. Pretty wild. Yeah. So the complication piece, I think, is just the number of cases because of CARES and PPP. Then, if you live in Oklahoma, we had a Supreme Court ruling that made it where if tribal members were prosecuted at the state level, it's now reverted back where they have to basically redo the case at the federal level. So not only do we have CARES and PPP, things that probably should be investigated in our area, but we also have very violent offenders that are needing to be trialed in the federal system, which was not made for that kind of volume, especially all at one time. Right? So the cases that involve some sort of embezzlement, white-collar, wire fraud, all of those things, if it's not connected to something larger, it's not being prosecuted, or it will be prosecuted, but then the defense attorneys are able to use all types of, "You're so overworked and underpaid," type things to get lesser sentences and things like that for their clients because there's just such an overrun and not enough capacity and resources to do that.
So, my case happened... I like how we always refer to things as either like pre-pandemic or post-pandemic now like that's a dividing line. Right? So mine happened in 2014, 2015, and I had worked an embezzlement case for a nonprofit. One of the board members is a criminal defense attorney, and so she said, "Hey, I saw what you did on this embezzlement case. Can you reverse engineer it and help me on this bank fraud case that I have?" I said, "I've never done them before, but I'm sure I can figure it out." So I'll tell a little bit on myself this, I show up for the first meeting, and I was kind of confused why I was hired, and I had never thought about the subject of a case being in this meeting. I thought it was just attorneys and me. I didn't know they would like... right out of the gate, I'm going to be meeting the subject. I don't know why. I mean, probably because this was my first case to do like this, but I just didn't think about that.
So I thought this guy was the attorney, and he was definitely the subject. So that was an awkward conversation, figuring that out because I was like, "So, tell me what did he think happened?" and he's like, "Well, I didn't steal the money?" I was like, "Oh, wait. This is the subject. Okay. Change course." So he had been charged with bank fraud and loan fraud specifically. He owned an equipment rental company and also equipment sales in Arkansas. He was really, really successful. I mean, he was a private jet guy on the weekends just to come over to Tulsa. I mean, he was super... I'm from Texas, so we would say he's a horse trader. I mean, he just had this personality. I don't know. Super charismatic and always having fun, always just making deals with people.
So there was a lot of construction going on, still is, over in Arkansas. So this was 2008, 2009 or pre-2008, 2009. Well, he had loans at... I think probably 10 banks is not an overstatement. He had so many loans at all these banks. Some of them had online presence, or they didn't even have a presence in Arkansas, but he had loans with them. So, of course, 2008, 2009 happened, the mortgage crisis. They start reviewing their loans, and so all of these banks are filing SARs like crazy, suspicious activity reports. So somebody picks up these suspicious activity reports about my client, and then that makes its way to the US Attorney's Office, and then makes its way to an FBI agent who then decides he's going to work the case.
The indictment had 12 counts, two of which were money laundering, and then several just with different issues with the loan, using loan funds not for business purposes type things. So, in this first meeting I had with him, he said, "I don't understand what's going on. The banks got all of their money," and that was his story the whole time. The banks got all of their money because they had called his loans, and then he just... He never filed for personal bankruptcy, and he just gave them all the collateral. So a lot of these loans went away, and so he was very surprised when he was indicted, and then arrested at his home or something like that. So, all of that. I mean, he was just so emotionally charged as you can imagine because he thought, "These banks were made whole. I don't understand what the problem is."
So I start going through the bank statements, and there were over 20,000 pages of documents in this case because it's a federally-prosecuted case and all these banks are involved. I started looking at where the money was going from the business. I could see the loan funds being deposited, and then looking to see how it was being spent. I couldn't see any that were going to my client, like purchasing a car, or vacations, or anything like that. These loan funds weren't being used that way. He said, and of course, this is several years after the fact because the government had four or five years to investigate this before he knew about it. So he is looking back, and he's like, "I always thought that my general manager might have been stealing money from me, but I have no way to prove it."
So I'm keeping that in mind as I'm looking at all this stuff, and I did end up finding not necessarily where the general manager had stolen money specifically because we're still working on a limited budget here for the subject for the defendant, but I did see where the general manager had actually made some of the advances that my client was being charged with in this indictment, and I thought, "Okay. How are you going to charge my client?" On some of the emails, my client wasn't even copied on the email that requested the advances that were listed in the indictment. So, for me, that was like, "Okay. We definitely need to question these." Right?
So, one day, I asked... and just talking with the attorney. She said, "Do you think you can go over and meet with the FBI agent who investigated this case and the two assistant or the assistant US attorney and one of the IRS agents, criminal IRS agents?" He said, "Yeah. Sure." So I took a retired FBI agent from my contacts here in Tulsa, and I said, "Let's go over, and let's just ask questions." Well, actually, I couldn't ask questions. I was supposed to go over there. My instructions from the attorney were, "Go to Arkansas, talk to these people, and see how they determined this loss of $7 million." I said, "Okay," and they said, "Don't give away anything. Don't say anything." So I didn't really know how this conversation was supposed to happen, but I go over, and I just said, "Can you explain to me where this loss came from?" Basically, the government had compiled the loss from a collection of suspicious activity reports, but suspicious activity reports are just suspicious. They're not evidence.
Tracy Coenen:
They're not evidence. They didn't do their job.
Leah Wietholter:
And suspicious activity reports throughout the course of this case, I don't know if anybody else has had a different experience, but we were actually told that because SARs are so protected, that we couldn't even look at, as part of evidence, the SARs that brought the accusation against my client, which just seems very un-American. Well, that's another discussion for another day that I can't look at the thing that's accused me. Right? Anyway, so they say, "We've basically done this, this, and this, but we're happy. If he'll plead to $3 to $5 million, we can get him three to five years." I said, "Well, I'm not the attorney, but I just have one question before I leave." I was nervous to ask it, but I had to. I looked at the FBI agent. I said, "Have you traced any of these loan proceeds to my client's account or to his benefit?" I am not kidding you. The agent looked across the table at me and said, "We will if we have to," and I knew right then, "All right. You don't know what this loss is either."
So, I went back. I mean, conversation is over at this point, in my opinion. So, we leave. I tell the attorney, and I said, "I think game on." Right? A week or two later, the government came back. We went from a 12-count indictment to a 5-count indictment, and that is ultimately what we went to trial on. It was a week-long trial, and actually, they got a special provision or whatever for me to actually sit at the table with the defendant because I was the person that knew what was in all of the discovery and all those records, and so we ended up... My client was convicted of two counts, but only one count that had money associated with it, some sort of loss. That was when he used, and he admitted that he did this, that he had used loan proceeds from his business to buy a vacation home in Montana.
The plan was that he was going to pay it back once he got it financed because it was like it is right now. Right? You got to buy a house instantly or you're going to lose it. It was that kind of market, and so he used those funds. Well, before he could get that house mortgaged and pay it back, that's when his notes were called. So that's what he was convicted of, and when we went to sentencing, I testified because the bank had actually applied the wrong collateral to the various loans. So they had applied collateral that should have offset this $500,000 house payment or to purchase this house. They had actually used the collateral for that loan on another loan. So, once I untangled it, the bank had only lost $46,000.
I feel like I can say this on the podcast because it was a public courtroom when this was said, and it's probably in a transcript somewhere that somebody can get. So I testified to this $46,000 loss, but we had just spent a week in trial, right, over these five counts and... a jury trial, and the government said that the loss was $480,000. I was saying it was $46,000, $48,000, and the judge said... When it was time for sentencing, he said, "I'm going to sentence you to one year of prison in El Reno," or something, and then he said, "The restitution amount, while I appreciate Mrs. Wietholter's diligence and care to determine this... I don't know why the bank did what it did, but I believe her number diminishes the seriousness of the crime, and so the restitution is $480,000."
Tracy Coenen:
That's so incorrect. That's so wrong.
Leah Wietholter:
That moment really changed my life forever and really changed how I viewed these cases. I mean, I've got so many others. So my client did his time for a year, and then is still, I'm sure, paying back the $480,000, but because we'd spent a whole week at trial over $46,000, that wasn't going to look right. So, yeah.
Tracy Coenen:
So interesting that you can make restitution be a false number because you want it to be something else.
Leah Wietholter:
At that point, I mean, it is in the federal system. It's pretty tricky to then get a sentence reversed, plus all the money that you have to spend to do that. He had spent so much money just going to trial, but they wouldn't offer him a better deal than three to five years. So he ultimately ended up with a better deal and didn't have restitution of $3 to $5 million. But anyway, I just don't think it ever hurts in a white-collar or any type of financial fraud case when somebody has been accused to just ask the government, "How did you calculate this?" and then run that by someone who normally does that calculation.
That's a calculation that I normally do when my client is the victim. So just run it by someone who does that daily, and then find out, "Oh, they based it on suspicious activity reports? We got to go to trial on this. They didn't even trace this to your account? To prove fraud, you have to have intent and benefit. They didn't trace it to your account. There is no benefit that they have calculated." So anyway, we could go on and on, but that's one of my favorite criminal...
Tracy Coenen:
It's so interesting. I'm working on a case right now that's a Ponzi scheme that I didn't want to go into in detail because it is an active case, but what's been really interesting is the whole deal in this case is how much have investors lost because of my client's actions. It's interesting because the government was, for a very long time, taking certain money that the investors received back and saying, "That doesn't count. That doesn't reduce their loss," and they had all these reasons for doing it. We kept standing our grounds saying, "At the end of the day, your calculated loss isn't really a loss because they received all these other monies," and they're finally listening and finally considering these other monies, and so it's really interesting. My client may or may not have done wrong, but let's hold him accountable for the right numbers.
Leah Wietholter:
Right. Exactly. Yeah. What was his actual benefit or at the expense of others? Well, this has been such an interesting conversation. Great stories. Thank you so much. It was so wonderful having you again. So, once again, just in case this is the first episode somebody is listening to with the two of you on here, Tracy, what's the best way for somebody to contact you?
Tracy Coenen:
So you can find me on LinkedIn. Just look for Tracy Coenen, or at my company's website. My company is Sequence Inc. Forensic Accounting, and the website is sequenceinc.com.
Leah Wietholter:
What about you, Mary?
Mary Breslin:
Same. I'm easy to find on LinkedIn, Mary Breslin, and you can also find me at my company's website, which is Verracy. It's V-E-R-R-A-C-Y.
Leah Wietholter:
Well, thank you both so much for your time.
Tracy Coenen:
Thank you.
Mary Breslin:
Thank you again, Leah.
Leah Wietholter:
Thank you for listening to The Investigation Game Podcast. If you enjoyed this episode, please leave us a review wherever you listen. The Investigation Game Podcast is a production of Workman Forensics in Tulsa, Oklahoma. To learn more about our investigation services and resources, please visit workmanforensics.com. If you have an investigation case story you'd like to share on a future episode, please email us at podcast@workmanforensics.com.