USA v. Ofer Biton EB-5 Visa Fraud complaint 8-13-2012
 

USA v. Ofer Biton EB-5 Visa Fraud complaint 8-13-2012

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USA v. Ofer Biton EB-5 Visa Fraud complaint 8-13-2012 USA v. Ofer Biton EB-5 Visa Fraud complaint 8-13-2012 Document Transcript

  • criminal-complaint-us-v-ofer-biton-8-2012.pdf as found online for free at this linkRAB:AMCF.#2010R00532UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK - XUNITED STATES OF AMERICA COMPLAINT - against - (T. 18, U.S.C., §§ 371OFER BITON, and 3551 et ~.) Defendant. - - - - XEASTERN DISTRICT OF NEW YORK, SS: ROLAND D. FERIA, being duly sworn, deposes and statesthat he is a Special Agent with Federal Bureau of Investigation,duly appointed according to law and acting as such. There is probable cause to believe that in or about andbetween April 2010 and June 2010, both dates being approximateand inclusive, within the Eastern District of New York andelsewhere, the defendant OFER BITON, together with others, didknowingly and willfully conspire to subscribe to as true, underpenalty of perjury under Title 28, United States Code, Section1746, one or more false statements with respect to material factsin an application, affidavit and other documents required by theimmigration laws and regulations prescribed thereunder, to wit:United States Citizenship and Immigration Services Form I-526,Petition by Alien Entrepreneur, a memorandum in support of the I-526 Petition and the exhibits attached thereto, in violation of
  • 2Title 18, United States Code, .Section 1546(a). And, infurtherance of the conspiracy and to effect its objects, withinthe Eastern District of New York and elsewhere, the defendantOFER BITON, together with others, committed and caused to becommitted, overt acts as described herein. (Title 18, United States Code, Section 371 and 3551 etseg.) The source of your deponents information and thegrounds for his belief are as follows:!/ 3. I am familiar with the facts and circumstances setforth below based on my own first-hand knowledge, as well as fromdiscussions with, and reading the reports of, other lawenforcement officers, and through my review of the documents andother evidence. INA 203(b)(5) = 8 USC 1153(b)(5) at the below link. 4. Section 203(b) (5) of the Immigration andNationality Act permits aliens to apply for United States visasif they invest in commercial enterprises for the purpose ofcreating employment for United States citizens or otherimmigrants lawfully authorized to be employed in the UnitedStates. To apply for status as an alien entrepreneur, a personmust submit to the United States Citizenship and Immigration 11 Because the purpose of this Complaint is to set forthonly those facts necessary to establish probable cause to arrest,I have not described all the relevant facts and circumstances ofwhich I am aware.
  • 3Services ("CIS") a CIS Form I-526, Petition by Alien Entrepreneur(the "I-526 Petition"). 5. On or about June 3, 2010, a lawyer for OFER BITON,on behalf of OFER BITON, submitted to the United StatesCitizenship and Immigration Services ("CIS") an I-526 Petitionfor BITON (the "BITON I-526 Petition"), a memorandum in supportof the I-526 Petition (the "BITON I-526 Memorandum"), andexhibits. The BITON I-526 Memorandum indicated that on May 7,2010, BITON had invested $500,000 in a business located in theUnited States, and stated: Mr. Biton obtained captial for his $500,000 investment from funds in his HSBC Premier checking account .... Of those funds, $400,000 were from a personal loan that a family friend [Witness #1], had given to Mr. Biton, and $100,000 from funds that he had accumulated from his employment, income, savings and investments. 6. The exhibits submitted with the BITON I-526Petition included (i) a receipt from a title company indicatingthe receipt of $500,000 on May 7, 2010 in the title companystrust account, and (ii) an HSBC Premier Checking account("BITONs HSBC Account") statement in the name of OFER BITON thatindicated that $500,000 had been wired to the title companystrust account. 7. The BITON I-526 Memorandum further explained thesource of $400,000 invested by BITON:
  • 4 The bulk of the funds for Mr. Bitons investment come from a personal loan of $400,000 that Mr. Bitons friend [Witness #1], has lent to him. [Witness #1] is the Chairman and Chief Executive Officer of [Company A] and the funds lent to Mr. Biton come from [Witness #1s] personal accounts. 8. Exhibit number 6 to the BITON I-526 Petition is apromissory note dated April 28, 2010 signed by OFER BITON. Thepromissory note states that BITON owed Witness #1 $400,000 andthat the "entire principal and accrued interest shall be due andpayable on May 1, 2012." The promissory note was notarized by anotary public in the State of Florida.±1 9. Exhibit numbers 8 and 9 to the BITON I-526Petition included income tax returns for Witness #1 andinformation related to Witness #1s company, Company A. Witness#1s income tax returns reported income far in excess of the$400,000 that OFER BITON claimed he received from Witness #1. 10. The BITON I-526 Petition also contained acertification stating, "I certify, under penalty of perjury underthe laws of the United States of America, that this petition andthe evidence submitted with it is all true and correct." Thecertification is signed and dated May 7, 2010. 2 According to American Express records, OFER BITONtraveled from LaGuardia Airport, located in Queens, New York toFort Lauderdale, Florida on Jet Blue Airways on April 28, 2010.
  • 5 11. Witness #1 stated that the $400,000 that Witness#1 gave to OFER BITON was not a personal loan. Rather, justprior to giving the money to BITON, Witness #1 received the$400,000 from another individual, Coconspirator #1. Prior tothis transfer, Witness #1 stated that BITON asked Witness #1 totake the $400,000 from Coconspirator #1 and then wire the samefunds to BITON so that it would appear that Witness #1 wasloaning Witness #1s money to BITON. BITON explained to Witness#1 that Coconspirator #1 did not want to provide income taxreturns to the government. BITON also told Witness #1 that the$400,000 he would receive included money belonging to anotherindividual, Witness #2.2/ The $400,000 was thus not a loan fromWitness #1 to BITON, and Witness #1 stated that Biton neitherrepaid Witness #1 the $400,000 by May 1, 2012 (as specified inthe April 28, 2010 promissory note), nor has BITON repaid any ofthe $400,000 or interest to Witness #1 in the time since.Witness #1 further stated that BITON never provided him with apromissory note for $400,000. 12. Records from a Wachovia Bank account used byWitness #1 ("Witness #1s Account") indicate that on or about May3, 2010, Witness #1s Account·received a wire transfer for$320,000 from a company owned by Coconspirator #1 ("Company B")Witness #1s Account records also show that on or about May 6, 3 Witness #2 is now deceased.
  • 62010, a check for $80,000 from Coconspirator #1, which was drawnagainst an account at JP Morgan Chase in the name ofCoconspirator #1, was deposited in Witness #ls Account.Finally, Witness #ls Account records indicate that $320,000 and$80,000 were wire transferred from Witness #ls Account toElTONs HSBC Account on or about May 4, 2010 and May 6, 2010,respectively. 13. An individual, Witness #3 stated that on or aboutMay 4 to May 6, 2010, another individual, Witness #4, causedthree checks totaling $380,000, in amounts of $150,000, $135,000and $95,000, to be deposited into an account controlled byCoconspirator #1. Witness #4 stated that BITON and Coconspirator#1 demanded that Witness #4 make the transfer of funds becauseBITON and Coconspirator #1 claimed that such funds were owed toBITON by Witness #4. Thus, at least $380,000 of the above-mentioned $400,000 that BITON claimed to be a loan from Witness#1 was, in fact, money Witness #4 transferred to BITON viaCoconspirator #1. WHEREFORE, your deponent respectfully submits thatthere is probable cause to believe that OFER BITON, together withothers, did knowingly and willfully conspire to subscribe to astrue, under penalty of perjury under Title 28, United StatesCode, Section 1746, one or more false statements with respect tomaterial facts in an application, affidavit and other documents
  • 7required by the immigration laws and regulations prescribedthereunder, to wit: United States Citizenship and ImmigrationServices Form I-526, Petition by Alien Entrepreneur, a memorandumin support of the I-526 Petition and the exhibits attachedthereto, in violation of Title 18, United States Code, Section1546(a). And, in furtherance of the conspiracy and to effect itsobjects, within the Eastern District of New York and elsewhere,the defendant OFER BITON, together with others, committed andcaused to be committed, among others, the following: OVERT ACTS a. On or about April 28, 2010, OFER BITONtraveled from the LaGuardia Airport, located in Queens, New Yorkto Fort Lauderdale, Florida. b. On or about April 28, 2010, OFER BITON causedto be notarized a promissory note for $400,000, in connectionwith the BITON I-526 Petition. c. On or about May 7, 2010, OFER BITON caused$500,000 to be wire transferred to a title companys trustaccount. d. On about June 3, 2010, a lawyer for OFERBITON submitted to CIS the BITON I-526 Petition, the BITON I-526Memorandum and exhibits.
  • 8 Your deponent respectfully requests that the defendant OFER BITON be dealt with according to law/ / ROLMmfD. FERIA / " Special Agent Federal Bureau of Investigation Sworn to 13th day o JUDGE EASTERN DISTRIC YORKAs for the broader impact and significance of this "Complaint", you should notice that itinvolves one EB-5 investor with dirty money. IF he is/was affiliated with a RegionalCenter (I do not know if he was or not, and if so which one) then this has got to hurt notonly that RC (if any) but any other investors in that project both EB-5 and domestic. It iscertainly something to think long and hard about. It certainly makes one rethink their"Due Diligence" obligations, techniques, processes, procedures, and precautions formthemselves and ALL potential investors in a project!____________________________________________________________________________EB-5 law demands that ONLY "lawful funds" be used in these ventures and that theinvestor prove that ALL the funds in an entire EB-5 Funded Project are clean! The EB-5Project consists of the collective job-creating activities that are joined by RegionalCenter "affiliation" and have a "palpable connectivity" (nexus) which YOU went to greatpains to demonstrate. Be very careful about who and what you seek to include. Forcertain purposes--you may be "joined at the hip" with someone heading to prison andruin and may be taking you along for that dreadful ride---ALL DOWNHILL at break-neckspeed. Dare I say, the tainted investor (weakest link) may take you to hell in a basket.....
  • UNITED STATES DiSTRICT COURT_ _ _ _ _ _ _ ___,E,_!A:1:S><.T.!.-"E!.:R"-~-l- - - - - DISTRICT OF _ _ _ _ __,_,N. ,E,_,1J"-/_Y,_,O,_,_,Re.:K,___ _ _ _ __ UNITED STATES OF AMERICA f. WARRANT FOR ARREST OFER BTION CASE NUMBER: DEFENDANT.TO: SPECIAL AGENT ROLF~~D D. FERIA , and any Authorized United States OfficialYOU ARE HEREBY COMMANDED to arrest _O_F_E_R_B_I_T_O_N _- - : - : - - - - - - - - - - - - _ Nameand bring him or her forthwith to the nearest magistrate to answer a(n)D Indictment Dlnformation[{bomplaintDorder of Court Dviolation Notice DProbation Violation Petitioncharging him or her with (brief description of offense) VISA FR..liUD United States Code, Section(s) __ 6 1_5_"_-_ _<_a_l____ UNITED STATES ~~GISTRATName of lssuin Title of Issuing Officer BROOKLYN, N.Y.Signature of Issuing Date and LocationBail fixed a t $ - - - - - - - - - - - - - - By - - - - - - - - - - - - - - - - - - - - - - - - - - - RETURN This w2rrant was received and executed with the arrest of the 2bove-named defendant at DATE RECEIVED NAME AND TITLE OF ARRESTING SIGNATURE OF ARRESTING OFFICER OFFICER DATE OF ARREST
  • 18 U.S.C. United States Code, 2011 Edition Title 18 - CRIMES AND CRIMINAL PROCEDURE PART I - CRIMES CHAPTER 75 - PASSPORTS AND VISAS Sec. 1546 - Fraud and misuse of visas, permits, and other documents From the U.S. Government Printing Office, www.gpo.gov§1546. Fraud and misuse of visas, permits, and other documents (a) Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained; or Whoever, except under direction of the Attorney General or the Commissioner of the Immigration and Naturalization Service, or other proper officer, knowingly possesses any blank permit, or engraves, sells, brings into the United States, or has in his control or possession any plate in the likeness of a plate designed for the printing of permits, or makes any print, photograph, or impression in the likeness of any immigrant or nonimmigrant visa, permit or other document required for entry into the United States, or has in his possession a distinctive paper which has been adopted by the Attorney General or the Commissioner of the Immigration and Naturalization Service for the printing of such visas, permits, or documents; or Whoever, when applying for an immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or for admission to the United States personates another, or falsely appears in the name of a deceased individual, or evades or attempts to evade the immigration laws by appearing under an assumed or fictitious name without disclosing his true identity, or sells or otherwise disposes of, or offers to sell or otherwise dispose of, or utters, such visa, permit, or other document, to any person not authorized by law to receive such document; or Whoever knowingly makes under oath, or as permitted under penalty of perjury under section 1746 of title 28, United States Code, knowingly subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact—
  • Shall be fined under this title or imprisoned not more than 25 years (if the offensewas committed to facilitate an act of international terrorism (as defined in section2331 of this title)), 20 years (if the offense was committed to facilitate a drugtrafficking crime (as defined in section 929(a) of this title)), 10 years (in the case ofthe first or second such offense, if the offense was not committed to facilitate such anact of international terrorism or a drug trafficking crime), or 15 years (in the case ofany other offense), or both. (b) Whoever uses— (1) an identification document, knowing (or having reason to know) that the document was not issued lawfully for the use of the possessor, (2) an identification document knowing (or having reason to know) that the document is false, or (3) a false attestation, for the purpose of satisfying a requirement of section 274A(b) of the Immigrationand Nationality Act, shall be fined under this title, imprisoned not more than 5 years,or both. (c) This section does not prohibit any lawfully authorized investigative, protective,or intelligence activity of a law enforcement agency of the United States, a State, or asubdivision of a State, or of an intelligence agency of the United States, or anyactivity authorized under title V of the Organized Crime Control Act of 1970(18 U.S.C. note prec. 3481).1 For purposes of this section, the term “State” means aState of the United States, the District of Columbia, and any commonwealth, territory,or possession of the United States.(June 25, 1948, ch. 645, 62 Stat. 771; June 27, 1952, ch. 477, title IV, §402(a), 66Stat. 275; Pub. L. 94–550, §5, Oct. 18, 1976, 90 Stat. 2535; Pub. L. 99–603, title I,§103(a), Nov. 6, 1986, 100 Stat. 3380; Pub. L. 100–525, §2(c), Oct. 24, 1988, 102Stat. 2610; Pub. L. 101–647, title XXXV, §3550, Nov. 29, 1990, 104 Stat. 4926; Pub.L. 103–322, title XIII, §130009(a)(4), (5), title XXXIII, §330011(p), Sept. 13, 1994,108 Stat. 2030, 2145; Pub. L. 104–208, div. C, title II, §§211(a)(2), 214, Sept. 30,1996, 110 Stat. 3009–569, 3009–572; Pub. L. 104–294, title VI, §607(m), Oct. 11,1996, 110 Stat. 3512; Pub. L. 107–273, div. B, title IV, §4002(a)(3), Nov. 2, 2002,116 Stat. 1806.) HISTORICAL AND REVISION NOTES Based on section 220 of title 8, U.S.C., 1940 ed., Aliens and Nationality (May 26, 1924, ch. 190, §22,43 Stat. 165). Words “upon conviction thereof” were omitted as surplusage since punishment can be imposed onlyafter a conviction. Fine of $10,000 was reduced to $2,000 to conform with sections embracing offences of comparablegravity. Minor changes were made in phraseology.
  • REFERENCES IN TEXT The immigration laws, referred to in subsec. (a), are classified generally to Title 8, Aliens andNationality. See also section 1101(a)(17) of Title 8. Section 274A(b) of the Immigration and Nationality Act, referred to in subsec. (b), is classified tosection 1324a(b) of Title 8. Title V of the Organized Crime Control Act of 1970, referred to in subsec. (c), is title V of Pub. L. 91–452, Oct. 15, 1970, 84 Stat. 933, which was set out as a note preceding section 3481 of this title, and wasrepealed by Pub. L. 98–473, title II, §1209(b), Oct. 12, 1984, 98 Stat. 2163. See section 3521 et seq. ofthis title. AMENDMENTS 2002—Subsec. (a). Pub. L. 107–273 substituted “to facilitate” for “to facility” in concluding par. 1996—Subsec. (a). Pub. L. 104–208 substituted “which contains any such false statement or whichfails to contain any reasonable basis in law or fact” for “containing any such false statement” in fourthpar. and “imprisoned not more than 25 years (if the offense was committed to facilitate an act ofinternational terrorism (as defined in section 2331 of this title)), 20 years (if the offense was committed tofacilitate a drug trafficking crime (as defined in section 929(a) of this title)), 10 years (in the case of thefirst or second such offense, if the offense was not committed to facility such an act of internationalterrorism or a drug trafficking crime), or 15 years (in the case of any other offense)” for “imprisoned notmore than 10 years” in concluding par. Subsec. (c). Pub. L. 104–294 inserted at end “For purposes of this section, the term ‘State’ means aState of the United States, the District of Columbia, and any commonwealth, territory, or possession ofthe United States.” 1994—Subsec. (a). Pub. L. 103–322, §330011(p), amended directory language of Pub. L. 101–647,§3550. See 1990 Amendment note below. Pub. L. 103–322, §130009(a)(4), substituted “10 years” for “five years” in concluding par. Subsec. (b). Pub. L. 103–322, §130009(a)(5), in concluding provisions, substituted “under this title,imprisoned not more than 5 years” for “in accordance with this title, or imprisoned not more than twoyears”. 1990—Subsec. (a). Pub. L. 101–647, §3550, as amended by Pub. L. 103–322, §330011(p), substituted“Shall be fined under this title” for “Shall be fined in accordance with this title” in concluding par. 1988—Pub. L. 100–525 amended Pub. L. 99–603. See 1986 Amendment note below. 1986—Pub. L. 99–603, as amended by Pub. L. 100–525, substituted “other documents” for “otherentry documents” in section catchline, designated existing provisions as subsec. (a), substituted “permit,border crossing card, alien registration receipt card, or other document prescribed by statute or regulationfor entry into or as evidence of authorized stay or employment in the United States” for “or otherdocument required for entry into the United States” and for “or document” in first par., substituted “inaccordance with this title” for “not more than $2,000” in concluding par., and added subsecs. (b) and (c). 1976—Pub. L. 94–550 inserted “, or as permitted under penalty of perjury under section 1746 of title28, United States Code, knowingly subscribes as true,” after “Whoever knowingly makes under oath” infourth par. 1952—Act June 27, 1952, made section applicable to entry documents other than visas and permits. EFFECTIVE DATE OF 1996 AMENDMENT Amendment by section 211(a)(2) of Pub. L. 104–208 applicable with respect to offenses occurring onor after Sept. 30, 1996, see section 211(c) of Pub. L. 104–208, set out as a note under section 1028 of thistitle. EFFECTIVE DATE OF 1994 AMENDMENT Section 330011(p) of Pub. L. 103–322 provided that the amendment made by that section is effectiveas of the date on which section 3550 of Pub. L. 101–647 took effect.
  • EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–525 effective as if included in enactment of Immigration Reform andControl Act of 1986, Pub. L. 99–603, see section 2(s) of Pub. L. 100–525, set out as a note under section1101 of Title 8, Aliens and Nationality. TRANSFER OF FUNCTIONS Functions vested by law in Attorney General, Department of Justice, or any other officer or any agencyof that Department, with respect to the inspection at regular inspection locations at ports of entry ofpersons, and documents of persons, entering or leaving the United States, were to have been transferred toSecretary of the Treasury by 1973 Reorg. Plan No. 2, §2, eff. July 1, 1973, 38 F.R. 15932, 87 Stat. 1091,set out in the Appendix to Title 5, Government Organization and Employees. The transfer was negated bysection 1(a)(1), (b) of Pub. L. 93–253, Mar. 16, 1974, 88 Stat. 50, which repealed section 2 of 1973Reorg. Plan No. 2, eff. July 1, 1973. ABOLITION OF IMMIGRATION AND NATURALIZATION SERVICE AND TRANSFER OF FUNCTIONS For abolition of Immigration and Naturalization Service, transfer of functions, and treatment of relatedreferences, see note set out under section 1551 of Title 8, Aliens and Nationality. 1 See References in Text note below.