Some folks just don't know when to quit. Some folks, however, just don't want to quit. And then, of course, you got your folks who want to quit but don't know how. When it comes to convicted securities fraud felons, the BrokeAndBroker.com Blog has reported about many such felons who persist in doing whatever it takes to remain in the securities industry despite the efforts of the Securities and Exchange Commission (or in spite of such efforts or the lack thereof). In today's installment of this series, we present yet another inveterate inmate.
PLANO, TX-A 58-year-old Pasadena, Texas man has been found guilty of investment fraud charges in the Eastern District of Texas, announced U.S. Attorney John M. Bales today.A federal jury needed just six minutes to convict Gary Lynn McDuff of conspiring to defraud investors of over $11 million in connection with an investment fraud scheme and laundering the proceeds. The verdict was handed down on March 27, 2013, following a two-day trial before U.S. District Judge Richard A. Schell. McDuff's co-conspirators, Gary Lancaster, 61, of Oregon, and Robert Reese, deceased, of Carmel, California, previously pleaded guilty and were sentenced to federal prison for their roles in the scheme.According to information presented in court, McDuff and Lancaster agreed to create the Lancorp Investment Fund, to draft a prospectus for the fund, and to solicit investments from individuals across the United States. While McDuff controlled the operation, Lancaster agreed to serve as the "front" since McDuff could not possess a securities license or sell securities because of a past felony conviction. McDuff recruited Reese to also sell the investment, despite the fact that Reese had been barred by the State of California from selling securities based on past fraudulent conduct. McDuff, Lancaster, and Reese made numerous false representations to their investors in order to induce payments, including representations that the fund would only invest in A+ or A1 rated bonds, that the principal of each investment would be insured and never at risk, and that Lancaster had experience operating this type of investment. McDuff, Lancaster, and Reese never disclosed McDuff's felony conviction or Reese's securities ban. McDuff then laundered the criminal proceeds in order to promote the operation of the fraudulent scheme.McDuff faces up to 20 years in federal prison on each count of conviction . . .
In its complaint, the Commission alleges that in early 2003, Lancaster created the Lancorp Fund at McDuff's direction. McDuff and Lancaster then created a materially false and misleading Private Placement Memorandum (PPM) for the Lancorp Fund, and between at least March 2003 and July 2005, Reese, McDuff and Lancaster offered and sold interests in the Lancorp Fund with false promises concerning the permissible investments, the payment of commissions, and the payment of management fees. Instead, the Complaint alleges that the defendants directed the Lancorp Fund to invest over $9 million in a fraudulent, high-yield Ponzi scheme, paid McDuff and Reese over $300,000 in undisclosed commissions, and paid Lancaster a management fee well in excess of that allowed by the PPM.The Complaint alleges that McDuff, Lancaster, and Reese violated Sections 5(a), 5(c) and 17(a) or the Securities Act of 1933 (Securities Act), and Sections 10(b) and 15(a) of the Securities Exchange Act of 1934 (Exchange Act) and Rule 10b-5 thereunder. The Complaint also alleges that Lancaster violated Sections 206(1) and 206(2) of the Investment Advisers Act of 1940 (Advisers Act), and that McDuff and Reese aided and abetted Lancaster's Advisers Act violations. The Complaint seeks permanent injunctions, disgorgement together with prejudgment interest, and civil penalties.Without admitting or denying the allegations set forth in the Complaint, defendants Lancaster and Reese have consented to the entry of a final judgment permanently enjoining them from engaging in the violations set forth above. Lancaster has agreed to an order finding him liable for disgorgement of $336,229, plus prejudgment interest of $56,156.39, and Reese has agreed to an order finding him liable for disgorgement of $26,792, plus prejudgment interest of $4,474.75. However, payment of those amounts will be waived, and no civil penalties imposed, based on their respective sworn statements of financial condition and other documents. The Commission's action against McDuff is continuing.
The Commission instituted this follow-on proceeding on February 21, 2014, alleging that McDuff had been permanently enjoined by a U.S. district court from future violations of Securities Act Sections 5(a), 5(c), and 17(a); Exchange Act Sections 10(b) and 15(a); and Exchange Act Rule 10b-5.The injunction stemmed from a civil complaint that the Commission filed on March 26, 2008.The Commission alleged in the civil complaint that McDuff was the "mastermind" behind a wide-ranging scheme to defraud investors. McDuff allegedly created and operated Lancorp Financial Fund Business Trust ("Lancorp Fund"), an entity that McDuff misrepresented to investors as being an unregistered, closed-end, and non-diversified management investment company that invested solely in highly rated debt securities. But instead of investing in high-grade debt securities as promised, McDuff allegedly directed Lancorp Fund to invest in Megafund Corporation, a Ponzi scheme. McDuff also allegedly devised a scheme to circumvent a prohibition against Lancorp Fund's paying certain commissions by having an associate covertly pay McDuff and another associate more than $300,000.
McDuff failed to answer the complaint, and the Commission moved for default judgment of the federal securities laws and ordered him to disgorge $136,336 plus $65,004 in prejudgment interest and to pay a civil penalty of $125,000. McDuff did not appeal.
On August 13, 2009, McDuff was indicted in a related criminal proceeding, based on his involvement in the Lancorp Fund and Megafund was charged with laundering monetary instruments and conspiracy to commit wire fraud. A jury found McDuff guilty on both counts pursuant to a general jury verdict. On April 16, 2014, the district court sentenced McDuff to 300 months in prison and a three-year term of supervised release and ordered him to pay $6,563,179 in restitution. McDuff appealed his conviction; that appeal is pending before the U.S. Court of Appeals for the Fifth Circuit.
Pages 2 -3 of the Remand Order
Notwithstanding or in spite of McDuff's criminal conviction and the civil default judgment, the SEC reviewed ALJ Elliott's Initial Decision and ordered it vacated and remanded the matter:
Here, a jury convicted McDuff of conspiracy to commit wire fraud in a general verdict, which the jury could do without making a specific finding as to which, if any, of the alleged overt acts McDuff committed. And although the jury also returned a general verdict that McDuff committed money laundering, that verdict generally establishes only that McDuff caused a Megafund-controlled account to transfer illegal proceeds to a Lancorp-controlled account with the intent to promote the wire fraud. Under these circumstances, the law judge erred in relying on the allegations in the superseding indictment in his sanctions analysis. Therefore, if the law judge first determines that the statutory basis for imposing remedial sanctions is met, we direct the law judge on remand to admit and consider additional evidence to determine whether imposing such sanctions against McDuff is in the public interest.
Pages 6 -6 of the Remand Order
the jury also returned a general verdict that McDuff committed money laundering, that verdict generally establishes only that McDuff caused a Megafund-controlled account to transfer illegal proceeds to a Lancorp-controlled account with the intent to promote the wire fraud. . .
McUNITED STATES OF AMERICABefore the SECURITIES AND EXCHANGE COMMISSIONWashington, D.C. 20549ADMINISTRATIVE PROCEEDINGS RULINGSRelease No. 3632/February 22, 2016ADMINISTRATIVE PROCEEDINGFile No. 3-15764In the Matter of GARY L. MCDUFFORDER FOLLOWING PREHEARING CONFERENCEOn October 2, 2015, I denied the Division of Enforcement's summary disposition motion. Gary L. McDuff, Admin. Proc. Rulings Release No. 3190, 2015 SEC LEXIS 4040, at *24-25. On January 11, 2016, I denied Respondent Gary L. McDuff's summary disposition motion and directed that this matter proceed to a hearing. Gary L. McDuff, Admin. Proc. Rulings Release No. 3482, 2016 SEC LEXIS 82, at *5. As McDuff is currently incarcerated at FCI Beaumont Low, the parties both submitted letters regarding the logistics of holding a hearing.Both parties attended a telephonic prehearing conference on February 18, and the issue of hearing logistics was discussed. The parties agreed that, due to the institution's policies and procedures, it would be extremely difficult to hold the hearing at FCI Beaumont Low. McDuff did not consent to the Division's suggestion to instead hold the hearing via video teleconferencing. The Division raised the option of obtaining a writ of habeas corpus for McDuff and transferring him to a federal detention center with facilities capable of holding a live hearing. McDuff suggested the possibility of obtaining a furlough from prison in order to attend the hearing. Both parties indicated that they required more time to determine the feasibility of their suggestions.Accordingly, the parties are ORDERED to file status reports on their efforts by March 25, 2016.Cameron Elliot Administrative Law Judge
DAILY INMATE LIFESanitation- It is the inmate's responsibility to check his cell/cubicle immediately after being assigned there and to report any damage to the Unit Officer. An inmate may be held financially liable for any damage or contraband found in his cell/cubicle. Each inmate is responsible for making his bed in accordance with regulations before work call or when he leaves the area (including weekends and holidays) . Each inmate is also responsible for sweeping, mopping, and cleaning his personal cell/cubicle, removing trash, and ensuring it is clean and sanitary. Cleaning supplies will not be stored in rooms. Cardboard boxes and other paper containers are not to be used for storage due to their combustible nature. Lockers must be neatly arranged inside and out, and all shelving must be neat and clean. Wax will not be used for any cell/cubicle floors. Any inmate found using wax in their assigned cell/cubicle will be issued an incident report.A violation of any of these sanitation regulations at the Medium or Low Security Institution may result in disciplinary action including placement in a six-man cell.Monday through Friday, from 6:45 a.m. until 4:00 p.m., inmates outside of their assigned units (this includes all job assignments, Mainline, Educational activities, etc.) must be fully dressed in the appropriate issued uniform including work boots. All shirt tails will be kept tucked inside the waistband, and all uniforms must be the accurate size for each inmate. No sagging, bagging, and no sweat or casual clothing will be worn over the issued khaki attire. Khaki attire will be required for both breakfast and lunch, Monday through Friday. "Leisure" attire will be allowed in the dining hall for the evening meal, weekends, and holidays. All shirts must be tucked in when outside the unit, except when on the recreation yard. No hats and/or sunglasses are permitted to be worn inside buildings or under covered walkways. Approved religious head wear may be worn inside the Dining Hall.
Eureka! Telephonic Prehearing Conference HeldUNITED STATES OF AMERICABefore theSECURITIES AND EXCHANGE COMMISSIONWashington, D.C. 20549ADMINISTRATIVE PROCEEDINGS RULINGSRelease No. 3893/June 3, 2016ADMINISTRATIVE PROCEEDINGFile No. 3-15764In the Matter ofGARY L. MCDUFFORDERThe hearing in this proceeding is currently scheduled for June 15 through June 16, 2016,at FCI Beaumont, where Respondent Gary L. McDuff is currently incarcerated. Gary L. McDuff, Admin. Proc. Rulings Release No. 3787, 2016 SEC LEXIS 1405 (ALJ Apr. 18, 2016).On June 3, 2016, this office received a letter, written in Spanish and addressed to me,followed by twenty-seven pages of signatures. McDuff's name appears several times in the letter. Because the document is untranslated, I am unable to consider it. My office has forwarded a copy to the Division of Enforcement and the Office of the Secretary. If Respondent wishes for me to consider this document, he should have a translation provided to the Office of the Secretary and the Division, with a courtesy copy sent to me._______________________________Cameron ElliotAdministrative Law Judge
UNITED STATES OF AMERICABefore theSECURITIES AND EXCHANGE COMMISSIONWashington, D.C. 20549ADMINISTRATIVE PROCEEDINGS RULINGSRelease No. 3900/June 7, 2016ADMINISTRATIVE PROCEEDINGFile No. 3-15764In the Matter ofGARY L. MCDUFFORDER FOLLOWING PREHEARING CONFERENCEThe hearing in this proceeding is currently scheduled for June 15 through June 16, 2016, at FCI Beaumont, where Respondent Gary L. McDuff is currently incarcerated. Gary L. McDuff, Admin. Proc. Rulings Release No. 3787, 2016 SEC LEXIS 1405 (ALJ Apr. 18, 2016).A telephonic prehearing conference was held today, attended by the Division ofEnforcement and McDuff. I granted McDuff's request that members of the public be permitted to assist him at the hearing. I also respectfully request that the FCI Beaumont mailroom expedite delivery of boxes marked "special mail" to McDuff, and that the staff permit McDuff to have the assistance of other inmates to prepare for the hearing._______________________________Cameron ElliotAdministrative Law Judge