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U.S. v. BARCLAY

June 4, 2004.

UNITED STATES OF AMERICA, -against- BERYL BARCLAY, Defendant


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

SENTENCING OPINION

On January 29, 2004, the defendant Beryl Barclay ("Barclay") was convicted of one count of Conspiracy to Commit Bank Fraud in violation of 18 U.S.C. § 371 and one count of Bank Fraud, in violation of 18 U.S.C. § 1344 after a jury trial.

The Offense Conduct

  This statement of facts draws on the Presentence Investigation Report prepared by the U.S. Probation Office.

  In January 2002, a Postal Inspector with the United States Postal Inspection Service and other postal inspectors spoke with an investigator at J.P. Morgan Chase ("Chase") who informed inspectors of the following: On December 31, 2001, a check in the amount of $117,038 dated December 14, 2001 (the "12/14 Check") was deposited into an account at Chase in the name of "Omjavi Corp" (the "Omjavi Account"). The payor of the 12/14 Check was an insurance company located in New York, New York. In the payee section of the 12/14 Check, the name "Omjavi Corp." appeared, with a Brooklyn address. A representative of the insurance company informed the Investigator that "Omjavi Corp." was not the intended payee of the 12/14 Check, and that the information in the payee section of that check had been altered.

  On October 12, 2001, a United States Treasury check issued out of Denver, Colorado, in the amount of $103,575, and dated September 20, 2001 (the "9/20 Check") was deposited into the Omjavi Account. In the payee section of the 9/20 Check, the following appeared in typeface on the top line: "Omjavi Corp. C/O." Below that, the following appeared in a visibly different typeface: "NYS Income Tax, Processing Unit, PO Box 3967, New York, N.Y. 10008-3967." A representative of the accounting office of the United States Government that issued the 9/20 Check, confirmed that "Omjavi Corp." was not the intended payee of that check, and that the information in the payee section of that check was altered.

  The Omjavi Account was opened on October 5, 2001, at a Chase branch in Manhattan with a business signature card in the name of "Omjavi, Inc." Barclay was listed on the business signature card as the president of "Omjavi, Inc." Her signature also appeared on the business signature card. Another individual was listed as the vice president of "Omjavi, Inc." on the business signature card.

  On the account opening document that was submitted for the Omjavi Account, an address in the Bronx was provided as the primary address of "Omjavi, Inc." In the section entitled Principal Officers, Partners or Proprietors, on that same document, Barclay's home address was listed as the same address as that of Omjavi, Inc.

  Between October 5, 2001 and February 25, 2002, the following were the only deposits made into the Omjavi Account: On October 9, 2001, the deposit of one cent; on October 12, 2001, the deposit of the 9/20 Check for $103,575, at a Chase Branch in Brooklyn, New York; on November 14, 2001, the deposit of $100; and on December 31, 2001, the deposit of the 12/14 Check for $117,038 at a Chase branch in Manhattan.

  After the 9/20 Check for $103,575 was deposited on October 12, 2001, the bank records revealed that between October 12, 2001, and November 26, 2001, about 10 checks were written off of the Omjavi Account totaling $103,500. Of these ten checks, about five checks, ranging from $1,500, to $9,800, were written to "cash" and endorsed on the back by "Beryl Barclay." The endorsement signature on the back matched the signature of Barclay on the account opening documents for the Omjavi Account.

  Two of the ten checks were written to "Beryl Barclay," one for $23,000 and one for $2,000. These checks were signed by the Vice President. The endorsement signature on the back matched the signature of Barclay on the account opening documents for the Omjavi Account.

  Three of the ten checks were written to three different individuals. These checks ranged in amount from $7,000 to $20,700. Each of these checks appeared to be signed by Barclay with the same signature matching the signature on the account opening documents for the Omjavi Account.

  The balance on the Omjavi Account on November 26, 2001, was approximately $75. After the 12/14 Check for $117,038 was deposited on December 31, 2001, between January 1, 2001, and February 25, 2002, about twelve checks were written off of the Omjavi Account totaling approximately $107,000. Of these twelve checks, approximately two checks, for approximately $7,500 and $8,500 respectively, were written to "Cash" and endorsed on the back by "Beryl Barclay" with a signature matching the signature of Barclay on the account opening documents for the Omjavi Account. The other ten checks written off of the Omjavi Account ranged in amount from $5,000 to $15,000. These checks were written to eight different individuals. Each of these checks appeared to be signed by Barclay with the signature matching the signature on the account opening documents for the Omjavi Account.

  The balance on the Omjavi Account as of January 16, 2002, when the account was frozen by Chase, was approximately $389.

  When the postal inspector visited the Bronx address listed as the address of "Omjavi, Inc." on the checks related to the Omjavi Account and the account documents submitted to Chase, Barclay ...


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