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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - X
UNITED STATES OF AMERICA
- against -
JOHN MARCIANO,
ROBERT OOSTERWYK and
JACOB AGAM,
Defendants.
I N D I C T M E N T
Cr. No. 04-667 (LDW)
(T. 15, U.S.C., §§ 78j(b)
and 78ff; T. 18, U.S.C., §§
371, 982, 1956(a)(1)(B)(i),
1956(h), 2 and 3551 et
seq.; T. 21, U.S.C., §
853(p))
- - - - - - - - - - - - - - - - X
THE GRAND JURY CHARGES:
INTRODUCTION
At all times relevant to this Indictment, unless
otherwise stated:
The Brokerage Firms
1. Royce Investment Group, Inc. (“Royce”) was a brokerdealer
of securities registered with the Securities and Exchange
Commission (“SEC”) and the National Association of Securities
Dealers, Inc. (“NASD”). Royce’s office was located in Westbury,
New York.
2. Royce underwrote initial public offerings (“IPOs”)
of securities, was a “market maker” in various securities and
offered a variety of brokerage services to retail customers. A
“market maker” facilitates trading in a security by setting price
quotations and holding itself out as prepared to buy and sell
2
certain quantities of the security for its own account. Royce
employed licensed stock brokers, also referred to as “registered
representatives,” who purchased and sold securities for Royce’s own
accounts, assisted Royce in making markets in securities and sold
securities to clients of Royce.
3. Kensington Wells, Inc. (“Kensington Wells”) was a
broker-dealer of securities registered with the SEC and NASD.
Kensington Wells’ principal office was located in Syosset, New
York. Kensington Wells employed licensed stock brokers, also
referred to as “registered representatives,” who purchased and sold
securities for Kensington Wells’ own accounts, assisted Kensington
Wells in making markets in securities and sold securities to
clients of Kensington Wells.
The Xybernaut IPO
4. Xybernaut, Inc. (“Xybernaut”), which originally was
named Computer Products and Services, was a Delaware corporation
organized in or about 1990 which purported to be involved in the
research, development and sale of wearable computer technology.
5. In or about and between November 1995 and April
1996, Xybernaut issued convertible notes, which are general debt
obligations of a company that can be exchanged for a set number of
shares of common stock or other securities. Xybernaut’s notes were
convertible into Xybernaut units, each of which was comprised of
one share of common stock and one warrant.
3
6. Xybernaut first issued units, common stock and
warrants to the public through an IPO which occurred on or about
July 18, 1996 (the “Xybernaut IPO” or the “IPO”), at which time
Xybernaut securities began trading publicly on the NASDAQ National
Market System (“NASDAQ”). Royce and Kensington Wells were the
underwriters of the Xybernaut IPO.
7. At the time of the Xybernaut IPO, the convertible
notes were converted into Xybernaut units which could be traded
publicly on NASDAQ.
8. In or about and between July 1996 and January 1997,
stock brokers employed at Royce and Kensington Wells solicited
retail clients to purchase Xybernaut securities.
The Defendants
9. In or about and between April 1987 and October 1999,
the defendant JOHN MARCIANO was registered with the NASD as one of
the principals of Royce. MARCIANO was the Chairman and Chief
Executive Officer of Royce. MARCIANO managed and supervised the
operations of Royce and made the major decisions regarding its
finances.
10. In or about and between 1983 and 2000, the defendant
ROBERT OOSTERWYK was a managing director of corporations (referred
to herein as “Front Corporations”) based in the Cayman Islands and
elsewhere, including Gateway Investments, Ltd. (“Gateway”),
Sunrise Holdings, Ltd. (“Sunrise”), Glen Eden, S.A. (“Glen Eden”),
4
Bunnick Holdings, Ltd. (“Bunnick”), Ashdown Holdings, Ltd.
(“Ashdown”), Medway Investments, Ltd. (“Medway”), Noord Holdings,
Ltd. (“Noord”) and Northwest Holdings, Ltd. (“Northwest”).
11. In or about and between 2001 and April 2004, the
defendant JACOB AGAM was a managing director of Front Corporations
in Europe, including Vertical Financial Holdings (“Vertical”) and
Horeb Holdings (“Horeb”).
The Fraudulent Scheme and Money Laundering
12. In or about and between 1995 and 1996, the
defendants JOHN MARCIANO and ROBERT OOSTERWYK, together with the
principals of Kensington Wells and others, devised, implemented,
oversaw and participated in a fraudulent scheme and artifice to
manipulate the market price of Xybernaut securities.
13. It was a part of the scheme and artifice that the
defendants JOHN MARCIANO and ROBERT OOSTERWYK and others opened
bank and brokerage accounts in the names of the Front Corporations
(referred to herein as “Nominee Accounts”), to hide their ownership
of and trading through the Nominee Accounts of certain securities,
including Xybernaut securities.
14. It was a further part of the scheme and artifice
that, in or about November 1995, the defendants JOHN MARCIANO and
ROBERT OOSTERWYK and others secretly obtained a large block of
convertible notes from Xybernaut, which they purchased in the names
of Front Corporations and deposited into Nominee Accounts.
5
15. It was a further part of the scheme and artifice
that, on the day of the Xybernaut IPO, the defendants JOHN MARCIANO
and ROBERT OOSTERWYK and others agreed to convert their notes to
large blocks of Xybernaut units.
16. It was a further part of the scheme and artifice
that, on the day of the Xybernaut IPO, after the defendants JOHN
MARCIANO and ROBERT OOSTERWYK and others secretly gained control of
large blocks of Xybernaut securities, the Kensington Wells and
Royce principals and brokers engaged in a number of manipulative
and deceptive acts and practices designed to inflate artificially
the demand for and price of Xybernaut securities.
17. It was a further part of the scheme and artifice
that the defendant JOHN MARCIANO and others agreed with the
principals of Kensington Wells to create artificial market demand
for the purpose of inflating the price of the Xybernaut securities
on the day of the IPO. Among other deceptive and manipulative
means, the principals and brokers of Kensington Wells and Royce,
along with others, (a) made and caused to be made materially false
and fraudulent representations to Kensington Wells and Royce
customers, and omitted to state material facts necessary in order
to make the statements made not misleading, in order to induce
those customers to purchase Xybernaut securities; (b) used and
caused to be used high pressure and deceptive sales tactics in
order to induce Kensington Wells and Royce customers to purchase
6
Xybernaut securities; and (c) paid and accepted excessive,
undisclosed commissions in exchange for brokers at Kensington Wells
and Royce inducing their retail customers to purchase Xybernaut
securities.
18. It was a further part of the scheme and artifice
that the defendants JOHN MARCIANO and ROBERT OOSTERWYK and others
did not disclose to investors, and caused the Kensington Wells and
Royce principals and brokers not to disclose to investors, that
these defendants and others would profit personally during the
trading immediately following the IPO by selling Xybernaut
securities that they held in Nominee Accounts.
19. It was a further part of the scheme and artifice
that, in exchange for Kensington Wells selling the Xybernaut
securities at artificially inflated prices, the defendant JOHN
MARCIANO and others agreed to share with the principals of
Kensington Wells the profits from these sales.
20. It was a further part of the scheme and artifice
that, after the price of Xybernaut securities rose artificially as
a result of these deceptive and manipulative techniques, the
defendants JOHN MARCIANO and ROBERT OOSTERWYK and others sold their
Xybernaut securities at a substantial profit from Nominee Accounts
that they controlled.
21. It was a further part of the scheme and artifice
that the defendants JOHN MARCIANO and ROBERT OOSTERWYK and others
7
engaged in transactions in Nominee Accounts in order to transfer
their profits from the sale of Xybernaut securities to Nominee
Accounts and accounts controlled by the principals of Kensington
Wells.
22. It was a further part of the scheme and artifice
that the defendant ROBERT OOSTERWYK was paid a share of the
proceeds from the sale of Xybernaut securities as compensation for
his participation in the fraudulent scheme.
23. It was a further part of the scheme and artifice
that, in or about and between 2001 and April 2004, the defendant
JACOB AGAM opened and controlled Nominee Accounts at banks in
Switzerland in the names of Front Corporations, so that the
defendant JOHN MARCIANO and others could distribute their profits
from the securities fraud scheme while hiding their involvement in
it.
24. It was a further part of the scheme and artifice
that the defendant JOHN MARCIANO and others established a Front
Corporation in New York called BRQ, Ltd., Inc. (“BRQ”). MARCIANO,
the defendant JACOB AGAM, and others used BRQ to receive wire
transfers from the Nominee Accounts that AGAM controlled in
Switzerland. MARCIANO, AGAM and others attempted to hide the true
nature of the wire transfers by executing a sham consulting
agreement between BRQ and AGAM’s Front Corporations.
25. It was a further part of the scheme and artifice
that the defendant JACOB AGAM received a portion of the proceeds
8
from the sale of the Xybernaut securities from the defendant JOHN
MARCIANO and others, which AGAM used to purchase gold and other
things of value. AGAM then sold the gold and other things of value
and deposited the proceeds from these sales into Nominee Accounts
that AGAM controlled in Switzerland so that the proceeds from the
sale of Xybernaut securities would not be traceable to MARCIANO
and others. AGAM, acting at the direction of MARCIANO and others,
then disbursed the proceeds from Nominee Accounts in Switzerland to
accounts in the United States under the control of MARCIANO and
others, or used the proceeds to make other investments or purchases
for the benefit of MARCIANO and others.
COUNT ONE
(Securities Fraud Conspiracy)
26. The allegations contained in paragraphs 1 through 25
are repeated and incorporated as though fully set forth in this
paragraph.
27. In or about and between November 1995 and November
1996, both dates being approximate and inclusive, within the
Eastern District of New York and elsewhere, the defendants JOHN
MARCIANO and ROBERT OOSTERWYK, together with others, did knowingly
and willfully conspire to use and employ manipulative and deceptive
devices and contrivances, directly and indirectly, in violation of
Rule 10b-5 of the Rules and Regulations of the Securities and
Exchange Commission (Title 17, Code of Federal Regulations, Section
240.10b-5), and, directly and indirectly, to (a) employ devices,
9
schemes and artifices to defraud; (b) make untrue statements of
material fact and omit to state material facts necessary in order
to make the statements made, in light of the circumstances under
which they were made, not misleading; and (c) engage in acts,
practices, and courses of business which would and did operate as
a fraud and deceit upon the investing public, in connection with
purchases and sales of Xybernaut securities, and by use of means
and instrumentalities of interstate commerce and the mails, in
violation of Title 15, United States Code, Sections 78j(b) and
78ff.
28. In furtherance of the conspiracy, and to effect its
objects, within the Eastern District of New York and elsewhere, the
defendants JOHN MARCIANO, JACOB AGAM and ROBERT OOSTERWYK, together
with others, committed and caused to be committed, among others,
the following:
OVERT ACTS
a. On or about November 15, 1995, the defendants JOHN
MARCIANO and ROBERT OOSTERWYK and others caused $1,255,500 to be
transferred from the Nominee Account at Cayman National Bank
(“CNB”) in the name of Bunnick (the “Bunnick CNB Account”) to
Nominee Accounts at CNB in the names of Ashdown (the “Ashdown CNB
Account”), Medway (the “Medway CNB Account”), Noord (the “Noord CNB
Account”) and Northwest (the “Northwest CNB Account”).
b. On or about November 16, 1995, the defendants JOHN
MARCIANO and ROBERT OOSTERWYK and others caused Ashdown to purchase
10
$330,000 of Xybernaut convertible notes, which they converted at
the time of the IPO into 188,571 units of Xybernaut.
c. On or about November 16, 1995, the defendants JOHN
MARCIANO and ROBERT OOSTERWYK and others caused Medway to purchase
$325,000 of Xybernaut convertible notes, which they converted at
the time of the IPO into 185,714 units of Xybernaut.
d. On or about November 16, 1995, the defendants JOHN
MARCIANO and ROBERT OOSTERWYK and others caused Noord to purchase
$300,000 of Xybernaut convertible notes, which they converted at
the time of the IPO into 171,429 units of Xybernaut.
e. On or about November 16, 1995, the defendants JOHN
MARCIANO and ROBERT OOSTERWYK and others caused Northwest to
purchase $300,000 of Xybernaut convertible notes which they
converted at the time of the IPO into 171,429 units of Xybernaut.
f. On or about April 16, 1996, the defendant JOHN
MARCIANO and others caused Elono Portfolio, S.A. (“Elono”) to
purchase $500,000 of Xybernaut convertible notes, which they
converted at the time of the IPO into 285,714 units of Xybernaut.
g. On or about April 16, 1996, the defendant JOHN
MARCIANO and others caused Planate Business, S.A. (“Planate”) to
purchase $450,000 of Xybernaut convertible notes, which they
converted at the time of the IPO into 257,143 units of Xybernaut.
h. In or about and between April 1996 and July 1996,
the defendant JOHN MARCIANO met with others to discuss the sale of
11
Xybernaut securities during the period of trading immediately
following the IPO, and the distribution of the resulting proceeds.
i. On or about July 18, 1996, the defendants JOHN
MARCIANO and ROBERT OOSTERWYK and others caused Ashdown to sell
approximately 188,571 units of Xybernaut at prices ranging from
approximately $12.37 to $14.37 per unit, which resulted in proceeds
of approximately $2,533,000.
j. On or about July 18, 1996, the defendants JOHN
MARCIANO and ROBERT OOSTERWYK and others caused Medway to sell
approximately 185,714 units of Xybernaut at a price of approximately
$12.37 per unit, which resulted in proceeds of approximately
$2,298,000.
k. On or about July 18, 1996, the defendants JOHN
MARCIANO and ROBERT OOSTERWYK and others caused Noord to sell
approximately 171,429 units of Xybernaut at prices ranging from
approximately $12.37 to $13.37 per unit, which resulted in proceeds
of approximately $2,221,000.
l. On or about July 18, 1996, the defendants JOHN
MARCIANO and ROBERT OOSTERWYK and others caused Northwest to sell
approximately 171,429 units of Xybernaut at a price of approximately
$12.37 per unit, which resulted in proceeds of approximately
$2,121,000.
12
m. On or about July 18, 1996, the defendant JOHN MARCIANO
and others caused Elono to sell approximately 285,714 units of
Xybernaut at prices ranging from approximately $12.37 to $17.37 per
unit, which resulted in proceeds of approximately $4,335,000.
n. On or about July 18, 1996, the defendant JOHN MARCIANO
and others caused Planate to sell approximately 257,143 units of
Xybernaut at prices ranging from approximately $12.37 to $12.87 per
unit, which resulted in proceeds of approximately $3,308,000.
(Title 18, United States Code, Sections 371 and 3551 et
seq.)
COUNT TWO
(Securities Fraud)
29. The allegations contained in paragraphs 1 through
25, 27 and 28 are repeated and incorporated as though fully set
forth in this paragraph.
30. In or about and between November 1995 and November
1996, both dates being approximate and inclusive, within the
Eastern District of New York and elsewhere, the defendants JOHN
MARCIANO and ROBERT OOSTERWYK, together with others, did knowingly
and willfully use and employ manipulative and deceptive devices and
contrivances, directly and indirectly, in violation of Rule 10b-5
of the Rules and Regulations of the SEC (Title 17, Code of Federal
Regulations, Section 240.10b-5), in that the defendants, together
with others, did knowingly and willfully, directly and indirectly,
(a) employ devices, schemes, and artifices to defraud; (b) make
13
untrue statements of material fact and omit to state material facts
necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading; and (c)
engage in acts, practices, and courses of business which would and
did operate as a fraud and deceit upon members of the investing
public, in connection with purchases and
sales of Xybernaut securities, and by use of the means and
instrumentalities of interstate commerce and the mails.
(Title 15, United States Code, Sections 78j(b) and 78ff;
Title 18, United States Code, Sections 2 and 3551 et seq.)
COUNT THREE
(Conspiracy to Commit Money Laundering)
31. The allegations contained in paragraphs 1 through
25, 27, 28 and 30 are repeated and incorporated as though fully set
forth in this paragraph.
32. In or about and between November 1995 and February
2004, both dates being approximate and inclusive, within the
Eastern District of New York and elsewhere, the defendants JOHN
MARCIANO, ROBERT OOSTERWYK and JACOB AGAM, together with others,
did knowingly and intentionally conspire to conduct financial
transactions affecting interstate and foreign commerce which in
fact involved the proceeds of specified unlawful activity, to wit:
securities fraud, knowing that the property involved in such
financial transactions represented proceeds of some form of
unlawful activity (a) with the intent to promote the carrying on of
14
the specified unlawful activity in violation of Title 18, United
States Code, Section 1956(a)(1)(A)(i), and (b) knowing that the
transactions were designed in whole or in part to conceal and
disguise the nature, location, source, ownership and control of
such proceeds in violation of Title 18, United States Code, Section
1956(a)(1)(B)(i).
(Title 18, United States Code, Sections 1956(h) and 3551
et seq.)
COUNTS FOUR THROUGH SIXTY-FOUR
(Money Laundering)
33. The allegations contained in paragraphs 1 through
25, 27, 28, 30 and 32 are repeated and incorporated as though fully
set forth in this paragraph.
34. On or about the dates set forth below, within the
Eastern District of New York and elsewhere, the defendants JOHN
MARCIANO, ROBERT OOSTERWYK and JACOB AGAM, together with others,
knowing that the property involved in financial transactions
represented proceeds of some form of unlawful activity, did
knowingly and intentionally conduct financial transactions
affecting interstate and foreign commerce, as set forth below,
which in fact involved the proceeds of specified unlawful activity,
to wit: securities fraud, (a) with the intent to promote the
carrying on of the specified unlawful activity, and (b) knowing
that the transactions were designed in whole or in part to conceal
and disguise the nature, location, source, ownership and control of
15
such proceeds, in that the defendants listed below, on the dates
listed below, transferred by check, wire and other means funds in
the approximate amounts listed below, from and to the accounts
listed below:
a. Transfers From Ashdown’s Account at Royce:
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
4 MARCIANO/
OOSTERWYK
July 29,
1996
$1,500,000 Ashdown CNB Account
5 MARCIANO/
OOSTERWYK
August 8,
1996
$300,000 Ashdown CNB Account
6 MARCIANO/
OOSTERWYK
September
4, 1996
$200,000 Ashdown CNB Account
7 MARCIANO/
OOSTERWYK
September
5, 1996
$500,000 Ashdown CNB Account
b. Transfers From Medway’s Account at Royce:
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
8 MARCIANO/
OOSTERWYK
July 29,
1996
$1,500,000 Medway CNB Account
9 MARCIANO/
OOSTERWYK
August 8,
1996
10 MARCIANO/
OOSTERWYK
August 8,
1996
$300,000 Medway CNB Account
11 MARCIANO/
OOSTERWYK
September
5, 1996
$250,000 Medway CNB Account
c. Transfers From Noord’s Account at Royce:
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
12 MARCIANO/
OOSTERWYK
July 29,
1996
$1,500,000 Noord CNB Account
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
16
13 MARCIANO/
OOSTERWYK
August 8,
1996
$700,000 Noord CNB Account
14 MARCIANO/
OOSTERWYK
August 8,
1996
d. Transfers From Northwest’s Account at Royce:
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
15 MARCIANO/
OOSTERWYK
July 29,
1996
$2,000,000 Northwest CNB
Account
16 MARCIANO/
OOSTERWYK
August
14, 1996
$350,000 Northwest CNB
Account
e. Transfers From the Ashdown CNB Account:
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
17 OOSTERWYK/
MARCIANO
November
15, 1995
$300,000 Account under the
control of Computer
Products and
Services
18 MARCIANO/
OOSTERWYK
July 31,
1996
$1,500,000 Bunnick CNB Account
19 MARCIANO/
OOSTERWYK
August 9,
1996
$300,000 Bunnick CNB Account
20 MARCIANO/
OOSTERWYK
September
5, 1996
$200,000 Bunnick CNB Account
21 MARCIANO/
OOSTERWYK
September
6, 1996
$475,000 Bunnick CNB Account
22 MARCIANO/
OOSTERWYK
October
29, 1996
$24,500 Bunnick CNB Account
17
f. Transfers From the Medway CNB Account:
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
23 OOSTERWYK/
MARCIANO
November
15, 1995
$325,000 Account under the
control of Computer
Products and
Services
24 MARCIANO/
OOSTERWYK
July 31,
1996
$1,500,000 Bunnick CNB Account
25 MARCIANO/
OOSTERWYK
August
14, 1996
$300,000 Bunnick CNB Account
26 MARCIANO/
OOSTERWYK
September
6, 1996
$250,000 Bunnick CNB Account
g. Transfers From the Noord CNB Account:
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
27 OOSTERWYK/
MARCIANO
November
15, 1995
$300,000
Computer
Products and
Services
28 MARCIANO/
OOSTERWYK
July 31,
1996
$1,500,000 Bunnick CNB Account
29 MARCIANO/
OOSTERWYK
August
15, 1996
$200,000 Bunnick CNB Account
30 MARCIANO/
OOSTERWYK
August
20, 1996
$500,000 Nominee Account at
the Royal Bank of
Canada (“RBC”) in
the name of
Magdalane
Investments, Ltd.
(“Magdalane RBC
Account”)
31 MARCIANO/
OOSTERWYK
September
6, 1996
$250,000 Bunnick CNB Account
18
h. Transfers From the Northwest CNB Account:
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
32 OOSTERWYK/
MARCIANO
November
15, 1995
$300,000
Computer
Products and
Services
33 MARCIANO/
OOSTERWYK
July 30,
1996
$2,000,000 Magdalane RBC
Account
34 MARCIANO/
OOSTERWYK
August 1,
1996
$20,184 Bunnick CNB Account
35 MARCIANO/
OOSTERWYK
August
15, 1996
$350,000 Bunnick CNB Account
i. Transfers From the Bunnick CNB Account:
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
36 OOSTERWYK/
MARCIANO
November
15, 1995
$300,125 Northwest CNB
Account
37 OOSTERWYK/
MARCIANO
November
15, 1995
$300,125 Noord CNB Account
38 OOSTERWYK/
MARCIANO
November
15, 1995
$325,125 Medway CNB Account
39 OOSTERWYK/
MARCIANO
November
15, 1995
$300,125 Ashdown CNB Account
40 MARCIANO/
OOSTERWYK
July 31,
1996
$4,000,000 Magdalane RBC
Account
41 OOSTERWYK August 5,
1996
$250,000 Unidentified
Account at the Bank
of Wales
42 OOSTERWYK August
15, 1996
$140,000 Nominee Account at
CNB in the name of
Gateway (the
“Gateway CNB
Account”)
43 MARCIANO/
OOSTERWYK
August
15, 1996
$1,300,000 Magdalane RBC
Account
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
19
44 OOSTERWYK September
5, 1996
j. Transfer From the Nominee Account at CNB in the name
of Sunrise:
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
45 OOSTERWYK November
15, 1995
$2,500,000 Gateway CNB Account
k. Transfer From the Gateway CNB Account:
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
46 OOSTERWYK/
MARCIANO
November
15, 1995
$1,255,500 Bunnick CNB Account
l. Transfers From Elono’s Account at Royce:
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
47 MARCIANO August 9,
1996
48 MARCIANO September
13, 1996
m. Transfers From Planate’s Account at Royce:
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
49 MARCIANO August
9, 1996
$350,000
50 MARCIANO October
28, 1996
20
n. Transfers from Vertical’s Account at Bank Safra:
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
51 MARCIANO/
AGAM
March
29, 2001
$239,985 BRQ’s Account at
Fleet Bank in
Syosset, New York
(the “BRQ Fleet
Account”)
52 MARCIANO/
AGAM
October
2, 2001
$240,000 BRQ Fleet Account
53 MARCIANO/
AGAM
June 3,
2002
$125,000 BRQ Fleet Account
54 MARCIANO/
AGAM
June 10,
2002
$125,985 BRQ Fleet Account
o. Transfers from Horeb’s Account at Bank Safra:
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
55 MARCIANO/
AGAM
June 3,
2003
$250,000 BRQ Fleet Account
56 MARCIANO/
AGAM
August
14, 2003
$500,000 BRQ Fleet Account
p. Transfers from the BRQ Fleet Account:
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
57 MARCIANO September
10, 2001
$16,587 Account under the
control of MARCIANO
58 MARCIANO October
2, 2003
$16,587 Account under the
control of MARCIANO
59 MARCIANO September
10, 2003
$16,587 Account under the
control of MARCIANO
60 MARCIANO November
16, 2003
$16,587 Account under the
control of MARCIANO
61 MARCIANO December
15, 2003
$17,393 Account under the
control of MARCIANO
21
q. Transfer from Magdalane RBC Account:
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
62 MARCIANO/
AGAM/
OOSTERWYK
May 10,
2001
$2,400,000
Vertical
r. Transfers from St. Catherine’s Account at RBC:
COUNT DEFENDANT(S) DATE AMOUNT RECIPIENT
63 MARCIANO/
AGAM/
OOSTERWYK
May 8,
2001
$960,000 Magdalane RBC
Account
64 MARCIANO/
AGAM/
OOSTERWYK
May 10,
2001
$960,000
Vertical
(Title 18, United States Code, Sections 1956(a)(1)(B)(i),
2 and 3551 et seq.)
CRIMINAL FORFEITURE ALLEGATION
FOR COUNTS THREE THROUGH SIXTY-FOUR
35. The United States hereby gives notice to the
defendants JOHN MARCIANO, ROBERT OOSTERWYK and JACOB AGAM that,
upon their conviction of the offenses charged in counts Three
through Sixty-Four, the Government will seek forfeiture in
accordance with Title 18, United States Code, Section 982, of all
property involved in each offense in violation of Title 18, United
States Code, Section 1956, or conspiracy to commit such offense,
and all property traceable to such property as a result of
defendants’ conviction of Counts Three through Sixty-Four of this
indictment, including but not limited to, the following:
22
a. a sum of money equal to $16,816,000.00 in United
States currency, for which the defendants are jointly and severally
liable; and
b. all right title and interest in all funds on deposit
in, or transferred to, or through Fleet Bank, account no.
941823195, and held in the name of BRQ Ltd., Inc., and all proceeds
traceable thereto.
36. If any of the above-described forfeitable property,
as a result of any act or omission of the defendants JOHN MARCIANO,
ROBERT OOSTERWYK and JACOB AGAM:
a. cannot be located upon the exercise of due
diligence;
b. has been transferred or sold to, or deposited with,
a third party;
c. has been placed beyond the jurisdiction of the
court;
d. has been substantially diminished in value; or
e. has been commingled with other property which cannot
be divided without difficulty;
it is the intent of the Government, pursuant to Title 21, United
States Code, Section 853(p), to seek forfeiture of any other
property of such defendants up to the value of the forfeitable
property described sub-paragraph 33(a) through 33(e) above,
including but not limited to the following:
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i. all right, title, and interest in Unit #7D,
Tower II, of the Atrium of Palm Beach
Condominiums, Palm Beach, Florida, in the name
of John A. Marciano and Deborah J. Marciano;
and
ii. all right, title, and interest in 8 Chestnut
Hill Court, Upper Brookville, New York, in the
name of John Marciano.
(Title 18, United States Code, Section 982).
A TRUE BILL
FOREPERSON
ROSLYNN R. MAUSKOPF
UNITED STATES ATTORNEY
EASTERN DISTRICT OF NEW YORK
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