Matthew Brown, jailed operator of the Investors Hub website
, has lost his bid to overturn a $4.78-million criminal penalty for a market manipulation scheme he aided. (All figures are in U.S. dollars.) Delaware Judge Sue Robinson, in an order handed down on Thursday, July 21, dismissed a motion by Mr. Brown to reduce his fine to the amount he actually made, which he calculated at $117,000.
The decision comes as Mr. Brown, 29, is serving a four-year jail sentence for the scheme. Prosecutors claimed that he and others manipulated stocks with prearranged trades
and posts on Investors Hub. One of the companies
included in the investigation was an Ontario-based pink sheets listing, Playstar Corp. Mr. Brown pleaded guilty to the charges in February, 2010, and the judge sentenced him to four years in jail and entered a $4.78-million forfeiture order.
Before he went to jail, Mr. Brown filed a motion in which he complained that the amount of his fine was excessive. As he understood it, by entering a guilty plea he was only agreeing to forfeit his personal gains from the scheme. He did not know that he would receive
a "financial death sentence," he claimed.
He also argued that the government held him liable for profits made by people who were not even charged with anything. "Instead of pursuing these individuals, [prosecutors] have sought to make Brown pay for everybody's gains, despite him having gained among the least amount of money," the motion read.
The government, for its part, argued that the fine accurately represented Mr. Brown's plea agreement. In a response to Mr. Brown's motion filed on June 8, 2011, prosecutors said that Mr. Brown agreed to forfeit all proceeds from the scheme, not just the portion that he received. Moreover, he received notice of the forfeiture six days before his sentencing. The time to raise the dispute was then, and not days later.
In addition, prosecutors cited the substantial harm that Mr. Brown and others inflicted on investors. In one instance, they caused a stock to rise by more than 150 per cent in hours, and sold shares worth $747,609. The government also pointed out that the judge could have ordered Mr. Brown to forfeit as much as $9.4-million, or twice the total proceeds of the scheme.
Judge Robinson, in deciding for the prosecution, simply said that she did not have jurisdiction to alter her earlier forfeiture order. Presumably, this means that Mr. Brown's only option is to appeal the order to a higher court.
Federal prosecutors indicted Mr. Brown on May 21, 2009, in the District of Delaware. They claimed that he and others dumped hundreds of millions of shares in manipulated pink sheets companies in 2006 and 2007. While the overall investigation included four stocks, the specific charges against Mr. Brown were limited to two companies.
The first was an anti-aging promotion called GH3 International Inc. In 2006, he and others received millions of GH3 shares through improper Rule 504 offerings, prosecutors claimed. In December of that year, they carried out a series of prearranged trades that coincided with misleading news. Among other things, the company
claimed that its revenue would exceed $6-million in 2007.
The stock, which was a thin trader to that point, went from 0.06 cent to 1.8 cents, before quickly falling to 0.01 cent. Its daily volume spiked to nearly 300 million shares. (The U.S. Securities and Exchange Commission eventually halted the company on Dec. 24, 2009, saying its publicly available information was questionable.)
The other manipulation that Mr. Brown pleaded guilty to was that of Asia Global Holdings Inc., a company that purportedly had the rights to the show
"Who Wants to be a Millionaire" in China. As with the GH3 manipulation, Mr. Brown and the others improperly issued millions of shares and co-ordinated manipulative trades to coincide with misleading news. The stock had a 41-cent high in 2006 (and was last at 0.38 cent).
According to the indictment, Mr. Brown and the others planned the promotions using the America Online messaging service. Their communications, which prosecutors quoted in the indictment, included information on the timing of the news releases and on how the men were touting the companies on-line. One message, dated Nov. 1, 2006, stated, "u have all the prs [press releases] right, except the first one, which im going to work on tomorrow for sure, we need a plan on line up of events and i need to see the *** prs to see which rumor to spread and how to start the *** thing ... ."
The indictment also described an unusual interstate money transfer, in which Mr. Brown paid a driver $10,000 to take $146,000 in cash from California to Delaware. (Documents in a related asset forfeiture case stated that the driver, who knew Mr. Brown from high school, was to deliver the cash to a Polish citizen named Pawel Dynkowski. The delivery went awry when a Texas police officer stopped the car and discovered the cash. Police had the driver deliver the money to Mr. Dynkowski's home in Delaware. They then searched the home and discovered evidence of the market manipulations.)
Prosecutors separately indicted Mr. Dynkowski for the manipulations on April 30, 2009. Authorities have yet to arrest him and he is listed as a fugitive". Another man charged in the case was Florida resident Gerard D'Amaro, who received three years in jail and was ordered to forfeit $1;.49-million;. Two others, Marc Riviello and Jacob Canceli, both from California, have also pleaded guilty but have not yet been sentenced'.
In addition to the criminal charges, Mr:. Brown and the others are facing a parallel civil suit from the SEC". The regulator claims that they made $6,.2-million manipulating Playstar, GH3 International, Asia Global and Xtreme Motorsports of California Inc/. That case is on hold pending completion of the criminal cases.