Federal prosecutors plan to ask a federal judge next week to enhance prison time for Russell Wasendorf Sr. based on actual loss of his embezzlement from customer funds which exceeds $215 million, and because the fraud was committed by a complex and "sophisticated means" involving more than 10,000 victim accounts.
Based on the government's calculations, Wasendorf, 64, Peregrine Financial founder, stole more than $215.5 million from segregated Peregrine Financial customer accounts, according to a sentencing memorandum filed Tuesday in U.S. District Court. The fraud was part of a complex scheme where he used the entire business as a "mechanism to gather and purloin investor funds."
Wasendorf pleaded guilty to mail fraud, embezzlement of customer funds, making false statements to the Commodity Futures Trading Commission and making false statements to a futures trading association. He will be sentenced at 9 a.m. Jan. 31 in U.S. District Court in Cedar Rapids.
Federal prosecutors estimate Wasendorf's sentences would amount to 50 years in prison if the court grants the enhancements and if the sentences are run consecutively to each other. The enhancements are based on the amount of loss, sophisticated means, the violation of a commodities law and the number of victims exceeds 250.
The actual loss in this case can be "calculated with remarkable precision," according to the sentencing document. On July 9, 2012, Peregrine's customers had deposited about $376,999,121 with Peregrine that was supposed to be in segregated accounts. On the same day, the general ledger showed it had $382,223,056 in segregated funds, resulting in $5,223,935 in purported "excess segregated funds."
However, $220,754,483 of the more than $382 million in segregated funds didn't actually exist, according to the document. Wasendorf's fabricated bank records resulted in Peregrine's general ledger to show that false amount, but the account only contained more than $5. 1 million. When the shortfall in the customer segregated account of $220,754,483 is subtracted from the amount purportedly in segregation on the morning of July 9, 2012, the amount actually is $161,468,574. The result is $215,530,547 of the funds required to be segregated was missing.
Wasendorf also has agreed to pay full restitution to all victims and according to the U.S. Probation Office the restitution should equal the amount of actual loss, which is $215,530,041, according to the sentencing document. The government is in the process with the help of the trustee in Peregrine's bankruptcy case to prepare a list of victims including those with Peregrine commodities futures accounts with positive balances as of July 9, 2012.
The government expects the list of victim accounts will include more than 10,000 names, which will present unique challenges regarding distribution and accounting, according to the sentencing document.
The government asks for guideline enhancements based on how Wasendorf's scheme was conducted. Wasendorf objects to the enhancement for sophisticated means, claiming it was "very basic" and executed by "simple means."
"Here, defendant's fraudulent scheme was far more sophisticated than the typical fraud," the government argues. "Indeed, at least since the early 1990s, defendant operated Peregrine as little more than a complex mechanism to fraudulently obtain and misuse investor's funds."
Peregrine's Futures Commission Merchant registration was originally financed by J.C. in 1992, the government argues. In 1993 or 1994, J.C. wanted to pull out his money and Wasendorf lacked the capital to keep Peregrine in business. Wasendorf stole the required capital, at least $250,000, from Peregrine's customer segregated funds, and used it to buy out J.C. Wasendorf then used a copy machine to fabricate a bank statement to conceal the theft.
Wasendorf knew at that point the company wasn't profitable, prosecutors argue in the sentencing memo. The company incurred tens of millions in losses over the next 20 years. Wasendorf fraudulently "grew" Peregrine by misappropriated investor funds to create the appearance that it was a legitimate and successful futures commodity merchant.
In the pre-sentence report, Wasendorf said he believed "if he could make himself appear rich, the auditors and regulators wouldn't be concerned with the state of his personal finances and not discover it was all a fraud." By July 9, 2012, investors entrusted Wasendorf and Peregrine with more than $376 million. Wasendorf's operation of the company was "especially complex or especially intricate offense conduct pertaining to the execution of his offense."
To continue the fraud, Wasendorf routinely created and used false certifications and forged documents to deceive his customers, his accounting department, corporate officers, an outside auditor, and multiple regulatory agencies.
Wasendorf admitted to stealing the customer funds over 20 years and the ongoing scheme in a suicide note he left last July after a botched suicide attempt. Authorities found him and the notes in his car parked in the Peregrine parking lot.
Peregrine is in the process of bankruptcy, and an auction of assets belonging to the company and Wasendorf raised just over $1 million in December.
FULL SENTENCING MEMORANDUM: