Criminal Case Update

A new motion was filed by the United States Attorney’s Office on December 17, 2010.  After reading the latest motion, I consulted with a criminal litigator.

Apparently the attorneys representing Feuerborn and Jennings are not complying with the Federal Rules for Criminal Procedure, and doing everything wrong.  The criminal attorney I consulted with said that this is Law School 101 stuff.  As an outsider, watching the pretrial motions via PACER, one might ask if the attorneys for Feuerborn and Jennings have ever been involved with criminal litigation.  Here are some excerpts from the Motion filed by the United States Attorney’s Office: 

“Defendants Thomas R. Jennings and David J. Feuerborn face trial on January 18, 2011, for tax fraud. Both defendants are charged with conspiracy to defraud the United States (18 U.S.C. § 371); defendant Jennings is charged with five counts of subscription to false tax returns (26 U.S.C. § 7206(1)); and defendant Feuerborn is charged with five counts of income tax evasion (26 U.S.C. § 7201).”

“To date, the government has produced approximately 43,300 pages of discovery to defendants, including witness statements under the Jencks Act, 18 U.S.C. § 3500. (Declaration of Eric D. Vandevelde ¶ 2.) The vast majority of these materials, approximately 93%, were produced on May 12, 2010, approximately three weeks after defendants’ arraignment and one day after this Court signed the protective order for discovery in this case. (Id.) The government will continue to comply with its discovery obligations as this case proceeds.”

“[T]he government repeatedly requested that defendants produce all reciprocal discovery materials mandated under Federal Rules of Criminal Procedure 16(b) and 26.2, and the Jencks Act. (Id. ¶ 3.) The government has emphasized, in particular, the need to receive expert disclosures from defendants. (Id.) To date, neither defendant has produced any discovery or made any expert disclosures to the government.”

“Accordingly, the government respectfully requests that this Court order defendants to comply with their obligations to produce reciprocal discovery materials by no later than January 10, 2011 (eight days before trial and the hearing date on this motion)” (Case 2:10-cr-00346-SJO ; Pages 575 and 576).

Below is another excerpt from the Government’s motion explaining the rules that Jennings and Feuerborn are ignoring:

“A defendant is required to produce reciprocal discovery under Federal Rules of Criminal Procedure 16(b) and 26.2, as well as under the Jencks Act. If a defendant requests discovery and the government complies and demands discovery itself, the defendant must provide the following reciprocal discovery: ‘books, papers, documents, data, photographs, tangible objects, . . . or copies or portions of any of these items if . . . the item is within the defendant’s possession, custody, or control; and the defendant intends to use the item in the defendant’s case-in-chief at trial.’ See Fed. R. Crim. P. 16(b)(1)(A).

A defendant must also produce a written summary of any expert testimony a defendant intends to offer at trial under Federal Rule of Evidence 702, 703, or 705. See Fed. R. Crim. P. 16(b)(1)(C)” (Case 2:10-cr-00346-SJO ; Page 576).

29 Days until their trial date!  It’s getting down to the wire.  Their trial would be a great place for ESS investors to meet and and exchange information.

-ESS Investor

Payday

The United States Attorney filed the “Government’s Motion to Admit Business Records Under Declarations of Custodian of Record Pursuant to 902 (11) and 803 (6)” in the Criminal Case against David Feuerborn and Thomas Jennings (Case 2:10-cr-00346-SJO: Document 53. Pages 234-239).  It was a busy weekend for me, because there were approximately 300 pages of exhibits attached to this Motion.  These exhibits give a clear picture of the fraud, and the extent of the fraud, that Feuerborn and Jennings perpetrated against ESS investors and others.  You won’t believe how much money went to friends, wives, decorators, cabinet manufacturers, etc.  It looks as if they used ESS money to buy items such as a Lexus and an RV as well.  I wanted to remain impartial, but I can’t help becoming extremely frustrated by the indisputable evidence that the U.S. Attorney’s office has compiled.

(Note: The personal information listed below was derived from the W-2 Forms published by the government as exhibits to the Motion.)

Let’s first look at Suzanne Jennings from Anaheim, CA.  She is the wife of Tom Jennings and for some reason she received $35,000 from ESS Environmental, Inc. in 2005 (Case 2:10-cr-00346-SJO: Document 53-4. Page 299).  I’d like some explanation of what she did for ESS to deserve that money.  I would also like an explanation as to why Suzanne and Tom purchased an RV that cost $62,143 with money diverted from ESS (Case 2:10-cr-00346-SJO: Document 53-4 and 53-5. Page 310 and Page 333 respectively).  There are also copies of checks written from “Ecologic” to Trinity Cabinetry by Tom Jennings for a new set of cabinets for their house.  If you don’t remember, Eco-Logic is the company that was purportedly building an oil sand machine.  They had ESS investors believe that they were paying the real Eco-Logic while they were actually diverting money into the fake “Ecologic” bank account they created so they could buy an RV and cabinets for their house (Case 2:10-cr-00346-SJO: Document 53-5. Pages 322-324).

Do you remember my blog entry that listed a company called Jewelry by Asa?  I didn’t know what the connection was.  (Note:  When I Googled the Lantana address David Feuerborn used for the "Cleansal" domain name "Jewelry by Asa" came up under the same address.)  Well, I found that connection buried within these exhibits.  Asa Kilander of Camarillo, CA was paid $28,000 dollars by ESS Environmental, Inc.  Somehow she is connected to Dave and Tom and the chemical scam (Case 2:10-cr-00346-SJO: Document 53-4. Page 300).  What if her “Swedish jewelry and clothing business” was a front company to hide ESS money?  What if there is hidden ESS money in Sweden?!?!  I find it odd that her website no longer exists. 

I am anxious to see the exhibits that will be filed in the Civil Case.  While the Criminal Case deals with tax evasion and tax fraud, the Civil Case deals directly with the chemical scam.  Once both cases make some more progress I think ESS investors will have a lot of information to sift through. 

-ESS Investor          

Arthur Mark Feuerborn

Has anyone ever noticed that when you Google the name "David Feuerborn" a paid advertisement comes up for the Law Offices of Arthur Mark Feuerborn?  There is also a disclaimer on his website that states, "Arthur Feuerborn has been dismissed from all actions involving ESS Environmental and related entities as he has not been involved in those companies, except as a nominal shareholder in the two entities.  He has had no involvement in the management, direction, control, or operations of any ESS-related entity nor has he received compensation or benefit" (Disclaimer LInk).

We are assuming Mark is the brother of David.  They look strikingly similar.  According to the District Attorney's office of Ventura County Arthur is mentioned as one of the parties that was originally indicted in Louisiana for racketeering, securities fraud, and criminal conspiracy.  

It would seem as if he is totally distancing himself from the chemical scam at this point in time.  Why else would he need that disclaimer on his Website?  

Also, it doesn't look as if he is representing his brother in the Criminal Case.      

- ESS Investor

Arrogance is Bliss

I've decided to use this blog post to analyze the mindset of David Feuerborn and Thomas Jennings as it relates to the chemical scam and the problems they have encountered in the 20+ years they have been at it. 

Arrogance:

I can attest that David Feuerborn and Thomas Jennings are extremely arrogant individuals.  Take for instance Dave’s arrogance towards the Internal Revenue Agency.  He hasn’t filed a tax return in the last 5 years and he thinks he can get away with it!  That’s arrogance. 

Dave and Tom know there are hazardous chlorinated chemicals in their “solvent” yet they think they can forge Material Data Safety Sheets and other government regulated documentation so that everyone thinks it’s as safe as water.  This is a federal offense!  That’s arrogance. 

Dave and Tom also get people to front for them so that due diligence research doesn’t reveal their identities and past scams.  In Louisiana they used paid actors to pitch the solvent to would-be investors, and they used an individual named Larry Shultz to sell the “solvent” to Freestone.  That’s arrogance.

They set up bogus bank accounts at Wells Fargo with names almost identical to the vendors building their “machines” so they could funnel money to their personal bank accounts and investors would think the money was going to the machine manufacturers.  That’s arrogance. 

They are still trying to sell their “solvent” under different names and different corporations even though they have been criminally indicted by the state of Louisiana, criminally indicted by the U.S. Federal Government, successfully sued by Petro-Sog, civilly sued by Freestone Resources (ongoing), and issued a Desist and Refrain order from selling securities by both Texas and California.  That’s arrogance. 

How do they get away with it?:

If you talk to Dave and Tom then you hear the excuse that they have been through all this trouble because “people are trying to steal their ‘solvent’”, or that “people are just jealous of their miracle cleaner.”  Let’s take a look at that argument:

Petro-Sog only wanted to recover money that they paid to Feuerborn when they found out that Feuerborn had made multiple misrepresentations about the chemical and its toxicity.  They wanted nothing to do with the “solvent” when they discovered it had carcinogenic, chlorinated chemicals contained in it. 

Freestone just wants to recover their stock and money that they paid to Feuerborn, Jennings, Shultz and Environmental Services and Support, Inc.  They are asking for a rescission of their Agreement because they made the same discoveries made by Petro-Sog, which indicates that they want nothing to do with this hazardous “solvent” either. 

Then one must ask if the Internal Revenue Service, the state of Louisiana, the California Department of Corporations or the Texas Securities Commission wanted to steal their “solvent”.  This is the most laughable of them all.  I know Dave and Tom blame their Louisiana prosecution on corrupt local officials, but the fact still remains that many investors lost hundreds of thousands of dollars on this scam.  It sounds to me as if they people they scammed were just well connected.  None of the documentation or disclosures they made to Louisiana investors discussed the carcinogenic chemicals that are contained within the “solvent”.  

These guys think they are above the law.  They don’t care if people get hurt because they don’t make the proper disclosures about their “solvent's" toxicity.  The only thing on the minds of Feuerborn and Jennings is how they can make some quick cash without working for it.  It looks as if the chickens are finally coming home to roost.      

- ESS Investor

Criminal Case Update

Happy Monday everyone!  This blog entry will be a long one so bear with me.  First I will go through the motions that have been filed by the United States Attorney and by the attorneys representing David Feuerborn and Thomas Jennings.  If the judge has already ruled then I will also give his ruling.

"Conflict of Interest"

On August 23, 2010 the United States Attorney filed a "Notice to the Court of Potential Conflicts of Interest and Request for Hearing."  In summary, the Notice stated that there might be a potential conflict of interest on the part of the counsel representing David Feuerborn (Neil C. Evans, esq.) in the Criminal Case and his dual representation of both David Feuerborn and Thomas Jennings in the Civil Case.  The U.S. Attorney states that there is a potential overlap of the Criminal Case and the Civil Case because Feuerborn and Jennings used the same pitch to Freestone that they used to the ESS investors in order to induce an investment.  The U.S. is further alleging that the ESS money was then funneled to Feuerborn and Jennings, whereupon they didn't pay taxes on that money.  Thus, the potential conflict arises because both cases "arise out of similar conduct -- namely, misrepresentations to investors regarding defendant's companies...and the technology defendants and those companies claim to have developed" (Criminal Case Page #98, Lines 22-26).

On September 2, 2010 Neil C. Evans filed a response to the U.S. Attorney's Notice.  In summary, Evans argues that the two cases are completely unrelated.  He also states that his clients have signed waivers of conflict.  His main argument is that the allegations in the Civil Case occured after the allegations in the Criminal Case.

On September 20, 2010 the Honorable Judge Otero stated that he wanted supplemental briefs from the defendants and that this matter would be continued until October 1, 2010.

On September 24, 2010 Neil C. Evans filed his supplemental briefs where he states that, "[t]he alleged potential conflict of interest asserted by the Persecutor in this case, does not involve the joint representation of Defendants by an attorney in the instant case" (Criminal Case Page #179, Lines 7-10).  (Personal Note: Evans has filed motions on behalf of Jennings in the Criminal Case.)

Lastly, the main reason that the U.S. Attorney made this notice is to avoid any appellate argument that the Defendants Feuerborn and Jennings did not have "conflict free" counsel.  I will update everyone once the Judge's ruling has been posted on PACER.

"Application to Travel"

On September 3, 2010 Evans filed an "Ex Parte Application to Expand Travel Restrictions as Conditions of Release" on behalf of Feuerborn AND Jennings.  Currently, Feuerborn and Jennings are restricted to the Central District of California, Texas and Louisiana prior to the trial date in the Criminal Case.  Evans asked that the restriction be modified so that Feuerborn and Jennings can travel throughout the continental United States.

On September 3, 2010 the U.S. Attorney responded by stating that, "publicly available records indicate that defendant's 'business' activities are fraudulent in nature" (Criminal Case Page #146, Lines 18-19).  Thus he asked that the court deny this request to expand travel privileges.   The U.S. Attorney cites the following:

http://www.ssb.state.tx.us/Enforcement/files/1499.pdf | http://da.countyofventura.org/091505.htm | http://www.corp.ca.gov/ENF/pdf/2006/ess.pdf

On September 20, 2010 the Judge vacated their application and directed them to the Pretrial Service Office.  (Personal Note: We are unclear if the Pretrial Service Office has the ability to extend their travel privileges.)

"Continuance Request"

On September 20, 2010 Neil C. Evans filed an "Ex Parte Application to Continue Trial" citing that, [his] ability to devote time to [the Criminal Case], which includes about 50,000 pages of documents produced by the Prosecutor, was materially affected by personal events" (Criminal Case Page #154, Lines 25-28).

On September 24, 2010 the Judge vacated this application as well.  (Personal Note:  We are unsure if there has been any continuance granted, but as of now the trial date is still scheduled for November 9, 2010.  Also, despite his request for a continuance in the Criminal Case, Mr. Evans is still the only counsel representing them in the Civil Case.)

Personal Note:  I have observed that Neil C. Evans is the only attorney filing anything in the Criminal Case, and Steven M. Neimand, esq. (attorney representing Jennings) has yet to file anything.  Additionally, an attorney named Dennis Berry attempted to "specially appear" for Jennings on the hearing that occurred on September 20, 2010.  The Court stated that special appearances were not allowed and ordered Neimand appear.  I just think that this is very odd, and, as an outsider looking in,  it appears that one attorney is representing both Feuerborn and Jennings in the Criminal Case.
 

The Defendants (including Feuerborn and Jennings) in the Civil Case asked the court to dismiss the case because they claim that Freestone does not have jurisdiction over them.  Freestone filed a response giving their reasons why they do, in fact, have jurisdiction over them.  This has yet to be ruled on, and I will read both the motion and response to give a detailed account of the Civil Case as well.

-ESS Investor

ESS Investor Information

Hello and welcome!  I am an investor in ESS Environmental, a company started by David Feuerborn and Thomas Jennings.  I invested money in a process that purportedly extracts oil from contaminated waste sites.  Unfortunately, it was later discovered that the "solvent" used in the process I invested in was extremely toxic (more toxic than the oil).   I created this blog in order to give the 600+ ESS investors a place to discuss their trials and tribulations.  I have been following the criminal and civil cases of Mr. Feuerborn and Mr. Jennings and I will provide updates as they come in.  I don't know if we can get our money back, but at least we have a place where we can talk and discuss strategies.