WASHINGTON -- While U.S. attorneys in St. Louis are running out of time to bring further criminal tax law charges against participants in so-called black box deals, the Securities and Exchange Commission is continuing to move forward with a civil investigation of such transactions, according to industry officials.
The U.S. attorneys in St. Louis were expected to bring indictments against two key participants of the Apple Creek IV and other black box deals, but are coming up against a six-year statute of limitations on tax law charges that expires at the end of the year, several lawyers said.
The $10.65 million Apple Creek IV multifamily housing deal was closed for the St. Louis County, Mo., Industrial Development Authority on Dec. 31, 1985. Any tax charges stemming from the deal must be brought before the end of this year, the lawyers said.
The SEC, however, which has in recent months subpoenaed several trustee banks for documents pertaining to black box deals in its ongoing civil investigation, is not subject to any statute of limitations, they said.
The U.S. attorneys in St. Louis have already obtained felony convictions of James B. Newman Jr., a former Texas lawyer who served as special tax counsel on the Apple Creek IV deal, and Ira A. McCown, Jr., a former Donaldson, Lufkin & Jenrette executive vice president who helped put together the deal before passing it along to Matthews & Wright Inc., a firm that is no longer an underwriter in the municipal bond business.
Both men, as part of separate plea arrangements, pleaded guilty to a felony count of helping to file a false tax form. The form, which was filed when the deal closed on Dec. 31, 1985, asserted there would be no arbitrage earnings. In fact, the deal generated millions of dollars of fees and profits for participants, but did not produce multifamily housing.
Mr. Newman was sentenced in 1989 to two years in prison and a $40,000 fine, but his prison term was later reduced by six months. Mr. McCown was sentenced last week to five years probation, and was ordered to pay a $20,000 fine and provide 100 hours of community service over a 54-month period.
Most bond industry officials yesterday said they thought Mr. McCown's sentence was too lenient, given his role in these deals. Mr. McCown participated in at least 27 black box deals totalling $360 million while he was at Donaldson, Lufkin & Jenrette, although Mr. McCown has said that no other officials with the firm were aware of any illegal activities on his part.
Sources familiar with the investigation had thought the U.S. attorneys would try to indict two other key parties to the black box deals -- James J. Keefe and Gary Davis -- before Mr. McCown was sentenced. Mr. McCown has been cooperating with the federal officials who are investigating these deals.
Mr. Keefe created special purpose corporations that were supposed to provide letters of credit in deals such as Apple Creek IV, even though these corporations had little or no assets. He also was tied to Mercantile Capital Corp., a company whose sole purpose in these transactions appears to have been to hold the mortgage note and then transfer it to the mortgage broker.
Mr. Davis, an owner of Southwest Capital Investment Corp., was to be the mortgage broker and was supposed to sell participation interests in the mortgage to provide funds to purchase a guaranteed investment contract. But investors were never found, and the bond proceeds -- rather than funds from the sale of the mortgage note -- were used to purchase the GIC. The bond proceeds were therefore never available for the housing project.
U.S. District Court Judge William L. Hungate denied a request for a delay in Mr. McCown's sentencing that had been made jointly by the U.S. attorneys and lawyers for Mr. McCown. In sentencing Mr. McCown, the judge said he had received many requests for leniency, including a letter from the Internal Revenue Service, according to sources at the proceeding.
James Martin, the assistant U.S. attorney in charge of the case, said yesterday that "the investigation is still ongoing." But he conceded that the statute of limitations for tax charges will run out at the end of the year.
Meanwhile, bank officials said yesterday that the Securities and Exchange Commission in recent months has issued subpoenas to at least four banks -- Mark Twain Bank, Mercantile Bank of St. Louis National Association, NCNB Texas and Premier Bank -- for documents pertaining to black box deals.
The SEC asked three of the banks for all of their black box deal documents, but asked Premier Bank for documents pertaining to only one deal, the bank officials said. SEC officials refused to comment about their investigation.