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Major Fraud Actof 1988 Hearings Committee on The MAJOR FRAUD ACTOF 1988 HEARINGS BEFORE THE SUBCOMMITTEE ON CRIME OF THE COMMITTEE ON THE JUDICIARY HOUSE OFREPRESENTATIVES ONE HUNDREDTH CONGRESS FIRST AND SECOND SESSIONS ON H.R. 3500 and H.R. 3911 MAJOR FRAUD ACT OF 1988 DECEMBER 3, 1987, AND MARCH 16, 1988 Serial No.92 Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 91-712 WASHINGTON : 1989 For sale by the Superintendent of Documents, Congressional Sales Office U.S. Government Printing Office, Washington, DC 20402 COMMITTEE ON THE JUDICIARY PETER W. RODINO, JR., New Jersey, Chairman JACK BROOKS, Texas HAMILTON FISH, JR., New York ROBERT W. KASTENMEIER, Wisconsin CARLOS J. MOORHEAD, California DON EDWARDS, California HENRY J. HYDE, Illinois JOHN CONYERS, JR., Michigan DAN LUNGREN, California ROMANO L. MAZZOLI, Kentucky F. JAMES SENSENBRENNER, JR., WILLIAM J. HUGHES, New Jersey Wisconsin MIKE SYNAR, Oklahoma BILL McCOLLUM, Florida PATRICIA SCHROEDER, Colorado E. CLAY SHAW, JR., Florida DAN GLICKMAN, Kansas GEORGE W. GEKAS, Pennsylvania BARNEY FRANK, Massachusetts MICHAEL DEWINE, Ohio GEO. W.CROCKETT, JR., Michigan WILLIAM E. DANNEMEYER, California CHARLES E. SCHUMER, New York PATRICK L. SWINDALL, Georgia BRUCE A. MORRISON, Connecticut HOWARD COBLE, North Carolina EDWARD F. FEIGHAN, Ohio D. FRENCH SLAUGHTER, JR., Virginia LAWRENCE J. SMITH, Florida LAMAR S. SMITH, Texas HOWARD L. BERMAN, California RICK BOUCHER, Virginia HARLEY O. STAGGERS, JR.,West Virginia JOHN BRYANT, Texas BENJAMIN L. CARDIN, Maryland M. ELAINE MIELKE, GeneralCounsel ARTHUR P. ENDRES, JR., Staff Director ALAN F. COFFEY, JR., Associate Counsel SUBCOMMITTEE ON CRIME WILLIAM J. HUGHES, New Jersey, Chairman ROMANO L. MAZZOLI, Kentucky BILL McCOLLUM, Florida GEO. W. CROCKETT, JR., Michigan LAMAR S. SMITH, Texas EDWARD F. FEIGHAN, Ohio E. CLAY SHAW, JR., Florida LAWRENCE J. SMITH, Florida GEORGE W. GEKAS, Pennsylvania HARLEY O. STAGGERS, JR.,West Virginia HAYDEN GREGORY, Counsel ERIC E. STERLING, Associate Counsel PAUL MCNULTY, Associate Counsel LINDA C. HALL, Editor (II) CONTENTS HEARINGS HELD Page December 3, 1987 1 March 16, 1988 149 WITNESSES Text of bill [H.R. 3500] 2 Statement of Hon. Charles B. Grassley, a Senator from the State of Iowa 7 Hon. Dennis M. Hertel, a Representative of Congress from the 14th Congres­ sional District of Michigan 14 John C. Keeney, Deputy Assistant Attorney General, Criminal Division, United States Department of Justice, accompanied by William C. Hen­ dricks, Chief, Fraud Section, and Donald J. Davis, Manager, Fraud and Prohibited Mailings Branch, United States Postal Inspection Service 31 Derek J. Vander Schaaf, Deputy Inspector General, United States Depart­ ment of Defense 57 Fred J. Newton, Deputy Director, Defense Contract Audit Agency 83 Dina Rasor, Project on Military Procurement 99 Clarence T. Kipps, Jr., Esquire, on behalf of the U.S. Chamber of Commerce; Alan R. Yuspeh, Esquire, on behalf of the Electronic Industries Association; and Christopher Cross, on behalf of the Professional Services Council 191 Alan R. Yuspeh 269 Christopher Cross 284 APPENDIX Letter to Congressman William J. Hughes, Chairman, Subcommittee on Crime from John R. Bolton, Assistant Attorney General, United States Department of Justice 317 A Staff Report of the Justice Department Investigations of Defense Procure­ ment Fraud: A Case Study 322 Excerpt from Public Law 99-562, October 27, 1986—Section 4. Entitlement to Relief for Discrimination by Employers Against Employees who Report Violations 381 Letter to Congressman William J. Hughes, Chairman, Subcommittee on Crime from C. Stanley Dees, Chairman, Section of Public Contract Law, American Bar Association 383 Letter to Congressman William J. Hughes, Chairman, Subcommittee on Crime from John J. Stocker, President, Shipbuilders Council of America 395 Letter to Congressman William J. Hughes, Chairman, Subcommittee on Crime from Joseph G. Gerard, Vice President, American Furniture Manu­ facturers Association 397 Letter to Edward O'Connell, Subcommittee on Crime from Gary D. Engegret­ son, Executive Director, Contract Services Association 399 Letter to Congressman William J. Hughes, Chairman, Subcommittee on Crime from Arthur H. Lowell, Chairman, Committee on Government Busi­ ness, Financial Executives Institute 403 (III) MAJOR FRAUD ACT OF 1987 THURSDAY, DECEMBER 3, 1987 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CRIME, COMMITTEE ON JUDICIARY, Washington, DC. The subcommittee met, pursuant to call, at 11:00 a.m., in room 2226, Rayburn House Office Building, Hon. William J. Hughes (chairman of the subcommittee) presiding. Present: Representatives Hughes, Mazzoli, and McCollum. Staff present: Hayden Gregory, chief counsel; Edward O'Connell, counsel; Paul McNulty, associate counsel; and Phyllis Henderson, clerk. Mr. HUGHES. Good morning, and welcome to the Subcommittee on Crime's hearing on H.R. 3500, the Major Fraud Act of 1987. [A copy of H.R. 3500 follows:] (1) 2 I 100TH CONGRESS 1ST SESSION H. R. 3500 To amend title 18, United States Code, to provide increased penalties forcertain major frauds against the United States. IN THE HOUSE OF REPRESENTATIVES OCTOBER 15, 1987 Mr. HUGHES (for himself, Mr. MCCOLLUM, Mr. HERTEL, Mr. MAZZOLI, Mr. FEI­ GHAN, Mr. SMITH of Florida, Mr. STAGGERS, Mr. SHAW, Mr. CROCKETT, and Mr. SMITH of Texas) introduced the following bill; which was referred to the Committee onthe Judiciary A BILL To amend title 18,United States Code, to provide increased penalties for certain major frauds against theUnited States. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States ofAmerica in Congress assembled, 3 SECTION 1.SHORT TITLE. 4 This Act may be cited as the "Major Fraud Act of 5 1987". 6 SEC. 2.CHAPTER 47 AMENDMENT. 7 (a) IN GENERAL.—Chapter 47 of title 18, United 8 States Code, is amended by adding at the end the following: 3 2 1 "§ 1031. Major fraud against the United States 2 "(a) Whoever, having devised or intending to devise any 3 scheme or artifice to defraud, or for obtaining money or prop- 4 erty by means of false or fraudulent pretenses, representa- 5 tions, or promises, defrauds or attempts to defraud the United 6 States in any procurement of property or services for the 7 Government, if the consideration for such property or serv- 8 ices is $1,000,000 or more shall be fined under this title or 9 imprisoned not more than 7 years, or both. The fine imposed 10 for an offense under this section may exceed the maximum 11 otherwise provided by law if such fine does not exceed twice 12 the amount which is the object of the fraud. A prosecution of 13 an offense under this section may be commenced any time 14 not later than 7 years after the offense is committed. 15 "(b) Upon application by the Attorney General, the 16 court may order a payment from a criminal fine under this 17 section to an individual who furnished information leading to 18 the conviction under this section. The amount of such pay- 19 ment shall not exceed $250,000. An officer or employee of a 20 government who furnishes information or renders service in 21 the performance of official duties is not eligible for a payment 22 under this subsection.". HR 3500 IH 4 3 1 (b) CLERICAL AMENDMENT.—The table of sections at 2 the beginning of chapter 47 of title 18, United States Code, 3 is amended by adding at the end the following new item: "1031. Major fraud against the United States.". o HR 3500 IH 5 Mr. HUGHES. This hearing continues the subcommittee's long- standing interest in the area of white collar crime with today's em­ phasis being on procurement fraud, one of our most significant eco­ nomic crimes. In today's hearing, we will discuss a disturbing trend of succes­ sive scandals in procurements for spare parts, overhead charges, malfunctioning equipment and various other fraudulent schemes that bilk the American taxpayers of billions of dollars and at the same time diminish their confidence in the Executive Branch's ability to efficiently administer essential governmental functions. To put this in perspective, in the Defense Department area alone, we spend about $600 million every day in over 5,500 installa­ tions where we, directly or indirectly, employ 6.3 million people. In this process, the Department of Defense deals with over 60,000 prime contractors to meet its requirements for items ranging from basic supplies and equipment to major weapon systems. This tremendous quantity of procurement makes the potential dollar impact of this type of fraud enormous and, unfortunately, as in Murphy's Law, the worst possible case often happens. As a consistent advocate for a strong defense, the testimony we will hear today is particularly distressing to me. It contains docu­ mentation of greed and malfeasance in the private sector of astro­ nomical proportions, combined with inefficiency and acquiescence by the Federal Government. Today, we will consider the Major Fraud Act of 1987, a bill I in­ troduced, with some of my colleagues, on October 15 to address the problem of procurement fraud. H.R. 3500 creates a new procure­ ment fraud offense. In situations involving $1 million or more, the time-tested language in the Mail Fraud Act would be applied, with a new enhanced penalty of up to seven years imprisonment upon conviction. The bill also would provide an extension of the statute of limita­ tions in which prosecutions could be initiated to seven years, rather than the normal five years, to accommodate the extensive investigation often required in this type of fraud. Increased fines, based upon double the object of the fraud—for example, a $20 mil- lion fine in the case of a $10 million contract—are permitted rather than existing criminal law which is couched in terms of pe­ cuniary gain to the defendant or loss to the Government. Finally, the bill establishes a reward system under which up to $250,000 can be paid from the criminal fine to individuals who pro- vide information leading to the convictions under this act.
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