Operation Bermuda Short In Retrospect

Securities Lawyer 101 - William David JonesMany penny stocks have bad histories, or are associated with questionable players.  Only last December, convicted felon Edward Durante was civilly and criminally charged in a securities fraud and manipulation scheme he’d embarked upon immediately after leaving prison in 2009.  He managed to escape detection for years by using a number of aliases and variations of his name.  One-time bad actors don’t always go that far, though they almost always attempt to conceal their unsavory pasts.

A case in point is William David Jones.  Jones currently works with Kaya Holdings, Inc (KAYS) as a “consultant.”  Between 2010 and April 2015, KAYS was Alternative Fuels America, Inc (AFAI), a biofuels company hoping to score in the then-hot alternative energy industry.  Despite the efforts of its CEO Craig Frank, that didn’t happen, so in 2014 Frank decided to take the company in a new direction.  The following year, KAYS changed its name and ticker, claiming to be the “first publicly traded seed-to-sale marijuana business.”  Frank chose to establish his operation in Oregon, which had recently legalized recreational as well as medical marijuana.  KAYS is by no means the first public pot company—there are at least 300 public entities that deal in marijuana or peripherals like grow equipment or vapes—but it’s one of approximately 50 that are Securities and Exchange Commission (“SEC”) registrants.  Currently, KAYS has two dispensaries in Oregon, one in Portland, the other in Salem.  They’re branded as “Kaya Shacks.”

At the official KAYS website, W. David Jones, as he now calls himself, is described as a special adviser for business development who came on board in 2013, when KAYS purported to be in the biofuels business.  His biography goes on to say that he “has been an active member of the South Florida business community for approximately 30 years.”

Not exactly.  Jones started out as a stockbroker shortly after he graduated from college in 1983.  The firms that employed him were not pillars of the financial community; six of the nine he worked for were eventually expelled by the National Association of Securities Dealers (NASD; now the Financial Industry Regulatory Authority, FINRA).  In 1988, a client accused Jones of trading in his account without permission; Jones said he believed he was authorized to make the trade in question.  In the end, without admitting or denying liability, he was censured by FINRA and fined $1,000.  A year later, he was in trouble again.  The SEC brought an administrative action against him in September 1990, alleging a number of violations of the securities laws.  Three years later, Jones agreed to settle, and the suit was dropped.  He was barred from acting in a supervisory capacity for any broker-dealer for two years.

The offenses cited in the SEC’s complaint occurred while Jones was working for Profile Investments Corporation in Fort Lauderdale, Florida.  Profile, now defunct, had been founded in 1983 by Robert Schlien, though it apparently didn’t become operational until 1985.  Schlien began his career as a broker in 1981, when he went to work for the notorious Blinder, Robinson & Co., familiarly known as “Blind ’em and Rob ’em.”  Profile didn’t last long.  In 1990, the NASD revoked the firm’s registration in connection with a disciplinary action involving the sale of unregistered securities, Schlien was fined $25,000 and barred from the securities industry for 18 months.  He was sanctioned by the Florida Department of Banking and Finance as well.

Unable to work as brokers, Schlien and Jones shifted to penny stock promotion.  The work they did for a company called Sky Scientific that landed them in yet more trouble.  Sky, based in Boca Raton, Florida, was formed in 1991 as a privately held mining company.  In March of 1993, Sky engaged in a reverse merger with a public shell called Winner’s Circle, Inc., and began trading on the NASDAQ.  At that time, it had 1.6 million shares outstanding, and its market cap was a modest $2 million.  Once the reverse merger was complete, the company began to issue press press releases that had little or no basis in reality.  They claimed gold and silver production was underway at a number of Sky’s properties, and boasted reserves that were entirely invented, given that Sky had not conducted the necessary feasibility studies.  It in fact even lacked the government permits necessary to undertake large scale mining operations.

The Form 10-K Sky filed for the year ended February 28, 1994 painted a rosy picture:  the company’s assets had increased from $1.5 million to an impressive $67.7 million.  Most of the latter figure–$40 million–was accounted for by the supposed acquisition of “restricted certificates of deposit” issued by a Russian bank on the last day of Sky’s fiscal year.  The “Russian CDs” were paid for with Preferred Class A stock, to which Sky had attached an arbitrary value that added up to $40 million, though the stock was untradable and worthless.  The SEC eventually concluded that Sky’s financial statements were “materially false.”

Sky began to arrange for the promotion of its stock in 1992, before it had completed the reverse merger with Winner’s Circle.  The promoter they chose was Robert Schlien, who by that time had created a Florida company called American Capital Network, Inc. (“ACN”).  Schlien later claimed he’d arranged the Winner’s Circle reverse merger, given advice about acquisitions, and reviewed company press releases.  Schlien brought two friends, Melvin Levine and William David Jones, on board to lend a hand.  A few months later, Philip Georgeson joined the group, tasked with contacting brokers and distributing “leads” to them.  Georgeson worked with Jones and Jones’s firm Best Business Leads on that project.  Schlien and Levine also cooked up a glossy mailer called “Wall Street Watch.”  Jones and Schlien paid for the printing and mailing.  About 350,000 brochures were sent out during the summer of 1994.  They contained a brief, and for the SEC inadequate, disclaimer explaining that “Officers, Directors or affiliates of the publisher may from time to time have a position in the securities mentioned herein, or receive compensation for the dissemination of information on the company.”

As with email blasts and hard mailers used in stock promotion today, the Wall Street Watch offered a mixture of hyperbole and entirely false statements.  The most absurd was the claim that an unnamed “expert” had “explained” that extracting the gold from Sky’s Tallulah mine “is like pushing a cart down a supermarket aisle, picking food from the shelves and tossing it into a basket.”

The SEC became aware of the promotional scheme early on.  In July 1994, it sent a Commission geologist to visit three of Sky’s properties.  She concluded that no mining activity at all was taking place.  In the following months, Sky issued a significant amount of stock, and paid much of it to the promoters through Form S-8 registration statements as compensation for consulting.  The stock was sold through Canadian brokerage Canaccord.

The SEC brought an administrative proceeding against Sky, its officers, a number of brokerages and brokers, and Schlien, Georgeson, Levine and Jones in December 1996.  Jones denied that he was involved in the promotion of the stock, though he admitted that he sold leads to Schlien’s ACN, and also sent them directly to brokerages.  He also relayed trading instructions for the sale of Sky stock to Canaccord.  Though Jones denied receiving compensation from Sky, the SEC disagreed, noting that he and his Best Business Leads were paid $4.5 million from the Canaccord accounts, of which Jones personally got more than $1.9 million.

In its initial decision, handed down in March 1999, the SEC administrative judge ordered that Jones be disgorged of $4,546,500, the largest amount demanded of any of the defendants.  Jones, along with Schlien, Levine, Georgeson, and a fifth defendant, Daniel Lehl, appealed the decision a few months later.  The appeal was denied in 2002, and the penalties imposed on Jones and the others upheld.

In the meanwhile, Jones had even more serious problems on another front.  In May 1998, he was criminally convicted in Federal court in Nevada of conspiracy, securities fraud, and wire fraud in connection with the sale of more than $3 million in the stock of a penny company called Teletek, Inc.  The Teletek and Sky scams had much in common:  crooked promoters, bribed brokers, complicit company management and more.

Teletek was a Nevada company that traded as a NASDAQ Small Cap; a related company, United Payphone Services (UPAY) was a Pink Sheet.  Michael Swan, one of the masterminds of the scheme, was president of UPAY by late 1991, and became an officer and director of Teletek in the following year.  UPAY needed money, and so in November 1991, Swan and several co-conspirators met in California to discuss raising the necessary cash by bribing brokers to recommend UPAY to their customers.  Part of the plan was to buy a controlling interest in Teletek from its president, Keith Shwayder.  Schwader had no objection, and duly issued the shares.  Throughout 1992, brokers were bribed, and their clients purchased the UPAY and Teletek stock they recommended.  Teletek was perceived as the more desirable of the two because it was a NASDAQ issuer; UPAY became a subsidiary of Teletek, but continued to trade separately.

Throughout 1992, the perpetrators purchased and sold hundreds of thousands of shares of stock in the two companies, using the proceeds to pay bribes to brokers and promoters, provide operating funds for UPAY and Teletek, enrich themselves, and to buy more stock to repeat the scheme.  The shares were issued through fraudulent S-8 registration statements claiming they were payment for consulting services, and through Regulation S placements.  Among the brokerages used was a Boca Raton firm called R. B. Webster; among the broker-employees bribed was William David Jones, then operating as “David Jones.”  (He had not yet been sanctioned by the NASD, and was still a registered representative in 1992.)  Once the operation was in full swing, dozens of brokers were involved, though in the end only 11, including Jones, were indicted; presumably some had cooperated with the grand jury investigation. Swan and the other “masterminds” of the scheme were charged separately.

According to the federal indictment handed up in Nevada in September 1997 and related documents, Jones persuaded his clients to buy more than $1.4 million of Teletek stock, obviously not telling them that he’d been bribed—and also paid unusually high commissions—to make the recommendations.  The cash payments were sent to his home via FedEx.  Though at first he’d been paid by Robert Orkin, the owner of R. B. Webster, he cultivated a personal relationship with Michael Swan, and eventually received money directly from him.

Jones had not played a starring role in the Teletek scheme, but evidently he’d learned much that would prepare him for the Sky Scientific scam, in which Schlien had invited him to participate once he’d lost his broker’s license in 1993.  Around the same time, Jones gained control of a small brokerage called Hunter International.  He used Hunter in the Sky fraud, paying at least two of his brokers bribes to sell $3 million worth of Sky stock to unwitting victims.  The government had also alleged that during the same period, “Jones also engaged in other similar illegal activity,” but no details were provided.  Of the 30 Teletek defendants, Jones was one of only four who did not plead guilty quickly, but once he was convicted, he offered valuable information about Swan to the prosecution.  (Swan and the non-broker co-conspirators were not tried until 1999.)  Back in 1995, when his involvement with Teletek was long over, he and Swan had a telephone conversation in which Swan discussed past payoff arrangements, and offered to resume them.  Perhaps Jones was by then aware he was under investigation, or perhaps he just wanted an ace in the hole:  he recorded the conversation.  Federal authorities described the tape as “extremely valuable,” and also expressed their gratitude to Jones for a lengthy explanation of “the normal functioning of the stock market, as contrasted with the Teletek scheme” that he’d offered in testimony at Swan’s trial.  Swan himself ultimately cooperated as well, but nonetheless received a sentence of 80 months in prison.

Jones did not immediately serve time in connection with the 1998 Teletek conviction; his sentencing was deferred.  Initially, that was because of the help he’d provided with the Swan prosecution, but his situation soon became more complicated.  By 2000, the SEC’s suit against the Sky Scientific perpetrators was nearly over, but a parallel criminal action was underway in Florida, and Jones and Robert Schlien were defendants.  Both were looking for a way to save themselves, and agreed to cooperate when they were approached by the authorities and asked to take part in a sting operation known as Bermuda Short.

The plan was for an undercover FBI agent, Mike Palasek, to set up shop in Schlien and Jones’s offices located inside a law firm on A1A in Boca Raton.  Schlien and Jones let it be known that they had $8 million to invest every month, posing as representatives of a British mutual fund with a corrupt hedge manager.  Soon issuers and market participates were lined up at the door, willing not only to sell worthless penny stock to the trio, but also to pay them substantial undisclosed fees, which the government characterized as “kickbacks.”  Once money was on the table, the FBI swooped in and made arrests that were not immediately announced.  The operation expanded far beyond the Feds’ initial expectations, and eventually resulted in 58 indictments.

The FBI agent who worked full time with Jones and Schlien considered them to be “the best cooperating witnesses” he’d ever known.  In fact, after leaving the FBI, the agent entered into a business with the duo which subsequently failed.

Though a juror in one Bermuda Short trial described Jones and Schlien as “slime,” they got what they wanted:  reduced sentences in their pending cases.  Or so it seemed.  Jones’s sentencing negotiations ran into a snag.  In 1998, a presentencing report had recommended 41 months’ incarceration in connection with the Teletek case, but subsequently, in light of the cooperation that led to Swan’s conviction, he expected a significant downward departure.  Instead, in 2003, the prosecution demanded an upward departure and a recommended 70 months.  Jones, believing time was being added for his Sky Scientific misdeeds, was outraged, and protested that his plea agreements—one in Nevada and one in Florida—specified that “no information provided by the defendant in connection with his cooperation will be used to enhance his sentence under the applicable Guideline range.”

In the end, the government agreed, and granted a downward departure of three levels.  Schlien spent no time in prison; Jones was sentenced to 33 months, and restitution in the amount of $1,431,766.  He was released in January 2007.  It is unknown whether he ever paid any of that restitution.  In its request for the downward departure, the Teletek prosecution noted that the “defendant continues to live a lavish lifestyle without any visible means to support his current standard of living.  Even though the defendant faces a substantial prison sentence in this case, he has incurred substantial debts, appears to be making no efforts to reduce his living expenses and has made no efforts at all to compensate any victims.”

William David Jones has now resurfaced and is an adviser and consultant to Kaya Holdings.  He’s filled the same roles for other small companies, including Carlton Wingett’s Mission Mining Company (MISM) and PMX Communities Inc (PMXO).  He also publishes investor relations materials including among others, an online newsletter called “Wall Street Profit Search.”  Unlike the “Wall Street Watch” that promoted Sky Scientific, the new publication features some disclosure of his role, though not mentioning his criminal history, a material omission.  The publication identifies itself as a “market awareness company” that receives compensation for its work.  Payments for promotion are made through his BMN Consultants, a Florida company.

Jones promoted MISM in 2013 and early 2014.  According to disclosure made at the Wall Street Profit Search site, he was to be paid 2 million restricted shares over a two year period by Mission Mining itself, for “investment banking consulting and market awareness work.”  In addition, he was to receive 2.1 million free trading shares from a “third party, non-affiliate shareholder.”  At the time the disclosure was made, he’d been paid 600,000 free trading shares and 500,000 restricted shares, and had sold them in a private transaction for $15,000. MISM and Jones make no disclosure of Jones’ background or as to how Jones was eligible to receive “free trading” shares, since no registration statement was filed.

Wall Street Profit Search provided “awareness” for PMXO at around the same time.  Before that, Jones had done consulting work for the company, for which he’d been paid 2.1 million shares that were, at the time of the promotion, free trading.  He expected to be paid up to $50,000 for a three-month promotional campaign. Like MISM, there is no disclosure of Jones’ background or how he was eligible to receive such shares.

At the KAYS website, he’s described as a consultant, but he’s also offered “awareness” through Wall Street Profit Center.  His disclosure on the subject is not up to date, but as of 31 January 2014, he’d received $150,000 in fees and approximately $100,000 in reimbursement of expenses.  These sums were paid, once again, by a “third party, non-affiliated shareholder(s) of AFAI [as it was called then] under common control and ownership by the owner of WSPS.  This… entity acquired 3 million… free trading shares of AFAI from two other third-party, non-affiliated shareholders… in exchange for… $60,000.”  By that time, Jones had sold 2.2 million shares, and intended to sell the remaining 800,000 during the first quarter of 2014.  Those transactions may have netted him up to $300,000, with luck.  He was also under contract as a consultant at $5,000 a month.  At the beginning of 2014, he was owed $50,000; no fees had yet been paid.

Jones also received an option to acquire 1 million shares of commons at $0.05 a share in connection with his consulting agreement, and an option to acquire 25,000 shares of Series C preferred stock at $0.10 a share.  That option was offered by a company insider.  If Jones exercised the option, the Series C stock could be converted into approximately 10.6 million shares of commons.  Since he made no more recent disclosure, whether he exercised either option is unknown.  KAYS’s Form 10-K, for fiscal year 2014, reveals only that BMN received 15 shares of the convertible preferred stock of Marijuana Holdings Americas, Inc, a KAYS subsidiary.  That gave him 15 percent ownership of the subsidiary.

It’s also unknown how many other clients BMN, Wall Street Profit Search, or any of Jones’s other companies may have.  The “Featured Companies” page at Wall Street Profit Search’s website has no content.

In response to a shareholder inquiry about Jones, KAYS CEO Craig Frank offered a ringing endorsement, saying that Jones is a “treasured and trusted asset” to the company, a “highly knowledgeable professional” who “spotted” the marijuana market opportunity.  Frank added reprovingly that “[o]ur American values suggest that after the punishments imposed have been paid, and after many years of exemplary behavior, past indiscretions are forgiven.”  While Frank may not think so, reasonable investors no doubt consider Jones’ background to be material.

Few market participants would characterize two criminal convictions as “indiscretions.”  But investors and penny stock participants would be wise to pay attention to company insiders’ earlier misdeeds, especially when they’re undisclosed. No doubt recipients of Jones’ stock reports would consider his background material and his appearance in the cannabis industry suspect.

For further information about this securities law blog  post, please contact Brenda Hamilton, Securities Attorney at 101 Plaza Real S, Suite 202 N, Boca Raton, Florida, (561) 416-8956, by email at [email protected] or visit  www.securitieslawyer101.com.   This securities law blog post is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as, and does not constitute legal advice on any specific matter, nor does this message create an attorney-client relationship.  Please note that the prior results discussed herein do not guarantee similar outcomes.

Hamilton & Associates | Securities Lawyers
Brenda Hamilton, Securities Attorney
101 Plaza Real South, Suite 202 North
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855