UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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THE CITY OF NEW YORK,

Plaintiff,

- against -

ALLEN SMITH, d/b/a CHEAPSMOKE.COM, SCOTT HERRING, d/b/a NCCIGARETTES.COM, JEFF REINHARDT, XFIRE SOFTWARE LLC, KERRY VARLINE and JERRY MAGNANT, d/b/a KEWEENAWBAY OUTFITTERS & TRADING POST,

 

Defendants.

 

 

AMENDED RICO STATEMENT___

03 CV 7715 (DAB)

 

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PLEASE TAKE NOTICE, that pursuant to the Individual Practice Rules of the Honorable Deborah A. Batts, plaintiff the City of New York (the “City”), submits the following Third Amended RICO Statement.

The unlawful conduct is alleged to violate 18 U.S.C. 1962 (c) and (d).

Allen Smith , 1009 East Broadway, Louisville, KY 40204 owns or controls an Internet cigarette business known as Cheapsmoke.com located at www.cheapsmoke.com. Smith directs “Cheapsmoke.com,” to sell cigarettes to New York City residents in violation of N.Y. Pub. Hlth. L. §1399-ll and to conceal those cigarette sales from the New York State tax authorities by refusing to file Jenkins Act reports documenting the sales. He thereby conducts or participates in, directly or indirectly, the conduct of the affairs of the Cheapsmoke.com through the pattern of racketeering activity described more fully in Item f (2) below.

Scott Herring owns or controls an Internet cigarette business known as “NCCigarettes.com” located at www.nccigarettes .com. Herring directs NCCigarettes.com to sell cigarettes to New York City residents and to conceal those cigarette sales from the New York State tax authorities by refusing to file Jenkins Act reports documenting the sales. He thereby conducts or participates in, directly or indirectly, the conduct of the affairs of Nccigarettes.com through the pattern of racketeering activity described more fully in Item f (2) below.

Jeff Reinhardt owns or controls Xfire Software, LLC (“Xfire”), a web-hosting company that generates the Internet website “NCCigarettes.com” located at www.nccigarettes .com and connects it to the Internet. Reinhardt provides essential services to NCCigarettes.com while having actual knowledge that NCCigarettes.com sells cigarettes to New York City residents and conceals the cigarette sales from the New York State tax authorities by refusing to file Jenkins Act reports documenting the sales. Reinhardt thereby conducts or participates in, directly or indirectly, the conduct of the affairs of Nccigarettes.com through the pattern of racketeering activity described more fully in Item f (2) below.

Xfire Software, LLC (“Xfire”) is a web-hosting company that generates the Internet website “NCCigarettes.com” located at www.nccigarettes .com, and connects it to the Internet. Xfire provides essential services to NCCigarettes.com while having actual knowledge that NCCigarettes.com sells cigarettes to New York City residents and conceals the cigarette sales from the New York State tax authorities by refusing to file Jenkins Act reports documenting the sales. Xfire thereby conducts or participates in, directly or indirectly, the conduct of the affairs of Nccigarettes.com through the pattern of racketeering activity described more fully in Item f (2) below.

Kerry Varline , RR1, Box 436, B araga , MI 49908-9774 , owns or controls an Internet cigarette business known as the Keweenaw Bay Outfitters & Trading Post, located at www.k eweenawbay .com. She directs k eweenawbay .com to sell cigarettes to New York City residents and to conceal those cigarette sales from the New York State tax authorities by refusing to file Jenkins Act reports documenting the sales. She thereby conducts or participates in, directly or indirectly, the conduct of the affairs of Keweenaw Bay Outfitters & Trading Post through the pattern of racketeering activity described more fully in Item f (2) below.

Jerry Magnant, 314 or 315 Spruce Street, Baraga, MI 49908-9658 , owns or controls an Internet cigarette business known as the Keweenaw Bay Outfitters & Trading Post (“Keweenawbay Outfitters”). He directs Keweenawbay Outfitters to sell cigarettes over the Internet to New York City residents and to conceal those cigarette sales from the New York State tax authorities by refusing to file Jenkins Act reports documenting the sales. He thereby conducts or participates in, directly or indirectly, the conduct of the affairs of Keweenaw Bay Outfitters through the pattern of racketeering activity described more fully in Item f (2) below.

None known at this time

 

Plaintiff The City of New York is a victim of the mail and wire fraud scheme described herein. The injury to the City is the loss of what may amount to hundreds of millions dollars in cigarette excise taxes that cannot be collected because defendants conceal the sales on which the taxes are owed. Every other State or local government that imposes a use tax on cigarettes and whose residents purchase cigarettes from one of the websites operated by the defendants are also victims because defendants intentionally do not file Jenkins Act reports with these jurisdictions.

Defendants own or control companies that engage in the sale of cigarettes over the Internet to, interalia, New York City residents. The racketeering activity consists of intentionally concealing from New York State tax authorities, and as a direct result, from New York City, cigarette sales made to New York City residents, which sales must be reported pursuant to the Jenkins Act, 15 U.S.C. § 375-378. That concealment constitutes mail and wire fraud. The concealment occurs for every sale made and thus constitutes a pattern.

The description of the pattern of racketeering shall:

 

The predicate acts consist of mail and wire fraud committed through Internet websites and by telephone. The defendants intentionally conceal from New York State tax authorities, and as a direct result, from New York City, cigarette sales made to New York City residents by defendants (or the businesses that they control).

 

The Jenkins Act also requires interstate cigarette sellers to provide state tax authorities with information on the seller’s identity and contact information. All of the defendants or the enterprises that they control have not filed such information, in a further effort to conceal their sales, and in a further demonstration that their conduct is intentional.

 

The intentional failure to file Jenkins Act reports constitutes a device or scheme to defraud state tax authorities of tax revenues and thereby constitutes mail and wire fraud, 18 U.S.C. §§ 1341 and 1343. United States v. Dowling, 739 F.2d 1445 (9 th Cir. 1984); United States v. DeFiore, 720 F.2d 757 (2d Cir. 1983); United States v. Howe, 591 F.2d 454 (8th Cir.1979); United States v. Melvin, 544 F.2d 767, 774 (5th Cir.), cert. denied, 430 U.S. 910 (1977); United States v. Brewer, 528 F.2d 492 (4 th Cir 1975); United States v. Gallant, 570 F. Supp. 303 (S.D.N.Y. 1983).

 

 

The dates on which the various Internet cigarette retailers commenced business is not known. Each of the defendants herein has been engaged in the predicate acts since at least September 2003 and continuing to the present.

 

The Complaint herein sets forth a date or dates on which each enterprise delivered cigarettes into New York State without subsequently making a Jenkins Act filing to report the sale. See Complaint ¶¶ 40-49. Each delivery is thus a predicate act of mail fraud. The City anticipates that discovery will reveal additional predicate acts, committed on a daily or weekly basis, in the form of additional deliveries of cigarettes into New York State, which deliveries were not followed by Jenkins Act reports.

 

Under the Jenkins Act and interpretative case law, a predicate act of mail or wire fraud occurs each time that an enterprise makes a sale of cigarettes in interstate commerce and then fails to report the sale to state tax authorities by the tenth day of the month following the sale. United States v. Dowling, 739 F.2d 1445 (9 th Cir. 1984); United States v. DeFiore, 720 F.2d 757 (2d Cir. 1983); United States v. Howe, 591 F.2d 454 (8th Cir.1979); United States v. Melvin, 544 F.2d 767, 774 (5th Cir.), cert. denied, 430 U.S. 910 (1977); United States v. Brewer, 528 F.2d 492 (4 th Cir 1975); United States v. Gallant, 570 F. Supp. 303 (S.D.N.Y. 1983).

A predicate act occurs on the 10 th day of every month in which defendants have not filed a Jenkins Act report that details the prior month’s sales of cigarettes sold to New York City residents. Because defendants most likely make at least one sale a month to New York City residents, the predicate acts likely occur on a monthly basis, year-round.

 

 

The circumstances constituting the fraud are that defendants conceal from state and local governments cigarette sales on which defendants’ customers owe cigarette taxes. The concealment is effected by defendants’ intentionally not filing Jenkins Act reports, which should occur on the tenth day of every month in which a sale occurred in the preceding month. Defendants, or the enterprises that they control, also fail to register with New York State tax authorities, in order to better conceal their sales.

 

The failure to file Jenkins Act reports, which is the core of the fraud, and to register with New York State tax authorities as an interstate seller, which is in aid of the fraud, occurs in an essentially continuous manner, in that defendants never file Jenkins Act reports on the tenth day of each month following an interstate sale of cigarettes and never register. The fraud began on the date the defendants’ websites began to sell cigarettes and occurred continuously until such time as defendants ceased selling cigarettes to New York City residents. The fraud thus “occurs” at least 12 times per year, on the tenth day of every month following a month that defendants or their enterprises have sold cigarettes to City residents.

 

The particularities of the fraud consist of negative evidence. Through communications with New York State tax authorities, the City of New York has determined that no Jenkins Act reports have been filed either by the defendants or the companies with which the defendants are associated. Nor have any of the defendants or their companies registered as interstate cigarette sellers. Because the companies are known to sell cigarettes to New York City residents on at least a monthly basis, acts of wire or mail fraud related to the non-filing occur on the tenth day of each month in which a sale was made in the prior month to a New York City resident.

 

Much of the information regarding the particularities of the fraud is in defendants’ possession and not the City’s.

 

See also (e)(2) above

 

 

 

Laurie Patterson, a defendant in this action, was convicted on a plea of guilty after being indicted, inter alia, for the same conduct alleged herein.

Ms. Patterson was indicted for mail and wire fraud in connection with the sale of cigarettes over the Internet accompanied by non-filing of Jenkins Act reports. United States v. Adib Mograbi and Laurie Patterson, 3:04 cr 249 (E. D. Va.). Ms. Patterson was ordered in connection with a guilty plea to perform restitution to the City of approximately $500,000, which represented the amount of taxes lost to the City as a result of slightly less than one year’s worth of Internet cigarette sales by Patterson and the enterprises she owned or controlled.

See Exhibit 1 attached hereto.

 

 

Not to the City’s knowledge

 

 

A “pattern of racketeering activity” consists of two or more interrelated predicate acts within a ten-year period that display continuity or the threat of continuity. Each interstate cigarette sale by the enterprises that is not followed by the filing of a Jenkins Act constitutes a predicate act of mail or wire fraud. Each of the Internet cigarette sellers identified herein likely sells at least hundreds of cartons of cigarettes annually to residents of New York City. Defendants direct the enterprises with which they are associated not to file Jenkins Act reports or to register as an interstate seller with the New York tax authorities. It follows that the defendants commit hundreds of essentially identical predicate acts in the course of their routine business. The acts are interrelated in that each sale and subsequent non-report implements the defendants’ business plans. Those plans are to sell cigarettes at prices less than buyers in a particular state pay in their home state, (because the Internet seller need not collect the buyers’ state taxes) and to conceal the sale from state tax authorities so that the buyer – defendants’ customers – can retain the “discount” obtained by purchasing cigarettes free of state and local taxes.. The defendants have carried out this scheme at for as long as the defendants have sold cigarettes over the Internet.

Defendants Scott Herring, Jeff Reinhardt and Xfire Software, LLC have continued to sell cigarettes during the pendency of this action, in violation of New York State law.

 

The predicate acts relate to a common plan. The economic incentive for purchases from the enterprise websites depends upon the purchasers’ subsequent non-payment of taxes owed on the cigarettes purchased. If the taxes are paid, the savings obtained through the Internet purchase largely disappear. The common plan is to preserve the economic incentive for customer purchases by having the enterprises, at defendants' direction, conceal customer sales from state tax authorities, assuring that the customers’ tax evasion will not be detected.

The complaint names three enterprises: “VJ Inc.,” “NCCigarettes.com” and “Keweenawbay Outfitters.”

A description of the enterprise shall:

 

VJ Inc. – VJ Inc. is constituted solely of VJ Inc., a Kentucky corporation that owns or operates the Internet website www.cheapsmoke.com, from which cigarettes and other products are sold over the Internet.

The person who conducts the affairs of VJ Inc. in a RICO-forbidden manner is Allan Smith and other persons unknown to the City at this time.

NCCigarettes.com – NCCigarettes.com is constituted solely of NCCigarettes.com, a North Carolina d/b/a or sole proprietorship that owns or operates the website www.nccigarettes.com, from which cigarettes and other products are sold over the Internet.

The persons who conduct the affairs of the NCCigarettes.com in a RICO-forbidden manner are Scott Herring, Jeff Reinhardt and Xfire Software, LLC.

 

Keweenawbay Outfitters – Keweenawbay Outfitters is constituted solely of Keweenawbay Outfitters & Trading Post, a Michigan d/b/a or sole proprietorship that owns or operates the Internet website www. keweenawbay .com , from which cigarettes and other products are sold over the Internet.

 

The persons who conduct the affairs of the Keweenawbay Outfitters in a RICO-forbidden manner are Kerry Varline and Jerry Magnant.

 

VJ Inc. – VJ Inc. is constituted of VJ Inc., a closely held corporation with a structure typical of such entities.

The purpose of VJ Inc. is to engage in retail sales, largely over the Internet and largely of cigarettes, although the enterprise sells other products as well. The course of conduct of the enterprise is simply that of an ordinary Internet retail seller of product, except that the defendants/persons associated with the enterprise direct the enterprise to conceal interstate cigarette sales from state and local tax authorities and not to register as an interstate cigarette seller.

NCCigarettes.com – NCCigarettes.com is constituted solely of NCCigarettes.com, a d/b/a or sole proprietorship with a structure typical of such entities.

The purpose of the NCCigarettes.com is to engage in retail sales, largely over the Internet and largely of cigarettes, although the enterprise sells other products as well. The course of conduct of the enterprise is simply that of an ordinary Internet retail seller of product, except that the defendants/persons associated with the enterprise direct the enterprise to conceal interstate cigarette sales from state and local tax authorities and not to register as an interstate cigarette seller.

Keweenawbay Outfitters – Keweenawbay Outfitters is constituted solely of Keweenawbay Outfitters & Trading Post, a d/b/a with a structure typical of such entities.

 

The purpose of the Keweenawbay Outfitters is to engage in retail sales, largely over the Internet and largely of cigarettes, although the enterprise sells other products as well. The course of conduct of the enterprise is simply that of an ordinary Internet retail seller of product, except that the defendants/persons associated with the enterprise direct the enterprise to conceal interstate cigarette sales from state and local tax authorities and not to register as an interstate cigarette seller.

 

 

VJ Inc. – Allan Smith is believed to be an officer or director or employee of VJ Inc., which is the enterprise.

 

NCCigarettes.com – Scott Herring is believed to be an employee of the d/b/a, NCCigarettes.com, which is the enterprise.

 

Keweenawbay Outfitters – Kerry Varline and Jerry Magnant are believed to be employees of the d/b/a Keweenawbay Outfitters & Trading Post, which is the enterprise.

 

 

VJ Inc. – Allan Smith is associated with the enterprise.

 

NCCigarettes.com – Scott Herring, Jeff Reinhold and Xfire Software LLC are associated with the enterprise.

 

Keweenawbay Outfitters – Kerry Varline and Jerry Magnant are associated with the enterprise.

 

Facts Common to All Enterprises Described Above – Each enterprise is located in a state in which cigarette taxes, and hence cigarette prices, are lower than in states that have high cigarette taxes. Each enterprise advertises, usually over the Internet, but also by traditional means, the availability of cigarettes at the low prices that prevail in the enterprise’s home state. When the cigarettes are sold to residents of high tax states, such as New York, the purchasers are responsible for paying their home state taxes. However, the enterprises are responsible for reporting the purchases to the purchasers’ state tax authorities. None of the enterprises do so, because the defendants associated with the enterprise direct the enterprise to conceal the purchases from state tax authorities. .

 

 

VJ Inc. – Defendant Allen Smith is a natural person and as such is legally separate from the enterprise, which is constituted solely of VJ, Inc., a corporation. Allen Smith is distinct from the enterprise, but is associated with the enterprise.

NCCigarettes.com – Defendant Scott Herring and Defendant Jeff Reinhardt are natural persons and as such are legally separate from the enterprise, which is constituted solely of NCCigarettes.com, a d/b/a. Scott Herring and Jeff Reinhardt are thus distinct from the enterprise, but are each associated with the enterprise. Defendant Xfire Software, LLC is a limited liability company that has no formal, legal connection to NCCigarettes.com. i.e., it is not an affiliate or subsidiary or parent corporation. Xfire Software, LLC is an entity distinct from the enterprise, but is associated with the enterprise.

Keweenawbay Outfitters – Defendant Kerry Varline and Defendant Jerry Magnant are natural persons and as such are legally separate from the enterprise, which is constituted solely of Keweenawbay Outfitters & Trading Post, a d/b/a. Kerry Varline and Defendant Jerry Magnant are thus entities distinct from the enterprise, but are each associated with the enterprise.

None of the defendants is alleged to be the enterprise itself or a constituent of the enterprise. The defendants are all alleged to be RICO “persons.”

The enterprise and the pattern of racketeering activity are entirely distinct. The enterprise would exist absent any racketeering activity, because the principal activity of each enterprise, the sale of cigarettes over the Internet, is not inherently illegal and does not itself give rise to a predicate act. A predicate act of mail or wire fraud occurs only when the enterprise is directed to conceal cigarette sales from state tax authorities by failing to file Jenkins Act reports. enterprise sales for which Jenkins Act filings are made, or intrastate cigarette sales or sales of non-tobacco products by an enterprise, are not illegal and do not constitute predicate acts. Such sales are a distinct line of legal business in which each enterprise is believed to engage. Each enterprise thus can engage in some legal and some illegal sales, such that the enterprise is not identical to the pattern of racketeering activity.

See response to (g) above.

The enterprises earn millions of dollars they would otherwise not earn if the enterprises filed Jenkins Act reports. If they filed Jenkins Act reports, the City would collect taxes from their customers, and their customers would lose any economic incentive to purchase from the defendants and would purchase cigarettes elsewhere.

A report published by Prudential Financial Research (annexed to an earlier RICO Statement filed herein as Exhibit D) estimates that tax losses to the states from Internet cigarette sales will reach $889.9 million in 2005.

Not applicable

Not applicable

 

VJ Inc. – Defendant Allen Smith may be employed by the enterprise and is associated with the enterprise.

NCCigarettes.com – Defendant Scott Herring may be employed by the enterprise and is associated with the enterprise. Defendant Jeff Reinhardt and Defendant Xfire Software, LLC are associated with the enterprise.

Keweenawbay Outfitters – Defendant Kerry Varline and Defendant Jerry Magnant may be employed by the enterprise and are each associated with the enterprise.

 

No individual or business entity alleged to be a person liable herein is the same entity as the enterprise.

VJ Inc. – The enterprise is VJ Inc. The liable person is Allen Smith.

NCCigarettes.com – The enterprise is NCCigarettes.com. The liable persons are Scott Herring, Jeff Reinhardt and Defendant Xfire Software, LLC..

Keweenawbay Outfitters – The enterprise is Keweenawbay Outfitters & Trading Post. The liable persons are Kerry Varline and Jerry Magnant.

 

The conspiracy alleged is the agreement among the defendants associated with each enterprise to sell cigarettes over the Internet while concealing the sales from New York State tax authorities so that the sales will not be taxed and so that customers will continue to purchase from defendants and their enterprises.

The City of New York loses millions of dollars a year in cigarette excise tax revenue. Other state and local governments lose millions as well, for the same reason.

By concealing taxable sales, defendants make it impossible for the City to collect taxes that are owed to the City.

Cigarettes purchased out-of-state for use in New York State are taxable upon delivery into the state. The in-state purchaser is liable for the tax. State tax authorities are informed of the taxable event by a Jenkins Act report that is by federal law to be filed by the out-of-state cigarette seller. The reports permit the tax to be collected if the purchaser does not do so voluntarily. By refusing to file Jenkins Act reports – a violation of the RICO statute because it amounts to mail or wire fraud – and thereby concealing cigarette sales, the enterprises make it impossible for State authorities to learn of taxes owed. If the reports were filed, the taxes could be collected. Defendants directly cause the tax losses.

Direct causation is evidenced by the fact that the City and State of New York are signatories to a Memorandum of Understanding in which they have each agreed to share all information related to the collection of cigarette excise taxes. See Exhibit 2 hereto. Thus, if the State were to receive Jenkins Act reports, it is bound to provide the information in those reports to the City.

Direct causation is also evidenced by the fact that when the City has been able to identify Internet purchasers of cigarettes, it has been able to collect the excise taxes owed. In 2003 and 2004, the City obtained the names of approximately 3100 persons who had purchased cigarettes from www.cigoutlet.com and S4L, Inc., both former defendants in City suits, and forwarded letters to those individuals demanding the payment of the taxes. To date, the City has received from 1191 purchasers approximately $400,000 in payments out of $1.2 million owed, establishing that “but for” defendants’ concealment, the City could collect the taxes owed.

Each defendant is jointly and severally liable for the amount of cigarette excise taxes that could not be collected on the cigarettes sold to New York City residents by that defendant’s enterprise.

Discovery of the defendants’ sales records will be required to quantify the City’s damages. The City is unable to quantity its total damages with any degree of certainty as a direct result of the defendants’ scheme. The scheme conceals the very information necessary to quantify damages.

None alleged

None

Provide any additional information potentially helpful to the Court in adjudicating your RICO claim.

The attention of the Court is respectfully directed to a report by the United States General Accounting Office, Internet Cigarette Sales: Giving ATF Investigative Authority May Improve Reporting and Enforcement, GAO Report 02-742 (August 2002) (available at http://www.gao.gov/new.items/d02743.pdf) The report examined 147 Internet websites offering cigarettes for sale, including most of the sites at issue here. None of the sites stated that they complied with the Jenkins Act. GAO Report at 16. To the contrary, 78% of the sites expressly stated that they do not report cigarette sales to state tax administrators, or that they maintain customer information as “private,” or that they are not required to comply with the Jenkins Act.

The Court’s attention is also respectfully directed to Exhibit B to the City’s Amended RICO Statement, a report entitled Buying Cigarettes Over the Internet, Prudential Financial Research (September 24, 2002), which describes the activities of Internet cigarette sellers, including some of the enterprises named herein.

The Court’s attention is also respectfully directed to a New York State/New York City joint tax administration and collection agreement, dated June 28, 2002 (“Joint Tax Agreement”) (Exhibit 2 hereto).

Paragraph Eighth of the Joint Tax Agreement provides that:

It is agreed that Taxation [the New York State Department of Taxation and Finance] and Finance [the New York City Department of Finance] shall cooperate fully with each other and keep each other fully and promptly informed with reference to any person or transaction subject to both State and City cigarette taxes as follows:

(1) Information obtained which may result in additional cigarette tax revenue to the State or City provided that the disclosure of that information is permissible under existing laws and agreements;

* * *

(3) All violations of Article 20 of the Tax Law or Chapter 13 of Title 11 of the [Administrative Code of the City of New York] and all facts or information tending to indicate any such violation.

(emphasis added).

Accordingly, with respect to the collection of cigarette taxes, New York City will be “fully and promptly” informed by the New York State Department of Taxation and Finance of any information relevant to the collection of cigarette taxes, including Jenkins Act reports.


Finally, the Court is respectfully directed to Exhibit 3 attached hereto, which illustrates the relationship between the number of orders received by an Internet cigarette seller from particular states, and the amount of the state’s cigarette excise tax.

Dated: New York, New York
February 16, 2005

MICHAEL A. CARDOZO
Corporation Counsel of the
City of New York
Attorney for Plaintiff The City of New York
100 Church Street, Room 3-158
New York, New York 10007
(212) 788-1324

By:

Eric Proshansky (EP 1777)
Assistant Corporation Counsel

 

The statements in this amended RICO Statement are based on the City’s knowledge as of the date of this Second Amended RICO Statement and are subject to amendment as additional facts become known to the City.

The term “member” is not defined under the RICO statute and the City accordingly cannot state whether any defendant is a “member” of an enterprise. When an enterprise consists of two or more entities, the City refers to the entities as “constituting” or “composing” the enterprise.

Some payments are being made in installments, so that the total amount collected will increase. Four hundred of the letters were returned with forwarding addresses. Those letters will be re-mailed.

Article 20 of the Tax Law and Chapter 13 of title 11 of the Admin Code relate respectively to cigarette excise taxes and include §§ 471 and 471-a and § 11-1302 imposing a tax upon cigarettes possessed for sale and use.


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