Diana Nemes, who was arrested with her husband Radu Nemes in Yelm last month for alleged involvement in a tax scheme that defrauded the Romanian government of $73 million, is appealing a detention order.
Additionally, an affidavit by a special agent with the FBI filed in court alleges that several Yelm individuals helped the Nemeses launder illicit money gained from the tax scheme.
Diana Nemes’ lawyer argues in a petition for a writ of habeas corpus — a court order requiring a hearing to determine if a subject is appropriately detained — that Nemes’ detention violated due process and she should be released on bail pending the extradition hearing to take care of her children. Nemes is pregnant and has two children who are currently in the custody of Child Protective Services.
A hearing is scheduled for 9:30 a.m. April 21 in the courtroom of U.S. District Judge Robert J. Bryan in Tacoma.
An affidavit filed in court implicates local residents in the Nemes’ alleged criminal activity.
The FBI’s investigation developed probable cause that Greg Simmons, Marian and Elena Licxandru, Vasile and Ilianuta Micu and Florin Gogu “have conspired with and/or aided and abetted the Nemes’ in their efforts to launder the proceeds of their Romanian tax fraud scheme,” FBI Special Agent Kyle McNeal wrote in an affidavit filed in court.
The Licxandrus are the owners of La Gitana pizza restaurant in Yelm, which also has a location in Olympia, and they have been students at Ramtha’s School of Enlightenment.
Simmons was the marketing director of Ramtha’s School of Enlightenment before retiring last March. The Nemeses were also students at the school.
Marian Licxandru referred questions to his lawyer, Wayne Fricke, who said he doesn’t think anyone is suggesting the Licxandrus did anything wrong.
“It may be that someone else was using them to do something wrong, but certainly, right now, I don’t believe they’re a target of this investigation,” he said, adding that that’s ultimately for the investigating agents to decide.
Fricke said his clients have been cooperative with the investigating agents.
A man who answered a phone number listed as Simmons’ said, “I can’t comment on that” when asked if he was Simmons, and hung up.
When asked if the aforementioned individuals were being investigated by the FBI, an FBI spokesperson said via email, “We do not confirm or deny investigations, aside from what gets put into filed court documents.”
Evidence collected by the FBI shows the Licxandrus, Micus, Gogu and Simmons have opened joint bank accounts with the Nemeses or joint business interests controlled by the Nemeses used to launder hundreds of thousands of dollars from the tax scheme, according to the affidavit. They also helped the Nemeses conceal assets obtained with illicit funds and have facilitated financial transactions indicative of money laundering, the affidavit states.
But Diana Nemes’ petition questions the Nemeses’ wrongdoing, and that’s one of several core arguments in her effort to be released pending the extradition hearing.
U.S. Magistrate Judge Karen Strombom made no finding of probable cause that Diana Nemes committed a crime before issuing a warrant for her arrest, Nemes’ lawyer, Martha Boersch, states in court documents.
The allegation that Nemes supported a tax fraud scheme in Romania by controlling shell companies used in the scheme and laundering proceeds of the alleged crimes through bank accounts in Dubai, is “conclusory” and “erroneous,” the lawyers write, and they contend there’s nothing in the documents submitted by Romania or in the U.S. government’s complaint that supports “such a sweeping allegation.”
Boersch argues the Nemeses operated several highly-profitable companies engaged in lawful commercial activities in Romania. The allegations amount to nothing more than a tax dispute, she wrote.
“The two governments do not claim that the Nemeses trafficked in illicit substances or profited through any illegal activities,” she wrote. “At most, there appears to be a tax dispute about the amount of excise tax paid on diesel fuel.”
There’s evidence the Nemeses didn’t owe any additional taxes, she added.
The U.S. government claims in its response that questions of whether there was sufficient probable cause is a question for the extradition hearing, not to determine whether Nemes should be released on bail. Additionally, claims that the Romanians’ case are weak are defenses that should be raised and tried in Romania, not in regard to the extradition case, they wrote.
Nemes’ lawyer also took issue with the judge’s conclusion that there were no special circumstances warranting Diana Nemes’ release.
Nemes is approximately five months pregnant and further incarceration could jeopardize the pregnancy or result in the child being born in jail, and courts have considered the health of a potential extraditee among the factors considered a special circumstance, Boersch argued.
“The United States and its political subdivisions have consistently treated pregnant prisoners in a degrading fashion, which includes not providing adequate prenatal care and often keeping prisoners shackled during the birth process,” she wrote.
Boersch also wrote that federal detention center in SeaTac, where the Nemeses are detained, has been criticized for providing poor medical care to inmates.
But the government writes that there is “absolutely no evidence whatsoever to suggest Ms. Nemes is not receiving proper medical care for her pregnancy or that Ms. Nemes’ pregnancy is in the nature of a serious health condition establishing special circumstances.”
The detention facility at SeaTac is “perfectly capable of meeting her medical needs during her pregnancy and provides a level of care greater than that available to many citizens of Romania or the United States,” Boersch wrote.
She argued the couple’s children are not being adequately cared for. The couple’s two boys are in foster care with “strangers” who do not speak Romanian, she wrote, and they have not been allowed to visit their parents or speak with them on the phone.
“The extraordinary anguish that the government has inflicted on Diana Nemes and her two young boys through the forced removal and deprivation of contact between Ms. Nemes and her children is certainly a special circumstance, particularly given the lack of probable cause and the lack of any necessity for the dawn raid and forced removal of the children,” Boersch wrote.
Boersch argued the availability of bail in Romania, Nemes’ lack of a criminal record, lack of probable cause, lengthy delays, and the Romanian government’s failure to adequately identify Diana Nemes as the person wanted in Romania, are all special circumstances warranting Nemes’ release.
During the detention hearing, the judge found Nemes to be a flight risk. But Boersch argued in court documents her client would not risk fleeing. Nemes arrived in the country on a valid visa, she wrote, and is in the process of updating her original, expired, visa into an investor visa.
If she failed to appear at her extradition hearing, it would “destroy any hope she has of being allowed to stay here. There should be no question but that Diana Nemes would not risk the consequences that would inevitably befall her were she to fail to appear as ordered in these proceedings.”
Boersch argues Nemes couldn’t flee even if she wanted to, as the government has seized “every asset she has.”
“She therefore has no means whatsoever to flee,” she wrote.
Measures could also be taken to alleviate concerns of Nemes fleeing, such as releasing her to home confinement, giving her strict reporting requirements, or requiring her to wear an electronic monitor.
But the government argues Nemes continued to launder money after arriving in the U.S. in 2012, and that the alleged criminal behavior “reinforces that she is a particularly high risk of flight and also presents a danger to this community.” Guns found at the Nemeses’ residence also suggest she would be a danger to the community, the government wrote.
Boersch’s contention that her clients’ due process rights were violated stems from McNeal’s affidavit, which she claims was provided to the judge “secretly” without being provided to Nemes or her lawyers, and which was the basis for the judge determining Nemes had unaccounted for funds which could be used to flee the country.
Boersch contends there are no funds unaccounted for, and say the arrest warrants and affidavit weren’t provided to the Nemeses until after the bail hearing on March 20.
“This withholding of the Government’s secret, ex parte contacts with Magistrate Judge Strombom violated due process under the Fifth Amendment,” she wrote, and if the affidavit had been disclosed, Nemes could have contested the allegations in it.
In its response, the government claims there is evidence Nemes has unaccounted for assets.
“Given the number of accounts and companies and the assets known to have been acquired by the Nemes, it was also reasonable for Judge Strombom to conclude that there remain significant assets to which Diana Nemes has access, to enable her to leave the country with her children,” they wrote.
According to court documents, an FBI accountant determined there is approximately $2.75 million in gold and silver coins purchased by the Nemeses that is unaccounted for. Therefore, the Nemeses’ contention that the government seized all their money is “plainly untrue,” the government wrote.
“The existence of at least $2.5 million in hidden assets is enough by itself to establish that Diana Nemes is a significant flight risk,” they wrote.