June 9, 2007 in City
Turner convicted in Met case
SEATTLE – A federal jury convicted former Metropolitan Mortgage & Securities Co. executive Thomas Turner of three felonies Friday morning.
It took the jury several hours to reach its guilty verdict in a complicated case that boiled down to whether they believed Turner was an honest dealmaker for Metropolitan. They didn’t and convicted him of lying to and hiding information from Metropolitan’s outside auditors, Ernst & Young LLP.
Now 56, Turner may be sent to prison when U.S. District Judge John Coughenour sentences him in October. Nonplussed when the judge read the verdict, Turner told his lawyer after the jury left: “Well, guys, I don’t know what else we could have done.”
The case is the latest in a string of high-profile federal government actions against executives of publicly traded companies.
Turner is the first Metropolitan official to be convicted of white-collar crimes in Spokane’s largest corporate failure.
About 16,000 investors have lost a half-billion dollars in the aftermath of Metropolitan’s bankruptcy filing in February 2004. The company collapsed under the weight of federal investigations and a cash crunch that forced it to default for the first time in 50 years on payments to investors.
With Turner’s conviction in hand, Joseph Capone, a prosecutor with the U.S. Department of Justice’s fraud section, said the FBI investigation of Metropolitan continues.
“It’s been an ongoing investigation and continues to be an ongoing investigation. That’s all we can say.”
Four central figures in the questionable real estate deal that Turner lied about to auditors are former Metropolitan Chairman and Turner’s boss C. Paul Sandifur Jr., former controller Robert Ness, David Syre, the owner of Bellingham timber and property developer Trillium Corp., and Dan Sandy, a Trillium creditor. None of the four men took the witness stand in the eight-day trial.
Sandy and Ness have settled a lawsuit by the U.S. Securities & Exchange Commission that closely parallels the case against Turner, while Sandifur and Syre are still fighting the claims.
Capone said he doesn’t know if Ernst & Young will use the Turner conviction in its defense of several professional-negligence lawsuits and an arbitration case – actions that could result in claims against the accounting firm in the tens of millions of dollars.
Met investors have long hoped that those suits would recover money from Ernst & Young to help boost their payout, which has so far been just 6 cents to 9 cents on the dollar.
The Washington state Office of the Insurance Commissioner has sued Ernst & Young. So have a group of investors and a special bankruptcy trust.
The verdict stunned Turner’s attorney David Marshall, who told jurors that Turner was an innocent man used as a scapegoat by outside accountants Ernst & Young.
“I’m completely surprised at the verdict,” Marshall said. “My client had an unblemished 19-year career at Metropolitan.”
Marshall cast Ernst & Young’s partner overseeing Metropolitan’s audit, Jack Behrens, as an unreliable witness with a big stake in ensuring Turner’s conviction.
Behrens gave devastating testimony that Turner lied to him about a sham real estate deal that Metropolitan booked as a $10 million gain.
The move enabled the firm to report a 2002 year-end profit of $3.9 million rather than a loss of about $6 million. A loss would have been the third straight year in the red for the struggling firm.
Staring at losses in 2002, Turner salvaged a series of failed attempts to sell two parcels of property and book the gain.
Turner led Metropolitan’s negotiations with Trillium, arranging to loan the cash-strapped firm $17.6 million. Trillium used the money to repay Sandy more than $5 million, according to testimony.
Meanwhile, Sandy set up a shell company named after his teenage son called Jeff Properties LLC. He used the money from Trillium to make the down payment on the Metropolitan properties. The remainder of the purchase was a loan.
Because the deal was not an arms-length transaction, accounting rules don’t allow the property seller to book the sale as a gain.
Turner did it anyway. Capone said Turner, the No. 2 executive in the Metropolitan group of companies, hoped that the company’s false return to profitability would ease a tough SEC review of the company’s plans to issue $150 million in new bonds and preferred stock.
When Turner brought the property deal to Ernst & Young’s Behrens, the Met executive assured him that Sandy and Trillium were independent of each other. This assurance, Behrens testified, allowed him to say the deal was OK and Metropolitan could book its gain.
Within months the ruse began falling apart as William Smith, Metropolitan’s new chief financial officer, grew suspicious.
Turner’s lies in 2002 to Behrens led to his conviction, along with Turner’s purposeful omission in an important memorandum to Ernst & Young of key elements of the Trillium/Jeff Properties deal and his signing of a document attesting to the accuracy of company financial reporting though he knew it was false.
Capone said the government had focused on one aspect of the Metropolitan debacle during the trial: “The conduct of Tom Turner.”
Ernst & Young’s accounting practices were never an issue for the prosecutors, he said.
“Those were irrelevant to the jury,” said federal prosecutor William Stapleton, who worked with Capone on the case.