.Barry Witz
Monday, August 25, 1997
Buyer, Beware!
Dizzying deals raise questions about California's fast-growing Osicom Technologies
By Bill Alpert
Behind the Veil of Secrecy
Just a few years ago, Barry Witz and Parvinder Chadha were ponytailed promoters of penny stocks. By early this year, though, the ponytails were gone and the duo had transformed Osicom Technologies Inc., into one of California's fastest-growing companies, with $120 million in annual revenues. Chadha was being hailed as a technology visionary, and he boasted that Osicom had better technology for computer networking than its far-larger rival, Cisco Systems. Witz and Chadha also liked to note that Osicom had won multimillion-dollar orders to supply equipment to the likes of MCI Communications, GTE and NASA.
But close scrutiny of Chadha, who is Osicom's chief executive, and Witz, who until June served as an Osicom director, reveals a series of deals that have left investors tens of millions of dollars poorer over the past five years. Neither Witz nor Chadha has been charged by regulators or prosecutors with benefiting at the expense of other shareholders. But both are subjects of active criminal investigations on both sides of the Atlantic because of the pair's extensive dealings with one John J. O'Carroll, whom British investigators describe as a henchman for a guy who's been convicted of laundering $136 million for the Cali drug cartel. On top of that, a variety of firms run by Witz and Chadha, including Saratoga Brands, Builders Warehouse and Osicom, have failed to tell their shareholders that Witz was named an unindicted co-conspirator in a fraud prosecution of stock promoters linked to the Mafia.
The very first stock deal that brought Witz and Chadha together five years ago is still the object of an enforcement suit by the Securities and Exchange Commission as well as a federal criminal prosecution and two class-action suits by disappointed investors. That 1992 deal concerned Scorpion Technologies, a software firm that engaged in a massive fraud, according to testimony by former employees.
In March 1991, when Scorpion's shares were languishing, along came Barry Witz offering to remedy the situation by introducing Scorpion to the brokerage community. The genial attorney's background was impressive. He had worked at the SEC, the New York Stock Exchange and some Chicago law firms. A 350-pound workaholic who was often on the road, Witz had also worked for Carl Icahn, run an ice cream franchise, and even helped produce such movies as the 1984 Mob spoof, Johnny Dangerously.
The Scorpion board hired Witz the day before the firm's chief executive, Terry Marsh, announced new image-scanning software that would generate $12 million in revenues for the firm. With products like that, Scorpion was beginning to sound like a stock that would almost sell itself.
Soon, Scorpion President Marsh was bragging that his software was becoming "the de facto standard in the image-conversion business." Before 1991 was out, Scorpion's shares soared from 48 cents each to $7.59.
Barry Witz has lost his ponytail and quite a bit of weight, too.
Strong earnings would appear to explain the surge. Scorpion reported 55 cents a share in earnings for 1991, on $12.5 million in sales. But come the spring of 1993, as investors awaited Scorpion's financial results for 1992, the FBI raided the company's offices and seized dozens of boxes of financial records. The National Association of Securities Dealers halted trading in the stock. When it resumed trading, it fetched a mere 19 cents a share.
Three years passed before Scorpion investors learned why the feds busted their software company. In February '96, the SEC finally accused Marsh and five others of a massive fraud that had used bank accounts and companies located in 20 countries. In a complaint filed in Manhattan's federal court, the Commission said that nearly 80% of Scorpion's reported software sales had been shams. The enthusiasm generated by those fake sales reports gave Scorpion's promoters the chance to unload 22 million of the company's shares at prices as high as $2.50 apiece, the complaint says.
The SEC also says that most of those shares were quietly distributed overseas via Regulation S of the Securities Act of 1933. Until it was tightened late last year, Reg S allowed companies to sell unregistered stock at a discount to foreigners without telling U.S. shareholders. After a brief waiting period, the foreign holders could then freely sell the shares back into the U.S., often reaping handsome profits in the process ("Easy Money," Barron's, April 19, 1996). Many Reg S violations involve foreigners acting as frontmen for U.S. investors, which is patently illegal. This is what the government says happened in the Scorpion deal.
Specifically, the SEC charges that the foreign buyers of Scorpion's Reg S shares illegally split their profits with Scorpion itself, allowing the company to get its hands on some real cash and perpetuate the ruse that it was selling lots of software. In August of '96, federal prosecutors in San Francisco brought criminal stock-fraud and money-laundering charges against Marsh and eight others. But juries will have to wait until next year to weigh the government's evidence in these cases, which are contested by all but two minor defendants.
Two class-action suits by Scorpion shareholders are also proceeding in federal courts in Manhattan and San Francisco, and one of those suits names Witz as a defendant. Roomfuls of brokerage firm records and deposition transcripts put the San Francisco class-action attorneys at Lieff Cabraser Heimann & Bernstein ahead of the government in unraveling Scorpion's dealings. The names of Par Chadha and Barry Witz appear frequently in these materials, which include recent testimony by Scorpion's ex-controller, Eric C. Brown.
"There was just massive fraud on behalf of management," Brown says in his deposition. He tells of counting the company's share of illicit stock sales and trying to figure out how much of the loot to mislabel as "software sales." Brown's sworn deposition gains credibility from the unsparing way he admits his own wrongdoing, which included phonying financial reports, lying to Scorpion's auditors and smoking pot. Such admissions can only hurt Brown's criminal defense.
Brown tried to explain his acts by noting his history of manic depression, for which he sometimes took medication. "I had just gotten over being extremely sick ... . I just wanted a job, a stable place to work," he says of his Scorpion tenure. Witz and Chadha contend that Brown's testimony is not credible.
To get Wall Street behind Scorpion's stock, Witz and an associate bribed brokers with free or discounted shares, Brown says he was told. Brown says Marsh told him "they were going out to different brokerage firms and priming the market. They would be giving shares away to different brokers." In an interview with Barron's, Witz denied this.
In his testimony, Brown describes how Scorpion made the money from stock sales appear to be the receipts of software sales. In the June 1991 quarter, Brown testified, true profits were lower than Marsh liked, so Marsh's brother Tracy sat down at his computer and printed out counterfeit purchase orders in the names of two ersatz Hong Kong distributors. "You'd better not ever tell anybody you've seen this," he says Tracy Marsh warned him.
Shortly after Brown saw Tracy Marsh forge the purchase orders, Scorpion received three cashier's checks worth over $1.2 million. Copies of the checks in the class-action evidence show they were drawn on the Chekiang First Bank accounts of two Hong Kong firms, Polastra and Rykoff, which were supposedly software distributors.
Scorpion's outside auditors from Grant Thornton once sent an assistant to visit those Hong Kong distributors, according to the depositions of Grant Thornton partners. But at the supposed address of the software firms, the auditors instead found a personnel agency owned by Michael Horne, whom Eric Brown identifies in his deposition as a "puppet" of Marsh and a Scorpion lawyer named Jack T. Dawson. The SEC has charged that the Hong Kong firms funded their $1.2 million in cashier's checks not from distribution of Scorpion software but from distribution of Scorpion stock by Horne and a sidekick. Brokerage records, included as evidence in the Scorpion shareholder suit, support that allegation. Today, Horne is a fugitive from the Scorpion criminal indictment.
Other funds flowing into Scorpion indicate the involvement of Witz. Later in 1991, in fact, Scorpion got three more cashier's checks totaling $686,000, all on the same day and all from the same Chekiang bank. This time, the money came from the bank accounts of Argyle Partners, Edgewood Partners and Helton Ventures. Signed forms and letters at U.S. brokerage firms show that these entities were all partnerships of Witz, a lawyer named Ed Fisch and a more notable third partner: Richard Kirschbaum, a man who had cut a destructive swath through the stock market in a career-long team-up with the swindler Ramon D'Onofrio. |
